Sri Tridip Buragohain vs The State Of Assam
2023 Latest Caselaw 2087 Gua

                                                                           Page No.# 1/18

GAHC010054482017




                   THE GAUHATI HIGH COURT AT GUWAHATI
           (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)

                             PRINCIPAL SEAT AT GUWAHATI


                              Crl. Appeal No. 114 (J) of 2017


       SRI TRIDIP BURAGOHAIN,
       S/O LATE PABITRA GURAGOHAIN,
       R/O - DELIHI GOHAIN GAON,
       DISTRICT - SIVASAGAR, ASSAM


             VERSUS


      THE STATE OF ASSAM
      REPRESENTED. BY THE PUBLIC PROSECUTOR, ASSAM.




Advocate for the Appellant   : Mr U Choudhury, Amicus Curiae
Advocate for the Respondent : Mr M P Goswami, AddL. P.P.

BEFORE HON'BLE MRS. JUSTICE MALASRI NANDI

Date of Hearing : 09.05.2023

Date of Judgment : 22.05.2023 Page No.# 2/18

JUDGEMENT AND ORDER (CAV)

Heard Mr U Choudhury learned Amicus Curiae appearing on behalf of the appellant.

Also heard Mr M P Goswami, learned Additional Public Prosecutor appearing on behalf of the

State of Assam.

2. This appeal has been preferred by the appellant, Sri Tridip Buragohain, against the

Judgment and Order dated 26.09.2017, passed by the learned Assistant Sessions Judge,

Jorhat in connection with Sessions Case No. 48 (JJ)/2017, whereby the accused was

convicted under Section 366 and 376 IPC, and sentenced to undergo Rigorous Imprisonment

for 7 years and to pay a fine of Rs. 5,000/-, in default, imprisonment for four months, for the

offence under Section 376 (1) IPC. The accused was also sentenced to undergo Rigorous

Imprisonment for 3 years and to pay a fine of Rs. 3,000/-, in default, Simple Imprisonment

for two months for the offence under Section 366 IPC. Both the sentences were directed to

run concurrently.

3. The prosecution case in brief is that the informant, Ajit Bordoloi, who is the father of the

victim, lodged an FIR on 31.01.2017 before the In-Charge, Lahdoigarh Police Outpost under

Teok Police Station, stating inter alia that on 28.01.2017, his daughter went to beauty parlour

at Lahdoigarh Chariali but did not return back home. Though they were in search of the

victim, but could not trace her out. Subsequently, it has been confessed to them over a

mobile phone number being 90856-12898, that one Tridip Buragohain of Sivasagar had

kidnapped his daughter from Lahdoigarh Chariali.

4. On receipt of the complaint, a case was registered vide Teok PS Case No. 32/2017, Page No.# 3/18

under Sections 366 IPC and started investigation. During investigation, the Investigating

Officer visited the place of occurrence, recorded the statement of the witnesses, including the

victim on her recovery from Guwahati. The victim was also forwarded to the Court for

recording her statement under Section 164 CrPC by the Magistrate. She was also medically

examined and after completion of investigation, charge sheet has been laid before the Court

of learned SDJM, Jorhat, under Section 366 IPC. As the offence under Section 366 IPC is

exclusively triable by the Court of Sessions, the case was committed accordingly.

5. During trial, on appearance of the accused appellant, charge was framed under Sections

366/376 IPC, which was read over and explained to the accused appellant, to which he

pleaded not guilty and claimed to be tried. To prove the guilt of the accused appellant, the

prosecution examined 7 (seven) witnesses and exhibited five documents. On the other hand,

the accused appellant did not choose to adduce any evidence in support of his defence. After

completion of the trial, the statement of the accused appellant was recorded under Section

313 CrPC, wherein he denied the evidence of the witnesses made against him and pleaded

his innocence. However, the accused also stated in his statement recorded under Section 313

CrPC that he was introduced to the victim through Facebook and thereafter, both of them fell

in love. On 20.01.2017, at about 03:00 pm, in the afternoon, the victim called him over

phone. At that time, he was along with his vehicle (Night Super) at Namtola at Sivasagar

district, due to which he told her that she should not come to Sivasagar. Thereafter, he took

the Night Super to Namtola. When he reached the bus counter, he had seen the victim in the

counter. Thereafter, he asked the victim to go to her parental home, to which she refused and

under such circumstance, he had taken her to Guwahati. Thereafter, when the Night Super

reached at Ladoigarh, he again asked her to get down, but again she refused to do so, due to Page No.# 4/18

which he had taken her to Guwahati to his rented house near ISBT. But later on, when the

victim came to know that the petitioner was a married person, she went to the Police Station

and he also accompanied her and told the matter to the Police Officer.

6. After hearing the arguments of the learned counsel for the parties, the learned trial

Court has delivered the Judgment, convicting the accused appellant as aforesaid. Hence, this

appeal.

7. Learned Amicus Curiae, Mr U Choudhury, has argued that the victim was a major girl at

the relevant time of incident. As such, she was a consenting party to have sexual intercourse

with the accused appellant. Hence, no offence is committed under Section 376 IPC. As the

victim was a major girl, there was no question of kidnapping, which falls under Section 366

IPC. However, the accused has been in jail since the date of Judgment, 26.09.2017, i.e., for

more than 5(five) years. The maximum punishment here in this case is 7(seven) years. Under

such backdrop, the accused be acquitted or be released for the period undergone for the

offence on conviction.

8. It is further submitted by the Learned Amicus Curiae that the incident took place on

28.01.2017, but the ejahar was lodged on 31.01.2017, after three days of the incident. There

is no explanation in the FIR, regarding delay of lodging the same, which is fatal to the

prosecution case.

9. It is further stated by the learned counsel for the appellant that on examination of the

victim, the Medical Officer did not find any injury on the private parts of the victim, which

shows that the victim was not sexually assaulted by the accused appellant. Therefore, Section

376 is not attracted here in this case.

Page No.# 5/18

10. Learned Amicus Curiae also argued that though the victim stated that she became

unconscious, after she was taken in the vehicle, but the victim is totally silent as to whether

the appellant had administered any type of substance, for which she became unconscious.

Learned counsel for the appellant also pointed out that when the victim came to know that

the appellant was a married person, she immediately went to the Police Station, alleging

offence of kidnapping and rape.

11. Per contra, Mr M P Goswami, learned Additional Public Prosecutor has vehemently

opposed the contentions of the learned counsel for the appellant and submitted that though

the victim was a major girl at the relevant time of incident, however, the injury report of the

victim shows that she sustained injury on different parts of her body. The victim was

recovered from the rented house of the accused appellant at Guwahati. If the victim was a

consenting party, there could not be any injury mark on the body of the victim. It is also

submitted that the statement of the victim was consistent while deposing before the Court or

while statement was recorded by the Magistrate or by the Police Officer during investigation.

In view of the above, it cannot be stated that the victim was a consenting party to have

sexual activity with the accused appellant. As such, the Judgment of conviction passed by the

learned trial Court does not call for any interference by this Court.

12. I have heard the submissions made by the learned counsel appearing for both the

parties. I have also perused the record as well as the Judgment of the learned trial Court.

13. The questions arising for consideration before me are:-

i)    Whether the prosecution story as alleged inspires confidence of this Court on the

       evidence adduced!
                                                                                  Page No.# 6/18

ii)    Whether the prosecutrix is a witness worthy of reliance?

iii) Whether the testimony of the prosecutrix who has been a victim of rape, stands in need

of corroboration and if so, whether such corroboration is available in the facts of the present

case and whether the victim was a consenting party to the crime!

14. The victim was examined in the case as PW-1, who deposed in her evidence that she

knew the accused appellant through Facebook. The accused introduced himself as Deep

Buragohain and that he was an employee of BSF. The accused appellant used to talk to her

over phone. On 28.01.2017, the accused called her to Lahdoigarh over phone to see her.

Thereafter, she went to Lahdoigarh and met with the accused. Other four boys were with the

accused. When she went close to the accused, he with the assistance of his friends gagged

her mouth and put her in a van. The place was a little away from the Police Station and the

time was about 11:00 am. She was carried by the vehicle for about an hour and the vehicle

was facing towards Jorhat. She fell unconscious after she was put into the vehicle and

regained her consciousness at Bhangagarh, Guwahati. She found herself in a room at

Guwahati. The room was dark with no window. She found herself nude and the accused had

sex with her by applying force and when she resisted him, he assaulted her and thus caused

injury to her. She sustained injury on her head, back, chest and waist and the accused also

used obscene languages towards her. When she tried to scream, the accused pressed her

neck to the extent that she could not scream. The accused also threatened her that he would

sell her at Cooch Behar. One day, the accused made a plan to take her to Cooch Bihar and

was talking to someone else over phone and when the accused came out of room, she

escaped. After coming out of room, she met a Security officer,. When she told him about the

incident, he took her to Police Station. Thereafter, the Police informed her parents and Page No.# 7/18

subsequently, Police along with her parents came to Gorchuk Police Station. On being asked,

she made a statement before Police and her statement was recorded by the Magistrate. She

was medically examined. It is also alleged by the victim that the accused kidnapped her by

giving false identity.

14.1 In her cross-examination, PW-1 replied that till the date of incident, it was 22 days of

acquaintance with the accused on Facebook. There had been conversation between them in

these 22 days and the love affair grew between them. She did not know that the accused

was a bus driver. There were 1/2 persons at the place of occurrence and the vehicles were

plying there on the road. The companions of the accused also touched her body. She did not

know who had made sexual relation during the time she remained unconscious. But the

accused had committed sex with her by applying force after she regained her sense.

15. PW-2 is the informant, father of the victim. From his deposition, it reveals that on the

date of incident, his daughter went to a beauty parlour, located at Ladoigarh. When he

reached home in the evening, he came to know that his daughter did not return home. Then

he made phone calls to her friends and from them he came to know that his daughter did

not visit their houses. Unable to trace his daughter, he lodged the FIR before Lahdoigarh

Outpost. After 6/7 days he received a phone call that she was in Gorchuk Police Station. They

informed the matter to Police and went to Guwahati with police personnel and recovered his

daughter. Thereafter, his daughter was medically examined, and her statement was recorded.

On being asked by her father, she stated that one boy named Deep with the help of other

boys, gagged her and took her in a vehicle and she became unconscious. After two days, his

daughter discovered herself in a room at Guwahati. The accused assaulted her and PW-2

noticed injuries on various parts of her body. His daughter did not tell him that the accused Page No.# 8/18

had committed bad act with her. But she stated so to her mother.

15.1. In his cross-examination, PW-2 replied that he lodged the ejahar on 31.01.2017. He did

not know if the accused and his daughter had love affair. Their residence are at some

distance from the place of occurrence. Since the road has been widened, the vehicles ply on

that road. He did not say to the Police that the accused and his friends had taken away his

daughter by covering her face with a black cloth.

16. PW-3, Manjit Bordoloi, is the elder brother of the victim. According to him, on the date

of incident, his sister went to a beauty parlour at Lahdoigarh. When his sister did not return

home till the evening, they searched for her but she could not be traced. Then their father

lodged an ejahar at the Police Station. Around 9 pm a phone call was made from his sister's

mobile phone, wherein the caller introduced himself as Tridip Borgohain and said that he took

his sister and then he switched off the mobile. One week after missing of his sister a phone

call was made through his sister's mobile phone stating that Police recovered her sister and

kept her at the Police Station. Then he along with Police and his relatives went to Guwahati.

He met his sister at Gorchuk Police Station and Police brought his sister to Jorhat. His sister

told him that Tridip Borgohain had taken her away in a van from Lahdoigarh. She said that

the appellant was the main culprit and that she had been kept confined in a dark room at

Garchuk area. When his sister wanted to return home, the appellant assaulted her causing

injury on her entire body. He had also noticed injuries on the body of his sister. She was given

treatment for those injuries.

16.1. In his cross-examination, PW-3 stated that he did not know if his sister developed any

relationship with the accused through Facebook.

Page No.# 9/18

17. PW-4 is the mother of the victim. She deposed before the Court that on the date of

incident, her daughter went to a beauty parlour at Lahdoigarh and did not return home till

evening. Though they were searching for their daughter, they could not find her, so her

husband lodged an FIR in the Police Station. Later on, they came to know from Garchuk

Police Station that they recovered their daughter and kept her at the Police Station. When she

met her daughter she told her that the accused took her in a van to Guwahati. The accused

forcefully established physical relationship with her daughter. When her daughter resisted the

accused appellant, he assaulted her. She had seen the injuries on her body as well as on her

head. She was given treatment for her injuries.

18. Another witness, PW-5 is the neighbour of the informant. He did not say anything

regarding the incident. He came to know from the informant that the accused had kidnapped

his daughter. 19. PW-6 is the doctor who examined the victim after her recovery. She

deposed before the Court that on 04.02.2017, while she was posted as Medical Officer,

Department of Forensic Medicine at JMCH, she examined the victim and she found the

following injuries:-

Genital examination:

a) Hymen-old tear at 6 o' clock position.

b) Vagina - no evidence of injury detected.

Injuries on the body-

1) Blue-green colour bruise on left thigh three (03) numbers 1 cm 1 sq in size

with tenderness.

2) Tenderness on anterior chest-difuse area.

Page No.# 10/18

3) Tenderness on both fore arms and scalp (parietal) area.

19.1. Doctor opined that the victim was above 18 years old and no evidence of recent sexual

intercourse detected.

But in her cross-examination, the Medical Officer replied that the injuries sustained by

the victim cannot be caused by falling.

20. PW-7 is the Investigating Officer. From his deposition, it discloses that on 31.01.2017,

he was working at Lahdoigarh Outpost. On that day, on receipt of an FIR, the In-charge of

the Outpost made an Entry vide GD Entry No. 561 dated 31.01.2017 and forwarded the same

to Teok Police Station for registration of the case. He was entrusted with the task of

investigation of the case. During investigation, he recorded the statement of the informant at

the Police Station and also recorded tthe statement of other witnesses. Thereafter, he visited

the place of occurrence and drew a sketch map, vide Exhibit-4. On recovery of the victim, he

received a wireless message that the victim and the accused were detained at Garchuk Police

Station, Guwahati. Then he along with other Police personnel went to Guwahati and brought

the victim and accused to Lahdoigarh. He recorded the statement of the victim and got her

medically examined. Her statement was also recorded under Section 164 CrPC. He arrested

the accused and forwarded him to Court and after completion of investigation submitted

chargesheet against the accused/appellant, under Section 366 IPC, vide Exhibit-5.

21. In his cross-examination, PW- 7 replied that except the said accused, he was not aware of

any other accused person during investigation. Though he went to examine the witnesses at

the shops near the place of occurrence at Lahdoigarh, but everybody stated that they knew

nothing about the incident. The witnesses are the family members of the victim.

Page No.# 11/18

22. Admittedly, the victim was a major girl when the incident took place. According to the

victim, she made acquaintance with the accused through Facebook. On being called by the

accused, she came to Lahdoigarh and she was kidnapped by gagging her mouth in a vehicle

to Guwahati. It is alleged that the accused had committed rape upon her and the other

persons who accompanied the accused at the relevant time had touched her body, but she

could not say whether they had made any sexual relationship with her, when she was

unconscious.

23. It was argued by the learned Amicus Curiae that the prosecutrix was a major at the

relevant time of incident, who had willingly gone with the appellant and lived in his house at

Guwahati and if they had any sexual intercourse, it was with her consent. Therefore, the

prosecution has failed to establish the offence against the accused appellant, under Sections

366/376 IPC. The learned trial Court had wrongly appreciated the evidence on record and has

erred in concluding that the victim girl was not a consenting party. But the facts and

circumstances of the case amply shows that the victim was a consenting party. Learned trial

Court had wrongly convicted the accused under Section 366 and 376 IPC and he is entitled to

be acquitted.

24. For the offence of rape as defined in Section 375 of the Indian Penal Code, the sexual

intercourse should have been against the will of the woman or without her consent. If she be

of 16 years of age or above, her consent cannot be presumed; an inference as to consent can

be drawn if only based on evidence or probabilities of the case. The victim of rape stating on

oath that she was forcibly subjected to sexual intercourse or that the act was done without

her consent, has to be believed and accepted like any other testimony unless there is material

available to draw an inference as to her consent or else the testimony of prosecutrix is such Page No.# 12/18

as would be inherently improbable. It may be recalled in that in view of section 114-A,

Evidence Act inserted by Criminal Laws (Amendment), Act,1983, there has been effected

radical change in law relating to rape so far as the evidence relating to rape is concerned. The

law is now in view of Section 114-A, Evidence Act that if the fact of sexual intercourse is

proved and the victim says that she did not consent to that act, the onus shifts to the

accused to show that the victim was a consenting party.

25. In the case of State of U P vs. Chhotey Lal ; reported in (2011) 2 SCC 550, the

Hon'ble Supreme Court observed that-

" "Consenting" means consent of the will and submission under the influence of

fear or terror cannot amount to real consent.

.....It is further stated that consent supposes three things, a physical power, a

mental power and a free and serious use of them and if the consent be obtained by

intimidation, force, meditated imposition, circumvention, surprise or undue influence, it

is to be treated as a delusion and not as a deliberate and free act of mind.

"Consent" within Penal Law defining rape requires exercise of intelligence based

on knowledge of its significance and moral quality and there must be a choice

between resistance and assent."

26. In the case in hand, the victim before me was 20 years of age. She has clearly stated

that she was subjected to sexual intercourse by the accused and she was not a consenting

party. I have found the testimony of the prosecutrix trustworthy and unembellished. The

prosecutrix has been subjected to cross-examination, but nothing has come out to discredit

her evidence. The trial Court has found the prosecutrix reliable. This Court also finds no Page No.# 13/18

reason to disbelieve her testimony. A father would not ordinarily subscribe to a false story of

sexual assault, involving his own daughter and thereby putting at stake, the reputation of the

family and jeopardizing the married life of the daughter.

27. It is pertinent to mention here that the victim is still unmarried staying in the house of

her parents. From the evidence of PW-s 3 and 4, i.e., brother and mother of the victim, it

reveals that at the time of occurrence the victim had been pursuing her studies, but after the

incident she has abandoned her studies as she stated that the incident has ruined her life.

PW-4 also added that they are facing trouble to solemnize the marriage of their daughter

because of the incident.

28. It would be apt here to remind one of the observations of the Hon'ble Supreme Court in

a case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat; (1983) 3 SCC 217,

where the Supreme Court said-

"A girl or a woman in the tradition bound non permissive society of India would

be extremely reluctant even to admit that any incident which is likely to reflect on her

chastity had ever occurred. She would be conscious of the danger of being ostracized

by the society or being looked down by the society, including by her own family

members, relatives, friends and neighbours. She would face the risk of loosing the love

and respect of her own husband and near relatives, and of her matrimonial home and

happiness being shattered. If she is unmarried, she would apprehend that it would be

difficult to secure an alliance with a suitable match from a reasonable or an acceptable

family. In view of these similar factors the victims and their relatives are not too keen

to bring the culprit to book. And when in the face of these factors the crime is brought Page No.# 14/18

to light there is a built-in assurance that the charge is genuine rather than fabricated."

29. In this case, no reason has been shown, not even suggested during cross-examination

of the witnesses why the victim or any member of her family would falsely implicate the

accused roping him in a false charge of rape.

30. It is well settled that a prosecutrix complaining of having been a victim of the offence of

rape is not an accomplice after the crime. There is no rule of law that her testimony cannot

be acted without corroboration in material particulars. Her testimony has to be appreciated

on the principle of probabilities just as the testimony of any other witness; a high degree of

probability having been shown to exist in view of the subject matter being a criminal charge.

Assurance, short of corroboration as understood in the context of an accomplice would do.

Reference may be had to a long chain of decisions, some of which are - State of

Maharashtra vs. Chandra Prakash Kewal Chand Jain, reported in (1990) 1 SCC

550; Madan Gopal Kaddad -vs- Naval Dubey & Anr., reported in (1992) 3 SCC 204;

Karnail Singh vs- State of MP, reported in (1995) 5 SCC 518.

31. It is also argued by the learned Amicus Curiae that there are contradictions in the

statement of the victim when recorded by the Magistrate, under Section 164 CrPC and when

deposed before the trial Court. The conviction was based on such evidence, which is not

sustainable. The contradictions in the statements of the parents of the victim regarding

receipt of a phone call for recovery of the victim created some doubt about the correctness of

the prosecution version.

32. I do not agree with the submissions of the learned counsel for the appellant. The

evidence of a victim of a sexual offence is entitled to great weight, and corroboration is not Page No.# 15/18

essential for a conviction of the offence of rape. The totality of the circumstances appearing

on the record of the case discloses that the victim does not have a motive to falsely implicate

the accused appellant to be involved in the present case.

33. Regarding delay of lodging the FIR, it is no doubt true that the incident occurred on

28.01.2017 and the FIR was lodged on 31.01.2017, but hardly anyone can lose sight of the

fact that in such kidnapping and sexual abuse cases, the delay in lodging the FIR can be due

to variety of reasons, particularly the reluctance of the family members of the prosecutrix to

go to the Police and complaint about the incident, which concerns the reputation and honour

of the family members in general and of the prosecutrix in particular. It is only after coming

to a cool thought the complaint of sexual offence is generally lodged. Such delay has got no

direct bearing on the prosecution version, which is otherwise proved by cogent, ocular and

medical evidence.

34. Similarly, there is no legal requirement to search for any corroboration to the statement

of the prosecutrix. Her statement about the manner, in which she was abducted, forcibly

dragged into a vehicle from Lahdoigarh Chariali and straightway, she was taken to Guwahati

and illegally confined in a rented house of the accused appellant near ISBT, has a ring of

truth in it. It is not a matter of dispute that such girl in a tradition bound non-permissive

society in this North-Eastern part of the country, would be extremely reluctant even to admit

that any such incident, which is likely to reflect upon her chastity, had occurred, being

conscious of the danger of being ostracized by the society. In the normal course of human

conduct, such unmarried girl would not like to give publicity to the traumatic experience she

had undergone and would feel terribly embarrassed in relation to the incident to openly

narrate such incident. On the other hand, minor discrepancies here and there with regard to Page No.# 16/18

the statement of the victim or her parents or her brother regarding the date of recovery of

the victim girl at Guwahati or subsequently, bringing her to Jorhat, had no direct bearing on

the fact of actual kidnapping and commission of rape of the victim girl by the accused

appellant.

35. An identical question came to be decided by Hon'ble Apex Court in a celebrated

judgment in case State of Maharashtra v. Chandraprakash Kewalchand Jain; reported

in (1990) (1) SCC 550, which was subsequently followed in various judgments. Considering

the evidentiary value of prosecutrix in sex abuse cases, it was ruled as under:-

"A prosecutrix of a sex offence cannot be put on par with an accomplice. She is

in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot

be accepted unless it is corroborated in material particulars. She is undoubtedly a

competent witness under Section 118 and her evidence must receive the same weight

as is attracted to an injured in cases of physical violence. The same degree of care and

caution must attach in the evaluation of her evidence as in the case of an injured

complainant or witness and no more.

What is necessary is that the Court must be alive to and conscious of the fact

that it is dealing with the evidence of a person who is interested in the outcome of the

charge levelled by her. If the court keeps this in mind and feels satisfied that it can act

on the evidence of the prosecutrix, there is no rule of law or practice incorporated in

the Evidence Act similar to illustration (B) to Section 114 which requires it to look for

corroboration. If for some reasons the Court is hesitant to place implicit reliance on the

testimony of the prosecutrix it may look for evidence which may lend assurance to her Page No.# 17/18

testimony short of corroboration required in the case of an accomplice. The nature of

evidence required to lend assurance to the testimony of the prosecutrix must

necessarily depend on the facts and circumstances of each case. But if a prosecutrix is

an adult and of full understanding the court is entitled to base a conviction on her

evidence unless the same is shown to be infirm and not trustworthy. If the totality of

the circumstances appearing on the record of the case disclose that the prosecutrix

does not have a strong motive to falsely involve the person charged, the court should

ordinarily have no hesitation in accepting her evidence ."

37. Coming to the case in hand, this Court finds no force in the contention of the learned

counsel for the appellant that the victim was a willing party to the sexual assault made by the

accused. Upon an evaluation of evidence available on record, I am satisfied to hold that the

victim is a witness of truth. Her testimony inspires confidence. Other evidence available on

records lends assurance to her testimony. As per medical report the victim sustained bruise

injuries on her left thigh and other parts of her body i.e., chest area, forearms and skull. The

hymen was found torn at 6'o clock position. The Medical Officer also stated that the injuries

sustained by the victim cannot be possible by falling. The trial Court had rightly held that

sexual assault amounting to rape was committed towards victim by the accused appellant.

The trial Court was justified in holding her to be not a consenting party to the sexual assault

on her.

38. As far as conviction under Section 366 IPC is concerned, it is seen that the evidence of

the victim does not indicate that the appellant had kidnapped the victim girl with the intention

to marry her against her will or in order that she may be forced to illicit intercourse. These Page No.# 18/18

two vital ingredients for upholding conviction under Section 366 IPC are not proved and

therefore, the conviction of the appellant under Section 366 IPC cannot be sustainable. But

the accused is found guilty under Section 363 IPC and convicted accordingly, under Section

363 IPC, instead of Section 366 IPC and the sentence would remain as same, passed by the

learned trial Court.

39. In the result, the appeal is dismissed. The Judgment and Order dated 26.09.2017,

passed by the learned Assistant Sessions Judge, Jorhat, in connection with Sessions Case No.

48 (JJ)/2017, is hereby affirmed to the extent as aforesaid. The period which the appellant

detained in custody shall be set off from the period of imprisonment imposed on him.

40. Send back the LCR.

41. With the aforesaid observations, this appeal stands disposed of.

42. Before parting with the record, this Court extends the appreciation to the services

rendered by Mr U Choudhury, learned Amicus Curiae and recommend that the Registry may

make arrangement for payment of necessary remuneration to the learned Amicus Curiae as

per the existing norms.

JUDGE

Comparing Assistant