JUDGMENT : Heard Mr. M. Biswas, learned counsel for the appellant/accused. Also heard Mr. M.P. Goswami, learned Addl. P.P., Assam for the State/respondent No.1 and Mr. U.S. Bargohain, learned counsel for the private respondent No.2 (informant). 2. The present appeal has been preferred against the judgment and order dated 04.04.2012, passed by the learned Sessions Judge, Dhemaji, convicting the accused/appellant in Sessions Case No.10 (DH)/2013, sentencing the accused to undergo R.I. for seven years and to pay a fine of Rs.1000/-, in default to undergo R.I. for another one month, for the offence under Section 376(1) of the IPC. The accused also sentenced to undergo R.I. for five years and to pay a fine of Rs.1000/-, in default to undergo R.I. for one month, for the offence under Section 366 of the IPC and the sentences will run concurrently. 3. Briefly stated the prosecution case is that on 05.12.2012 at about 8:30 A.M., while the informant’s niece (the victim) went to S.F.S. School to drop the informant’s minor children and on returning home, the accused forcibly took the victim and thereafter he made a demand of Rs.2 lakhs over phone to the informant threatening dire consequences if the demand is not fulfilled. On the basis of the FIR received, the Dhemaji P.S. Case No.331/2012, under Section 364(A) IPC was registered and on completion of the investigation, charge sheet was submitted against the accused person (appellant herein), under Sections 366/376/325 IPC. 4. The accused stood the trial and denied the charges that were framed under Sections 366/376(1) IPC. In support of the case, the prosecution examined eight witnesses and the defence also examined two witnesses on rebuttal. The accused was examined under Section 313 CrPC and at the conclusion of the trial, the learned Trial Court found and hold the accused guilty under Sections 366/376(1) IPC and sentenced him as aforesaid. 5. Aggrieved by the above judgment and order, the present appeal has been preferred on the ground that such a finding of the Trial Court is erroneous and the learned Court failed to appreciate the evidence on record in proper perspective of law as well as fact. 6. Mr. M. Biswas, learned counsel for the appellant has relied upon the evidence so recorded by the prosecution and has led this Court throughout the evidence of the entire witnesses. 6. Mr. M. Biswas, learned counsel for the appellant has relied upon the evidence so recorded by the prosecution and has led this Court throughout the evidence of the entire witnesses. Serious contention has been raised that the conduct of the victim herself is very crucial in the present case to adjudge the authenticity of her case. Mr. Biswas in his argument has vehemently contended that the conduct of the victim herself has been surrounded by serious doubt which is enough to destroy the credibility of her evidence. It is stated that the victim in the instant case aged about 22 years, not a minor and she was in a very much in a position to resist the accused/appellant from doing any harm to her body and mind, had she has intention to resist him. The victim girl was taken to different places after the said incident and in the process she made no any resistance, hue and cry etc., against the act of the accused person. It is also contended that in such serious offence, the prosecution has failed to produce any relevant witnesses to support the contention of the victim to show that she was forcibly kidnapped and raped by the accused person. Save and except some family members of the victim, no other independent witness was examined by the prosecution. 7. Mr. M.P. Goswami, the learned counsel for the State respondent as well as Mr. U.S. Bargohain, learned counsel for the private respondent No.2 have however justify the conviction on the ground that the victim has indicated in her evidence about such forceful conduct of the accused which is also supported by the medical report. An argument have been advanced from the side of the informant that as the victim was taken to jungle by the accused, so she was not in a position to resist the accused and subsequently though she was taken to other places, the name of those persons are not known to the victim. However the accused was finally apprehended at the instance of the victim girl which suggest that she was not a consenting party to the whole affairs. 8. Bearing in mind the above submission, I have examined the evidence on record. As the case centers around the testimony of the victim girl, so let us appreciate her evidence at the first instance. 9. 8. Bearing in mind the above submission, I have examined the evidence on record. As the case centers around the testimony of the victim girl, so let us appreciate her evidence at the first instance. 9. The victim as PW.1 in her statement has categorically admitted that she was aged about 22 years at the time of occurrence and on the date of occurrence while she was returning from school after dropping her cousin at School at about 9:30 A.M., the accused suddenly caught hold her, took her in a Maruti Van to a nearby jungle of Padumoni and committed rape on her by removing her clothes, resulting bleeding from her private parts. She further stated that after such sexual conduct with her for about one hour, he took her out from jungle and got into a Tato Sumo to Lakhimpur. She was seated in a park in Lakhimpur near a Shiva Mandir since morning to 6:30 P.M. and then she was taken to Amingaon in a Night Super. In Amingaon, she was kept in a house and committed rape upon her and she made a call to her sister Pallabi and the accused took away the phone from her and call her family members and demanded Rs.2 lakh from them. After staying one day at Amingaon, the accused took her to Dhakuakhana in a Night Super and she disclosed to the conductor and bus driver that she has been forcibly taken away and at Kharupetia, when they got down from the vehicle, the accused assaulted her and broken her teeth and then public assaulted the accused and police arrived. Thereafter her relatives came to Kharupetia and took her to Dhemaji P.S. 10. The victim girl in her deposition as PW.1 stated that she knows the accused only from the date of incident but in her cross-examination she has stated that the accused earlier married her uncle’s daughter Rachna Rani about one year back but the family members brought back Rachna Rani from the accused, as he was already a married person, which goes to show that the victim knows the accused very well since earlier and she is telling lie while she says that she knew the accused only from the date of incident. According to the victim, there was blood stain on her clothes after the incident of rape but those clothes were not seized by the I.O. The victim also stated that the accused person broken her two teeth. She has however denied any sort of love affairs with the accused person. This is the testimony of the victim girl in a nutshell. 11. The PW.2 (Kumar Mohan Taid) is the informant and according to him, on the day of occurrence i.e. 05.12.2012, at about 12 P.M., he came to know that the victim has not returned home after dropping his children in the school. On the next day he got a phone call from the accused stating that the victim girl is with him at Lakhimpur Seuj Nagar and will return back in the evening but they did not return in the evening and subsequently he demanded Rs.2 lakh for releasing the victim. So he filed the FIR and on 07.12.2012, he came to know that police has arrested the accused along with the victim. He has not narrated as to under what circumstances the victim was recovered. However according to him, after the recovery the victim stated about her kidnapping by the accused. In his cross-examination, the witness stated that he had a strain relation-ship with the accused person earlier to the incident. 12. The other witnesses namely, PW.3 Ajit Mili (brother-in-law of the victim), PW.4 Mousumi Taid (sister of the victim) and PW.5 Ranjit Taid (cousin of the victim) have no personal knowledge about the incident but upon hearing the matter from the informant, they came to know that the victim has been kidnapped by the accused and also came to know that she has been kept in Guwahati and thereafter the accused along with the victim was apprehended by the police of Kharupetia P.S. So all the witnesses although have stated that they came to know about such kidnap and rape by the accused person but they at no point of time have ever stated that the accused person has forcefully kidnapped the victim girl from a public place. 13. 13. PW.6 is the Medical Officer who examined the victim girl and opined that she has perennial tear in the private part and absence of hymen which may be caused due to forceful sexual intercourse but in cross-examination he has stated that the hymen may be absent for different reasons. 14. PW.7 Smti Bhagyawati Taid, whose children of whom was taken by the victim to drop in the school and did not return, she has stated that the victim was kidnapped by the accused person. Obviously she is not an eye witness to the occurrence of kidnapping of the victim and she has categorically stated that on the date of occurrence, after dropping the children in the school, the victim did not return and later on the accused made a phone call demanding Rs.2 lakh for release of the victim girl but they did not pay the money. Further her statement goes to show that the victim girl was recovered by the Kharupetia Police, wherein she reveals that she was forcibly picked up by the accused person from Dhemaji and she narrated the episode of kidnapping and rape by the accused. 15. The evidence of PW.8 is of formal in nature who is the I.O. namely Keshab Ranjan Choudhury. However his evidence would show that a case was registered at Dhemaji P.S. and his evidence however is not detail as to under what circumstances the victim was recovered or the accused was arrested. His evidence was cryptic in nature. 16. From the overall appreciation of the materials on record, certain matters emerge out which deserve consideration while appreciating the evidence. We are aware that in the present case the victim is not a minor but an able bodied major girl of 22 years and as per the record itself, the family members of the victim have no good relation with the accused/appellant due to his earlier conduct. In that view, even if the accused forcibly taken away the victim from the road, there was occasion on her part to raise alarm before the public as she was taken to different places, as depicted earlier. In that view, even if the accused forcibly taken away the victim from the road, there was occasion on her part to raise alarm before the public as she was taken to different places, as depicted earlier. Regarding the first instance of kidnap and rape, it can be noted that the incident occurred at a public place in day time, at 9:30 A.M. and there was public at large on road and the victim was in a position to resist the accused and to make hue and cry for such abduction and rape but nothing was done by her and she silently accompanied him to different placed by public road. 17. On the next, no any person from the locality has been examined by the prosecution that the victim was forcibly taken away by the accused, to support her contention. According to her, she was forcibly raped in the nearby jungle and thereafter she was taken to different places of Dhemaji and Lakhimpur Districts, then to Amingaon and thereafter to Kharupetia and in the process she stayed with the accused for two days without any protest or resistance. No able bodied woman can be kept confined by a person forcefully if she duly resist such person, which was not done by her. It is also not a case that she was kept confine for all the times or under threat so that she may not escaped from the clutches of the accused. She moved openly from place to place and kept in another person’s house where she alleged to have been raped by the accused. Such a conduct of the victim is difficult to accept as a true version of the incident. Her version that she informed one family member Pallabi about such kidnapping is also not established, as the said person was not examined by the prosecution. 18. The other witnesses so far examined by the prosecution are hearsay witnesses and have no bearing on the issue that the accused forcefully kidnapped the victim. The conduct of victim of kidnap or rape is very crucial while the victim is a major one, because the victim in case of minor, having consent or no consent is inconsequential, whereas no consent of a major, is crucial one to implicate a person with such offence. 19. The conduct of victim of kidnap or rape is very crucial while the victim is a major one, because the victim in case of minor, having consent or no consent is inconsequential, whereas no consent of a major, is crucial one to implicate a person with such offence. 19. As discussed above, the victim remained with the accused person for two days without any attempt to fled away from this clutches, coupled with the fact that there is no any evidence to show that there was any forceful abduction of the victim girl from a public place and also the fact that no any relevant witness has been examined by the prosecution to show that the victim was kept confined forcefully in the house of a person at Amingaon, as of determinative factor to adjudge the credibility of a victim woman. Fixing a criminal liability of a person is to be based upon the authenticity of the case of the victim, so as to make her evidence credible and to be accepted beyond all reasonable doubt. But from the evidence or record, the evidence of the victim is clouded by shadow of doubt basically because of her age and her conduct as discussed above. 20. Although there is a finding of the Medical Officer regarding absence of hymen, indicating sexual intercourse but the same will not help the case of the victim while the determinative factor that such rape was committed by force or not, is not established in the given circumstances. Rather it indicates that these things conducted on due consent. According to the opinion of this Court, it is highly unsafe to rely on such testimony of the victim while the authenticity of the incident is at stake and failed to inspire confidence. 21. The defence somehow adduced rebuttal evidence by adducing two witnesses to support the case of the defence that the victim girl who was in the same Night Super, created a situation as soon as the accused had an argument with the driver and conductor of the vehicle over the payment of fare. But irrespective of the defence evidence, the prosecution case itself has no legs to stand to support the case. 22. But irrespective of the defence evidence, the prosecution case itself has no legs to stand to support the case. 22. The learned Trial Court in its judgment has referred and relied upon the decision of the Hon’ble Supreme Court, reported in State of Punjab vs. Gurmit Singh, reported in (1996) 2 SCC 384 , while accepting the case of the prosecution but the same is misplaced by giving a wrong interpretation. The said case relates to a minor victim wherever it has also been held as below:- “If evidence of the prosecutrix inspirers confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations”. 23. Obviously in the present case, this Court is of opinion that the prosecution cannot claim that the charge has been proved beyond all reasonable doubt against the accused/appellant and the benefit of doubt will go in favour of the accused. Accordingly the appeal is allowed and the impugned judgment and order dated 04.04.2018, passed by the learned Sessions Judge, Dhemaji, convicting the accused/appellant in Sessions Case No.10 (DH)/2013, is hereby quashed and set aside. 24. The accused be set at liberty forthwith. Return the LCR immediately.