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2009 (7) TMI 1352 - SC - Indian LawsAbducting minor girl and commiting rape on her - Offence punishable u/s 376 of IPC - Statement of the prosecutrix recorded u/s 164 Cr.P.C. - whether a case of no consent? - trial court found appellant guilty of the offence punishable u/s 376 IPC and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of ₹ 2,000/- in default to undergo imprisonment for another six months - On appeal, The High Court upheld the conviction u/s 376 IPC but reduced the sentence to a period of four years and to pay a fine of ₹ 1000/- in default to further imprisonment for one month. Hence this appeal. HELD THAT:- The Trial Court and the High Court proceeded with altogether different set of facts. Before the trial Court the prosecution case had been that the prosecutrix went to zoo along with Suleman and on her return from zoo the appellant had seen both of them together and slapped Suleman who ran away and thereafter the appellant took the prosecutrix on the pretext of taking her to movie and roamed; took her on a rickshaw to the hotel where she was kept and raped. However, before the High Court the case has been entirely different as in paragraph 5 of the High Court judgment it has been stated that when the prosecutrix came out from the house of informant PW.2 Abdul Hai Laskar the appellant met her and proposed to take her to witness a movie and she went along with him. The High Court has mentioned the facts that as per the FIR lodged by PW.2 Abdul Hai Laskar, to the effect that "on the previous evening, the accused appellant Musauddin Ahmed @ Musa entered into the house and forcibly abducted his maid servant." There had been material contradictions regarding the factual aspects of the incident itself. There is nothing on record to show or furnishing any explanation as to why the IO did not seize any material objects like, clothes, blood samples etc. from the prosecutrix and the place of occurrence. PW.4 Mira Begum, prosecutrix has stated in her examination in chief as under: "He took me to a room at Paltan Bazar. There the accused forcibly tears open my clothes." The torn clothes were not recovered by the IO. The I.O. did not make any effort to take the semen, blood samples etc. from the appellant which could have given the prosecution an opportunity to obtain medical reports of the appellant as it was necessary to establish the guilt of the appellant. No person has been examined from the hotel to identify the appellant or the prosecutrix as the I.O. has only seized the register of the hotel to establish that room No.102 was booked in the name of appellant Mussauddin Ahmed and Marzina Begum as husband and wife. Admittedly, the name of the prosecutrix was not Marzina Begum. Therefore, some person from the hotel should have been examined to identify her as well as the appellant. The prosecutrix appears to be a lady used to sexual intercourse and a dissolute lady. She had no objection in mixing up and having free movement with any of her known person, for enjoyment. Thus, she appeared to be a woman of easy virtues. We are of the considered opinion that the prosecution failed to prove its case against the appellant beyond reasonable doubt. The appeal is allowed. The impugned judgment of the High Court and the trial court are set aside. Appellant is acquitted of the charge u/s 376 IPC. The appellant is on bail. His bail bonds are discharged.
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