Point of Law: In a case of rape evidence of prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if story is improbable and belies logic, would be doing violence to very principles which govern appreciation of evidence in a criminal matter.

JUDGMENT :

1. Heard Mr. T. Deori, learned counsel for the appellant and Ms. S.H. Bora, learned Addl. P.P. for the State.

2. Sri Hari Prasad Kakoti (hereinafter referred to as the accused) has preferred this appeal seeking defeasance of the judgment & order dated 03.09.2021 passed by the learned Assistant Sessions Judge in connection with Sessions Case No. 19/2011 convicting the accused u/s 376 of the Indian Penal Code (IPC for short) to undergo Rigorous Imprisonment for 7 years and to pay a fine of Rs. 10,000/-with default stipulation.

3. The genesis of the case was that on 28.02.2011 at about 11 AM, the accused kidnapped the 14 year old victim ‘X’ from her house. The victim’s mother ‘Y’ found her daughter missing and set out on a frantic search and thereafter the victim’s mother lodged an FIR on 01.03.2011, which was registered as Dokmoka P.S. Case No. 7/2011 u/s 366AIPC and the Investigating Officer (IO for short) embarked upon the investigation. On closure of investigation charge-sheet was laid against the accused u/s 366A/376 IPC. At the commencement of trial, a formal charge u/s 366 and 376 IPC was framed and read over and explained to the accused, who adjured his guilt and claimed innocence.

4. To substantiate its stance, the prosecution adduced the evidence of 16 witnesses including the IO and the Medical Officer (MO in short). The accused did not tender any evidence in defence.

5. On the incriminating circumstances arising against him, several questions were asked under Section 313 Cr.PC and the responses of the accused were recorded.

6. The trial court decided this case on the following points:

(1) Whether the accused person on 28.02.2011 at about 11:00 a.m., at Baligaon, Langhin under Dokmoka police station kidnapped, or abducted the victim/prosecutrix, then aged 14 years, D/o of the informant, namely, Smti Rumi Saikia from her house, with the intent that she may be compelled (or knowing it to be likely that she will be compelled) to marry with him or any other person against her own will or in order that the said victim/prosecutrix will be forced or seduced to illicit intercourse with him thereby, committed an offence punishable u/s 366 of the Indian Penal Code?

(2) Whether the accused person on 01.03.2011 and 02.03.2011 at night, at Pub-Salmara, Phuluguri, PS: Raha, Dist: Nagaon committed rape several times upon the daughter of the informant without her consent and against her will and thereby, committed an offence punishable under Section 376 of the I.P.C?”

7. It is submitted on behalf of the accused that there is not even a scintilla of evidence against him, to sustain conviction under Section 376 IPC. The FIR is not substantiated by the informant’s deposition. In her evidence, she stated that she saw the accused taking away her daughter, whereas, it is mentioned in the FIR that while she was not at her home, her daughter was abducted. This contradiction has been overlooked by the learned trial Court. The victim’s evidence as PW-2 clearly depicts that she stayed in the accused person’s uncle’s house for three days, but there is no evidence that she raised alarm or resisted forceful sexual assault by the accused, which clearly depicts that the victim was a consenting party. Allegedly the PW-1 saw the accused taking away her daughter, but it took her two days to lodge the FIR without explaining any reasons of delay. Many witnesses have stated that there was a love affair between the accused and the victim. The victim’s father as PW-5 has also stated that when he went along with the police to recover his daughter, he found his daughter living with the accused as his wife.

8. The DW-1 has also stated that the victim was staying with the accused as his wife. It is submitted that the learned trial Court overlooked the fact that the doctor has not given valid reasons as to how he came to a finding that the victim was 18 years old. The prosecution has also not produced any school certificate relating to the age of the victim or t