Crl.A. 3/2006 BEFORE THE HON’BLE MR. JUSTICE IA ANSARI :: O R D E R :: [ ORAL ] By judgment and order, dated 05-10-2005, passed, in Sessions Case No. 98 of 2004, by the learned Sessions Judge, Morigaon, while the accused-appellant N o. 2, namely, Ajibur Rahman, has been convicted under Section 366A IPC and sente nced to suffer rigorous imprisonment for 10 years with fine of Rs. 5,000/- and, in default of fine, suffer rigorous imprisonment for another period of two years , the accused-appellant No. 1, namely, Dulal Uddin, has been convicted under Sec tions 366 and 376 IPC and he has been sentenced to suffer, for his conviction, u nder Section 376 IPC, rigorous imprisonment for 8 years, with fine of Rs. 10,000 /- and, in default, to suffer rigorous imprisonment for two more years and to su ffer, for his conviction under Section 366 IPC, rigorous imprisonment for a peri od of five years with a fine of Rs. 10,000/- and, in default, suffer rigorous im prisonment for a further period of two years. 2. Aggrieved by their conviction and the sentences passed against them, bot h the appellants have preferred this appeal. 3. The prosecution’s case may, in brief, be drescribed thus: The prosecutri x (SK) is the daughter of the sister of PW1 (AR). PW4 (JK), mother of the victim , went to the house of her brother (PW1) taking with her daughter (SK) and leavi ng her at her brother’s house, PW 4 (JK) came home, because it was during the su mmer vacation. While PW3 (SK) was staying at the house of her maternal uncle, on e day, his nephew, namely, Ajibur, son of another sister of PW1, along with Dula l, i.e. the appellant No. 1, came to his house and reported that SK’s mother was ill and lying at Nagaon Civil Hospital. Initially, PW1 was hesitant to send SK with those boys, but on the instances of SK and, particularly, because Ajibur, a ccused-appellant No. 2, was SK’s cousin, PW1 allowed SK to go with them. By a bu s, they arrived at Moriabari and, then, changed the bus to Nagaon. At Moriabari, Ajibur disappeared and SK (PW3), with Dulal; but on reaching Nagaon, Dulal took the prosecutrix to his maternal uncle’s house instead of taking her to the civi l hospital, where SK’s mother was supposed to be lying ill. In the house of his maternal uncle, Dulal forcibly had sexual intercourse with SK (PW3) by putting h er in fear. On the next day, Dulal brought SK to her aunt and her aunt, then, to ok SK back to her mother’s house. SK reported the occurrence to her mother. Ther eafter, SK’s mother (PW4) lodged the FIR. A case was accordingly registered unde r Section 366(A)/376/34 IPC. SK was medically examined and, on completion of inv estigation, a charge-sheet was submitted accordingly against both the accused-ap pellants. 4. During trial, charges under Sections 366 and 376 IPC were framed against accused, Dulal. A charge, under Section 366 (A), was framed against Ajibur. To the charges, so framed, both the accused pleaded not guilty. 5. In support of their case, prosecution examined, altogether, seven witnes ses. The accused were, then, examined under Section 313 Cr.P.C. and in their exa mination aforementioned, they denied that they had committed the offences allege d to have been committed by them, the case of the defence being that of total de nial. No evidence was, however, adduced by the defence. On finding the two accus ed guilty of the offences as indicated above, the learned trial Court convicted them accordingly and passed sentences against them as mentioned above. Aggrieved by their conviction and sentences passed against them, this appeal has been pre ferred by the accused-appellants. 6. I have heard Mr. SC Biswas, learned counsel for the accused-appellant, a nd Mr. BS Singh, learned Additional Public Prosecutor, Assam. 7. While considering the present appeal, it needs to be noted that PW4 (JK) has claimed that PW2 (SK) was aged about 12 years at the time of the alleged oc currence; but the doctor (PW6), on the basis of medical examination, has given t he opinion that SK was aged about 17 years at the time of occurrence. Thus, ther e is great deal of difference, in the evidence adduced by the prosecution, as re gards the correct age of SK. 8. Considering the fact that the difference between what SK’s mother had de posed as regards the age of her daughter and the doctor’s evidence as regards SK ’s age is vast and when there is no documentary evidence on record to show as to when SK was born, though she, admittedly, studied in the school, the evidence o f the doctor (PW6) cannot be ignored. It is also trite that medical opinion, as regards age, may differ from a margin of two years on either side. The possibili ty, therefore, of SK being as old as 19 years, cannot be confidently ruled out. 9. Situated thus, it is clear that SK ought not to have been treated as min or in the face of the evidence on record. 10. Bearing in mind what is indicated above, when one comes to the evidence of SK, what transpires from her evidence is that she started from her maternal u ncle’s house along with two appellants to come to the civil hospital, Nagaon, wh ere her mother was reportedly lying ill. It is in the evidence of PW3 (SK) that they came by bus to Moriabari and from there, they changed the bus for Nagaon an d while they were waiting for the bus to leave, all of a sudden, Ajibur and Dula l got down and Ajibur did not come back and she came with Dulal to Nagaon. 11. What is important to note is that according to the evidence of PW3, on g etting down at Nagaon, she was taken by accused Dulal to Islampatti instead of c ivil hospital, Nagaon, and when she aSKed as to why she was taken to Islampatti and not to civil hospital, Dulal replied by saying that she had been brought by him to marry her and accordingly, she was taken to Dulal’s maternal uncle’s hous e, where she spent the night. It is curious to note that PW3 did not raise any p rotest or alarm nor did she express any grievance, when she was brought to the h ouse of Dulal’s maternal uncle. 12. Coupled with the above, what cannot be ignored and ought not to have bee n ignored by the learned trial Court is that according to the evidence of PW3 (S K), the house, where she had spent the night, was a house with a big room, where not only Dulal and PW3 slept, but the maternal uncle of Dulal and his family me mbers too slept, though on separate beds. It is, in such circumstances that Dula l, according to PW3, forcibly had sexual intercourse with her by putting her in fear. There is no evidence as to how Dulal put PW3 (SK) into fear, There is also no explanation as to why PW3 did not report the occurrence to Dulal’s maternal uncle on the following day or even to Dulal’s aunt, when PW3 (SK) was brought to the house of Dulal’s aunt. 13. In the circumstances pointed out above, the possibility of PW3 being a c onsenting party, even if Dulal had sexual intercourse with her, cannot be boldly ruled out. All these aspects of the evidence on record appear to have gone unno ticed by the learned trial Court. In the absence of any explanation given by PW3 (SK) or discernible from the evidence on record, in this regard, the accused-ap pellants ought to have been accorded, at least, benefit of doubt. 14. In the result and for the reasons discussed above, this appeal succeeds. The conviction of the accused-appellants and the sentences passed against them are hereby set aside. 15. Both the accused appellants are hereby directed to be set at liberty unl ess they are required to be detained in connection with any other case. 16. Send back the LCR.