Crl.A. 206/2006 BEFORE HON’BLE MR. P.K.MUSAHARY JUDGMENT AND ORDER ( ORAL ) Heard Mr.Noor Mohammad, learned Counsel appearing for the Appellant and Mr.K.C.M ahanta, learned Addl.P.P,Assam. 2. This appeal is directed against the judgment and order dated 10.8.06 p assed by the learned Asstt. Sessions Judge, Kokrajhar in Sessions Case No. 18/2 005 convicting the accused appellant U/S 376 and sentencing him to suffer rigoro us Imprisonment for seven years and also to pay fine of Rs. 5,000/-, in default , to suffer S.I. for another 6 months. 3. Briefly, the prosecution story is that on 6.11.03 at about 11 A. M. the accused Sahidul Islam @ Sahidul Sheikh committed sexual intercourse with the p rosecutrix aged about 8/9 years. The accused person brought the prosecutrix to h is home taking advantage of absence of her parents and committed rape. The fat her of the victim girl lodged FIR with the Officer-in-charge, Gossaigaon P.S. w hich was registered as Gossaigaon P.S. Case No. 159 of 03 U/S 376 IPC. 4. After investigation, charge sheet was submitted and the case was committ ed to the court of Sessions, charge was framed against the accused/appellant and after trial the accused/ appellant has been convicted and sentenced as stated a bove. 5. The victim girl made statements at the initial stage before a le arned Magistrate U/S 164 Cr.P.C. She also adduced evidence as P.W-1 before the learned trial Court. She initially stated in her examination-in-chief that she does not know the accused and the accused committed no wrong against her . But subsequently, she narrated how the accused committed rape on her and how she wa s suffering from pain and bleedings etc. due to such forcible rape. She at the same time stated that she was in her monthly course of menstruation at the r elevant time. 6. In the FIR , Exhibit -1 , it was stated that the age of the victim girl was 8/9 years and as such minor at the time of occurrence. But her age has bee n found below 18 years after ossification test was conducted on her. The medica l evidence is that she was above 16 but below 18 years. A girl above 16 years b ut below 18 years is legally treated as in the age of consent. That means she w as capable of giving her own consent for doing a particular thing. Here is a cas e where both the prosecutrix and the accused belong to same village and natura lly there was possibility of meeting and knowing each others since before , and even since their childhood. The opening statement of the victim girl that she does not know the accused cannot be accepted inasmuch as they admittedly belon g to the same village . She also knows that the accused had done something to h er and she knows that it was not a correct thing. At the initial stage in her examination- in- chief, she wanted to save the accused by saying that she does not know the accused and he did nothing wrong to her but during cross- examina tion she could not stand by her own stand and divulged the correct position. The Medical Officer who examined the victim girl was examined as P.W-4. He , bas ed on medical report prepared by him stated that the victim girl was below the age of 18 years, she was raped and there was mark of violence which is grievous in nature. But in the medical report , the said Doctor has not recorded what ty pe of injuries were found in the person of the victim girl. The cross- examiner did not put any question to get the required clarification from him about the mark of violation , nature of injury etc. and on what basis he recorded the opinion that the victim girl was raped. In any case, opinion of the Medical Offi cer regarding injury , rape etc. is tentative in nature and it cannot be treated as a conclusive evidence. 7. It appears that the learned trial court attached much importance to the tentative opinion of the Medical Officer without considering the possibility tha t the prosecutrix was a consenting party. The prosecutrix was a minor girl of 8/ 9 years at the time of occurrence as stated in the FIR. That has been belied by the medical test. Her initial statement that she does not know the accused has also been belied by the evidence that they belong to the same village and the y actually know each other. 8. On appreciation of the evidence on record, particularly, the evidence of P.W-1 (victim girl ) and the P.W-4 , one can safely come to a conclusion that t he prosecutirx was a consenting party. In that view of the matter, the convict a ppellant is not liable for conviction and sentence U/S 376 IPC. The charge frame d against the appellant has not been established and as such, he is entitled t o get an order of acquittal. It is ordered accordingly. 9. This appeal stands allowed. The impugned judgment convicting and senten cing the convict appellant stands set aside and quashed. The convict appellant Sahidul Islam @ Sahidul Sheikh is set at liberty forthwith, if his further det ention is not required in connection with any other case. 10. Send down the L.C.R. forthwith.