Victim's testimony is paramount in sexual assault cases; absence of consent is established despite claims of the victim's age affecting the offence's classification.

JUDGMENT :

Pradeep Kumar Srivastava, J.

1. Heard learned counsel for the parties.

2. The present appeal is directed against the judgment of conviction dated 06.06.2002 and order of sentence dated 12.06.2002 passed by learned 1st Additional Sessions Judge, Bokaro in Sessions Trial No. 287 of 2000, whereby and whereunder, the appellant has been held guilty for the offence under Sections 366 and 376 of the I.P.C. and sentenced to undergo rigorous imprisonment for ten years for the offence under Section 366 of the I.P.C. and further sentenced to undergo rigorous imprisonment for ten years for the offence under Section 376 of the I.P.C. Both the sentences were directed to run concurrently.

FACTUAL MATRIX

3. The factual matrix giving rise to this appeal is that on 12.06.2000 at about 7-7:30 P.M., the victim girl went out from her house for walking, but she did not return to home till late night. It is alleged that her parents and neighbours started searching her at the adjoining places, but no trace was found. In course of search, the informant came to know that the present appellant namely, Vijay Diggar @ Pawroti of same mohalla had taken away minor victim girl for illicit inter-course. The family members also went to house of Vijay Diggar, but he was not found and his family members did not offer any satisfactory reply.

4. On the basis of written report of the informant, Marafari P.S. Case No. 34 of 2000 (G.R. No. 627 of 2000) was registered for the offence under Sections 363 , 366, 366(A) and 376 of the I.P.C. The charge of investigation was undertaken by S.I. Md. Kasim (P.W.- 9). In the course of investigation, he raided the house of the accused Vijay Diggar, who was absconding. Ultimately, accused surrendered on 22.06.2000 before the court of concerned Judicial Magistrate. The I.O. also received a telephonic message that the victim girl is wondering near the house of MLA, Sri. Samresh Singh at Sector-IV, B.S. City. Accordingly, the victim was recovered in presence of witness, Santosh Kumar, who identified her. Thereafter, the victim girl was medically examined and handed over to her father. After finding sufficient evidence against the sole accused for the offences under Sections 363 , 366, 366(A) & 376 of the I.P.C. charge sheet was submitted against him. The case was committed to the court of Sessions, where S.T. Case No. 287 of 2000 was registered. Charges were read over and explained to the accused, to which, he pleaded not guilty and claimed to be tried.

5. After conclusion of trial, the trial court has held the appellant guilty for the offence under Sections 366 & 376 of the I.P.C. and acquitted from the charges under Sections 363 and 366(A) of the I.P.C. and sentenced him for R.I. for 10 years for each of the offences, which has been assailed in this appeal.

6. Learned counsel for the appellant has vehemently argued that the victim girl was not minor, rather she was aged about 25 years on the date of occurrence as is well-proved by her medical evidence and no School Certificate of the victim was properly proved in this case. The medical examination report of the victim also does not corroborate the factum of commission of rape with her. The victim girl herself has not attributed any forceful sexual intercourse with her against her will by the appellant. Just after recovery, the victim has not complained any illicit conduct and behaviour of the appellant with her. The victim girl herself specifically admitted that throughout her alleged travel with the appellant, she never raised any alarm nor complained any il