JUDGMENT AND ORDER : Ajit Borthakur, J. 1. This is an appeal under section 374 (2) of the Code of Criminal Procedure, 1973 preferred against the impugned judgment and order, dated 30/11/2013 passed by the learned Addl. Sessions Judge No. 4, FTC, Kamrup, Guwahati convicting the accused appellant under Section 366/376 (1) of IPC. 2. Heard Mr. Z. Alom, learned counsel for the appellant and Ms. S. Jahan, learned Addl. PP, Assam. 3. The Prosecution Case: The prosecution case as unfolded in the FIR, dated 28.06.2009, lodged before the Officer-in-Charge of Fatasil Ambari Police Station is that on 24.06.2009, taking the advantage of absence of the guardian at home, situated near the Dhirenpara Amtola Kali Temple Hills, the accused appellant, namely, Md. Salam Ali enticed away the informant's 13 year old daughter and she could not be traced out. 4. Investigation, Trial & Conviction: Based on the above FIR, Fatasil Ambari P.S. Case No. 175/2009 under Section 366A IPC, dated 28.06.2009, was registered. The Officer-in-Charge, SI, Mina Kanta Dutta endorsed the case to ASI Praneswar Barman for preliminary investigation. The Investigating Officer (I.O.), on being produced the victim girl, on 01.07.2009, sent her for medical examination and to get her statement recorded in Court and further, on being produced, the accused appellant was arrested. On completion of preliminary investigation, the I.O. handed over the Case Diary on 15.07.2009 to the Officer-in-Charge of the said Police Station. Thereafter, the Officer-in-Charge endorsed the case to SI Keshab Chandra Tamuli to complete the investigation and accordingly, on completion of investigation, submitted the Charge-Sheet under Section 366A/376 IPC against the accused appellant. The Charge-Sheeted offences being exclusively triable by the Court of Sessions, the case was committed to the Court of learned Sessions Judge, Kamrup, for trial by the learned Special Judicial Magistrate, Assam, Guwahati. Accordingly, the trial commenced in the Court of learned Addl. Sessions Judge No. 4, FTC, Kamrup, Guwahati and after completion of trial as per procedure, held the accused appellant guilty of the Charges under Sections 366/376 (1) IPC and sentenced him to undergo Rigorous Imprisonment (R.I.) for 7 years and also to pay a fine of Rs. 5,000/-, in default to undergo further R.I. for 3 months for the offence punishable under Section 376 (1) IPC and further, to undergo R.I. for 3 years and to pay a fine of Rs. 5,000/-, in default to undergo further R.I. for 3 months for the offence punishable under Section 376 (1) IPC and further, to undergo R.I. for 3 years and to pay a fine of Rs. 2,000/- only, in default to undergo R.I. for 2 months for the offence punishable under Section 366 IPC. The learned Trial Court directed that both the sentences shall run concurrently and the period of detention as under trial prisoner shall be set off under Section 428 Cr.P.C., 1973 5. Grounds of Appeal: The accused appellant has assailed the above impugned judgment and order of conviction, inter-alia, on the following grounds:- (i) That the learned Trial Court mis-appreciated the evidence including that of the Doctor, who examined the victim and Paragraph-15 (V) of Ext. 2 on record. (ii) That the learned Trial Court should have relied on the case law of Gouranga Roy and Ors v. State of Tripura, reported in 2007 (2) GLT 379 and Tafiz Ali and Anr v. State of Assam, reported in 2007 (3) GLT 481, as the ratio decided of the said two cases are applicable to the instant case. (iii) That at the time of the occurrence, the age of the victim girl was about 18 years. (iv) That the prosecution has not examined the learned Judicial Magistrate, who recorded the statement of the victim girl. Therefore, the accused appellant has prayed to set aside the impugned judgment and order and thereby to acquit the accused appellant of the charges. 6. Evidence: Now, let us look at the evidence on record. PW.1 the mother of the victim, in her evidence stated that on the date of occurrence, her neighbour the accused Salam Ali had kidnapped her 13 year old daughter/victim, who was a student of Class-V, while she was alone at home. She further stated that the victim usually came to her shop always at about 1.00 PM, but on that day, as she did not come, and as such, she searched for her and after four days, she heard saying by the mother of the accused about the incident. Then she filed the FIR. After filing the FIR, they came to know that the accused had taken away the victim to Barpeta. Thereafter, the police along with brothers of the accused went to Barpeta and brought back the victim from Barpeta. Then she filed the FIR. After filing the FIR, they came to know that the accused had taken away the victim to Barpeta. Thereafter, the police along with brothers of the accused went to Barpeta and brought back the victim from Barpeta. To the question of Court, she stated that after recovery of the victim, she reported that while she was at home, the accused appellant Salam Ali along with his brother Sahjahan Ali and mother Sahar Banu came and took her forcibly to Barpeta by train and kept her at the house of the sister of the accused, but after knowing about filing of the FIR, the accused fled away therefrom. She stayed at Barpeta for 6 days. During cross examination, she admitted that to prove the age of the victim, she has not filed any document. She further stated that her residence is about 1-1/2 KM away from the main road and there are many houses on both sides of the road, but nobody did state that they saw the accused taking away the victim. She also denied of having any love affair between the accused and the victim. PW. 2 Safar Ali is the brother of the accused. His version is that he heard that the victim eloped with the accused. He further stated that as the Police asked them to bring the victim, he asked others to search for the victim and on next day, his wife and brother Sahjahan Ali brought the victim from Barpeta and produced her before the Police. He knew that the victim was in love with the accused and informed the same to the guardian of the victim. According to him, the age of the victim might be 18 years. During cross examination, he stated that before 2-3 months of elopement, he informed the victim's father about the love affair between the victim and the accused, but he did not believe it. PW. 3 Abdul Kadir is the neighbour of the parties. He stated that the victim eloped with the accused to Barpeta. Later on, the family members of the accused brought the victim from Barpeta and produced her before the Police. During Cross examination, he stated that due to love affair, the victim eloped with the accused. PW. 4 Funu Ali is another neighbour of the parties. He stated that the victim eloped with the accused to Barpeta. Later on, the family members of the accused brought the victim from Barpeta and produced her before the Police. During Cross examination, he stated that due to love affair, the victim eloped with the accused. PW. 4 Funu Ali is another neighbour of the parties. According to him, he heard that due to love affair, the victim eloped with the accused voluntarily and later on, the family members of the accused recovered the victim from Barpeta. PW. 5 is the victim girl. Her evidence is that on 24.06.2009, while she was washing clothes at home, the accused appellant came and by gagging her mouth took her to Barpeta by a vehicle. He took her to his uncle's house and at Barpeta, he married her against her will and did have sexual intercourse without her consent. She further stated that the accused kept her at Barpeta for 8 days and thereafter, the brother of the accused took her back from Barpeta and produced before the Police. She has recognized her statement under section 164 Cr.P.C., 1973 vide Ext. 1. On being enquired by the Court, she stated that at the time of the incident, she was 13-14 years old and she was reading in Class-V. But she could not remember her date of birth. During cross-examination, she stated that after this incident, she got married with another, while she was 15 year old. She further stated that to proceed to the main road from her house, there are many houses, but she could not say whether any one of the neighbours saw her or not, when she was taken away by the accused. She also stated that the accused by gagging her mouth from back side, took her at about 9.30 AM and her face was covered with cloth. According to her, the accused is her next door neighbour and other houses are situated at a distance from her house. She further stated that the house of Fulkon and her son is located at a distance from her house on the Northern side, but during day time, they used to go out for work. The accused took her to Barpeta by a vehicle and except accused, there was none in the vehicle. She further stated that though the accused proposed to love her, but she refused. The accused took her to Barpeta by a vehicle and except accused, there was none in the vehicle. She further stated that though the accused proposed to love her, but she refused. The uncle of the accused asked her not to disclose that she was taken forcefully and also asked her to tell before Kazi and other villagers that she married the accused on her free consent. Though before Kazi, she stated that she was taken forcefully, but he scolded her and asked to say that she gave consent to the marriage with accused. During the period of her stay at Barpeta, one girl guarded her even when she went to toilet, located at a distance from the house and she did not try to flee away therefrom as in the area, she knew none. She denied the suggestion that she went with the accused voluntarily. PW. 6 Dr. D.K. Das is the doctor, who examined the victim on 02.07.2009, and on examination of genital organs, he found old hymeneal tear at 5 O' clock and 7 O'clock positions. Hymenal orifice admits tip of little finger easily. On the basis of physical examination, Radiological and Laboratory Investigation, he held the opinion that no injury mark was detected on her private part and her age was about 14 years and below 16 years. During cross-examination, he stated that he could not say whether the joint of wrist, elbow, shoulder and pelvic bone epiphyses were formed upto what percentage and the joint of elbow, shoulder, wrist and pelvic bone can take place at the age of 14 to 21 years. He stated that the age which he mentioned in the report can be varied by 2 years on the either side. PW. 7, ASI Praneswar Barman was the investigating officer. His evidence is that in course of investigation, he visited the place of occurrence, recorded the statement of witnesses, sent the victim girl for Medical examination, got recorded the statement of the victim under section 164 Cr.P.C., 1973 and also arrested the accused. He recognized the FIR Ext. 3. During cross-examination, he, inter alia, stated that the victim stated before him that the accused took away her by a tracker to Gorchuk, wherefrom they went to Paltan Bazar and on the same day at about 1.30 PM, she was taken to Barpeta by train. He recognized the FIR Ext. 3. During cross-examination, he, inter alia, stated that the victim stated before him that the accused took away her by a tracker to Gorchuk, wherefrom they went to Paltan Bazar and on the same day at about 1.30 PM, she was taken to Barpeta by train. He stated that during investigation, nobody told him that the accused gagged the mouth of the victim. He further stated that though he asked the guardian to produce document in respect of age of the victim, but they could not produce. The witnesses told him that the victim was in love with the accused. PW. 8 SI Keshab Ch. Tamuli, the second IO, filed the Charge-Sheet vide Ext. 4 against the accused under Section 366A/376 IPC. 7. Arguments: Mr. Z. Alom, learned counsel appearing on behalf of the accused-appellant, submitted that although the victim is claimed to be a minor at the relevant time of the occurrence, taking into calculation of her mother's age at the time of her marriage and interval of birth of three children and the victim being her third child, the victim certainly attained majority. On the other hand, the victim, who was a major girl, did not raise alarm, while she was allegedly kidnapped and travelled to Barpeta by public mode of conveyance and further, did not even disclose the incident of her alleged kidnapping to any person, whom she came across during the period of her journey to Barpeta and stay at Barpeta. Therefore, it is apparent on the face of the record that the victim, in fact, voluntarily accompanied with the accused appellant. As such, Mr. Z. Alom, learned counsel for the accused appellant submitted that conviction of the accused appellant on the basis of her evidence and her statement under Section 164 Cr.PC. with the alleged charges cannot legally be correct. Mr. Alom has relied on the ratio decidendi rendered by the Apex Court in Vimal Suresh Kamble v. Chalnverapinake Apal S.P. and anr., reported in AIR 2003 SC 818 and Dinesh Jaiswal v. State of Madhya Pradesh, reported in (2010) 3 SCC 232 . Mrs. S. Jahan, learned Addl. with the alleged charges cannot legally be correct. Mr. Alom has relied on the ratio decidendi rendered by the Apex Court in Vimal Suresh Kamble v. Chalnverapinake Apal S.P. and anr., reported in AIR 2003 SC 818 and Dinesh Jaiswal v. State of Madhya Pradesh, reported in (2010) 3 SCC 232 . Mrs. S. Jahan, learned Addl. PP, Assam submitted that the basic initial question in this case lies in the determination of the age of the victim girl at the relevant time of the incident, which can be derived on appreciation of the contents of the FIR and the evidence of mother and the doctor. Further, Mrs. S. Jahan submitted that at the time of the occurrence, the victim was a student of Class V and taking into a judicious account of these factors, the age of the victim girl was undoubtedly less than sixteen years and as such, being a minor, it is a settled law that her consent was immaterial. Considered thus, and in the absence of any independent direct evidence to the occurrence, the evidence of the victim girl, who stood the tests of cross-examination, is to be believed and on the other hand, her sole testimony is reinforced by the accused appellant's admissions on vital aspects of evidence led by the prosecution in his statement, recorded under Section 313 Cr.P.C., 1973 Appreciation of Evidence: 8. Legal Position: To sustain an offence under Section 366 IPC, the prosecution is to prove (a) that the accused kidnapped as understood in section 360 or 361 IPC or abducted the victim as understood in Section 362 IPC, (b) that the victim of the aforesaid kidnapping or abduction was a female, (c) that the accused during the kidnapping or abduction had intention or knew it likely that (1) such woman might or would be forced to marry a person against her will, or (2) that she might or would be forced or seduced to illicit intercourse, or (3) by means of criminal intimidation or otherwise induced a woman to go from any place with intent that she may be or knowing that she will be forced or seduced to illicit intercourse. On the other hand, Section 375 IPC defines the expression "rape". On the other hand, Section 375 IPC defines the expression "rape". For the purpose of punishment for rape under Section 376 IPC, it is necessary to prove that the accused had sexual intercourse with a woman under any of the circumstances, mentioned in 6 clauses of Section 375 IPC. Even partial penetration or slightest penetration is sufficient to constitute the offence of rape. When a rape is proved to have been committed upon a girl less than 16 years of age, her consent is immaterial. In a charge of rape, the onus is always on the prosecution to prove affirmatively that the ingredients of the offence it seeks to establish have been established and such onus never shifts. 9. Age Of The Victim The FIR, dated 28.06.2009, vide Ext. 3 lodged by PW. 1, the victim's mother, it is revealed that on 24.06.2009, i.e. on the date of occurrence, her victim daughter PW. 5 was aged about 13 years. PW. 1 in her evidence supported this fact stating further that at the relevant time, her victim daughter was a student of Class-V and she was her third child. According to her (PW. 1), she was married at the age of 25 years and her 1st child was born after 2 years of marriage and after 1-1/2 years thereof, the 2nd child was born and again after 1-1/2 years the victim was born. However, in support of age of her victim daughter, she has no documentary evidence and on the other hand, the defence also elicited in cross examination that she has no documentary evidence in support of her (PW. 1) age too. From the evidence of PW. 5, the victim and her statement, recorded under Section 164 Cr.P.C., 1973 vide Ext. 1, it appears that at the relevant time of the incident, she was aged about 13-14 years and she was a student of Class-V, but there is no documentary evidence in support of her claim of age and she got married at the age of 15 years. The Medical evidence of PW. 6, Dr. 1, it appears that at the relevant time of the incident, she was aged about 13-14 years and she was a student of Class-V, but there is no documentary evidence in support of her claim of age and she got married at the age of 15 years. The Medical evidence of PW. 6, Dr. D. K. Das, the Medical Officer, Department of Forensic Medicine, GMCH, who examined the victim on 02.07.2009, on the basis of physical examination, radiological and laboratory investigations on her, held the opinion, inter-alia, that her actual age was above 14 years and below 16 years, which estimation of age is, of course, variable by two years on either side as per medical jurisprudence. On the other hand, the evidence of PW. 7, ASI, Praneswar Barman, the I.O., it appears that he did not collect any age proof certificate from the school, where the victim studied as no investigation was done to ascertain her age. It is pertinent to be mentioned that a Doctor's opinion as to age is of little value, since a Doctor's estimate is merely an opinion and does not amount to prove. However, in the instant case, based on the corroborative testimony of the victim's mother (PW. 1) and the victim (PW.5), to the effect that at the relevant time, the victim was aged about 13 years and she was studying in Class-V, and also the Doctor's (PW.6) opinion, on his thorough examination of the victim and noting her physical characteristics, radiological and laboratory investigation done, determined her age to be above 14 years and below 16 years, it has to be accepted that the victim's age was below 16 years at the relevant time of the occurrence on 24.06.2009 and held accordingly, that on the date of the alleged occurrence, the victim was a minor beyond all reasonable doubt. 10. Occurrence: The Apex Court in State of Punjab v. Gurmit Sing, reported in AIR 1996 SC 1393 , while dealing with the version of a victim of rape observed as herein under quoted:- "The testimony of victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused, where her testimony inspires confidence and is found to be reliable.". Vide FIR, Ext. 3 reveals that the occurrence took place on 24.06.2009 during day time, when the family members of the victim (PW.5) were out of house. Turning to the evidence of PW. 5, the victim, it transpires that at the relevant time of occurrence i.e. at about 09.30 AM, when she was alone at home due to illness and was washing clothes, the accused appellant, who is an adjacent resident, came to her house and gagging her mouth took away to Barpeta by a car. At Barpeta, she was kept at the accused appellant's father's house and she was subjected to marriage by force at the accused appellant's father's house, in presence of 10 to 12 persons and the Kazi and then, started living together as husband and wife by force, which continued for about 8 days. Thereafter, the accused appellant's brother appeared at the place and brought her to Guwahati and handed over to the Police. The Police sent her for medical examination, kept her at the State Home at Jalukbari, Guwahati and got her statement recorded in Court vide Ext. 1 her statement. A perusal of the aforesaid statement of the victim recorded under Section 164 Cr.P.C., 1973 vide Ext. 1, it appears that whatever evidence the victim (PW 5) has tendered in court was stated in the aforesaid statement in material particulars. The defence has not denied or contested the abundance of evidence led by the prosecution to the effect that after she (PW 5) was kidnapped, the victim was taken to Barpeta and subjected her to marriage with the accused appellant. None of the remaining PWs had witnessed the alleged occurrence. However, from the evidence of PW. 1, the mother of the victim, PW. 2 Safar Ali, the brother of the accused appellant, PW. 3 Abdul Kadir, a neighbour, PW. 4 Phun Ali and PW. 7 ASI Praneswar Baraman, the I.O., it is abundantly clear that the accused appellant took away the victim minor girl (PW. 5) from Dhirenpara, Guwahati to Barpeta and after a few days, the family members brought the accused appellant and the victim from Barpeta and produced them before the police. The accused appellant, in his statement under Section 313 Cr.P.C., 1973 has admitted these facts except the fact of kidnapping. 5) from Dhirenpara, Guwahati to Barpeta and after a few days, the family members brought the accused appellant and the victim from Barpeta and produced them before the police. The accused appellant, in his statement under Section 313 Cr.P.C., 1973 has admitted these facts except the fact of kidnapping. The accused appellant in his statement recorded under Section 313 Cr.P.C., 1973 took the plea that pursuant to love affairs, the victim voluntarily accompanied with the accused appellant to Barpeta but denied any physical relation with her. A minor's consent is immaterial. It is thus, apparent that pursuance by the accused appellant, which created willingness on the part of the minor to be taken out of the lawful guardianship is sufficient prove of kidnapping. Therefore, in the backdrop of the facts and circumstances that have surfaced from evidence, it can safely be held that the accused appellant, after so kidnapping, subjected the minor victim to sexual intercourse. Therefore, it is abundantly clear that the accused appellant after kidnapping the minor victim-girl forcibly married her and had forcibly subjected her to intercourse maintaining husband and wife relation with her and as such, even if it is presumed that the victim minor-girl had consent to such act still her consent was immaterial and therefore, the accused appellant is undoubtedly guilty of the charges of kidnapping and rape beyond all reasonable doubt. In the backdrop of the facts and circumstances that emerged from the evidence led by the prosecution and reinforced by the accused-appellant's admissions on vital aspects of incriminating evidence, in his statement under section 313 Cr.P.C, 1973 it is respectfully submitted that the ratio decidendi of the cases cited by the appellant's side could not be applied to this case. Conclusion: 11 Situated thus, this court is of the considered opinion, that there is no legally acceptable reason to interfere in the impugned judgment and order, dated 30.11.2013, passed by the learned Addl. Sessions Judge No. 4, Kamrup, Guwahati in Sessions Case No. 198 (K) 12. 12. Accordingly, the appeal stands dismissed. 13. Send back the LCR along with a copy of this judgment and order.