The central legal point established in the judgment is that the prosecution must prove the guilt of the accused beyond reasonable doubt, and the court must carefully consider the victim's testimony and medical evidence in cases involving non-consensual sexual activity.

JUDGMENT

Mir Alfaz Ali, J. - Heard Mr. AK Gupta, learned Amicus Curiae appearing for the appellant and Mr. MP Goswami, learned Addl. Public Prosecutor, Assam.

2. This appeal is directed against the judgment and order dated 18.05.2018 passed by the learned Sessions Judge, Morigaon in Sessions (Spl) Case No.27/2016,whereby the appellant was convicted under sections 366-A/376(2) IPC read with section 4 of the POCSO Act and sentenced him to imprisonment for 7 years and fine of Rs.10,000/- with default stipulation under section 366-A and RI for 7 years and fine of Rs.10,000/- with default stipulation under section 376(2) IPC. The appellant was further sentenced to imprisonment for 7 years with fine of Rs.10,000/- under section 4 of the POCSO Act

3. As per the prosecution case, on 13.05.2016 at about 9.00 am in the morning, while the daughter of the informant, Pw-1, was going to tutorial class, the accused/appellant kidnapped her form the road and thereafter informed the paternal aunt of the alleged victim by sending an SMS from the mobile phone of the victim, that she was with the appellant. The father of the victim lodged an FIR. On the basis of the said FIR, police registered a case, recorded the statement of the victim and other witnesses and got the victim examined by the doctor and on conclusion of the investigation, laid charge-sheet against the appellant under section 366-A IPC. The offence being triable by the Court of Sessions, learned Magistrate committed the case to the Court of Sessions and the learned Sessions Judge framed charges under sections 364/366-A/376 IPC read with section 4 of the POCSO Act, to which the appellant pleaded not guilty.

4. In course of the trial the prosecution examined 5 (five) witnesses in order to being home the charges. On appreciation of evidence, learned Sessions Judge convicted the appellant under section 366-A/376(2) IPC read with section 4 of the POCSO Act and awarded sentence as indicated above.

5. Aggrieved, the appellant preferred the present jail appeal.

6. Learned Amicus Curiae contends that the victim being a grown up girl went with the appellant on her own volition and also had sexual relationship with him on her consent and therefore, no offence was made out. Though, the doctor opined that the age of the victim was within 16-18 years, no further evidence with regard to her age was brought on record and the error of at least two years, if taken into consideration, the victim could not be held to be a minor, submits Mr. Gupta.

7. Learned Addl. PP supporting the judgment contends, that the prosecution has proved the guilt of the accused beyond reasonable doubt and as such, there is no reason to interfere with the conviction and sentence of the appellant.

8. I have considered the submissions of the learned counsel and also scrutinised the evidence and materials brought on record.

9. The victim was examined as Pw-2 who testified that the accused was known to him and was a regular visitor to their house. On the day of occurrence, when she was coming back from tutorial class, she met the appellant on the way, who requested her for a bicycle ride and accordingly, she boarded the bicycle of the appellant. The appellant took her to Domalgaon and kept her for the night in the house of one of his friends. On that night he committed rape on her against her will and on the following day he took the victim to village Nabheti, where also the accused kept her for one night and on the second night also the appellant committed rape on her. When she was staying with the appellant, the brother of the appellant brought her back to her house. During cross-examination she stated that the brother of the appellant Bidyut Buragohain was her tuition mate. She further stated that she did not make any hue and cry when she was taken on the bicycle. She admitted during her cross-examination that she did not disclose to the inmates of the house, where she was kept for the first night regarding her kidnap. She als