JUDGMENT S.K. Sahoo, J. - The appellant Ghuku @ Buku @ Fuku @ Hookusingh Lama faced trial in the Court of learned Presiding Officer, Special Court (S.C. & S.T.), Balasore in Special Case No.344 of 2016/CIS No.186 of 2016 for commission of offences punishable under sections 342/ 365/ 376(1) of the Indian Penal Code read with section 3(2)(v)/3(2)(va) of the S.C. and S.T. (POA) Act. The learned trial Court vide impugned judgment and order dated 16.05.2018 while acquitting the appellant of the charges under sections 3(2)(v)/3(2)(va) of the S.C. and S.T. (POA) Act, found the appellant guilty of the offences under sections 342/ 365/376(1) of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/- (rupees one thousand), in default, to undergo rigorous imprisonment for two months more for the offence under section 342 of the of the Indian Penal Code; rigorous imprisonment for three years and to pay a fine of Rs.5,000/- (rupees five thousand), in default, to undergo rigorous imprisonment for six months more for the offence under section 365 of the Indian Penal Code and rigorous imprisonment for ten years and to pay a fine of Rs.10,000/- (rupees ten thousand), in default, to undergo rigorous imprisonment for two years more for the offence under section 376(1) of the Indian Penal Code and all the sentences were directed to run concurrently. 2. The prosecution case, in short, as per the first information report lodged by Shri Rabindra Jena (P.W.5) before the I.I.C., Sadar police station, Balasore on 17.03.2016 is that he was working as a labourer in the Oriplast Pipe Factory of Balasore and as usual on 16.03.2016 his younger daughter (hereafter 'the victim) (P.W.8), who was aged about nineteen years, came at about 12.45 p.m. with the tiffin box to hand it over to him but she did not return back home on that day. P.W.5 made frantic search of the victim at different places but could not locate her for which he lodged a missing report (Ext.2) at Sadar police station, Balasore on 17.03.2016. Thereafter, he received information that on 16.03.2016 in the afternoon, the appellant had taken away the victim in a cycle towards Bamapada, which was seen by others. P.W.5 made frantic search of the victim at different places but could not locate her for which he lodged a missing report (Ext.2) at Sadar police station, Balasore on 17.03.2016. Thereafter, he received information that on 16.03.2016 in the afternoon, the appellant had taken away the victim in a cycle towards Bamapada, which was seen by others. P.W.5 searched for the victim and could locate her and the victim told him that on 16.03.2016, the appellant confined her in his house and by gagging her mouth, committed rape on her. Seeing P.W.5, the appellant tried to flee away by jumping over a wall and in that process, he sustained injury on his head. On the basis of such first information report, Balasore Sadar P.S. Case No.54 dated 17.03.2016 was registered against the appellant under sections 342/ 365/376(1) of the Indian Penal Code and section 3(1)(xi) of the S.C. and S.T. (POA) Act. On the request of the I.I.C. of Sadar police station, P.W.10 Prafulla Chandra Badajena, the S.D.P.O., Sadar, Balasore took charge of investigation and during course of investigation, he examined the witnesses, visited the spot, prepared the spot map (Ext.9), issued requisition to S.P., Balasore for deputation of lady Sub-Inspector/Inspector for assisting him in investigation. He seized one blue colour saree and one red white mixed colour blouse of the victim under seizure list Ext.3. He also seized the man missing report of the victim as per seizure list Ext.1 and one blue colour Avon bicycle of the appellant as per seizure list Ext.4 and handed over the seized cycle in the zima of one Suraj Bahadur under zimanama Ext.10. He sent requisition to Tahasildar, Remuna for furnishing caste particulars of the informant, the victim and the appellant. On 18.03.2016, the Investigating Officer seized one green and black colour butterfly print sky colour frock used by the victim at the time of occurrence, which was produced by the informant under seizure list Ext.6. On the very day, the Investigating Officer also sent the victim to D.H.H., Balasore for her medical examination and made prayer to the learned S.D.J.M., Balasore for recording the statement of the victim under section 164 Cr.P.C., which was accordingly recorded. On 21.03.2016, the Investigating Officer seized the biological collection and X-Ray plate on production by the constable from D.H.H., Balasore. The appellant was arrested on 21.03.2016 and was sent for medical examination. On 21.03.2016, the Investigating Officer seized the biological collection and X-Ray plate on production by the constable from D.H.H., Balasore. The appellant was arrested on 21.03.2016 and was sent for medical examination. The biological exhibits of the appellant were also seized after the same was collected by the Medical Officer. The appellant was forwarded to Court on 22.03.2016. On the basis of the prayer of the Investigating Officer, the learned S.D.J.M., Balasore sent the exhibits to R.F.S.L., Balasore for chemical examination and opinion. The caste particulars of the informant and the victim were received from the Tahasildar, Remuna which reflected that the victim belonged to Khadala by caste which was coming under 'Scheduled Caste'. So far as the caste of the appellant is concerned, the Tahasildar, Remuna suggested to obtain the same from Balasore Tahasil but the caste certificate of the appellant has not been proved during trial. On 05.07.2016, on his transfer, P.W.10 handed over the charge of investigation to Amaresh Panda (P.W.11), S.D.P.O., Sadar, Balasore and after making local enquiry that the appellant did not belong to Scheduled Caste or Scheduled Tribe category, charge sheet dated 16.07.2016 was placed against him under sections 342/365/376 of the Indian Penal Code read with section 3(2)(v)(va) of the S.C. and S.T. (POA) Act and the learned trial Court took cognizance of offences under which charge sheet was submitted. 3. The learned trial Court on 06.10.2016 framed the charges against the appellant as already stated and since the appellant refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. 4. The defence plea of the appellant is one of denial. It is pleaded that in order to harass him a false case has been foisted. 5. During course of trial, in order to prove its case, the prosecution has examined as many as twelve witnesses. P.W.1 Bajua Patra, who was working as Constable at Sadar police station, is a witness to the seizure of missing report (Ext.2) and clothes of the victim vide seizure lists Exts.1 and 3 respectively. P.W.2 Samson Kujur, who was working as Constable at Sadar police station, is a witness to the seizure of clothes of the victim vide seizure list Ext.3. P.W.3 Ratilal Patel did not state anything about the prosecution case. P.W.2 Samson Kujur, who was working as Constable at Sadar police station, is a witness to the seizure of clothes of the victim vide seizure list Ext.3. P.W.3 Ratilal Patel did not state anything about the prosecution case. P.W.4 Goutam Patel is a witness to the seizure of Avon Bicycle vide seizure list Ext.4. P.W.5 Rabindra Jena is the informant of the case and he is the father of the victim. He stated about the presentation of missing report of the victim in the polie station and disclosure made by the victim about the occurrence. P.W.6 Gayadhara Sethi stated to have noticed the appellant taking the victim by his bicycle while he was returning to his house with his mother from the hospital, on the way at Tamulia Railway gate. P.W.7 Harekrushna Patra stated that on the date of occurrence, the victim had gone to Odisha Plastic factory gate to give tiffin to P.W.5 but did not return home for which they searched for her and on getting information, they proceeded to the house of one Adivasi at village Saraswatipur and rescued the victim from his house and thereafter, the victim narrated about the incident before them. He is also a witness to the seizure of dresses of the victim vide seizure list Ext.6. P.W.8 is the victim. She supported the prosecution case and stated about the appellant forcibly taking her in a bicycle to a house, confining her and committing rape on her. P.W.9 Dr. Sumanta Kumar Dash was the Skin Specialist at D.H.H., Balasore, who medically examined the appellant on police requisition and noticed one abrasion on the left shoulder of the appellant and proved the medical examination report vide Ext.8. P.W.10 Prafulla Chandra Badajena was the S.D.P.O., Sadar, Balasore, who was the Investigating Officer of the case. He stated to have handed over the charge of investigation to S.D.P.O., Sadar, Balasore Amaresh Kumar Panda (P.W.11). P.W.11 Amaresh Kumar Panda was the S.D.P.O., Sadar, Balasore, who on completion of investigation, submitted the charge sheet. P.W.12 Dr. Sandhyarani Pattnayak was the Senior Medical Officer, D.H.H., Balasore, who examined the victim (P.W.8) on police requisition and proved the medical examination report vide Ext.20. She also proved the blood group test report, the ossification test report, the pathology report of virginal swab and the V.D.R.L. test report vide Exts.21, 22, 23 and 24. The prosecution exhibited nineteen numbers of documents. She also proved the blood group test report, the ossification test report, the pathology report of virginal swab and the V.D.R.L. test report vide Exts.21, 22, 23 and 24. The prosecution exhibited nineteen numbers of documents. Ext.1 is the seizure list of missing report presented by P.W.5, Ext.2 is the missing report, Ext.3 is the seizure list of one blue colour saree and a red white blouse of the victim, Ext.4 is the seizure list of Avon bicycle, Ext.5 is the F.I.R., Ext.6 is the seizure list of one green colour frock and one sky colour top, Ext.7 is the statement of the victim recorded under section 164 Cr.P.C. of P.W.8, Ext.8 is the medical examination report of the petitioner, Ext.9 is the spot map, Exts.10 and 11 are the zimanamas, Ext.12 is the requisition letter, Ext.13 is the seizure list of one small glass vial containing vaginal swab and another vial containing pubic hair of the victim and X-Ray plate of the victim, Ext.14 is the seizure list of discharge certificate of the appellant and one sealed glass vial containing pubic hair and one sealed vial containing semen of the appellant and command certificate of Havildar Madan Mohakud, Ext.15 is the prayer of P.W.10 to forward the material exhibits and biological samples for chemical analysis, Ext.16 is the forwarding letter of S.D.J.M., Balasore for sending exhibits to R.F.S.L., Ext.17 is the report of Tahasildar regarding caste of P.W.5 and P.W.8, Ext.18 is the chemical examination report and Ext.19 is the serological examination report. The defence examined four witnesses. D.W.1 is the appellant himself, D.W.2 Suraj Bahadur, D.W.3 Man Bahadur Thapa @ Mahabahadur and D.W.4 Dillip Bahadur were working as Security Guards at Nilachal Concrete factory at Bampada stated not to have seen the victim at the factory campus.. 6. The learned trial Court after assessing the oral as well as documentary evidence on record, has been pleased to hold that the core of the evidence deposed to by P.Ws.1, 2, 4, 5, 6, 7 and 8 remained intact and nothing has been elicited in the cross-examination to disbelieve and discard such evidence which inspires confidence being natural and spontaneous. It was further held that the doctor's opinion regarding non-availability of any injury on the body and private part of the victim is not acceptable. It was further held that the doctor's opinion regarding non-availability of any injury on the body and private part of the victim is not acceptable. It was further held that merely because P.Ws.5 and 7 are related to the victim (P.W.8), their evidence cannot be discarded rather such evidence required closer scrutiny. Learned trial Court further held that non-examination of the scribe of the F.I.R. was not at all fatal to the prosecution. It was further held that the evidence of D.Ws.1, 2, 3 and 4 are not believable and the evidence of the victim inspired confidence and it is cogent, convincing and trustworthy and got support from other corroborative evidence. It was further held that the appellant took the victim to his residential quarters and committed rape on her without her consent and against her will and accordingly, found the appellant guilty under section 342/365/376(1) of the Indian Penal Code. The learned trial Court however held that the prosecution has failed to lead evidence to the effect that rape was committed by the appellant on the victim because the victim belonged to Scheduled Caste or Scheduled Tribe and as such the basic ingredients of the offences under sections 3(2)(v)/3(2)(va) of the S.C. and S.T. (POA) Act are not attracted. 7. Miss Anima Kumari Dei, learned Amicus Curiae appearing for the appellant contended that the accusation levelled against the appellant that he forcibly took the victim in a bicycle from near the factory premises to the spot house without the consent of the victim is very difficult to be accepted inasmuch as the road through which both of them passed was very busy throughout and had the victim shouted or tried to draw the attention of others against the conduct of the appellant, she could have been easily rescued. It is further contended that the sexual intercourse, if any, with the victim was committed with her consent and the evidence of the victim that the appellant assaulted her prior to commission of rape on her and there was tussle between them for about ten to fifteen minutes and the victim tried to escape from the clutches of the appellant is falsified by the medical examination report of both the victim as well as the appellant. It is further argued that it is the prosecution case that the victim took shelter in the house of an Adivasi person after the occurrence but none of the family members of that Adivasi person has been examined. The wearing apparels of the victim were not produced in Court during trial and even though the saree, frock and blouse of the victim were sent for chemical examination to R.F.S.L., Balasore but no blood or semen could be detected in it as per the Chemical Examination report (Ext.18). It is argued that since it is not disputed that the victim is a major girl, in view of the factual scenario in which the offence alleged to have been committed, it cannot be said that the prosecution has established the charges against the appellant beyond all reasonable doubt and therefore, benefit of doubt should be extended in his favour. Mr. Arupananda Das, learned Additional Government Advocate, on the other hand, supported the impugned judgment and contended that the evidence of the victim is clinching, trustworthy and even though there is no corroboration from the medical evidence but the same cannot be a ground to discard the evidence of the victim in view of the settled position of law laid down by this Court as well as by the Hon'ble Supreme Court. It is further contended that when the victim was found missing, missing report was lodged and the rescue of the victim from the Adivasi person's house is supported by the informant (P.W.5) as well as P.W.7. Learned counsel for the State submitted that P.W.6 had seen that the appellant taking away the victim in a bicycle and therefore, there is corroboration to the evidence of the victim and as such the appeal should be dismissed. 8. Adverting to the contentions raised by the learned counsel for the respective parties, there is no dispute that the victim (P.W.8) was major at the time of occurrence. 8. Adverting to the contentions raised by the learned counsel for the respective parties, there is no dispute that the victim (P.W.8) was major at the time of occurrence. The victim stated in her evidence that on 16.03.2016 at about 12.30 to 1.00 p.m., while she had been to pipe factory to give tiffin to his father (P.W.5) and was returning home, the appellant asked her to sit on his cycle and when she refused to sit on his cycle, the appellant forcibly dragged her and made her to sit on his cycle and took her towards backside of Laxmi Narayan Mandir and kept her in a house. It has been brought out in the cross- examination of the victim that the road which runs by the side of the pipe factory is a busy road and the spot house is about four kilometers away from the factory. The I.O. (P.W.10) has stated that the second spot is four kilometers away from the first spot. P.W.6 has stated that while he was returning to his house with his mother from the hospital, on the way at Tamulia Railway gate, he found the appellant taking the victim on his bicycle. The informant (P.W.5) has stated in the cross-examination that the plastic factory is situated by the side of main road which runs from Bhubaneswar to Balasore and it is a busy place and one Laxmi Narayan temple, Law College, Art College and some villages are situated nearby the plastic factory. Thus, from the aforesaid evidence, it is apparent that the spot house is at a distance of about four kilometers from the factory from where the victim was taken by the appellant and the entire path is a busy route and in such a scenario, if the victim was being forcibly taken by the appellant on the bicycle, had the victim protested to the act of the appellant or shouted, it would have been easily drawn the attention of others. Even when P.W.6 noticed the victim being taken by the appellant, he has not stated that the victim was shouting or making any protest or seeking help of anyone to save her. In view of the aforesaid evidence on record, it is difficult to accept that the victim was taken forcibly by the appellant on his bicycle from near the gate of the Odisha Plastic factory to the spot house. In view of the aforesaid evidence on record, it is difficult to accept that the victim was taken forcibly by the appellant on his bicycle from near the gate of the Odisha Plastic factory to the spot house. In order to make out a case under section 365 of the Indian Penal Code, the prosecution is required to prove kidnapping or abduction by the accused and his intention to keep the person kidnapped or abducted in wrongful or secret confinement. Kidnapping from lawful guardianship as per section 361 of the Indian Penal Code requires the prosecution to prove taking or enticing away a minor or any person of unsound mind. The minor must be under sixteen years of age, if a male, or under eighteen years of age, if a female. Such taking or enticing must be out of keeping of the lawful guardian of such minor or person of unsound mind, which must be without the consent of such guardian. In the case in hand, neither the victim was under eighteen years of age at the time of occurrence nor she was of unsound mind. There is no material to substantiate enticement on the part of the appellant, rather it indicates that the victim voluntarily accompanied the appellant in his bicycle. Abduction which is defined in section 362 of the Indian Penal Code requires the prosecution to prove forcible compulsion or inducement by deceitful means and the object of such compulsion or inducement must be going of a person from any place. The ingredients of the offence of abduction is missing in this case. Therefore, charge under section 365 of the Indian Penal Code fails. 9. Coming to the charges framed against the appellant under section 342 and 376(1) of the Indian Penal Code, the victim (P.W.8) has stated that the appellant torn her dress and made her naked and then squeezed her breast and then committed rape on her against her will and consent. When she protested, the appellant assaulted her and after committing rape, the appellant locked the house and left the place and again he came in the night and again he sexually assaulted her against her will and consent. When the appellant offered her food, she refused for which the appellant assaulted her. The appellant supplied her a saree. When she protested, the appellant assaulted her and after committing rape, the appellant locked the house and left the place and again he came in the night and again he sexually assaulted her against her will and consent. When the appellant offered her food, she refused for which the appellant assaulted her. The appellant supplied her a saree. In the cross-examination, the victim has stated that she struggled to escape from the clutches of the appellant and protested the appellant by using her hands and she struggled for ten to fifteen minutes and gave kick blows to the appellant but the appellant resisted her blows and the appellant laid down her on a cot and committed rape on her. She further stated that the appellant dragged her forcibly and laid down her on the cot. The doctor (P.W.12), who examined the victim on 18.03.2016 noticed no injury on any part of the body of the victim and no stain was found on her clothes. The hymen was found ruptured having old radiating fibrosed tears and the vaginal orifice admitted two fingers tightly. There was no bleeding of discharge from the vagina. The doctor basing on the report of the radiologist, opined the victim's age to be more than twenty years. The doctor further stated that there was no sign or symptom of recent sexual intercourse. In the cross-examination, the doctor has stated that there was no fresh injury, no bleeding and no redness. The appellant was examined by P.W.9, the doctor was attached to D.H.H., Balasore and he found no bodily injuries on his person suggesting forcible sexual intercourse and no physical clue in the clothings, however he noticed one abrasion on the left shoulder. Thus, the evidence of the victim that there was struggle with the appellant for ten to fifteen minutes and that the appellant assaulted her twice and that she was dragged before commission of rape and that the appellant committed rape on her twice on one day is contradicted by the medical evidence. Though the victim stated that the appellant torn her dresses and made her naked and the Investigating Officer seized the dresses of the victim on being produced by the informant (P.W.5) but those dresses were not produced at the time of trial. Though the victim stated that the appellant torn her dresses and made her naked and the Investigating Officer seized the dresses of the victim on being produced by the informant (P.W.5) but those dresses were not produced at the time of trial. The saree, the frock and the blouse which the victim was wearing were sent for chemical analysis but no blood or semen was found in it as per the chemical examination report (Ext.15). The I.O. (P.W.10) has stated that there are other quarters near the spot house and the spot house was having cemented wall and asbestos roof and it consisted of one room. The victim (P.W.8) has stated that the spot house consisted of one window and one door. It appears from the evidence of the victim that after committing rape on her in the afternoon, the appellant left the spot house by locking the house and again came in the night. There is no evidence that the victim tried to call anyone to save her by opening the window after the appellant left the house. Her silence in between the period when the appellant left the spot house in the afternoon and arrived again in the night speaks volumes against her conduct that she was having no consent. The victim stated that the appellant left her near a road side in the early morning and one Adivasi family called her and gave her shelter but it appears that not a single person where she had taken shelter has been examined. Evidence has come on record that prior to the occurrence, the appellant was taking the children of the informant to the Convent school by his rickshaw, which has been deposed to by P.W.7. Even the victim has also stated that the appellant was residing near her house and used to take her younger brother to the school by rickshaw. Thus, the appellant was a known person to the victim as well as her family prior to the occurrence. 10. Even the victim has also stated that the appellant was residing near her house and used to take her younger brother to the school by rickshaw. Thus, the appellant was a known person to the victim as well as her family prior to the occurrence. 10. In view of the foregoing discussions, when the evidence of the victim that the appellant forcibly took her from near the factory premises to the spot house in a bicycle appears to be a doubtful feature, when the evidence of the victim relating to forcible commission of rape on her twice on the same day by the appellant is getting no corroboration from the medical evidence, when the victim's conduct in remaining silent in the spot house without any attempt to draw the attention of others and other attending circumstances indicate the victim to be a consenting party and when the material objects seized were not produced during trial and relevant witnesses have not been examined, I am of the humble view that it cannot be said that the prosecution has successfully established its case against the appellant beyond all reasonable doubt. 11. Accordingly, the Jail Criminal Appeal is allowed. The impugned judgment and order of conviction of the appellant under sections 342/365/376(1) of the Indian Penal Code and the sentence passed thereunder is hereby set aside and the appellant is acquitted of all such charges. He shall be set at liberty forthwith, if his detention is not otherwise required in any other case. Lower Court Records with a copy of this judgment be sent down to the learned trial Court forthwith for information and necessary action. Before parting with the case, I would like to put on record my appreciation to Miss Anima Kumari Dei, the learned Amicus Curiae for rendering her valuable help and assistance towards arriving at the decision above mentioned. The learned Amicus Curiae shall be entitled to her professional fees which is fixed at Rs.7,500/- (rupees seven thousand five hundred only).