The conviction for rape was upheld based on consistent victim testimony, while the conviction for kidnapping was set aside due to insufficient evidence of intent.

JUDGMENT :

Pradeep Kumar Srivastava, J.

1. The present appeal is directed against the judgment and order of conviction and sentence dated 04.05.2006 passed by learned 1st Additional Sessions Judge, Pakur in Sessions Case No.116 of 2005 whereby and whereunder, the appellant has been held guilty for the offences under section 366A of Indian Penal Code and sentenced to undergo R.I. of 6 years along with fine of Rs.2.000/- and further held guilty for the offence under section 376 of Indian Penal Code and sentenced to undergo R.I. of 7 years along with fine of Rs.3,000/- with default stipulation. Both sentences are directed to run concurrently.

FACTUAL MATRIX

2. Factual matrix giving rise to this appeal is that on 14.04.2005, the informant had gone to Heramanpur Hatia along with his wife and returned in the evening at about 6:00 PM, then he came to know that his minor daughter aged about 14 years has been kidnapped by the co-villager Chand Turi and his friend Jisu Kisku on motorcycle with intention to commit illicit intercourse with her.

3. On the basis of written report of the informant, Littipara P.S. Case No.21 of 2005 was registered for the offence under section 366A of IPC . After completion of investigation, charge-sheet was submitted for the offence under sections 366A and 376 of Indian Penal Code against both accused persons. The learned court of C.J.M., Pakur found Jisu Kisku to be juvenile and his case was separated and sent to Juvenile Justice Board and the case of present appellant was committed to the court of Sessions, where S.C. No.116 of 2005 was registered.

4. The trial was proceeded against the present appellant. He denied from the charges and claimed for trial. In the course of trial, altogether 8 witnesses were examined by the prosecution including the victim girl.

5. After completion of the prosecution evidence, the statement of the accused was recorded under section 313 of Cr.P.C. The case of the defence is denial from the occurrence and false implication by the father of the victim girl. It is also taken as defence that there was love affairs between the victim girl and the accused, which was being protested by her father, hence, this false case was lodged. No oral or documentary evidence has been adduced by the defence.

6. Learned trial court after considering the evidence available on record has held the appellant guilty for the offence under sections 366A and 376 of IPC and sentenced him as stated above, which has been assailed in this appeal.

7. Learned counsel for the appellant has submitted that there was delay of 48 hours in lodging the FIR in spite of the knowledge of the informant that prior to the occurrence, the present appellant and his friend have also threatened to kidnap the victim girl. No reasonable explanation has been offered for such inordinate delay. The evidence of the informant suffers from material contradictions. Similarly, the victim girl has also deposed that on 21.04.2005 in the night, she was recovered by the police of Littipara Police Station but her statement was not recorded and nothing was asked with her by the police. No memo of recovery of the victim girl was prepared by the Investigating Officer and no local persons were interrogated. Therefore, the place of recovery of the victim girl also becomes doubtful. The statement of the victim was recorded under section 164 of Cr.P.C. under the influence of her father. It is further submitted that the learned trial court has miserably failed to appreciate the evidence available on record in right perspective ignoring the necessary ingredients of section 366A of IPC , which are absolutely lacking in this case. Similarly, the victim girl herself has stated her age about 19 years showing to be major on the date of occurrence and on her own accord, she left her house and went somewhere. The prosecution has failed to prove the second place of occurrence, where the victim is alleged to be confined and ravished by the appellant. There is also no e