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2011 DIGILAW 363 (CAL)

Manas Bose @ Basu v. STATE OF WEST BENGAL

2011-03-14

KANCHAN CHAKRABORTY

body2011
JUDGMENT Kanchan Chakraborty, J. 1. THIS appeal is directed against judgment and order dated 22.12.2008 and 23.12.2008 passed by the learned Additional Sessions Judge, Fast Track, Court No. 2, Paschim Midnapur in Sessions Trial No. 9 of 2005 in connection with Ghatal P.S. Case No. 4 of 2002 dated 9.1.2002 under sections 366, 366A, 376 and 368 of the Indian Penal Code thereby convicting the appellant under sections 376 and 343 of the Indian Penal Code and sentencing him to suffer R.I. for seven (7) years and to pay a fine of Rs. 1,000/-, in default to suffer simple imprisonment for a period of six(6) months for the offence punishable under section 376 of the IPC and sentencing him to suffer R.I. for two(2) years and to pay a compensation of Rs. 25,000/- to the victim girl within two months from the date of the order. 2. RANJIT Kumar Pal filed one petition of complaint in the Court of learned Sub-Divisional Judicial Magistrate, Jhargram on 22.11.2000 alleging therein that Mita Pal, his unmarried minor daughter, born on 10.11.1994, used to visit the house of her elder sister Uma Pal. During her stay there, Uma used to take her to her Guru's Assram at Konnagar. On 29.7.2000, Uma came to the house of RANJIT Kumar Pal and asked for Rs. 5,000/- as temporary loan for the purpose of construction of her house. She also asked her father to send Mita to her house for the purpose of choosing suitable groom for her marriage negotiation. RANJIT, did not agree to that but ultimately was convinced by his elder daughter Uma that mere showing to prospective groom does not mean marriage. On 2.8.2000, Rahul Pal, close relation of Uma, came to the house of RANJIT Pal and requested him to allow Mita to accompany him to the Uma's house. As Rahul was familiar to the family of RANJIT's family, RANJIT did not object and Mita left for Uma's house with Rahul on 2.8.2000. On 3.8.2000 RANJIT went to Ghatal in order to give Rs. 5,000/- to his elder daughter Uma. He found Uma and Mita behaving abnormally. He also found that Uma advised Mita to take coconut water. She had taken coconut water offered by Uma at the instance of Manas Basu. On the same date both Uma and Mita being aggressive and furious, demanded that Mita should get married to Manash Basu. 5,000/- to his elder daughter Uma. He found Uma and Mita behaving abnormally. He also found that Uma advised Mita to take coconut water. She had taken coconut water offered by Uma at the instance of Manas Basu. On the same date both Uma and Mita being aggressive and furious, demanded that Mita should get married to Manash Basu. Mita threatened of committing suicide in case her demand is not fulfilled. On the same date, in the evening, RANJIT had been to the Assarm of Uma's Guru Manas Basu. He found the door partially open. He peeped through that door and found that Mita was dressed in bridal sari and Manas Basu was in bride groom dress sitting side by side. RANJIT became motionless and speechless. He came back to Uma's house, spent the night and returned back to his house accompanied by some one in the morning of the next date. He was perplexed and confused as what to do. Since it was a family scandal it was decided after continuous discussion with elders and family members that the incident should not be reported to police. However, it was decided on 5.8.2000 that Mita should be recovered at once without police help RANJIT, the de facto complainant, together with his near relatives met Kalu Bose on 6.8.2000 at 6 a.m. Kalu Bose was a local municipal commissioner of Ghatal at that time. RANJIT narrated everything to him and Kalu Bose promised to extend his co-operation in the matter of recovery of Mita from the clutches of Manas Bose. Thereafter, RANJIT and his family members entered into Assram of Manas Bose. Manas Bose was found sitting in the room with his two daughters i.e. Mita and Uma. Seeing RANJIT, Mita started crying and wanted to come to RANJIT, her father. Manas and Uma resisted her but somehow RANJIT managed to rescue Mita and took her back to his house by the said taxi which he hired for coming to Gahata. Mita did not say anything on 6.8.2000 but on 7.8.2000, she narrated the entire story. She stated that on 2.8.2000, on her arrival to Uma's house she was continuously persuaded to marry Manas Bose. Manas Bose sent green coconut water which she consumed and thereafter she lost her power of reasoning. She started obeying commands directions given to her. A kind of abnormality developed in her which continued till 6.8.2000. She stated that on 2.8.2000, on her arrival to Uma's house she was continuously persuaded to marry Manas Bose. Manas Bose sent green coconut water which she consumed and thereafter she lost her power of reasoning. She started obeying commands directions given to her. A kind of abnormality developed in her which continued till 6.8.2000. She also disclosed that Uma and other devotees of Manas Bose were controlled and hypnotised by him with application of coconut water and other drags. On 6th August, 2000, husband of Uma and sister-in-law Uma came to RANJIT's house and took Uma back to Ghatal. Mita disclosed further that Uma, her elder sister, being highly influenced by Manas Bose entered into a criminal conspiracy to get Mita married with Manas. Mita further disclosed that she was under believe that she was married to Manas Bose and thereby had sexual intercourse with him which was virtually rape onher and that she was confined in the Assarm of Manas Bose from 3.8.2000 to 5.8.2000. However, RANJIT did not take any positive step against accused Manas Bose. Manas Bose, in the meantime filed a suit for restoration for conjugal life claiming therein Mita to be his legally married wife. Under such circumstances, RANJIT being father of Mita had to lodge a petition of complaint in the Court of learned SDJM, Jhargram on 22.11.2000. That petition of complaint was referred to Ghatal Police Station and on the basis of said petition of complaint Ghatal Police Station Case No. 4 of 2002 dated 9.2.2002 was started against Manas Bose, Uma Pal, Manu Pal and Rahul Pal under sections 366, 366A, 367 and 368 of IPC. The case was investigated into and finally a charge-sheet was filed against the accused persons under the above mentioned sections. The learned Additional Sessions Judge, Fast Track, 2nd Court, Paschim Midnapur framed charge against Manas Bose, Uma Pal and Manu Pal under sections 366, 366A, 368 and 343 read with section 34 of the IPC as well as under section 376 against Manas Bose. In all ten (10) witnesses were examined on behalf of the prosecution. The written complaint, the statement of Mita under section 164 of the Cr. PC, the seizure list, admit card of Madyamik Examination of Mita, medical report of Mita were admitted into evidence on behalf of the prosecution and marked exhibit 1 to 5 respectively. In all ten (10) witnesses were examined on behalf of the prosecution. The written complaint, the statement of Mita under section 164 of the Cr. PC, the seizure list, admit card of Madyamik Examination of Mita, medical report of Mita were admitted into evidence on behalf of the prosecution and marked exhibit 1 to 5 respectively. The defense case as it appears from the trend of cross-examination and answers given to the questions put to the accused persons in course of their examination under section 313 Cr. PC, was a complete denial to the prosecution case and that a specific case is made out by the defense that at the instance of Ranjit, the father of Mita and their close relations the marriage between Mita and Manas Pal took place according to Hindu Rights and Customs. Mita was forcibly taken by her father and other relatives from the custody of Manas for which he had to file a matrimonial suit praying restoration of conjugal rights. Since Mita was his legally married wife, the appellant Manas had every right to live with her and cohabit with her. The defense also adduced documentary evidence such as written statement filed on behalf of the Mita in matrimonial suit (Exhibit A), latters (Exhibit B) and (Exhibit C), one certificate (Exhibit D), one searching slip and one photograph (Exhibit E and F). The learned Trial Court upon consideration of the evidence on record, both oral and documentary, came to a findings that accused Uma Pal and Manu Pal are not guilty to the charges leveled against them. They were acquitted. However, learned Trial Court found Manas Bose, the appellant herein is guilty of offence under sections 376 and 343 IPC and convicted him thereto. The learned Court sentenced him to suffer R.I. for 7 years and to pay a fine of Rs. 1,000/-, in default to suffer S.I. for one month for the offence under section 343 IPC, which would run concurrently. The learned Court sentenced him to suffer R.I. for 7 years and to pay a fine of Rs. 1,000/-, in default to suffer S.I. for one month for the offence under section 343 IPC, which would run concurrently. Manas Bose has challenged that judgement and order passed by the learned Trial Judge on 23.12.2008 on manifold grounds, mainly- a) the learned Trial Court was oblivious of the fact that there was inordinate delay of two years in filing the FIR; b) that the learned Court failed to consider that the marriage between the appellant and victim Mita had taken place according to Hindu Rights and Customs; c) that there was no resistance from the part of Mita in the matter of co-habitation with Manas being his legal wife; d) that learned Court erred in holding that Mita was a minor below 16 years at the relevant time; and lastly e) the learned Court failed to consider the conduct of the de facto complainant, his family members, the victim girl and believed a story which no man having ordinary prudence would accept to be true; 3. THE point to be considered in this appeal is whether the judgement impugned is sustainable in law. 4. A criminal action sets in motion with filing of a complaint or FIR. Herein, the FIR was lodged in form of a petition of complaint under section 156(3) of the Cr. PC in the Court of learned SDJM, Jhargram on 22.11.2000. The alleged incident or series of incidents forming part of offences alleged took place from 3.8.2000 to 5.8.2000. So, at the very outset what is found that the FIR/ petition of complaint was lodged long after three months from the date of incident that too after initiation of matrimonial suit under section 9 of the Hindu Marriage Act for restoration of conjugal rights by the appellant Manas Bose. A plausible ground is given by the prosecution for the delay in lodging complaint, i.e., fact being a family scandal, the family members of the victim girl did not like to make the incident public. This ground taken by the prosecution/respondent is a common ground taken generally in almost all the cases of like nature where there is inordinate delay. The question is whether or not that ground is acceptable in the fact and circumstances of this case. This ground taken by the prosecution/respondent is a common ground taken generally in almost all the cases of like nature where there is inordinate delay. The question is whether or not that ground is acceptable in the fact and circumstances of this case. It may be that question of family scandal was involved and for that police was not informed. But informing police and get the matter investigated by police is altogether a different matter than informing co-villagers about the incident and rescue the girl from the clutches of the appellant. If the purpose of not informing police so as to remain the matter undisclosed then the said very purpose would obviously fail if co- villagers are be informed because this kind of news spreads like fires once co- villagers come to know about the incident. Therefore, the ground taken by the prosecution does not appear to be acceptable one. I find that the learned Trial Court did not at all consider this question of delay in lodging the FIR while passing the judgment and order. It is needless to mention that the victim girl i.e. Mita is the best witness to the incident and that being so, her evidence in the Court, statement made by her under section 164 Cr. PC and contradiction in her statement in Court with her statement recorded under section 161 of the Cr. PC are of material importance. The prosecutrix has been examined as P.W. 2. She has stated that on 2.8.2000 when she returned back home after taking private tuition, he found Rahul Pal in her house who came to take her to elder sister's (Uma) house. Having reached there, her elder sister and her husband gave her green coconut water to drink which was sent by appellant Manas Bose. She was told to drink that coconut water by the appellant and according to that instruction, Uma and her husband pursued Mita to drink green coconut water on 3.8.2000 at about 11 a.m. to 12 noon. Uma also drunk said coconut water. That coconut water was brought by an unknown person who instructed Uma that she should positively take Mita to the Assarm of appellant Manas. That man also instructed that father of Mita i.e. Ranjit should also attend the place of appellant in that evening. Uma also drunk said coconut water. That coconut water was brought by an unknown person who instructed Uma that she should positively take Mita to the Assarm of appellant Manas. That man also instructed that father of Mita i.e. Ranjit should also attend the place of appellant in that evening. After consuming coconut water, the P.W. 2 Mita lost her rationality and started to act as per instructions of the appellant. Uma took her to appellant's place where she was dressed as a bride and thereafter appellant pretended to have married her in presence of many persons (Sannashis) and took photographs of the marriage. Appellant Manas confined Mita from 3.8.2000 to 6.8.2000 in his Assarm forcibly and during this three days, he committed rape on her after administering same medicines, tablets, water and flowers etc. While Manas, the appellant rapped her, vedio of the same was also recorded. She was also compelled to sign various papers during that period. On 6.8.2000 at 7 a.m. her father and others rescued her from the appellant and took her back to her house. She regained her rationality from 7th August, 2000 and narrated the incident to her parents and other relatives. In the mean time, appellant started publishing some latters, photographs etc. from the village to village. The P.W.2 Mita started further that she disclosed everything to the police and to the Magistrate who recorded her statement. She was examined by doctor and her age was determined. She stated also that at that relevant period of time she 15 years and 9 months old. 5. IN her cross-examination, he stated that she wrote the petition of complaint filed by her father Ranjit, (the complaint was, in fact, a type application not handwritten). She stated in her cross-examination that she failed to remember whether green coconut water was sent by the appellant through an unknown person. She has stated in her cross-examination that Uma, her elder sister, did not ask her to do anything when she reached in the house of the appellant. She stated further in her cross-examination that she reported police that she was dressed as a bride by some Sannashis of the appellant. She has further stated that she stated police that accused Manas thereafter pretendent to have married her in presence of others. She stated further in her cross-examination that she reported police that she was dressed as a bride by some Sannashis of the appellant. She has further stated that she stated police that accused Manas thereafter pretendent to have married her in presence of others. She stated also in her cross-examination that during the time co-habitation photographs were taken and at that time she had no power to resist but could understand everything. She stated further that she informed the police that the appellant got some papers signed by her at that time. She stated in her cross-examination that during rape, the appellant applied medicine and she lost her capacity to resist. After drinking water of coconut she failed to understand as to whether she had taken anything further or not. She stated in her cross-examination that she made statement to the police that appellant administered medicine on her and thereafter raped her forcibly and she sustained bleeding injuries on her private parts which stained her clothing. She became ill. At the time of medical examination, the injury sustained by her was shown to the doctor to whom she reported also that the appellant had committed rape on her by applying force and owing to such forcible rape, she sustained injury on her chest and other parts of her body such as breast, face etc. She stated further in her cross-examination that the injury sustained by her was also shown by her to her mother. She attended privy and latrine during her stay at the appellant place. Although she met Uma in the morning of 6th August, she did not narrate anything to Uma. At that time, she was a student of class XI. The FIR was made by her father. She stated further that she knew about the matrimonial suit wherein she appeared although she failed to remember whether or not any written statement was filed on her behalf in that suit. She denied that at the relevant period of time she was a major and that her parent negotiated her marriage with the appellant through Uma and accordingly, the marriage had taken place socially. She could not, however, deny that she wrote the letter which has been marked as Exhibit B. She denied also that her parents also forcibly took her from the custody of appellant. She could not, however, deny that she wrote the letter which has been marked as Exhibit B. She denied also that her parents also forcibly took her from the custody of appellant. In her cross-examination she stated further that her elder sister Uma and her relative Sarbani never wanted to cause any harm on her and she has no complaint, whatsoever, against Uma and Sarbani as well as Rahul. 6. THE prosecutrix made statement under section 164 Cr. P.C. which recorded by the learned Magistrate and marked Exhibit 2. It appears from the Exhibit 2 that the prosecutrix the P.W.2 stated before the Magistrate that when she reached the house of her elder sister Uma, she was told by Uma and Manu to drink coconut water and thereafter she felt drowsy and failed to understand what was good and what was wrong. On the next date, Uma took her to the house of appellant where she was forced to live till 6th August when her parents and other relatives rescued her therefrom. From 7th August, she could understand that something wrong happened in her life and that she thought that during her stay in the house of appellant, the appellant applied force on her in order to do evil things. The incidence alleged started on and from 2.8.2000 till 6.8.2000, i.e. the date the P.W.2 Mita Pal was rescued by her father Ranjit, the P.W.I, mother the P.W.3 and others. The petition of complaint was lodged in the Court of learned Sub-Divisional Judicial Magistrate on 22.11.2000. Prior to that a suit- under section 9 of Hindu Marriage Act praying for restoration of conjugal rights filed by the appellant against the prosecutrix Mita Pal and notice was served on her. The statement under section 164 Cr. P.C. was recorded by the learned Magistrate on 16.1.2002. The prosecutrix was examined in Court as P.W.2 on 10.7.2007. If the FIR, the statement under section 164 Cr. P.C. of the prosecutrix and her statement in Court as P.W.2 are considered together, it will reveal that the version of the prosecutrix has been improved as time passed by. There is manifest development/improvement in the prosecution story. The FIR shows that on 3.8.2008 when Ranjit (P.W 1) came to Ghatal, he found that Mita and Uma were behaving abnormally. Uma advised Mita to take coconut water to avoid strain of journey. There is manifest development/improvement in the prosecution story. The FIR shows that on 3.8.2008 when Ranjit (P.W 1) came to Ghatal, he found that Mita and Uma were behaving abnormally. Uma advised Mita to take coconut water to avoid strain of journey. In the statement under section 164 Cr. PC, the prosecutrix stated that when she reached house of Uma on 2.8.2000, she was offered coconut water by Uma and Manu and she felt drowsy and lost her sense of good and bad. While she was examined as P.W.2 on 10.7.2007 she stated that she was offered coconut water by Uma and Manu when she reached Uma's house on 2.8.2000. Again, on 13.8.2000 between 11 a.m. to 12 noon she was again offered coconut water by Uma. She was asked to go to the place of appellant and her father also asked to go to the house of the appellant in the evening. Uma also drunk coconut water. The P.W.2 i.e. prosecutrix stated further that after taking coconut water she lost her rationality and acted according to the instructions given by the appellant. She was taken to appellant's place, was dressed like a bride thereafter, in presence of lady disciples, appellant pretended have married her. This facts are conspicuously absent in the statement made by the P.W.2 under section 164 Cr. PC. Taking coconut water again on 3.8.2000, direction of the appellant to take her to his place/Assram, direction of appellant to take her father to his Assarm in the evening and that she lost her rationality after taking green coconut water on 3.8.2000 have not also been mentioned at all by the prosecutrix while she made statement under section 164 of the Cr. PC. She did not state in her statement also under section 164 Cr. PC that in the Assram of the appellant some lady disciples decorated her as a bride and that, in presence of lady disciples, appellant pretended to marry her. This factum of losing rationality after taking coconut water on 3.8.2000 and married in presence of lady disciples either have been suppressed by the prosecutrix or subsequently stated in order to development/improvements of the prosecution case keeping in mind the story made out in the written complaint. Her statement in Court that the appellant committed rape on her - applying some medicine, tablets, water, flower etc. Her statement in Court that the appellant committed rape on her - applying some medicine, tablets, water, flower etc. and that appellant became naked and she was also made naked during course of alleged rape and that video of the same was taken have not been stated by the prosecutrix while her statement under section 164 Cr. PC was recorded. She did not even state before the learned Magistrate that she was forced to sign some blank papers. The discrepancies in the statement of prosecutrix recorded under section 164 of the Cr. PC and in the statement made by her as P.W. 2 are prominent and significant. One fact should not be lost site of that the written complaint was filed on 22.11.2000 i.e. about three months after the alleged incidence and in between this period, a matrimonial suit under section 9 of the Hindu Marriage Act was filed by the appellant praying for restoration of his conjugal rights with the prosecutrix. 7. AGAIN, she stated in course of cross-examination that she made statement before the police to the effect that on the date she reached Uma's house, Uma offered her coconut water and she failed to recall whether she stated police that appellant had sent coconut water for her. She was not sure whether she stated police that on the following day after going to the house of the appellant she could not realize what happened. She also stated in her cross-examination that she informed the police officer that she was dressed as a bride in the house of the appellant and appellant pretended to marry her in presence of his disciples. The Investigating Officer of the case was examined by the learned Trial Court as the P.W.10, He has categorically denied that the prosecutrix state him that appellant sent coconut water for her with a request to drink the same. He further stated that the prosecutrix did not state him that the appellant instructed Uma to bring her and her father to his place. However, the P.W.10, the I.O. of the case, admitted that the prosecutrix stated him that on the following date she went to the house of the appellant and failed to understand what happen there. He further stated that the prosecutrix did not state him that the appellant instructed Uma to bring her and her father to his place. However, the P.W.10, the I.O. of the case, admitted that the prosecutrix stated him that on the following date she went to the house of the appellant and failed to understand what happen there. The P.W.10 denied that the prosecutrix stated him that some of the disciple dressed her as a bride and appellant Manas pretended to have married her in presence of his disciples and that photographs were taken at that time and at the time of co-habitation. The P.W.10, the I.O. of the case, denied further that the prosecutrix stated him that she had no capacity to resist the appellant to do all that sorts of things and got some blank papers signed by her. She did not state also that owing to forcible rape, she sustain bleeding injuries on her private parts. According to the evidence of the prosecutrix as P.W.2, she stated all the facts to the I.O., i.e., the P.W.10. There is sharp and specific contradiction between the statement of the prosecutrix and the I.O. in this regard. The fact that the prosecutrix stated that she sustained bleeding injury on her private parts was not stated to the I.O. of the case. According to the statement of the prosecutrix as P.W.2, she also informed that fact to the doctor who examined the prosecutrix and deposed as P.W.9. The P.W.9 stated that no mark of injury was detected by him on the private parts of the prosecutrix. No where the P.W.9 stated that the prosecutrix told her that she sustained bleeding injury on her private parts because of forcible rape by the appellant. It is true that statement under section 161 Cr. PC are not part of FIR and can not be used in evidence excepting for the purpose of taking contradiction by the defense, but the defense is entitled to show improvements in the prosecution case vis- a- vis the allegations in the FIR. Defense can use that contradiction to question the genuineness of the allegations and the aspersions put forth in the FIR. 8. ON careful scrutiny of the evidence of prosecutrix as the P.W.2, the facts averred in the FIR, the statement under section 164 Cr. Defense can use that contradiction to question the genuineness of the allegations and the aspersions put forth in the FIR. 8. ON careful scrutiny of the evidence of prosecutrix as the P.W.2, the facts averred in the FIR, the statement under section 164 Cr. PC of the prosecutrix and the evidence of the I.O. (P.W.10) it appears that the prosecution has improved the case in course of time and added so many things in course of trial which were not disclosed at the time of lodging of the FIR, at the time the statements of the prosecutrix under section 164 Cr. PC were recorded and at the time the I.O. recorded the statement of the prosecutrix in course of investigation. The learned Trial Court, in fact, failed to consider this aspect of the prosecution case. The learned Trial Judge believed the statement of the prosecutrix sacrosanct without giving any importance to her statement under section 164 of the Cr. PC, the contains of the FIR, the contradiction in the statements made by her to the I.O. and to the doctor in respect of material facts constituting the offence under section 376 of the IPC against the appellant. It is true that the statement under section 164 Cr. PC is not a substantive piece of evidence. But, it can be used for contradiction or corroboration. The statements under section 164 Cr. PC of the prosecutrix do not corroborate the prosecution case so far as the offence of rape and confinement is concerned. The learned Trial Court was oblivious of considering this factors which are material factors in my opinion, and embarked mainly on the fact that the prosecutrix was a minor at the relevant period of time. It is not denied by either of the parties that the appellant filed one matrimonial suit under section 9 immediately after the alleged incident praying for restoration of his conjugal rights with the prosecutrix. It is not denied also that the P.W.I being father of the prosecutrix filed a written statement in that suit where in the prosecutrix challenged the legality of the marriage. If so, it is to be accepted that there was a marriage or something similar to marriage between the appellant and the prosecutrix. Whether that marriage was legal or illegal was not a question before the learned Trial Court. If so, it is to be accepted that there was a marriage or something similar to marriage between the appellant and the prosecutrix. Whether that marriage was legal or illegal was not a question before the learned Trial Court. In fact, the learned Trial Court did not probe into that fact. Now the question is if there was a marriage or something akin to marriage, whether the appellant did any wrong by cohabiting with the prosecutrix or not. It is to be noted that the prosecutrix has not yet challenged the validity and legality of the alleged marriage in any Court by filing any suit for declaration to that effect. Before the Trial Court, the fate of the matrimonial suit initiated by the appellant was not disclosed. Prosecutrix / prosecution did not file any document, what so ever, to show that suit was dismissed on the ground that there was no valid marriage between the appellant and the prosecutrix. If the evidence of prosecutrix is read as a whole together with the averments in the FIR, it will certainly indicate that there was something like marriage which was performed in presence of Uma and some disciples of the appellant on 3.8.2000. 9. THE evidence of Ranjit, (P.W.I) is to be looked into in order to find out the birth. THE P.W.I Ranjit stated categorically that when he reached house of Uma on 3rd August, 2000, he found both Uma and Mita were behaving abnormally by him and Mita demanded that she should be allowed to got married with appellant otherwise she would commit suicide. This fact, however, has not been stated by the prosecutrix in course of her examination as P.W.2 as well as in course of recording of her statement under section 164 Cr. P.C. THE P.W.I stated further that she went to the house of the appellant in the evening. THE door was found partially upon. He peeped through and found Mita and appellant dressed in bride and brides groom dress respectively and Mita was having vermolin on her forehead as if a marriage was performed. What he did? He simply watched the incident and came back to the house of Uma accompanied by her. He did not react. He did not utter a single word to any one. He did not even asked Uma about the incident. What he did? He simply watched the incident and came back to the house of Uma accompanied by her. He did not react. He did not utter a single word to any one. He did not even asked Uma about the incident. He spent the night in Uma's house but did not question her or her husband about the incident. He came back to his house on the next day and had conference with all his inmates and some local people to find out a way so that the family prestige is protected. Peculiarly enough, neither the P.W.I nor the P.W.2 denied the fact that there was a marriage between Mita and appellant or something similar to marriage had taken place on 3.8.2000 in the house of Manas. 10. IN the instant case, the best witnesses would have been Uma and Manu. Uma and Manu have been made accused instead of witnesses. They were found not guilty to the charges leveled against them. So far Uma and Manu are concerned, the evidence of P.W.I P.W.2 and P.W.3 are of great importance. All of them stated categorically that Uma and Manu did nothing. The prosecutrix i.e. P.W.2 stated that Uma being her elder sister had never thought of any kind of bad/evil thing about her life. The P.W.I has stated categorically that the written complaint was drafted by a lawyer who advised him to make Uma and Manu as accused instead of witness. The P.W.I objected to that proposal but finally agreed to that and signed the petition of complaint and filed it in the Court of learned SDJM. What he said is that, the portion of prosecution case related to Uma and Manu is false. I failed to understand, if such being the basis of the prosecution case which was admitted to be false from the very inception how it could be relied on. The intention of filing the written complaint and setting the criminal action in motion by the P.W.1 appears to be very clear. He has admitted in course of his examination as P.W.1 that had not the appellant filed the matrimonial suit, he would not have initiated the criminal case against him. He did not stop there but continued to say that in case of appellant withdraws the matrimonial suit, he would not proceed with the criminal case any further and go for a negotiation. He did not stop there but continued to say that in case of appellant withdraws the matrimonial suit, he would not proceed with the criminal case any further and go for a negotiation. This is the background of the entire case. The learned Court surprisingly believed the statement of the P.W.1 and P.W.2 without considering this backdrop and peculiar conduct of both the P.W.I and P.W.2, the improvement/development in the prosecution case as time passed by and the fact that the P.W.1 admitted that the written complaint was filed falsely implicating Uma and Manu. Even in that case also Uma should to have been examined by the Court. The Trial Court could have exercised its power under section 311 Cr. P.C. in order to adjudicate the matter properly and for the purpose of unearthing the truth. That has not been done also. While the learned Trial Court believed the statement made by the P.W.1 and P.W.2 against the appellant, it is not understood why the Court believed also that the case against Uma and Manu was entirely false. If Uma and Manu are entitled to be exonerated from the charge leveled against them, the major portion of the prosecution case automatically goes. As regards commission of rape and confinement by the appellant is concerned, I find that there are full of contradiction, inconsistency and colourable version in the statements of the P.W.1 and P.W.2. Law presumes in favour of marriage and against concubinage. Accordingly, mere cohabitation may suffice to raise a presumption of valid marriage which will not necessarily be rebutted by proof that the ceremony actually gone through was invalid. On careful appraisal of the evidence of P.W. and P.W.2 I find that none of them has stated about the marriage ceremony and formalities observed. None of them has stated also that no formality of Hindu Marriage was actually observed and that is why it was not a valid marriage. I have already that the prosecutrix has not filed any suit for declaration to the effect that the marriage in question be declared null and void or injunction be issued permanently against the appellant to claim himself as legally married husband of the prosecutrix. In such a case, it cannot be said with guarantee that there was no marriage between the appellant and the prosecutrix. The prosecution case is heavily clouded with doubt in this regard. In such a case, it cannot be said with guarantee that there was no marriage between the appellant and the prosecutrix. The prosecution case is heavily clouded with doubt in this regard. Contradiction, inconsistency, exoneration, embellishment are there in the statements of the P.W.1 and P.W.2 as well as in the statement under section 164 Cr. P.C. of the prosecutrix, medical evidence, evidence of the I.O. consistency is the key word for upholding conviction of an accused which is lacking in the evidence of the prosecution witnesses. 11. I have already stated that learned Trial Court embarked mainly on the question of age of the prosecutrix. The learned Court believed the statement of the prosecutrix and her father the P.W.I as well as mother, the P.W.3. On the contrary, the P.W.6 the radiologist who performed ossification test of prosecutrix on 16.1.2002 i.e. after one year 5 months after alleged incident found the age of victim as 19 years. If so, the prosecutrix was more than 16 years on the date of incident. Again, if we believe the statement of P.W.3 who examined the prosecutrix on 16.1.2002, the age of prosecutrix was 17 years 2 months on 16.1.2002. If so, she was below 16 years on the date of incident. The learned Court put much tress on a document i.e. xerox copy of an admit card issued by the West Bengal Board of Secondary Education. 12. I have carefully gone through the evidence recorded by the learned Trial Court and failed to understand how that particular document was admitted into evidence and marked Exhibit 5. Firstly, it was not the original admit card. It is an attested xerox copy of the admit card. No where which has been spelt out that original was found missing or damaged. There are some legal principles in the matter of admitting documents into evidence. When the direct evidence is not available, the law permits the Court to accept secondary evidence subject to fulfillment of some legal requirements. I must say that the learned Trial Court did not follow the principle of law in the matter of admitting a document into evidence as a secondary evidence. The headmaster who attested the admit card was not examined. I reiterate that no where the prosecution witnesses stated that the original admit card was found missing. I must say that the learned Trial Court did not follow the principle of law in the matter of admitting a document into evidence as a secondary evidence. The headmaster who attested the admit card was not examined. I reiterate that no where the prosecution witnesses stated that the original admit card was found missing. It was not, in such a case, proper for the Trial Court to accept and admit that document into evidence and rely on the said document in judging a very important and material question of fact ignoring the report of the radiologist. A conclusive evidence as to age may be the birth certificate. In the instant case, no such birth certificate was filed. Prosecution filed one discharge certificate showing that the P.W.3 the mother of the prosecutrix gave birth a living female baby on 10.11.1984. That document accepted by Court is also a xerox copy of duplicate discharge certificate attested by Block Development Officer, Jhargram. The original was nor placed before the Court not that the witnesses stated that the original was found missing. It is not understood under what provision of law learned Trial Court admitted that particular document into evidence as secondary evidence without examining Dr. S. Ghoswami who issued that certificate or any one who is acquainted with hand writings and signature of Dr. Ghoshwami. When birth certificate is not available other evidence and circumstances of the case including the physical features of the raped girl are to be taken in conjunction for the purpose of ascertaining age. But unproved and unexhibited school certificate can not be treated as evidence of age. In Ram Murti, AIR 1970 SC 1029 the Hon'ble Apex Court has taken the view that unproved and unexhibited school certificate can not be treated as evidence of age. Hon'ble Apex Court opined further that the question of age should be more closely scrutinized when the medical evidence revealed that the victim was used to sexual intercourse. So in the instant case also. The doctor who examined the victim has stated that the victim was habituated in sexual intercourse. Therefore, it was a bounden duty of the Trial Court to scrutinize the evidence with great care and caution. Simple statement that the victim was minor and aged about 15 years 9 months on the date of incident does not appear to be sufficient. The doctor who examined the victim has stated that the victim was habituated in sexual intercourse. Therefore, it was a bounden duty of the Trial Court to scrutinize the evidence with great care and caution. Simple statement that the victim was minor and aged about 15 years 9 months on the date of incident does not appear to be sufficient. The original school register have not been called for by the prosecution in order to substantiate the claim of minority. Therefore, the evidence of the radiologist should not have been thrown away by the learned Trial Court. I must say that the prosecution case as to minority of the prosecutrix at the time of incident is not free from doubt. In course of trial the appellant examined some witnesses as defense witnesses No.1 to 5. It appears from that an enquiry was held on the basis of a petition filed by Uma Pal i.e. the daughter of P.W.I and the elder sister of prosecutrix wherein she alleged that the marriage between prosecutrix and appellant took place according to Hindu Rights and Customs on 3.8.2000 in presence of her father who and all other family members had consented to that marriage. The fact that Uma wrote such an application could no be denied. The P.W.3 the mother of Uma stated clearly in course of her cross-examination that whatsoever Uma has stated in that letter is not supposed to be accepted as no such marriage had actually taken place. No whisper, however, has been made by the P.W.1 and P.W.2 in this regard. I have stated earlier that Uma would have been the best witness in this case beside the prosecutrix. The prosecutrix evidence is found inconsistent, untrustworthy and tainted with exaggeration. Corroboration of her statement should have been looked into by the learned Trial Court from independent witnesses. No such independent witness has been examined save and except the P.W. 5 Somnath Ghosh @ Kalu Ghosh. I find that his evidence is not at all inspiring confidence regarding the alleged incident. Rather, his advise was not followed by the P.W.1 and others. The P.W.1 and his family stormed in the Assarm of the appellant on 6.8.2000, forcibly took the prosecutrix and Uma therefrom despite resistance of the appellant. I find that his evidence is not at all inspiring confidence regarding the alleged incident. Rather, his advise was not followed by the P.W.1 and others. The P.W.1 and his family stormed in the Assarm of the appellant on 6.8.2000, forcibly took the prosecutrix and Uma therefrom despite resistance of the appellant. Peculiarly enough, Uma was sent back to her matrimonial house situated near the house of the appellant on the very date when her husband came to take her back and astonishingly, the prosecutrix regained her sense of good and bad from 7.8.2000, i.e., on the same date. 13. WATER of coconut appears to be the root of all evils according to the prosecution case. No where it has been stated that the said water was stupefied by the appellant. That water was consumed not only by the prosecutrix but also by Uma. Uma, acted normally but the prosecutrix did not. No where it is stated that Uma detached herself with her Guru, the appellant. Her husband who supposed to know everything have not come forward and utter a single word in favour of the prosecution case. Learned Trial Court did not consider all this factors but believed that the coconut water hypnotized the prosecutrix and she acted according to the desire of the appellant. This story is not at all believable. No prudent can believe this story that a girl aged about 16 years will remain hypnotized for three days continuously because of taking coconut water. There was material suppression in the prosecution case and obviously that has great impact which the learned Trial Court did not consider. 14. IN my humble estimate, the prosecution case is not at all proved to the hilt but, on the contrary, is full of contradiction, omission, exaggeration and embellishment. There is serious doubt in the prosecution case and the learned Trial Court ought to have recorded acquittal of the appellant instead of conviction, giving him benefit of doubt. In the conspectus of the facts and circumstances above, I allow the appeal. The judgement and order under challenge are set aside. 15. THE appellant is found not guilty to the offence leveled against him and is acquitted therefrom. He, therefore, be set at liberty and discharge from the bail bond at once. THE appeal is disposed of accordingly. No order as to costs is passed.