IMPORTANT POINT
Consent and marital status of the victim are crucial in determining the applicability of rape charges under IPC.

JUDGMENT :

(Malasri Nandi, J.) :

Heard Mr. A.N. Ahmed, learned counsel for the appellant. Also heard Mr. B. Sharma, learned Additional P.P. representing the State.

2. This appeal is directed against the Judgment and order dated 10/08/2023, passed by the learned Assistant Sessions Judge, Karbi Anglong, Diphu in Sessions case no. 68/2015, whereby the accused/ appellant was convicted u/s 376 IPC and sentenced to undergo rigorous imprisonment for Seven years and to pay a fine of Rs. 5000/- in default RI for one month.

3. The brief facts of the case is that an FIR has been lodged by the informant before the OC, Diphu Police Station stating inter aliathat on 02/08/2014, his daughter went missing from Diphu Bazar. Later on, they came to know that the appellant kidnapped his daughter. Thereafter, the victim was recovered from the house of the accused/ appellant located at Silbhanga village under Jagiroad police station.

4. On receipt of the FIR, a case was registered vide Diphu PS case no. 217 of 2014 u/s 366/ 342/ 376/ 34 IPC and investigation was initiated. After completion of investigation, charge sheet was submitted against the appellant u/s 366/ 342/ 376 IPC, before the court of magistrate. As the offence u/s 366/376 IPC is exclusively triable by the court of Sessions, the case was committed accordingly.

5. During trial, charge was framed u/s 366/ 343/ 376 IPC, which was read over and explained to the accused/ appellant to which he pleaded not guilty and claimed to be tried. To substantiate the case of the prosecution, seven witnesses were examined. After closure of the evidence, the statement of the accused/ appellant was recorded u/s 313 Cr.PC, wherein the incriminating material found in the evidence of the witnesses were put to him to which he denied the same. After hearing the learned counsel for both the parties, the trial court convicted the accused/ appellant as aforesaid.

6. It was urged by the learned counsel for the appellant that the learned trial court has misread and misconstrued the evidence on record while convicting the accused/ appellant u/s 376 IPC. The witnesses examined by the prosecution are all relatives of the victim except the IO and the medical officer and are, therefore, interested witnesses. No independent witnesses were examined by the prosecution. As such, the conviction and sentence passed by the learned trial court is liable to be set aside.

7. It is also the submission of the learned counsel for the appellant that the victim is a major girl and the appellant had love affairs with the victim. On the date of incident, on receipt of a phone call from the appellant, the victim voluntarily left her house and eloped with the accused and reached at Jagiroad in the evening on the same day. During the said six hours of journey, the victim did not make any hue and cry or protest or informed the matter to her parents or any relatives about the incident. Thereafter, the victim got married with the appellant as per Muslim custom and stayed with the accused/ appellant for one and half months as husband and wife till recovery by the police.

8. It is also contended by the learned counsel for the appellant that during her stay in the house of the accused/appellant, the victim never informed her parents or other relatives about her place of residence and even about her marriage. In her statement also, the victim clearly stated that the appellant never used force towards her. She had eloped with the accused/ appellant on her own volition. According to the learned counsel for the petitioner, as it is crystal clear that the victim being a major girl, voluntarily left her house, got married with the appellant and stayed with the accused as husband and wife, hence, the appellant cannot be convicted u/s 376 IPC. Therefore, the appellant deserves to be acquitted on benefit of doubt.

9. Percontra, learned Additional P.P. has argued that as per evidence of the victim, the accused/ appellant forcefully had physical relation wi