The conviction for kidnapping and rape was upheld based on the reliable testimony of the victim, who was underage, making consent irrelevant.

JUDGMENT :

ANANDA SEN, J.

1. The appellant has preferred this appeal against the judgment of conviction and order of sentence dated 16th July, 2012 passed by the Sessions Judge, Bokaro in Sessions Trial No. 292 of 2006, arising out of B.S. City Police Station Case No. 109 of 2006, corresponding to G.R. No. 489 of 2006, whereby and whereunder, the appellant has been convicted for offences under Sections 366 and 376 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for five years and a fine of Rs.3000/- for committing the offence punishable under Sections 366 of the Indian Penal Code and to undergo rigorous imprisonment for seven years and a fine of Rs.3000/- for committing the offence punishable under Section 376 of the Indian Penal Code and in case of default of payment of fine, sentenced to undergo further simple imprisonment of 15 days each.

2. Learned counsel appearing on behalf of the appellant submitted that there is no material and evidence to convict the appellant. It is his contention that the prosecution has miserably failed to bring home the charges against the appellant. He submits that the victim girl left her home on her own wish and remained with the appellant for 12 (twelve) days. During this period she never raised any alarm and was all along a consenting party. He further contended that there is no eye witness in this case either to the incident of kidnapping or commission of rape. The testimony of the witnesses is only to the extent that the victim girl had gone to attend the nature’s call in the morning at 05.50 on the date of occurrence and thereafter she did not return till she was recovered by the police along with the appellant. He further argued that the medical evidence also suggests that there was no mark of violence on the body of the victim girl. Thus, on overall assessment of evidence, learned counsel argued that it is a fit case for acquittal of the appellant and the appellant deserves to be acquitted.

3. Learned counsel appearing for the State contended that the Trial Court has rightly convicted the appellant on the basis of the evidence available on record. He submitted that the prosecution witnesses had all stated in same tone that the victim girl had left at 05.30 in the morning on the date of occurrence for natural call but did not return. After twelve days the girl was recovered along with the appellant from Village Chilgadda Tola Upardih, PS Jaridih. He further argued that after the girl was recovered, her statement was recorded under Section 164 of the Code of Criminal Procedure, wherein she had narrated about the sexual assault made by the appellant upon her under threat. The victim had supported the prosecution case while deposing as PW-4 also. Learned counsel for the State argued that the Trial Court had correctly appreciated the evidence and finding the charges as proved, has rightly convicted and sentenced the appellant. Thus, there being no merit, this appeal deserves to be dismissed.

4. The prosecution case is based on the written report dated 09.05.2006 of the informant- Birbal Manjhi father of the victim girl, wherein he has narrated that his daughter on 04.05.2006 at about 05.30 AM left her home to attend the nature’s call, but when she did not return, he searched for her in the neighbourhood and at the places of acquaintances, which went in vain. After searching for three days, when he went to the house of her maternal uncle (Mama) situated at Village Madhamu, Post Chitma, Police Station Jhalda, District Purulia, there the villagers told that they had seen a muslim boy had forcibly brought a tribal girl and they had seen them going towards Musalman Tola. The informant further mentioned that he has a strong belief that his daughter has been kidnapped by the appellant as the appellant is also missing since the same day. Informant also expressed his anxiety about committing rape by the appellant or establishing illicit physical relation under threat.

5. On the b