IMPORTANT POINT
In case material evidence is withheld, court may draw adverse inference.

JUDGMENT

Dr. Chauhan, J.—

1. This appeal has been preferred against the judgment and order of the Gauhati High Court dated 20.2.2004 passed in Criminal Appeal No.188/2003 by which appeal against the judgment and order of the Sessions Court Kamrup, Guwahati in Sessions Case No.87(K)/97 (GR. Case No.47/95) has been dismissed wherein the appellant was convicted under Section 376 Indian Penal Code (in short “IPC”) and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.2,000/-, in default to undergo imprisonment for another six months. However, the High Court reduced the sentence to four years and fine to Rs.1000/-.

2. The facts and circumstances giving rise to this case are that the appellant Mussauddin Ahmed alias Musa allegedly abducted a minor girl namely Mira Begum on 7.1.1995 took her to a hotel and committed rape on her.

3. The victim PW.4 Mira Begum was working as a maid servant in the house of PW.2 Abdul Hai Laskar and his wife PW.3 Hasmat Ara Begum at Gandhibasti, under Paltanbazar Police Station, Guwahati. Appellant was a security guard in the house of one Imran Shah of that locality. The appellant and prosecutrix knew each other from before.

4. According to the prosecution, on 7.1.1995, PW.4 Mira Begum, without informing her employer PW.2 Abdul Hai Laskar and PW.3 Hasmat Ara Begum went to see the zoo with one Suleman who was known to her. While they were coming back from the zoo they met the appellant near Ulubari Chowk. On seeing them together the appellant got annoyed and he slapped Suleman and threatened that he would hand them over to police. Out of fear Suleman ran away. The appellant on the pretext of taking the prosecutrix PW.4 Mira Begum, to the police station took her to Sodhi Hotel situated at Paltanbazar. In the hotel he hired a room in fictitious names and kept her in the room for the whole night and committed rape on her three times. On the next morning he sent her in a rickshaw. PW.4 Mira Begum came to the house of a person near Hazi Musafir Khana and telephonically informed her employers about the incident. PW.2 Abdul Hai Laskar brought her to his house and she narrated the whole incident before him. The written FIR relating to the incident was lodged by PW.2 Abdul Hai Laskar in the morning of 8.1.1995. Police registered the FIR and investigation was conducted by PW.7 Kanak Ch. Das, Sub-Inspector of Police. During investigation he got prosecutrix medically examined in the G.M.C.H. by PW.1 Dr. Pratap Ch. Sarma. The statement of the prosecutrix was recorded by PW.5 Parthiv Jyoti Saikia Judicial Magistrate Ist Class, Guwahati under Section 164 Criminal Procedure code (in short “Cr.P.C.”).

5. After completion of the investigation, PW.7 Kanak Ch. Das submitted charge-sheet against the accused under Section 366/342/376 IPC.

6. On committal of the case to the court of Sessions, charges under Sections 366/376 IPC were framed against the appellant. The appellant pleaded not guilty to the charge and hence trial commenced.

7. During the trial the prosecution examined seven witnesses including the Investigating Officer. The Trial court found appellant guilty of the offence punishable under Section 376 IPC and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.2,000/- in default to undergo imprisonment for another six months.

8. Being aggrieved the appellant preferred the appeal before the High Court. The High Court upheld the conviction under Section 376 IPC but reduced the sentence to a period of four years and to pay a fine of Rs.1000/- in default to further imprisonment for one month. Hence this appeal.

9. Shri Vishal Arun, learned counsel for the appellant has submitted that the prosecutrix was eighteen years of age. Even if the prosecution case is believed, charge of rape cannot be held proved. The appellant as well as PW.4 Mira Begum prosecutrix were neighbours and knew each other. On 7.1.1995 she had gone along with Suleman to the zoo. When she