JUDGMENT Biplab Kumar Sharma, J. 1. This appeal is directed against the judgment of conviction dated 27th September, 2013 of the learned Additional Sessions Judge, Goalpara in Sessions Case No. 205/2012. By the said judgment, while convicting the accused/appellant under Section 376(1) IPC, he has been sentenced to undergo rigorous imprisonment for 7 years with fine of Rs. 10,000/- (Rupees Ten Thousand). In default to pay the fine, he is to undergo rigorous imprisonment for further 1 month. Mornoi Police Station Case No. 29/2012 was registered under Sections342/366 (A)/376/ 506 IPC on the basis of the FIR (Exhibit-2) lodged by the informant on 17th March, 2012 alleging therein that the informant's daughter, i.e. the victim, was raped by the accused/appellant confining her in a room on 15th March, 2012. The story narrated in the FIR is that on 15th March, 2012, the victim aged 17 years, while was going towards her school, namely, Gajia Jani Higher Secondary School, and reached Bhojmara Tiniali Bridge, the accused came from behind in a motor cycle and asked her to sit. On her refusal to do so he forcibly took her in the motor cycle to a pharmacy where he kept her whole night and committed rape on her twice. Next day, i.e. on 16th March, 2012, the accused dropped the victim in the house of one Ms. Munsura Begum and fled away. According to the FIR, the accused also forcibly took away the victim's educational testimonials such as mark-sheet, admit card, registration card etc. It was also disclosed that the accused had threatened the victim that in the event of divulging the incident, she would be killed and her body would be thrown to the river. The girl was taken back home from the residence of Ms. Munsura Begum by Bhubaneswar Kalita; Dalim Kalita and Chandan Kalita. The Investigating Officer, who conducted the investigation, on completion of the same submitted charge-sheet against the accused/appellant, on the basis of which the learned trial Court framed charge under Sections 366(A)/376 IPC against him. Charge so levelled having been read over and explained, the accused pleaded not guilty and claimed to be tried. 2. During trial, prosecution examined 10 witnesses and also exhibited the statement of the victim recorded under Section 164 Cr.P.C. (Exhibit-1) and also exhibited the medical examination report (Exhibit-4), apart from exhibiting the Fir (Exhibit-2) and the charge-sheet (Exhibit-3). Charge so levelled having been read over and explained, the accused pleaded not guilty and claimed to be tried. 2. During trial, prosecution examined 10 witnesses and also exhibited the statement of the victim recorded under Section 164 Cr.P.C. (Exhibit-1) and also exhibited the medical examination report (Exhibit-4), apart from exhibiting the Fir (Exhibit-2) and the charge-sheet (Exhibit-3). The accused was also examined under Section 313 Cr.P.C. in which he stated that there was land dispute between the parties and that the victim earlier also fled away from home on 2/3 occasions. The accused also stated that he was falsely implicated in the case. 3. Based on the evidence on record, the learned trial Court having answered the following points for determination in favour of the prosecution towards convicting the accused/appellant under Section 376 IPC, he has preferred this appeal:-- "(i) Whether the accused person on 15.03.12, at about 8.30/9.00 Am kidnapped (abducted) DK minor daughter of the informant from Bhojmala Tiniali (near bridge), with intent and knowing that she will be seduced and forced to illegal sexual intercourse with another person and thereby liable for committing an offence u/s. 366(A)IPC? (ii) Whether the accused person on the night of same day committed rape on victim at a pharmacy at Krishnai and thereby liable for committing an offence u/s. 376 IPC?" 4. With the passing of the impugned judgment and conviction on 27th September, 2013, the accused/appellant is in imprisonment. Thus, by now he has undergone about 1 1/2 year of the 7 years imprisonment sentenced vide the impugned judgment. 5. I have heard Mr. S.K. Jain, learned counsel representing the accused/appellant and have also heard Mr. D. Das, learned Additional Public Prosecutor, Assam. 6. According to Mr. Jain, the evidence laid by the prosecution is unworthy of any credence. According to him, the evidence adduced by the victim (PW-2) on the basis of which the accused has been convicted does not inspire confidence and consequently the appellant is entitled to get acquittal. To buttress the said argument, he has placed reliance on certain decisions, which are as reported in (2007) 6 SCC 465 (Narayan @ Naran v. State of Rajasthan); 2012 (1) GLT387 (Safnur Ali (MD) & Anr. v. State of Assam); 2010 (1) GIT 731 (Diganta Mazumdar v. State of Assam) and 2010 (3) GLT 36 (Ikbal Hussain Saharia @ Iqbal Rahman v. State of Assam). 7. v. State of Assam); 2010 (1) GIT 731 (Diganta Mazumdar v. State of Assam) and 2010 (3) GLT 36 (Ikbal Hussain Saharia @ Iqbal Rahman v. State of Assam). 7. Countering the above argument, Mr. Das, learned Additional Public Prosecutor, Assam has submitted that there is nothing to disbelieve the testimony of PW-2, i.e. the victim girl. He submits that there was no occasion for the victim to falsely implicate the accused/appellant, who is also her relation. 8. I have considered the submissions made by the learned counsel appearing for the parties and have also perused the entire evidence on record. 9. As to what is the story narrated in the Fir has been noted above. The victim in her Exhibit-1 statement recorded under Section 164Cr.P.C. stated that on 15th March, 2012 while she was going to college, the accused came from behind and forcibly took her away in his motor cycle. On her refusal, the accused tied her with the motor cycle using her wearing cloths (Churni). She was taken to Krishnai Pharmacy and was kept there whole night and the accused committed rape on her. Next day, i.e. on 16th March, 2012, the accused dropped her in the house of Ms. Munsura Begum. Thereafter, she was taken back home. In her deposition during trial, she stated that while she was going on foot, the accused came from behind near Bhojmara Bamun Ghat and forcibly took her in his motor cycle. She was threatened of being killed in the event of raising hue and cry. She was taken to Krishnai and to a pharmacy. She was kept under lock and key there. In the night at about 10:00, the accused came and committed rape on her twice. She spent the night in the pharmacy and next day at around 9:00 PM she was taken to Sukapara. Thereafter, Ms. Munsura Begum (PW-6) informed her family members over phone and on receipt of the information, her brothers and villagers, namely, Nipen, Bhupen, Chandan, Dalim came to Munsura Begum's house and took her back. Coming back home she narrated the incident to her mother who in turn lodged the FIR. She in her deposition further stated that police recorded her statement and Doctor examined her. 10. Coming back home she narrated the incident to her mother who in turn lodged the FIR. She in her deposition further stated that police recorded her statement and Doctor examined her. 10. In the cross-examination, the victim stated that in the place of occurrence, i.e. Bhojmara Bamun Ghat, her friend Mili Ahmed was waiting and the accused came from behind. The place of occurrence is a Tiniali (Tri-junction). She further stated that by the side of the place of occurrence, there were shops and residential houses. However, shops were closed. She further stated that the pharmacy in which she was kept was in Molandubi Market and on the day of the incident the market was open. Nearby the pharmacy, there were 8 to 10 shops. It took around 15 minutes to reach Molandubi. On her way she found shops, bridge and peoples habitation. To a pointed question as to whether she tried to talk to the peoples she met on her way, she answered in the negative. She also admitted that when she reached the pharmacy, people were around. She also stated that the accused first parked the bicycle and thereafter, opened the lock of the pharmacy and she was standing in front of the pharmacy. In the cross-examination, she identified the pharmacy as consisting of 2 rooms. According to her, in absence of the accused/appellant, she had raised hue and cry, but nobody heard. She admitted that there were doors in the pharmacy both in front and in the backside. Continuing to depose, she stated that on the next day at around 8:30 PM, the accused took her out from the pharmacy and they returned. She got down at Sukapara village in the house of Ms. Munsura Begum (PW-6). She stated that Mansura was her friend and possibly the accused/appellant knew that. According to her, she narrated the incident to PW-6 but admitted that in the long 36 hours time, she did not narrate the incident to anyone. 11. PW-1 is the mother of the victim, who, in her deposition stated that on the day of the incident, the victim had gone to her school but she did not come back even in the night. Next day her friend (PW-6) informed her over phone that the accused had dropped the victim in her house. Thereafter, the aforementioned persons went there and brought back the victim. Next day her friend (PW-6) informed her over phone that the accused had dropped the victim in her house. Thereafter, the aforementioned persons went there and brought back the victim. Coming back to home she narrated the incident to her mother, i.e. PW-1. In the cross-examination, she admitted that the FIR was lodged by one Muslim man and that the same was not read over to her. She also admitted that the accused was her relation and was in visiting terms. She further stated that when the victim did not return, she did not go to her school to enquire her whereabouts. She denied the suggestion that there was land dispute with the accused. 12. PW-3 in his deposition stated that on 16th March, 2012, he was informed by the informant (PW-1) that her daughter was in her friend's house. Thereafter, he alongwith Nipen Kalita went there and brought her back. PW-4 is the sister of the victim. She in her deposition stated that the victim was taken away by the accused/appellant from Bhojmara Tiniali when she was going to school and she was kept in his pharmacy in which she was raped. Next day on being informed by PW-6 that the victim was in her house she was brought back. 13. PW-5 is the brother of the victim, who also stated about receiving phone call from PW-6 and as to how the victim was brought back thereafter. In the cross-examination while admitting that he was having a mobile phone he also admitted that on the night of the incident he was not informed that the victim did not return home. He also stated that the age of the victim was above 18 years. 14. PW-6 is the friend of the victim in whose house she was allegedly dropped by the accused/appellant. Although it is in the evidence of PW-2 that on being so dropped, she had reported the incident to PW-6, but PW-6 in her deposition stated that she was not aware as to how the incident occurred. According to her, she came to know about the incident only on arrival of police. In the cross-examination, she denied that the victim was dropped in her residence and that she had informed the family members of the victim 15. Another witness, namely, Chandan Kalita, in his deposition stated about being informed by the informant that her daughter was at Sukapara. In the cross-examination, she denied that the victim was dropped in her residence and that she had informed the family members of the victim 15. Another witness, namely, Chandan Kalita, in his deposition stated about being informed by the informant that her daughter was at Sukapara. Thereafter, he alongwith other persons went to the house of PW-6 and brought back the victim. 16. PW-7 is an independent witness, who in his deposition stated that he had a jewellery house nearby the pharmacy of the accused/appellant. He further stated that both the accused/appellant and the victim were known to him. PW-8 also stated that he had a motor bike garage by the side of the pharmacy of the accused. 17. PW-9 is the Investigating Officer, who in his deposition generally stated about the investigation that was carried out. In the cross-examination, he stated that although the incident occurred on 15th March, 2012 but he received the FIR on 11th March, 2012 and that there was no explanation in the FIR about the delay. 18. PW-10 is the Doctor, who had examined the victim and opined thus in his Exhibit-4 report:-- "General Finding: Claimed age: 18 years. Education qualification: H.S. First Year. Height 4.11" Weight 40 Kg. Teeth: 14/14 P/V Examination - Hymen intact. No sign of injury on her private parts. Vaginal swab examination shows no sperm. X-ray (RT) iliac crest, wrist joint and elbow joint shows age of the patient is above 20 years. I/Mark: A block mole on Rt. Face. 2nd mole on front of neck. LMP-14.02.12 Opinion: 1) The age of the patient is above 20 years. 2) No sign of recent sexual intercourse or any injury on her private part." 19. It is on the basis of the above evidence the accused has been convicted under Section 376 IPC. So far as the charge that was levelled against him under Section 366(A) IPC is concerned, it is the categorical finding of the learned trial Court and also established by the evidence on record that the victim was not a minor when she was allegedly forcibly taken away by the accused/appellant. The medical examination report clearly shows that she was above 20 years of age at the time of commission of the alleged offence. The medical examination report clearly shows that she was above 20 years of age at the time of commission of the alleged offence. It is in such circumstances, the learned trial Court has rightly held that the offence alleged against the accused/appellant punishable under Section366(A) is not established. However, while doing so he has been convicted under Section 376(1) IPC. Apart from the testimony of the prosecutrix, no other witnesses have deposed about seeing the incident. The learned trial Court's impugned judgment is also primarily based on the sole testimony of PW-2, i.e. the prosecutrix. Thus, it requires very careful assessment as to whether her testimony inspires confidence towards convicting the accused/appellant. 20. As discussed above, it is in her evidence that she was forcibly taken away by the accused/appellant in his motor cycle. Admittedly, she did not raise any hue and cry but she tried to justify her such conduct on the ground of being threatened by the accused/appellant Even if this version of the prosecutrix is accepted, then also there is no explanation as to why she did not raise any hue and cry on her way to the place of occurrence through the market and more particularly, when she reached the place of occurrence, i.e. the pharmacy. As discussed above, by the side of the said pharmacy, there were other establishments like shops and motor garage. Coupled with this, there were people around the pharmacy. She got ample time to raise hue and cry when the accused took time to park his motor cycle and open the lock of the pharmacy. She was inside the pharmacy consisting of 2 doors, one in the front and another in the backside. Although she stated in her cross-examination that she had raised hue and cry but nobody listened, it is absolutely unbelievable that in a market place in which the pharmacy was surrounded by other establishments and the people were around, nobody heard her shouts day in and day out. 21. According to her testimony, reaching the house of PW-6 she had narrated the incident to her. However, PW-6 in her deposition categorically stated that she did not know about the incident. She also denied that the police had recovered the victim from their house. She further denied that the family members of the victim were informed by her over phone. According to her testimony, reaching the house of PW-6 she had narrated the incident to her. However, PW-6 in her deposition categorically stated that she did not know about the incident. She also denied that the police had recovered the victim from their house. She further denied that the family members of the victim were informed by her over phone. PWs-7 and 8 categorically stated about their establishments, i.e. jewellery shop and the motor garage, by the side of the pharmacy in which the victim was allegedly kept for a day and for a night. If that be so and if the PW-2 had raised hue and cry, people around the said establishments and inmates of the said establishments would have heard the same, but ironically nobody heard anything. It is in this context, the testimony of PW-2 that she had raised hue and cry will have to be considered. 22. It is in reference to the aforesaid evidence, Mr. Jain, learned counsel for the appellant placing reliance on the aforementioned decisions has submitted that the version of the prosecutrix is not at all reliable and that it will be totally unsafe to convict the accused/appellant based on her such testimony. 23. In Narayan @ Naran (supra), when it was found that the prosecutrix boarded the tractor even after she was first raped and travelled happily, the Apex Court set aside the conviction of the accused under Sections 376/392 IPC. 24. In Safnur Ali (MD) (supra), the evidence of the prosecutrix was held not truthful or trustworthy. It was alleged that she was forcibly took away by the accused person on bicycle and thereafter, committed rape on her. As in the instant case in the said case also, the victim had enough opportunity to narrate the incident to persons whom she met. In the instant case also, the victim herself admitted that during the long 36 hours she did not narrate the incident to anyone. 25. In Diganta Mazumdar (supra), acquitting the accused, it was held that there was enough opportunity for the victim to raise alarm and also to flee from the place of occurrence. She having not done so her evidence did not inspire confidence and accordingly, the appeal was allowed by setting aside the judgment of conviction. 26. 25. In Diganta Mazumdar (supra), acquitting the accused, it was held that there was enough opportunity for the victim to raise alarm and also to flee from the place of occurrence. She having not done so her evidence did not inspire confidence and accordingly, the appeal was allowed by setting aside the judgment of conviction. 26. In Ikbal Hussain Saharia @ Iqbal Rahman (supra), the conviction of the accused under Sections 366/376 IPC was set aside when it was found that the victim girl did not raise any protest or alarm against the forcible abduct. 27. On the basis of the prosecution evidence, the learned trial Court has already held that when the incident occurred, the victim was above 20 years of age and she was going to her school/college. She in her deposition categorically stated that in the particular place of occurrence, i.e. Bhojmara Bamun Ghat, her friend one Moli Ahmed was waiting. It was a Tinali (tri-junction) of road. There were shops and residential houses and thus, naturally people were around. But surprisingly the prosecutrix did not raise any hue and cry. On her way to the pharmacy also although she had crossed market place, she did not raise hue and cry. Reaching the pharmacy also, although people were around and she got enough opportunity to raise alarm, but she did not do anything. This gives rise to serious doubt about the truthfulness of the deposition ofPW-2. 28. Above apart, it is in the evidence of the own brother of the prosecutrix that although she did not return back at night, he was not informed. Coupled with this, PW-6 in her deposition stated that she came to know about the incident on visit of the police and not from the victim. 29. Above being the position, it will be totally unsafe to convict the accused/appellant on the basis of the aforesaid evidence, which does not inspire confidence. Consequently this appeal is allowed by setting aside the judgment of conviction dated 27th September, 2013 of the learned Additional Sessions Judge, Goalpara in Sessions Case No. 205/2012 and holding that the accused is entitled to benefit of doubt. 30. The accused/appellant shall be enlarged forthwith if not wanted in connection with any other offence/case. The Registry shall send down the LCR to the learned trial Court alongwith a copy of this judgment. Appeal Allowed.