The central legal point established in the judgment is that the victim's age and consent are crucial factors in determining the offense of rape, and the evidence and testimonies should be considered in their entirety.

ORDER :

Bibhas Ranjan De, J.

By this appeal under section 374 (2) of Code of Criminal Procedure Code, 1973, the appellant has challenged the Judgment dated 12.01.2017/13.01.2017, passed by 7th Additional Sessions Judge, Barasat, 24 Parganas (North) in Sessions Trial No. 02 (02) of 2013 whereby, the appellant has been convicted for the offences punishable under section 376, 363 and 366A of the IPC and sentenced to 7 years RI for the Offence Under Section 376 with fine of Rs.20,000/- and default RI for 10 months and sentenced to 5 years RI for the offence under Section 363 with fine of Rs. 5000/- and default RI for 3 months and also sentenced to 8 years RI for the Offence under section 366A of IPC with fine of RS. 20,000/-and default RI for 10 months, all the sentences are to run concurrently.

2. Prosecution case is that on 03.11.2010 victim, minor daughter of the complainant Shri Kalyan Kr. Ghosh, resident of village Ranihati, Deganga, Barasat, was kidnapped by the appellant while she had gone to answer nature's call at around 3 A.M. Complainant searched in all possible places but could not find her out.

3. On receipt of the written complaint on 03.11.2010 at about 22.45 hours instant case was registered as Deganga P.S case no 355 dated. 03.11.2010 u/s 363/366A I.P.C. During investigation I.O (PW-19) visited place of occurrence and prepared sketch map. I.O arrested two persons namely Jahangir Kabir Gazi and Manirul Gazi and they were taken to police custody. I.O. examined witnesses and recorded their statements u/s 161 Cr.P.C. During investigation I.O raided several places and finally on 20.04.20211 arrested the appellant and recovered the victim from Balagarh in the District Hooghly. I.O. also recorded the statements of witnesses namely Sk. Ohidur Rahaman (PW- 17), Sk. Raju (PW-14) and victim (PW-11) recorded u/s 164 Cr.P.C. After completion of investigation I.O. submitted charge sheet u/s 363/366A/120B/376/34 I.P.C against nine (9) accused including appellant before the Ld. Chief Judicial Magistrate, who then committed the case to the Ld. Sessions Judge, Barasat. The case was transferred to the Ld. Addl. Sessions Judge, Barasat, for trial.

4. Ld. Addl. Sessions Judge framed charge u/s 363/ 366A/120B I.P.C against all nine (9) accused including the appellant and also framed a separate charge u/s 376 against the appellant. In course of trial prosecution examined 19 witnesses and proved a good number of documents marked as ext. 1 to 13. On behalf of defence, three memos of arrest marked as ext. A to C were exhibited in course of cross-examination of I.O (PW-19). After recording evidence of all witnesses, appellant was examined u/s 313 Cr.P.C.

5. The trial Court after considering the evidence of the victim and other relevant witnesses found that the charges against the appellant are proved. Accordingly, the trial Court has convicted and sentenced the appellant in the manner indicated above. Co-accuseds were, however, acquitted of the charges levelled against them.

Arguments advanced

6. Mr. Rajdeep Mazumder, Ld. Counsel for the appellant, submits that the Ld. Trial Court has committed an error relying on evidence of PW-14, 16 & 17 who contradicted one another. It is further contended that the victim herself did not state about any kidnapping in course of her statement u/s 164 Cr.P.C Mr. Mazumder has tried to persuade this court that there was a love affair between the victim and the appellant. Mr. Mazumder also referred to the evidence of the mother of victim (PW-2) who stated the age of her daughter (victim) was more than 18 years. He also referred to the ext. 5/a and submits that ossification test report shows the age of victim as more than 17 years but less than 19 years. Accordingly, he submits victim, a major lady, had voluntarily left her residence and the charges levelled against the appellant had not been proved beyond doubt.

7. In opposition to that Mrs. Anasuya Sinha, Ld. Counsel for the State, submitted that the offences have du