IMPORTANT POINT
The prosecution must establish its case beyond a reasonable doubt; inconsistencies in witness testimonies and lack of medical evidence can lead to acquittal.

JUDGMENT :

MITALI THAKURIA, J.

1. Heard Mr. B. C. Das, learned counsel for the appellant. Also heard Mr. P. Borthakur, learned Additional Public Prosecutor for the State respondent.

2. This appeal is filed under Section 374 of the Code of Criminal Procedure, 1973, challenging the Judgment and Order dated 11.02.2013, passed by the learned Sessions Judge, Darrang, in Sessions Case No. 200(DM)/09, convicting the accused/appellant to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1,000/-(Rupees one thousand) only, in default of which to undergo simple imprisonment for one month under Section 366 of the IPC, and rigorous imprisonment for seven years and to pay a fine of Rs. 1,000/-(Rupees one thousand) only, in default of which to undergo simple imprisonment for another month under Section 376 of the IPC.

3. The prosecution story in brief is as follows:

3.1. One Md. Mazid Ali lodged the FIR on 17.03.2009 at about 5:30 P.M., alleging that his daughter, aged about 14 years, was kidnapped by the accused/appellant while returning home from the house of one Md. Makibur Rahman. When she arrived at Katara Chowk and did not return home, he lodged the FIR at Khoirabari Police Station on the same day at 9 P.M., which was registered as Khoirabari P.S. Case No. 23/09 under Section 366(A) of the IPC.

3.2. Thereafter, the police investigated the case, visited the place of occurrence, and recorded the statement of the victim girl under Section 164 of the Cr. P.C. She was also medically examined. After completing the investigation, the Investigating Officer submitted a charge sheet against the accused/appellant under Sections 366(A) and 376 of the IPC. The case was numbered as G.R. Case No. 791/09 and was committed by the learned Judicial Magistrate, First Class, to the Court of the learned Sessions Judge, Darrang, where Sessions Case No. 200 (DM)/09 was registered.

3.3. Upon the appearance of the accused/appellant, the charge was framed under Sections 366(A) and 376 of the IPC, to which the accused pleaded not guilty and claimed to be tried. The prosecution examined a total of eight numbers of witnesses in support of their case, while the defence side did not adduce any evidence but pleaded not guilty during the recording of the statement under Section 313 of the IPC.

3.4. After hearing the arguments presented by the learned counsels for both sides and considering the materials on record, the learned Sessions Judge, Darrang, delivered a Judgment and Order dated 11.02.2013 in Sessions Case No. 200(DM)/09, convicting the accused/appellant to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1,000/-(Rupees one thousand) only, in default of which he was to undergo simple imprisonment for one month under Section 366 of the IPC, and rigorous imprisonment for seven years and to pay a fine of Rs. 1,000/-(Rupees one thousand) only, in default of which he was to undergo simple imprisonment for another month under Section 376 of the IPC.

4. Mr. Das, learned counsel for the petitioner, has submitted that the prosecution witnesses could not prove the case beyond a reasonable doubt and that the recovery of the victim girl is contradictory. The medical officer could not provide any opinion regarding rape by the accused/appellant, and the entire case relies on circumstantial evidence, where the prosecution failed to establish the case against the accused/appellant beyond a reasonable doubt. However, the learned Sessions Judge convicted the accused/appellant without proper appreciation of the evidence in its true perspective, and passed the Judgment and Order dated 11.02.2013 which is liable to be set aside and quashed.

5. Furthermore, it is submitted that, according to P.W.1, on the next day morning, at about 10 A.M., police recovered his daughter along with the accused/appellant at Baruapara and brought her to his residence, took the accused to the police station. Contradicting P.W.1's statement, P.W.2 claimed that the victim was