JUDGMENT : MD. SHABBAR RASHIDI, J. 1. The instant appeal, at the behest of the de-facto complainant is in assailment of the impugned judgment and order dated August 19, 2019 passed by learned Additional Sessions Judge, 2nd Fast Track Court, Asansol, in Sessions Trial No. 06 of 2009 arising out of Sessions Case No. 341 of 2007. 2. By the impugned judgment and order, the respondent/accused Abhijit Gope @ Bapi was found not guilty and was acquitted of the charges under Sections 341/376 of the Indian Penal Code. 3. It is submitted by learned advocate for the appellant that the impugned judgment and order was passed by learned Trial Court merely on conjectures and surmises without evaluating the evidence on record. The findings arrived at by the learned Trial Court were misconceived and misdirected. 4. Learned advocate for the appellant further submitted that the learned Trial Court failed to appreciate the evidence led at the trial in its proper perspective and came to an erroneous finding. The Trial Court misapplied the authorities cited on behalf of the defence without considering the facts and circumstances obtained in the present case. 5. According to learned advocate for the appellant, the learned Court failed to appreciate that the victim happened to be deaf and dumb, and it was highly improbable that she or her family members would falsely implicate the accused. 6. Learned advocate for the appellant also submitted that evidence led at the trial, convincingly established the guilt of the accused warranting a conviction. Learned Trial Court was not justified in acquitting the accused. As such the impugned judgment and order is liable to be set aside. 7. Learned advocate for the appellant also submitted that the evidence adduced on behalf of the prosecution established sexual intercourse upon the victim. Since the victim had named the accused as the perpetrator, it gave rise to a presumption in terms of Section 114A of the Indian Evidence Act against the accused and the onus shifted on to the accused. In support of his contention, learned advocate for the appellant relied upon an authority reported in 2007 SCC OnLine Cal 113 (Vimalanathan vs State). 8. On the other hand, learned advocate for the respondents stood by the impugned judgment and order. In support of his contention, learned advocate for the appellant relied upon an authority reported in 2007 SCC OnLine Cal 113 (Vimalanathan vs State). 8. On the other hand, learned advocate for the respondents stood by the impugned judgment and order. He contended that the prosecution failed to establish the charges levelled against the accused with the help of unimpeachable evidence, enough to secure conviction of the accused. According to learned advocate for the respondent, learned Trial Court was quite justified in acquitting the accused. 9. The mother of the victim lodged a written complaint with Officer-in-Charge of Raniganj Police Station on September 9, 2004 to the effect that her daughter was deaf and dumb. About 2½ - 3 months prior to the date of lodging the written complaint, the daughter of de- facto complainant went to take bath in the pond of the village at noon. At that time, the accused, finding the victim alone, dragged her into the nearby bushes and forcibly committed rape upon her. He also threatened to kill her if she disclosed the incident to anyone. The de- facto complainant also stated that the victim went quiet after the incident. A few days prior to September 9, 2004, the victim was vomiting and was taken to a doctor where it was discovered that she was pregnant. When the de-facto complainant asked the victim as to the person responsible, she identified the accused. The written complaint also discloses that after such discovery, the de-facto complainant and the villagers went to the house of the accused when he admitted to have committed rape upon the victim and promised to marry her but later he refused to marry. 10. On the basis of such written complaint, Raniganj PS Case No. 135 of 2004 dated September 9, 2004 under Sections 341/376 of the Indian Penal Code was started against the accused. 11. Police took up investigation and on completion thereof, submitted charge-sheet under the aforesaid sections against the accused. Accordingly, on the basis of materials in the case diary, charges under Sections 341/376 of the Indian Penal Code were framed against the accused/respondent on January 14, 2009. The accused, being read over and explained the substance of charges, pleaded not guilty to the charges and claimed to be tried. 12. In order to substantiate the charges, prosecution adduced as many as 13 ocular witnesses. The accused, being read over and explained the substance of charges, pleaded not guilty to the charges and claimed to be tried. 12. In order to substantiate the charges, prosecution adduced as many as 13 ocular witnesses. In addition, prosecution also relied upon certain documentary as well as material evidence. 13. The de-facto complainant herself deposed as PW1. She reiterated in her deposition that her victim-daughter was deaf and dumb. The accused committed rape upon her, whom, she identified in court. She further stated that the victim reported the incident to her by gestures. On medical examination of the victim, it revealed that she had conceived. The accused promised to marry the victim but later he refused. Thereafter, PW1 lodged the written complaint scribed by one Rina Gope as per her instructions which was read over and explained to her and she put her left thumb impression thereon. 14. In her cross-examination, PW1 stated that there was a meeting in the party office prior to lodging of the case, where the family of the accused refused and denied the incident. She further stated that the written complaint was drafted inside the party office. She, however, could not identify the persons/villagers who accompanied her when she visited the house of the accused. She was even not able to state as to with whom she visited the house of the accused whether in the evening or morning. 15. An ambulance driver of Asansol Sub-divisional Hospital was examined as PW2. He identified and proved his signature on the seizure list dated September 10, 2004. He, however, could not state as to what was seized by such seizure list. 16. The victim deposed as PW3. She stated that a few years ago (from July 31, 2012), the accused forcibly committed rape upon her by shutting her mouth with his hands while she was taking bath in a pond. She further stated that the accused committed rape upon her thrice on different occasions; as a result, she became pregnant. She disclosed the incident to her mother. Her mother approached the accused to marry the victim but he refused. Thereafter, her mother lodged a case with the police. PW3 was medically examined by a doctor and she put her signatures on some papers (exhibits 2/1 and 3/1). Some photographs were also taken during the medical examination. She disclosed the incident to her mother. Her mother approached the accused to marry the victim but he refused. Thereafter, her mother lodged a case with the police. PW3 was medically examined by a doctor and she put her signatures on some papers (exhibits 2/1 and 3/1). Some photographs were also taken during the medical examination. PW3 also recorded her statement before learned Magistrate through the interpreter who assisted her in her deposition. She proved her signatures on the statement recorded under Section 164 of the Code of Criminal Procedure (exhibit 1 series). She identified the accused in Court as the perpetrator. 17. In her cross-examination, PW3 stated that the accused committed rape upon her six times on different occasions. She further stated that the accused committed rape upon her twice in his house and five times on the bank of the pond where she used to take bath when no one was present there. The victim was raped by the accused second time after three days of the first incident of rape. She was raped again after 5/7 days. The accused committed rape upon her at his house after an interval of 2/3 days. There was no one present at the house of accused. She also stated that her house and that of the accused were adjacent. The two families had visiting terms at each other’s house and the victim knew the accused from her childhood. PW3 further stated in her cross examination that she reported all the incidents to her mother after 3/5 days of the last incident. She was carrying for three months at the time of her medical examination. Later, her pregnancy was terminated. 18. PW4 is the father of the victim. He stated that the victim was deaf and dumb. When she went to take bath in the village pond, seeing that she was alone, the accused committed rape upon her. His daughter came back and reported the incident to her mother who, in turn, reported the same to PW4. The victim became pregnant and thereafter, his wife informed the incident to police. He further stated that prior to the information to police; he informed the matter to his neighbours. The police arranged for medical examination of the victim. PW4 identified the accused in court. He was interrogated by police. The victim became pregnant and thereafter, his wife informed the incident to police. He further stated that prior to the information to police; he informed the matter to his neighbours. The police arranged for medical examination of the victim. PW4 identified the accused in court. He was interrogated by police. He further stated that after the incident, his wife took the victim to the house of the accused when he refused to accept his guilt. 19. In his cross examination, PW4 stated that the victim identified the accused in the police station itself on September 9, 2004 when he visited police station accompanied by his wife. PW4 stated in his cross examination that he was not expecting that the accused should marry his daughter. However, he admitted that there was a meeting in the party office where, the accused refused to marry the victim. He also denied his knowledge that the victim was carrying for 3/4 months when she was first taken to police. Although, PW4 stated in such cross examination that he did not attend the meeting in the party office but at a later stage of his cross examination he admitted that he informed the incident to the party office. He also stated that after 2/3 months of the incident, he came to know about rape committed upon his daughter. PW4 admitted in his cross examination that the husband of the scribe of the written complaint, namely Basudeb Gope was full blooded brother of his wife. He also stated that Shyamapada Gope is maternal uncle of accused Abhijit Gope. He however, denied his knowledge but did not specifically deny pending land disputes between Basudeb Gope and Shyamapada Gope. 20. A medical officer deposed as PW5. He stated that on September 9, 2004, he examined the victim girl at Asansol Sub- divisional hospital in connection with Raniganj PS Case No. 135 of 2004 dated September 9, 2004. He further stated that on such examination, he did not find any recent sign of rape, sign of habitual intercourse. He also did not find any injury on the private parts of the victim though; he found old sign of hymen rupture. No foreign body was detected in the private parts. Uterus of the victim was found antiverted, bulky, corvix soft. According to the opinion of PW5, the patient had probably conceived subject to confirmation by tests. He also did not find any injury on the private parts of the victim though; he found old sign of hymen rupture. No foreign body was detected in the private parts. Uterus of the victim was found antiverted, bulky, corvix soft. According to the opinion of PW5, the patient had probably conceived subject to confirmation by tests. PW5 proved his report in this regard (exhibit 4). 21. Another medical officer of Asansol Sub-divisional hospital who examined the accused was examined as PW6. He stated that on September 29, 2004 he examined the accused in connection with Raniganj PS Case No. 135 of 2004 dated September 9, 2004. On such examination, he found that the accused was capable of sexual intercourse. There was however, no injury on his private parts. His semen was preserved. PW6 proved the injury report and his signature thereon (exhibits 4/1 and 4/2). 22. The scribe of the written complaint deposed as PW7. She stated that she knew the victim and her mother. The victim is deaf and dumb. She further stated that she scribed the written complaint as per the instructions of the victim and her mother and handed over the same to police in their presence. At that time, victim was aged about 15 years. PW7 also stated that she was informed by the complainant that the victim was raped by the accused while she was going to take bath in the pond. The accused dragged her into the bushes and threatened her not to disclose the incident to anybody. The written complaint was lodged on September 9, 2004. PW7 proved the written complaint and her signature thereon (exhibit 5 and 5/1). PW7 also stated that the incident took place 2 ½ /3 months prior to the date of lodging of the written complaint. She claimed to identify the accused. She further stated that the victim narrated to her by signs that she became pregnant due to rape committed by accused. In her cross examination, PW7 stated that the victim and her mother visited her house where she scribed the written complaint at their instruction. 23. The store keeper of Asansol Sub-divisional hospital was examined as PW8. He is a seizure list witness. He proved his signature on the seizure lists dated September 10, 2004 and September 29, 2004 (exhibits 1/2 and 6), respectively. He had no personal knowledge about the case. 24. 23. The store keeper of Asansol Sub-divisional hospital was examined as PW8. He is a seizure list witness. He proved his signature on the seizure lists dated September 10, 2004 and September 29, 2004 (exhibits 1/2 and 6), respectively. He had no personal knowledge about the case. 24. A lady Assistant Sub-inspector of police was examined as PW9. She stated that she accompanied the victim to learned Magistrate for recording her statement under Section 164 of the Code of Criminal Procedure. She had no knowledge about the case. 25. An employee of deaf and dumb school deposed as PW10. He stated that he, as per the requisition of Asansol Police Station, acted as an interpreter during recording of the statement of the victim under Section 164 of the Code of Criminal Procedure. The victim answered the learned Magistrate by gestures and PW10 interpreted the gestures to learned Magistrate in English language which was recorded by him. PW10 proved his signature on the statement as interpreter (exhibit 1/1). After recording the statement, PW10 gave a certificate to the effect that it was recorded by learned Magistrate as stated by the victim and interpreted by him. He also read over and explained the recorded statement to the victim and she signed such statement after being satisfied of its correctness. 26. A radiologist attached to Asansol hospital was examined by the prosecution as PW11. He examined the victim and conducted her x-ray on September 11, 2004. On the basis of his examination and x- ray reports, he opined that the victim was aged between 14 and 17 years. He proved the medical report and his signature thereon (exhibits 2 and 2/2) respectively. PW11 was cross examined by the defence at length and in such cross examination; he admitted the bone age of the victim to be above 17 years. 27. Another medical officer of Asansol Sub-divisional hospital was examined as PW12. He stated that in the month of September 2004, he examined the victim who was admitted with complain of huge bleeding of her pregnancy. She was aborted. 28. The investigating officer of the case deposed as PW13. He proved the endorsement of the Officer-in-Charge of Raniganj police station on the written complaint (exhibit 5). On the basis of such written complaint, the officer-in-charge started specific case by filling up formal First Information Report (exhibit 8). She was aborted. 28. The investigating officer of the case deposed as PW13. He proved the endorsement of the Officer-in-Charge of Raniganj police station on the written complaint (exhibit 5). On the basis of such written complaint, the officer-in-charge started specific case by filling up formal First Information Report (exhibit 8). PW13 was endorsed with the investigation of the case. PW13 also narrated the various steps taken by him in the investigation of the case. He visited the place of occurrence, prepared rough sketch map of the same with index. He also arranged for medical examination of the victim at Asansol hospital and thereafter he forwarded the victim for recording her statement by learned Magistrate. PW13 also seized vaginal swab and other articles under proper seizure lists. He also arrested the accused whom he identified in court. PW13 was also cross examined at length. 29. Upon conclusion of the evidence on behalf of the prosecution, the accused was examined under Section 313 of the Code of Criminal Procedure. The accused, in such examination, pleaded innocence denying the allegation appearing against him in the evidence of the prosecution. He stated that no such incident as appearing from the evidence of the prosecution did ever happen and the allegations were false. He however, declined to adduce any defence witness. 30. According to the case made out by the prosecution, the accused/private respondent committed rape upon the victim, a deaf and dumb girl, taking advantage of her loneliness, while she went to village pond to take bath in the afternoon. 31. Learned Trial Court, in the impugned judgment, comprehensively considered the age of the victim at the relevant time. Although the parents of the victim, PW1 and PW4, in their deposition, did not state the age of victim at the time of occurrence. PW7 stated the age of the victim as 15 years. No documentary evidence was adduced on behalf of the prosecution in support of the age of the victim. The victim underwent ossification test which was also considered by learned Trial Court and upon consideration of such report coupled with evidence led at the trial, learned Trial Court held that the victim was not a child. 32. As noted above, no documentary evidence has been brought on record to establish the age of the victim at the time of incident. 32. As noted above, no documentary evidence has been brought on record to establish the age of the victim at the time of incident. The parents of the victim have not deposed, in their deposition, to establish that the victim was a child at the relevant time. In course of trial of the instant case, either the prosecution or the present appellants never approached the court to invoke the provisions of Protection of Children from Sexual Offences Act, 2012. Section 2 (1) (d) of the Act of 2012 defines a child as ‘any person below the age of 18 years’. 33. The evidence of the medical officer, PW11 goes to show that although, in his deposition, on the basis of ageing of bones, he opined the age of the victim between 14 and 17 but in his cross examination, he agreed to the suggestion that the age of bones of the victim were above 17 years. It is settled position that the medical determination of age, should always be read with a margin of 2 years on either side. Moreover, at the time of deposition, PW3, the victim, disclosed her age as 25 years. She deposed on July 31, 2012 whereas, the incident allegedly occurred sometimes before September 9, 2004. By such calculation, the victim was aged more than 17 years at the time of incident. PW1, the mother of the victim, stated her age to be 45 years at the time of her deposition on October 23, 2009. Similarly, the father of the victim, PW4, disclosed his age at the time of deposition on April 20, 2013 as 58 years. The victim is the second daughter of her parents. Her elder sister was already married. Therefore, taking into account the aforesaid facts and circumstances together with the medical evidence, there appears nothing in the evidence to hold that the victim was a child at the relevant point of time. 34. As noted hereinbefore, the accused/private respondent allegedly committed rape upon the victim, when she went to take bath in the village pond in an afternoon. The de-facto complainant, PW1 stated in her deposition that the private respondent/accused committed rape upon the victim, when she went to take bath in the village pond. The incident was reported to her by the victim by gestures. The victim herself deposed as PW3. The de-facto complainant, PW1 stated in her deposition that the private respondent/accused committed rape upon the victim, when she went to take bath in the village pond. The incident was reported to her by the victim by gestures. The victim herself deposed as PW3. In her deposition, PW3 also stated that the accused forcibly committed rape upon her by shutting her mouth with his hands, while she was taking bath in a pond. She stated in her evidence that she reported the incident to her mother. Her mother approached the accused when he admitted his guilt and promised to marry the victim. Later, he refused the marriage whereupon; PW1 lodged a complaint with the police about the incident. 35. Learned advocate for the appellant, relying on Vimalanathan (supra), contended that there is overwhelming evidence on record that the private respondent/accused committed rape upon the victim. It was pointed out that the victim, PW3, has made a resounding statement that the private respondent/accused committed rape upon her forcibly, against her will by putting his hand on her mouth. Therefore, a presumption under Section 114A of Indian Evidence Act, 1872, is immediately pressed into service. Learned advocate for the appellant also submitted that the statement of the victim, in view of the presumption expounded under Section 114A of Indian Evidence Act, is sufficient enough to convict the accused for an offence under Section 376 of the Indian Penal Code. In such view of the facts, the learned Trial Court was not justified in acquitting the private respondent/accused. 36. In Vimalanathan (supra), a Coordinate Bench of this Court observed that, “7. Offence of rape punishable under section 376 IPC is a crime having a special feature. In criminal jurisprudence the degree of proof is much more strict than that of any other proceeding and the prosecution is having an onerous burden of proof to the effect that the evidence should draw only logical conclusion that it is the accused and nobody else who committed the crime. Such degree of proof is however relaxed in a case under section 376. The legislature brought a change in the evidence law. Section 114 of the Indian Evidence Act, 1872 had undergone a change by incorporation of section 114A which was inserted by the Act of 1983. The said section being relevant herein is quoted below: “114A. Such degree of proof is however relaxed in a case under section 376. The legislature brought a change in the evidence law. Section 114 of the Indian Evidence Act, 1872 had undergone a change by incorporation of section 114A which was inserted by the Act of 1983. The said section being relevant herein is quoted below: “114A. Presumption as to absence of consent in certain prosecutions for rape.—In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of section 376 of the Penal Code, 1860, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.” 8. Now the evidence of the victim is only relevant to convict the accused. This amendment has a social backdrop. In our society when a girl is raped she is not looked at by common people in the way it ought to have been. Hence, the victims seldom report such crime to the police authorities in the fear of being discarded by the society. Moreover, the stringency in the matter of proof of the crime might embarrass the victim meaning thereby she is raped twice, once at the time of commission of the crime and secondly at the time of trial. To obviate such misery and to bring to book such criminals more easily the legislators thought it fit to amend the evidence law. 9. Relying on the said amended provision the Apex Court in the cases cited by the prosecution referred to above time and again observed that the statement of the victim is sufficient enough for conviction of the accused meaning, thereby once the victim comes to the witness box and makes a statement that she was raped by the accused the onus is on the accused to prove that such statement by no stretch of imagination could be believed by the Court and the materials on record could lead to only one conclusion that the accused was falsely implicated in the case out of malice or for extraneous consideration. Such is not the case here.” 37. Such is not the case here.” 37. However, the presumption attached to Section 114A of the Evidence Act is always rebuttable. Moreover, it is pressed into service upon proof that there was sexual intercourse by the private respondent/accused, and that too, without the consent of the victim. A medical officer, PW6, testified on medical examination that the private respondent/accused was capable of sexual intercourse. 38. The private respondent/accused did never admit that he had sexual intercourse with the victim. On the contrary, the trend of cross examination of the prosecution witnesses, goes to show that the private respondent/accused set out a case, that he was chosen by family of the victim as prospective husband of the victim and with a view to put pressure upon him, the mother of the victim implicated her in a false case, as he refused to marry the victim. 39. Admittedly, the instant case was initiated after a few months of the alleged incident. In fact, the evidence on record goes to show that the victim reported the incident to her mother when she was vomiting. She was taken to a doctor, PW5, who on examination of the victim found and opined that on such examination, he did not find any recent sign of rape, though; there was sign of habitual intercourse. PW5 also did not find any injury on the private parts of the victim though; he found old sign of hymen rupture. No foreign body was detected in the private parts. Uterus of the victim was found antiverted, bulky, corvix soft. According to the opinion of PW5, the patient had probably conceived subject to confirmation by tests. The investigating officer has testified that since the pregnancy of the victim was aborted by PW12, DNA test could not be conducted, in order to ascertain that the pregnancy of the victim was fathered by private respondent/accused or that he had sexual intercourse with the victim. 40. For the sake of argument, if we assume that the accused had sexual intercourse upon the victim, in view of the presumption under Section 114A of the Indian Evidence Act, it is to be established that such intercourse was without the consent of the victim. The victim, PW3, has stated so in her deposition. She stated that the private respondent/accused committed rape upon her forcefully and she did not consent to such sexual intercourse. 41. The victim, PW3, has stated so in her deposition. She stated that the private respondent/accused committed rape upon her forcefully and she did not consent to such sexual intercourse. 41. Is such statement on the part of the PW3 sufficient to secure conviction of the private respondent/accused based on the presumption? Should the court not go into such statement to weigh its trustworthiness? 42. The statement of the victim, PW3, states that the accused forcibly committed rape upon her by shutting her mouth with his hands while she was taking bath in a pond. PW3, in same breadth went on to state that that the accused committed rape upon her thrice on different occasions; as a result of which, she became pregnant. There is no case of the prosecution that the victim was ever kept under confinement by the accused. If that be so, then there appears no explanation on record as what prevented the victim or her relatives from lodging contemporary complaints when the victim was raped on earlier occasions. 43. PW3 also stated in her deposition that the accused committed rape upon her six times on different occasions. She further stated that the accused committed rape upon her twice in his house and five times on the bank of the pond where she used to take bath when no one was present there. The victim was raped by the accused second time after three days of the first incident of rape. She was raped again after 5/7 days. The accused committed rape upon her at his house after an interval of 2/3 days. The aforesaid incidents are spread over a span of considerable period of time. All this time, the victim or her relatives did not complain of rape or sexual intercourse. 44. The evidence on record also discloses that even after the last incident, the victim did not report the incident until it was discovered that she was carrying. Knowing of the pregnancy, the mother of the victim, instead of reporting it to the police authorities, first took it to the party office and allegedly tried to obtain an assurance from the accused that he would marry the victim. When such attempt went futile, then only, PW1 came up with a complaint before the police. Knowing of the pregnancy, the mother of the victim, instead of reporting it to the police authorities, first took it to the party office and allegedly tried to obtain an assurance from the accused that he would marry the victim. When such attempt went futile, then only, PW1 came up with a complaint before the police. In view of the aforesaid circumstances, it is quite difficult to believe the statement of the victim that she was raped or the accused had sexual intercourse with her against her will and consent. In fact, it is also not established beyond all doubts that it was the private respondent/accused who had sexual intercourse with the victim, less to talk of, against her will and consent. 45. Therefore, in the light of discussions made hereinbefore, we are of the view that on the basis of evidence on record, the learned Trial Court was justified in acquitting the private respondent/accused. We find no reason to interfere with the impugned judgment and order. The same is hereby affirmed. 46. Consequently, the instant appeal being CRA 751 of 2019 is dismissed without any order as costs. 47. Urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties on priority basis upon compliance of all formalities. 48. I agree. DEBANGSU BASAK, J.