Crl.A. 368/2003 BEFORE THE HON’BLE MR. JUSTICE B.D.AGARWAL JUDGMENT AND ORDER (Oral) This appeal is directed against the judgment and order dated 28. 11.2003, passed by the learned Additional Sessions Judge, Kamrup at Guwahati in Sessions Case No. 176(K)2002. By this judgment the learned Sessions Judge has c onvicted the appellant both under Section 366 and 376 of the IPC and maximum sen tence of seven years rigorous imprisonment has been imposed. Being aggrieved wit h the conviction the accused has preferred this appeal. 2. Heard Mr. J M Choudhury, learned senior counsel for the appellan t and Mr. B.S.Sinha, learned additional public prosecutor, Assam. Also perused t he impugned judgment and evidence on record. 3. The evidence tendered by the prosecution clearly showes that the victim girl was around 22 years of age at the relevant time and she had affairs with the accused/appellant for about five years. The allegation of the prosecut ion that on 28.6.2000 the victim girl was forcibly taken away by the appellant is unacceptable. It is true that the victim girl has made a general allegation t hat the accused had taken her away by showing dagger. However, this statement wa s not given before the I.O. Similarly the witnesses who have spoken about taking away the girl at the point of dagger are either reported witnesses or they als o did not say so before the I.O. Besides that, I am of the view that if the accu sed had love affairs with the victim girl, there was no necessity for him to abd uct the girl with the use of force, since the victim girl herself has not stated that she had declined to marry the accused. 4. With regard to the allegation of sex the victim girl has stated that she stayed in the house of the accused in the company of his parents for t wo days and during this period she was subjected to sexual intercourse with the accused. Strangely the victim has not made any allegation that such intercourse had taken place without her consent. I am also of the view that since the victi m was kept in the house, where parents and other family members of the accused a lso staying, there was less possibility of forcible sex. 5. Considering all the aspects, I hold that the impugned judgment i s un-sustainable on facts. Accordingly the impugned judgment is hereby set aside . The appellant is acquitted and he is set at liberty forthwith. Bail bond stan ds discharged. 6. Send down the LCR forthwith.