Crl.A. 70/2004 BEFORE HON’BLE MR.JUSTICE P.K.MUSAHARY JUDGMENT AND ORDER (oral) Heard Mr. P.Kataki, learned counsel for the appellant and Mr. K.Munir, learned A ddl.P.P,Assam. 2. This appeal is directed against the judgment and order dated 8.2.2004 p assed by the learned Sessions Judge Darrang at Mangaldoi in Sessions Case No. 1 36(DM)/2000 (GR No 20/2000) convicting the accused/ appellant under Section 366 IPC and sentencing to undergo R.I. for 5 years and to pay a fine of Rs. 2000/ -in default, 3 months R.I and also convicting U/S 376 IPC and sentencing to u ndergo R.I. for 7 years with fine of Rs. 2000/-, in default, 3 months R.I. Both the sentences being directed to run concurrently. 3. The FIR was lodged by one Sri Chintaharan Baruah, father of the victim g irl on 14.12.2000 alleging that on 10.1.2000 his daughter ( hereinafter referre d to as ’ the victim girl’), while she was returning from her uncle’s (father’s brother) house at about 6.30 P.M, suddenly some persons caught her. Her eyes we re pressed with cloth Her mouth was also gaged with cloth but she could hear the voice of accused Rabindra Hazarika. She was taken into a house wherefrom she wa s lifted in a vehicle. Next day she was brought to Mangaldoi court where her si gnatures were obtained on some papers and thereafter she was taken to the house of the accused. She was kept for the night there. On the following day the vict im’s father came to the house of the accused. She wanted to return home with her father but she was not allowed. The accused and the family members kept her co nfined in a house under lock and key. The victim’s father again came to the hous e of the accused on the following day accompanied by the village Headman . How ever the victim girl was not allowed to come outside out of fear of police. Vict im girl was taken out by the accused through the back side of the house by cutt ing iron rod of the window. She was lifted in a car and brought to Guwahati wher e she was kept in a dark room where the accused used to stay with 5 brothers. 4. A case being Sipajhar P.S case No. 13/2000 was registered U/S 366 IPC o n the basis of the said FIR. The victim girl was medically examined on 18.2.20 00. Her statement was recorded by a Magistrate U/S 164 Cr.P.C. On the basis of t he material collected by the police during investigation chargesheet was submitt ed and the case was committed to the court of Sessions, Darrang, Mongaldoi, whic h was registered as Sessions Case No. 136(DM)/2000.Charges were framed U/S 366(A )/376 IPC.The accused pleaded not guilty and claimed to stand trial. 5. On the basis of the evidence adduced by the prosecution and defence, the learned trial court convicted and sentenced the accused/ appellant as stated ab ove. 6. Normally, in a case of rape, eye witness can hardly be expected and ,for conviction of the accused charged U/S 376 IPC, evidence of victim girl is eno ugh , even if it is not corroborated by evidence of other witnesses and medica l evidence, provided the evidence of the victim girl is found to be cogent, cons istent , reliable, trustworthy and inspiring confidence of the court .This asp ect of the matter is to be examined first from the evidence of the victim girl o n record. 7. First of all, it is to be noted that the alleged incident took place on 10.1.2000 and the FIR was lodged by the father of the victim girl on 14.1.200 0. No explanation was given for filing the FIR after a lapse of 3 days in such a serious case. It may also be noted that the statement of the victim girl was recorded U/S 164 Cr.P.C on 28.1.2000 only i.e. after 18 days from the date of alleged occurrence. She was medically examined only on 19.2.2000 in Gauhati Me dical College Hospital i.e. after 48 days from the date of occurrence and by th at time the sign of rape or violence on her due to forcible sexual act, if any , had already disappeared 8. In the FIR there is no mention that the victim girl was gang raped by t he convict appellant and his 5 brothers. She was examined as P.W-3. The victim girl, P.W-3, for the first time stated so before the learned trial court. In her statement U/S 164 Cr.P.C. which was recorded by a Magistrate ( Ext. Ka) never u ttered any word that she was ever raped by the convict appellant or his 5 brothe rs. Rather she stated that she had love affairs with the convict appellant for last 2 years and this fact was known to her family members including her father , mother and brothers. She stated that on 3rd of January, her parents brought o ne boy to whom they wanted to give her in marriage against her will for which s he eloped with the accused Rabindra Hazarika on 10th of January and got married in the Mongaldoi court. Since then, she has been living with the accused/ appell ant as husband and wife in the same house. At the time of recording her statemen t she mentioned her age as 19 years. The said statement was made before the Magi strate when everything was fresh in her mind after the alleged incident took pla ce. But while she deposed before the learned trial court, she completely stated the reverse by saying that she was forcibly taken away by the convict appellan t and gang raped by the appellant and his 5 brothers , one after another. She stated that she was forced to write back dated love letters under threat to her life and family members. As stated by her she was even forced to put signature on marriage agreement. She even stated in her statement made under Section 164 C r.P.C. before the Magistrate , she stated that it was stated so as per tutoring by the accused/ appellant. 9. One Dr. B.C.Roy Medhi of G.M.C.H, examined the victim girl on 19.2.2000. He was examined as P.W-6. He found no injury on her body and private parts nor did he find any sign of recent sexual intercourse. He on the basis of genital ex amination rather found that the victim girl was used to sex . But according to t he said Doctor her age was above 17 years and below 18 years. The defence declin ed cross- examine the said Medical Officer. Medical report prepared by P.W-6 has been proved and marked as Exhibit-2. Exhibit ’Kha’ is the provisional certific ate dated 16 .7.94 issued by the Principal of Dooni Higher Secondary School whe rein the date of birth of the victim girl is recorded as 28.12.1981. Her age on the date of occurrence , as calculated from the aforesaid date, the age of v ictim was 18 years 5 months, which was above 16 years and she attained the age o f consent at the time of alleged occurrence. From the aforesaid material and ev idence on record, it can be safely concluded that the victim girl was above 16 y ears of age and she was capable of giving her consent to any act including cons ent to sexual intercourse with a male partner. 10. The marriage agreement alleged to have been executed was proved and mark ed as Exhibit Cha by the defence. The said marriage agreement was registered b y Sadar Sub-Registrar on 11.1.2000 . An official of the Sub-Registrar Office was examined as D.W-4 who produced the marriage register and deposed to the effect that the aforesaid marriage agreement was executed and before execution it was v erified that she had consented to such marriage and she put her signature there on voluntarily. The concerned Principal In-charge as well as the former Principa l who has retired were examined as DW-1 and DW-2 respectively. They have confirm ed the issuance of the aforesaid school certificate recording the date of birth of the victim girl as 28.12.81. 11. On appreciation of the aforesaid evidence on record there is no doubt th at the victim girl was above 16 years at the time of alleged occurrence and she eloped with the convict appellant voluntarily / willingly and spent some days wi th him. If she was not willing to accompany the convict/appellant, she could ha ve made good of her escape on any occasion while she was moving around or staying with him. There is no statement to the effect that she ever made such attempt. She even went to court premises at Mongaldoi for execution of marriage agreement. Sh e could have taken advantage of escaping or making complaint before any police man on duty or member of the public or any judicial officer and staff, if she r eally wanted to free herself from the convict appellant. It may be noted that th e convict appellant surrendered along with the victim girl on 28.1.2000 as per the evidence of the P.W-5, In-charge of police outpost, the victim girl , was gi ven custody of her parents. She appeared and deposed before the trial court on 22.8.2002 i.e. after 2 years from the date of occurrence. By this time, there w as a change in her mind due to which she gave evidence against the convict app ellant on the basis of which the learned trial court has convicted the appellant . But the circumstantial evidence namely, that she had a love affairs with the c onvict appellant for a certain period of time, her parents wanted to give the vi ctim girl in marriage to other boy , she eloped with the victim appellant withou t any hue and cry or without making any attempt to get away from him and rather signed the marriage agreement voluntarily before the Sub-Registrar in the court premises , belied the story builtup by the victim girl. The evidence of victim g irl cannot be said to be consistent, reliable, trustworthy or inspiring confide nce of the court for recording any order of conviction and sentence against the convict appellant under Section 366/376 IPC. 12. In view of the above, the convict appellant is entitled to get acquittal inasmuch as the prosecution has failed to prove the charges under Section 366/3 76 IPC. Conviction and sentence as awarded by the learned trial court stands qu ashed and set aside. The said conviction and sentence is reversed to acquittal. It is stated at the Bar that the convict appellant is on bail. Bail bond, therefore, stands d ischarged. The appeal is allowed. LCR be returned forthwith.