Ramesh Bhunia @ Bhuiya vs State Of West Bengal
2023 Latest Caselaw 6753 Cal

                   IN THE HIGH COURT AT CALCUTTA
                  CRIMINAL APPELLATE JURISDICTION
                          APPELLATE SIDE

Present:
The Hon'ble Justice Ananya Bandyopadhyay


                            C.R.A. 554 of 2004

                        Ramesh Bhunia @ Bhuiya
                                  -Vs-
                         State of West Bengal


Amicus Curiae           : Mr. Amartya Ghosh

For the State           : Ms. Faria Hossain

Heard on                : 08.06.2023, 14.06.2023

Judgment on             : 05.10.2023


Ananya Bandyopadhyay, J. :-

1.

This appeal is preferred against the judgment and order of

conviction under Section 366 of the Indian Penal Code sentenced

to 5 years of rigorous imprisonment and fine of Rs. 1,000/- in-

default 30 days simple imprisonment and conviction under Section

376 of Indian Penal Code for 7 years rigorous imprisonment and

fine of Rs. 1,000/- in default 30 days simple imprisonment. By the

judgment and order dated the 4th day of August, 2004 passed by

Learned Additional Sessions Judge, Second Court at Asansol, in

Sessions Case No. 5 of 2003 (ST 22/04), both sentences to run

concurrently.

2. The prosecution case in brief is to the effect that on 27.12.1998 at

about 7.30 p.m. Remu Kumari (P.W.3) aged about 13 years the

daughter of the de-facto complainant Bhagwan Chowdhury of

Damodar Colliery was missing. At that time she was wearing a

white salwar suit and Brown Chador on her person and that

Ramesh Bhunia son of Late Dhaturi Bhunda of the same locality

kidnapped Renu, and that Raju Bhunia, Mahendra Bhunia and

Ajoy Paswar helped in the said act of kidnapping. Bhagwan

Choudhury, the father of the missing girl narrated the whole story

to the police.

3. After completion of investigation charge sheet was submitted under

sections 363/366/120 read with section 376 of the Indian Penal

Code.

4. The Learned Sub-Divisional Judicial Magistrate, Asansol, upon

receipt of such charge sheet was pleased to take cognizance of the

offences and after compliance of necessary formalities committed

the case to the court of sessions wherefrom the same was

transferred to the file of the Learned Judge for trial.

5. The Learned Judge framed charges against the appellant under

section 366/376 of the Indian Penal Code for his alleged

involvement in the said offence and under section 363/120B of the

Indian Penal Code against his co-accused Raju Bhunia and

Mahendra Bhunia, all of whom pleaded not guilty to the said

charges framed against them and claimed to face trial.

6. During the course of trial that followed the prosecution produced

as many as 11 (eleven) witnesses and exhibited certain documets

while the defence produced none.

7. Learned Amicus Curiae for the appellant submitted that -

a. The order of conviction and sentence as has been

recorded against the appellant is a glaring example of

non-application of judicial mind by the Learned Judge

wherein the Learned Judge has not at all taken into

consideration the broad/salient features that have been

emerged through the evidence, more particularly from the

cross examination of the prosecution witnesses and

thereby fell in serious error of law and made the

impugned order of conviction and sentence bad in law

and liable to be set aside.

b. The Learned Trial Judge passed the order of conviction

on consideration of documents that were neither marked

as exhibits nor proved by the prosecution as required

under law.

c. The Learned Trial Judge did not consider the

contradictions in the evidence of the prosecution

witnesses.

d. The Learned Trial Judge acted illegally in considering

that an un-exhibited Xerox copy (xerox copy of birth

certificate issued by a private practitioner) has

evidentiary value even though the document was not

exhibited and the said private practitioner was not

produced as a prosecution witness neither the writing

nor the contents were proved more over the said xerox

copy was procured on the date when allegedly the

accused was put under arrest by the police.

e. The Learned Trial Judge erred in law in considering that

'xerox copy' had evidentiary value even though the

original was never produced for the perusal of the court

nor did the prosecution make any attempt to prove the

same in spite of that the Learned Trial Judge relied on

such piece of paper in coming to the conclusion that the

victim girl was a minor.

f. The Learned Trial Judge failed to apply his judicial mind

to the fact that the date of birth of the victim girl (P.W.)

had not been established beyond all reasonable doubt

and did not consider the fact that in case of any doubt

benefit must be given to the accused.

g. The Learned Additional Sessions Judge acted to the grave

prejudice of the accused by not taking into account the

evidentiary value of the statement of the victim girl

(P.W.3) recorded under Section 164 Cr. P.C.

h. While summing up the evidence the Learned Judge had

failed to observe that the witnesses did not corroborate

each other and except and witnesses of the medical

experts there were no un-interested and independent

witnesses.

i. The Learned Judge did not take into consideration the

fact that the medical evidence falsified the evidence of

other interested witnesses.

j. The Learned Additional Sessions Judge came to an

erroneous conclusion in considering that the xerox copy

of the birth certificate as seized by the I.0. was issued by

a Doctor of the Marwari Hospital whereas the P.W. 1,

the defacto complainant, in his evidence no where

stated such fact that the said doctor was attached to the

Marwari Hospital. Moreover no attempt was made from

the side of the prosecution to examine the said Doctor

and to prove the genuineness of such certificate.

k. The Learned Trial Judge failed to appreciate the fact that

no conclusive proof as to the age of the victim girl (P.W.

3) could be ascertained from the evidence produced by

the prosecution and conviction was mainly based on an

un-exhibited xerox copy as to proof of age without

considering the medical evidence.

l. The Learned Judge omitted to consider the fact that there

was discrepancy in the date of occurrence as gathered

from the evidence produced by the prosecution

m. In view of reception of inadmissible evidence and reliance

placed thereon by the Learned Judge, the order of

conviction and sentence cannot be sustained both in

law and facts.

8. The Learned Advocate for the State submitted that the recovery of

the victim by the police after the complaint being lodged by the de-

facto complainant and the subsequent statement of the victim

before the Court corroborated the incident of kidnapping and

commission of rape upon her. The sole evidence of the victim is

credible enough to establish the prosecution case and as such the

prosecution has been able to prove its case and the appeal shall be

dismissed.

9. PW-1, the de-facto complainant stated on 27.12.1998 his

daughter, the victim was kidnapped by the appellant while she

attended nature's call. After seven days of lodging the complaint,

police asked him to accompany them to Bihar. The victim was

recovered after 20 days of the occurrence from Bihar. On her

recovery the victim informed the complainant of being raped by the

appellant. PW-1 identified his signature marked as Exhibit 1/1 on

the written complaint and Exhibit No. 2/1 on the seizure list of the

seizure of the birth certificate of his daughter.

10. During his cross-examination, PW-1 stated his daughter, the

victim had a relationship with the appellant for which he used to

threaten and assault his daughter i.e., the victim.

11. The evidence of PW-2, is based on hearsay.

12. PW-3, the victim denied to know nothing about the case. She

stated that the appellant kidnapped her forcefully to a place called

Jamui and ravished her. She was aged 14 years and had stayed at

the aforesaid place for about one month. Police recovered her and

brought her to her father's house. She stated that the appellant

had raped her on several occasions which she disclosed to her

parents, relatives and the police officers. She further stated being

intimidated, she declined to narrate the incident before the

Learned Magistrate.

13. During her cross-examination, she refused to accept her

relationship with the appellant. She denied to have written "love

letters" shown to her during cross-examination further stating that

the same were not written by her but she was assaulted by her

father as she was caught red handed by her "Bhabi". She further

stated she did not go out of her house for the purpose of nature's

call with her sister. In the month of December at about 7 p.m. she

was playing with her friend Sony who had died. The appellant had

kidnapped her from the house of a third party beneath the stair

case of the same. The appellant got hold of her hand and tied her

mouth by a piece of cloth. Further she was taken to Jamui. She

was first taken to the house of Ramesh which was far away from

her house. She did not meet any other person on the way. There

were shops and other houses in between her house and the house

of Ramesh, which were closed due to night time. She, thereafter,

stated that at about 7 p.m. when she was being taken away all

shop rooms were opened.

14. She further stated there was no shop in between her house and the

house of Ramesh. There were houses in between two houses. She

found men on the way. Thereafter she stated there was no person

on the way at the relevant time. On the next date she was taken to

Raniganj Railway Station by Ramesh. She was forcibly taken onto

train by Ramesh. There were other passengers in their

compartment. She did not tell any other passenger that she was

being taken forcibly from her house.

15. She further stated that "I cannot say the time taken by train from

Raniganj to Jamui. I was written in the Railway Station that the

Station was at Jamui. I was written in the Railway Station that the

Station was at Jamui. I was not examined by I.O. I was not asked

by any Ld. Magistrate to state anything to him. I was examined by a

Doctor, but I do not know where I was examined. My marriage has

not been settled. I do not know where I am going after the Election is

over."

16. She further stated that "Not a fact that I stated before the Ld.

Magistrate that I left my home with Ramesh at my own accord. (One

photograph is shown to the witness). This is my photography (MAT

Exbt-A). I know the meaning of term of rape. I was not pregnant. I

had no sexual relationship with Ramesh or any other person for 4

years prior to the occurrence as reported by Doctor. My menstruation

was started from 1997. I have not seen as to whether Ramesh took

any pre-cautionary measure at the time of such rape on me. We

used to stay in a brick field at Jamui within a Jhupri. At the relevant

time there was no workman working in that brick field. Ramesh was

not also attached to brick field. I do not know who prepared our

meal. We used to take rice, dal and vegetables. I did not prepare our

meal as I do not know cooking. I tried to resist Ramesh Bhuiya from

doing rape on me. I used only one dress during my stay with

Ramesh Bhuiya at Jamui. It was green in colour. I do not know

whether he used any condom at the time of rape on me or not. When

rape was committed on me for the first time my menstruation was

not started. My next menstruation date was after one month as

usual. I had tape with me for taking precautionary measure during

my period. Though I used only one dress for two months, but dress

was not dirty. I did not state to Ramesh that my period was started.

Ramesh had no idea about the date of my period. Ramesh touched

my breast. I cannot say how rape was committed. I do not know as

to whether I am 24 years old. I am fully dependent on my father."

17. She further stated that "Not a fact that I stated to I.O. that since

date all my family members were against me. Not a fact that I stated

to I.O. that I decided to marry Ramesh. I never took any step to

marry Ramesh. Not a fact that I stated to I.O. that in the evening I

went out side with my sister.

Not a fact that I stated to I.O. that I went to Jamui with Ramesh. I

stated to I.O. that I was kidnapped by Ramesh forcibly. Ramesh

was working in brick field at Sakendar. His duty hours was for the

whole day time. During that period I used to stay in a Jhapri alone.

Other female used to take their bath in the river during my bath. But

I did not know those females as they were outsider. I used to take

my bath at the noon and Ramesh used to stay with me up to the

river.

I used to take my bath with the help of Gamcha as I had only

Salwar Kamiz with me. I did not go out of the Jhupri at the brick

field during the absence of Ramesh as I had no money with me. Not

a fact that I stated to I.O. that I would not go back my father.

I had talk with the Magistrate.

I had no fear against any person and thereby I stated the Magistrate

what I wanted to state. I stated my name as Renu to the Magistrate.

He also asked me about my father's name. He also asked my about

my address."

18. PW-5, the mother of the victim deposed to have known the

appellant prior to the incident. PW-5 further stated that her son's

wife handed over a letter from Renu to her father for which she was

rebuked. PW-5 had told the victim not to associate with the

appellant after the said letter was recovered. She further stated

that police went alone to recover Renu. She further stated that she

was unwilling to get the victim married to appellant as he was poor

and below her caste.

19. PW-6, PW-7 the related witnesses conformed to the evidence of the

de-facto complainant and PW-5.

20. The deposition of PW-8, the doctor who examined the victim did

not detect any injury or evidence of rape upon the victim who was

otherwise habituated to sexual intercourse. PW-8 further stated

during cross-examination that the victim had told him that she

willingly went with the appellant at her own accord.

21. PW-10, the doctor who conducted the ossification test opined that

the victim was between 15-16 years of age on the date of her x-ray

examination i.e. on 16.03.1999. During cross-examination he

further stated that the age may be plus, minus three years on

either side in calculating the age of the person according to the

view of Modi.

22. PW-11, the Investigating Officer stated that they recovered the

appellant and the victim from a brick field with the help of

Sakendra P.S. He further stated both the accused and the victim

girl were produced before the Learned S.D.J.M., Jamui and

thereafter both of them were produced before the Learned

S.D.J.M., Asansol. Statement of the victim girl was recorded by the

Learned Magistrate under Section 164 of the Cr.P.C. He collected

medical report, ossification test report, and statement under

Section 164 Cr.P.C. of the victim girl. Thereafter he submitted

charge-sheet under Sections 363/366/120B of the Indian Penal

Code read with Section 376 of the Indian Penal Code. He did not

remember whether the original certificate was shown to him or not.

Witness Mahesh told him that his sister Renu went to field for

nature's call. He also told him that his youngest sister also

accompanied Renu Kumari. He also told him that he came to know

that Renu had gone to fields from Tinku. PW Tinku stated to him

that Ramesh had talking terms with Renu Kumari. She stated to

him that Ramesh sent a letter to Renu Kumari, and thereby her

father threatened Renu Kumari, and directed Renu Kumari to leave

her study. Renu Kumari stated to PW-11 that from the date of

receipt of the letter from her custody her parents and brothers

were annoyed with her, and they used to utter filthy language to

her Then she decided to marry Ramesh. She also stated to PW-11

that both Ramesh and herself left the place of her father on her

own. She stated to PW-11 that on 27.12.1998 in the evening she

left the house of her father on her own at the pretext of attending

nature's call. PW-11 accompanied the father of the victim girl,

Bhagaban Choudhary and two constables of Raniganj P.S. went to

Jamui. They recovered Ramesh and the victim girl from Nageswar

brick fields of Jamui on 20.02.1999 at about 11.35 hours. Both of

them were preparing bricks in the brick fields on daily wages. They

used to reside in a labour quarter attached to brick fields. Both of

them stated to PW-11 that they were married and were living as

husband and wife. Marriage took place in a temple as per Exhibit-

9.

23. The document marked as Exhibit-9 is a Xerox copy of a certificate

issued by one Senapati Mondal, B.Sc., R.M.P., the author of the

said certificate was not examined and the said certificate cannot be

relied upon.

24. Victim in her statement under Section 164 of the Cr.P.C. stated

that nothing had happened to her and she had been to Jamui with

her husband. Nobody kidnapped her and went with the appellant

at her own desire. She had married the appellant near a brick field

at Sakendra. She further stated that she has nothing to state

against anybody and she wanted to go with her husband.

24. A circumspection of the evidence of the prosecution witnesses

revealed that the appellant and the victim had a prior relationship

before the occurrence of the incident to the un-acceptance and

disapproval of the victim's parents and family owing to the

financial status and caste difference of the appellant. A revelation

of a love letter written by the victim to the appellant and her

subsequent rebuke or reprimand propelled her to convince the

appellant to flee and get married. The victim travelled a

considerable distance and stayed with the appellant within the

jurisdiction of Sakendra P.S. as a married couple working as daily

labourers in a brick kiln. She had ample opportunity to release

herself from any wrongful and illegal confinement and forceful

enticing or taking away from the lawful guardianship of the

parents.

25. The evidence of the victim suffers from inconsistencies. There are

contradictions in her depositions during examination-in-chief as

well as cross-examination. Her statements are at variance and un-

corroborative in nature and the victim cannot be given the

statement of 'sterling witness'.

26. Section 363 of the Indian Penal Code states as follows:

"363. Punishment for kidnapping.--Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term

which may extend to seven years, and shall also be liable to fine."

27. Section 366 of the Indian Penal Code states as follows:

"366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid]."

28. The age of the victim in absence of probable documentary evidence

has to be computed on the basis of ossification test. Based on the

computation of PW-10, if the age of the victim on the date of the

incident is accused to be 15 years, then with a margin of plus 3

years, it can be emphatically stated that the victim was nearly 18

years of age. A statement under Section 164 of Cr.P.C. as well as a

statement recorded under Section 161 of Cr.P.C. before the

Investigating Officer are not substantive pieces of evidence and can

only be taken into consideration for the purpose of corroboration.

The evidence of the Investigating Officer during his cross-

examination corroborated the evidence of the de-facto complainant

PW-5 and the other related witnesses that the relationship of the

appellant and the victim was rejected by her parents and family

members to her disgust and grievance which she approved before

the investigating Officer. The victim in her statement under Section

164 Cr.P.C. denied of any accusation against anybody and stated

to have married the appellant at her own will. During her

deposition before the Court, she deviated from her earlier stance

and emphasized being ravished by the appellant. From her

deposition before the Court, it further transpired that she was not

captivated or physically sustained in any manner by the appellant

and she was forcefully subjected to physical intercourse, forcefully

against her will. She could have raised alarm and protested. She

did not accuse the appellant to have coerced or threatened her in

any manner. The medical report did not state any kind of injury to

her private parts.

29. In the case of S. Varadarajan v. State of Madras1 the Hon'ble

Supreme Court observed as follows:

"7.The question whether a minor can abandon the guardianship of his or her own guardian and if so the further question whether Savitri could, in acting as she did, be said to have abandoned her father's guardianship may perhaps not be very easy to answer. Fortunately, however, it is not necessary for us to answer either of them upon the view which we take on the other question raised before us and that is that "taking" of Savitri out of the keeping of her father has not been established. The

1965 AIR (SC) 942

offence of "kidnapping from lawful guardianship" is defined thus in the first paragraph of s. 361 of the Indian Penal Code:

"Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."

It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what, we have to find out is whether the part played by the appellant amounts to "taking", out of the keeping of the lawful L2Sup./64--3 guardian, of Savitri. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Natarajan, she still continued to be in the lawful keeping o the former but then the question remains as to what is it which the appellant did that constitutes in law "taking". There is not a world in the deposition of Savitri from which an inference could be drawn that she left the house of K.

Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. There is no suggestion that the appellant took her to the Sub-Registrar's office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or anything like that. On the other hand the

evidence of the girl leaves no doubt that the insistence of marriage came from her own side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was of course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her. She was no uneducated or un-sophisticated village girl but a senior college student who had probably all her life lived in a modern city and was thus far more capable of thinking for herself and acting on her own than perhaps an unlettered girl hailing from a rural area. The learned Judge of the High Court has referred to the decision in re : Abdul Sathar(1) in which it was held that where the evidence disclosed that, but for something which the accused consented to do and ultimately did, a minor girl would not have left her husband's house, or would not have been able to leave her husband's house, there was sufficient taking in law for the purpose of Section 363 and

expressing agreement with this statement of the law observed: "In this case the minor, P.W. 4, would not have left the house but for the promise of the appellant that he would marry her." Quite apart from the question whether this amounts to blandishment we may point out that this is not based upon any evidence direct or otherwise. In Abdul Sather's case(I) Srinivasa Aiyangar J., found that the girl whom the accused was charged with having kidnapped was desperately anxious to leave her husband's house and even threatened to commit suicide if she was not taken away from there and observed:

"If a girl should have been wound up to such a pitch of hatred of her husband and of his house or household and she is found afterwards to have gone out of the keeping of her husband, her guardian, there must undoubtedly be clear and cogent evidence to show that she did not leave her husband's house herself and that her leaving was in some manner caused or brought about by something that the accused did."

In the light of this observation the learned Judge considered the evidence and came to the conclusion that there was some legal evidence upon which a court of fact could find against the accused. This decision, therefore, is of little assistance in this case because, as already stated, every essential step was taken by Savitri herself: it was she who telephoned to the appellant and fixed the rendezvous, she walked up to that place herself and found the appellant waiting in the car; she got into the car of her own accord without the appellant asking her to step in and permitted the appellant to take her wherever he liked. Apparently, her one and only intention was to become the appellant's wife and thus be in a position to be always with him. ...

9. It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.

10. It would, however, be sufficient if the prosecution establishes that through immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our, opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking"."

30. In Mafat Lal & Anr. vs The State of Rajasthan 2 the Hon'ble

Supreme Court observed as follows :-

"7....Kidnapping would necessarily involve enticing or taking away any minor under eighteen years of age if a female for the offence under Section 363 Indian Penal Code. In the present case, the abductees had clearly stated that she was neither taken away nor induced and that she had left her home of her own free will. Section 366 Indian Penal Code would come into play only where there is a forceful compulsion of marriage, by kidnapping or by inducing a woman. This offence also would not be made out once the appellant no. 2 the abductees has clearly stated that she was in love with the appellant no. 1 and that she left her home on account of the disturbing circumstances at her parental home as the said relationship was not acceptable to her father and that she married appellant no. 1 on her own free will without any influence being exercised by appellant no. 1."

31. In Kuldeep K. Mahato vs. State of Bihar3, the Hon'ble Supreme

Court observed that:

"7.....We are unable to accept this submission because Dr. Maya Shankar Thakur - (P.W.2), had emphatically stated that the age of prosecutrix was below 18 years on the date of occurrence. Both the courts below found that the age of prosecutrix was below 18 years. After going through the evidence of Dr. Maya Thakar (P.W.5) and other material on record, we are of the opinion that this finding needs no Interference....

2022 Live Law (SC) 362

(1998) 6 SCC 420

11. Then coming to the conviction of the appellant under Section 376 IPC, although both the courts below have held after accepting the evidence of prosecutrix being truthful help that the appellant has forcibly committed the rape, we are of the opinion that the said finding is unsustainable. The prosecutrix had sufficient opportunity not only to run away from the house at Ramgarh but she could have also taken the help of neighbours from the said village. The medical evidence of Dr. Maya Shankar Thakur-P.W. 2 also indicates that there were no injuries on the person of the prosecutrix including her private part. Her entire conduct clearly shows that she was a consenting party to the sexual intercourse and if this be so, the conviction of the appellant under Section 376 IPC cannot be sustained. There is one more additional factor which we must mention that it is not the case of the prosecutrix that she was put in physical restraint in the house at Ramgarh, with the result her movements were restricted. This circumstances also goes to negative the case of forcible intercourse with the prosecutrix by the appellant."

25. Under the facts and circumstances of the case in absence of proof

of commission of the offence by the appellant beyond reasonable

doubt, the prosecution has failed to prove its case and accordingly

the appeal is allowed.

26. Accordingly, CRA 554 of 2004 is disposed of.

27. I record my appreciation for the able assistance rendered by Mr.

Amartya Ghosh, Learned Advocate, as Amicus Curiae in disposing of

the appeal.

28. Lower court records along with a copy of this judgment be sent

down at once to the Learned Trial Court for necessary action.

29. Photostat certified copy of this order, if applied for, be given to the

parties on priority basis on compliance of all formalities.

(Ananya Bandyopadhyay, J.)