Rumi Kumari Phukan, J.

1. I have heard Mr. Z. Hussain, learned amicus curiae, for the appellant and Mr. B.J. Dutta, learned Addl. P.P., Assam.

2. This is an appeal under Section 374(2) of the Code of Criminal Procedure, 1973, preferred against the judgment & order dated 14.03.2014 passed by the learned Assistant Sessions Judge, North Lakhimpur, in Sessions Case No. 137(NL)2013, convicting the accused Md. Nasib Hussain, u/ss. 366(A) and 376 IPC and sentencing him u/s. 366(A) IPC to undergo rigorous imprisonment for 1 year, and also sentencing him to rigorous imprisonment for 9 years and 6 months along with a fine of Rs. 12,000/- u/s. 376 IPC, and in default of payment of fine, further rigorous imprisonment for 1 year and 3 months.

3. The accused was behind the bar and so he preferred the appeal from inside the jail and accordingly, the appeal was registered. The prosecution case, in nut shell, is that 2 victim girls namely R & T(name withhold) aged about 12 years and 17 years went together on 20.04.2013 to the house of their teacher, Sri Pradip Sharma to fetch books. On the way to Barpather, the accused Nasib Hussain along with one Mukut Ali took both the victims on a vehicle(Mini Truck) bearing Reg. No. AS-07-C/3921 and thereafter, both the accused persons committed rape upon both the victims and the villagers in the quarry, at the river Gabhuru, caught the accused persons and handed them over to the police. The father of the victim girl lodged the FIR before the Narayanpur Police Station on the same day and accordingly, a police case was registered vide Narayanpur P.S. 63/2013 u/ss. 366(A)/376(2)(f) IPC. After completion of the investigation, police submitted the charge-sheet against the present accused person as well as the other accused persons u/ss.366/376/511 IPC. (As the present accused has preferred the appeal, so we will discuss about the involvement of the said accused only). The accused person stood the trial and after examining the prosecution witness as well as the victim's evidence, the Court hold the accused guilty, as mentioned above. Being aggrieved with the judgment and order of conviction, the present appeal has been preferred by the accused, from inside the jail.

4. It appears that the learned court below has took following points for determination as below:

"(i) Whether the accused persons on 20.04.2013, at 10.30AM, induced two minor girls namely R & T to go from the house of accused Pradip Sarma of village Barpather, with the intent that the said girls be compelled to marry them and forced them to illicit intercourse with them and thereby, committed the offence us/.376(A) IPC.

(ii) Whether the accused persons, on the said date, committed rape, upon the victim girls, R & T, in the jungle of Kachajuli and thereby, committed u/s. 376 IPC."

5. The learned amicus curiae, in his argument, has pointed out certain aspects, the evidence of the victim as well as other evidence on record whereby it has been submitted that the learned Court below has arrived about the guilt of the accused in an erroneous manner, without proper appreciation of the evidence of the victim as well as other attending facts and circumstances. The learned Court below has also failed to appreciate the medical evidence having regard to the assertion made by the parents of the victim girls namely R & T. On the other hand, the learned Addl. P.P, Assam, has submitted that the learned Court below has rightly convicted the accused persons and there is nothing to disbelieve the testimony of the victim girls.

6. Let us appreciate the evidence on record. Both the victim girls were examined u/s. 164of the Code of Criminal Procedure, 1973. The victim girls who have implicated the present accused, have stated that they were taken by the accused on TATA truck on the way and forcibly took her to Kachajuli and the accused tried to rape her but could not succeed as she protested and when they returned back, village people apprehended and assaulted them and h