The acquittal of the accused was justified due to insufficient evidence of lack of consent, establishing that the presumption of absence of consent under Section 114A requires a robust foundation.

JUDGMENT :

MD. SHABBAR RASHIDI, J.

1. The instant appeal, at the behest of the de-facto complainant is in assailment of the impugned judgment and order dated August 19, 2019 passed by learned Additional Sessions Judge, 2nd Fast Track Court, Asansol, in Sessions Trial No. 06 of 2009 arising out of Sessions Case No. 341 of 2007.

2. By the impugned judgment and order, the respondent/accused Abhijit Gope @ Bapi was found not guilty and was acquitted of the charges under Sections 341 /376 of the Indian Penal Code.

3. It is submitted by learned advocate for the appellant that the impugned judgment and order was passed by learned Trial Court merely on conjectures and surmises without evaluating the evidence on record. The findings arrived at by the learned Trial Court were misconceived and misdirected.

4. Learned advocate for the appellant further submitted that the learned Trial Court failed to appreciate the evidence led at the trial in its proper perspective and came to an erroneous finding. The Trial Court misapplied the authorities cited on behalf of the defence without considering the facts and circumstances obtained in the present case.

5. According to learned advocate for the appellant, the learned Court failed to appreciate that the victim happened to be deaf and dumb, and it was highly improbable that she or her family members would falsely implicate the accused.

6. Learned advocate for the appellant also submitted that evidence led at the trial, convincingly established the guilt of the accused warranting a conviction. Learned Trial Court was not justified in acquitting the accused. As such the impugned judgment and order is liable to be set aside.

7. Learned advocate for the appellant also submitted that the evidence adduced on behalf of the prosecution established sexual intercourse upon the victim. Since the victim had named the accused as the perpetrator, it gave rise to a presumption in terms of Section 114A of the Indian Evidence Act against the accused and the onus shifted on to the accused. In support of his contention, learned advocate for the appellant relied upon an authority reported in 2007 SCC OnLine Cal 113 ( Vimalanathan vs State ).

8. On the other hand, learned advocate for the respondents stood by the impugned judgment and order. He contended that the prosecution failed to establish the charges levelled against the accused with the help of unimpeachable evidence, enough to secure conviction of the accused. According to learned advocate for the respondent, learned Trial Court was quite justified in acquitting the accused.

9. The mother of the victim lodged a written complaint with Officer-in-Charge of Raniganj Police Station on September 9, 2004 to the effect that her daughter was deaf and dumb. About 2½ - 3 months prior to the date of lodging the written complaint, the daughter of de- facto complainant went to take bath in the pond of the village at noon. At that time, the accused, finding the victim alone, dragged her into the nearby bushes and forcibly committed rape upon her. He also threatened to kill her if she disclosed the incident to anyone. The de- facto complainant also stated that the victim went quiet after the incident. A few days prior to September 9, 2004, the victim was vomiting and was taken to a doctor