Calcutta High Court (Appellete Side)
Rahul Ram vs The State Of West Bengal & Anr on 5 August, 2022
Author: Debangsu Basak
Bench: Debangsu Basak
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Bibhas Ranjan De
CRA 300 of 2021
Rahul Ram
VS.
The State of West Bengal & Anr.
For the Appellant : Ms. Sreyashee Biswas,
Ms. Puja Goswami, Advocates
For the State : Mr. Saswata Gopal Mukherji, ld. PP
Mr. Partha Pratim Das,
Mrs. Manasi Roy, Advocates
Heard on : August 3, 2022 and August 5, 2022
Judgment on : August 5, 2022
DEBANGSU BASAK, J.:-
1. The appeal is against the judgment of conviction dated
August 24, 2021 and the order of sentence passed by the
learned Special Judge, POCSO Court, Sealdah, South 24
Parganas in Sessions Trial no. 02(12) of 2020 arising out of
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Special Case no. 23 of 2020 convicting the appellant under
Section 4 of the Protection of Children from Sexual Offences
Act, 2012 and Section 363 of the Indian Penal Code, 1860.
2. The appellant was convicted for a period of 10 years
under Section 4 of the POCSO Act, 2012 and for a period of 7
years under Section 363 of the Indian Penal Code, 1860. A
fine was also imposed upon the appellant. In default, the
appellant was directed to suffer further rigorous
imprisonment. Both the sentences were directed to run
concurrently.
3. The case of the prosecution is that, on January 22, 2020
at around 3 PM, the de facto complainant found that his
minor daughter was missing. On inquiry, the de facto
complainant learnt that his daughter went to tuition. Since
she did not return, he lodged the police complaint against the
appellant believing that the appellant kidnapped his minor
daughter as the appellant was having previous affection in
respect of his daughter.
4. A missing diary was lodged on January 24, 2020 by the
father of the victim. On the basis of such missing diary, a
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formal First Information Report no. 24 dated January 24,
2020 was registered with the Tangra police station under
Sections 363/34 of the Indian Penal Code, 1860 with Section
4 of the POCSO Act, 2012 being added subsequently. After
completion of the investigation, Charge Sheet no. 130 dated
November 19, 2020 was submitted by the Investigating Officer
against two persons namely the appellant herein and his
friend under Sections 363/34 of the IPC and under Section 4
of the POCSO Act, 2012. Primarily, charges were framed
against the two accuseds including the appellant under
Sections 363/34 of the IPC and under Section 4 of the POCSO
Act, 2012. Both the accuseds namely, the appellant and his
friend, claimed not guilty and pleaded to be tried. They were
tried before the learned Trial Judge.
5. The prosecution examined 10 witnesses at the trial. The
prosecution also relied upon various documents which were
marked Exhibits at the trial.
6. The prosecution examined the victim as the first
prosecution witness. She, in her examination-in-chief,
claimed that there was a love affair between her and the
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appellant for the last two years. She did not want to continue
with such relationship. Despite that, the appellant forced her
to marry him. Then the appellant took her to Delhi where they
stayed in the house of the friend of the appellant. During their
stay at Delhi, the appellant assaulted her several times when
she expressed her wish for returning to her paternal home.
Appellant assaulted her on flimsy grounds. She tried to
escape from there but the appellant resisted her. One day,
she got a chance to talk to her parents over telephone and
informed them about such facts.
7. In her evidence prosecution witness no. 1, the victim,
claimed that despite objections, the appellant committed
physical relation with her forcibly. She claimed that the Delhi
police rescued her. She told that initially she was kept in the
Home of Prayas. Thereafter, she was handed over to her
parents.
8. With regard to a suggestion given on behalf of the
appellant as to her age, the prosecution witness no. 1, the
victim, claimed that her age was not more than 17 years old.
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9. The Doctor examining the appellant for potency deposed as
the prosecution witness no. 2. He proved the potency
report of the appellant which was marked as Exhibit-3. The
appellant had declined to cross-examine the prosecution
witness no.2.
10. The mother of the victim deposed as prosecution witness
no. 3. She stated in her evidence that, the house of the
appellant was adjacent to their house. Previously, the
appellant told her husband that he wished to marry her
daughter. Her husband, however, refused to accept such
proposal. She stated that her daughter sent messages to her
husband that they were in Delhi whereupon, she and her
husband went to Delhi and rescued their daughter. In cross-
examination, she stated that, they were searching for
bridegroom for her daughter.
11. The father of the victim deposed as prosecution witnesses
no. 4. In his examination-in-chief, he stated that, about two
weeks prior to the incident, the appellant talked to him over
telephone where the appellant expressed his desire to marry
his daughter. He refused such proposal. For such reason, he
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suspected that the appellant took her daughter away. So far
as the age of the daughter is concerned, he stated that she
was 17 years and 2 months at the time of lodgment of the
missing diary. He stated that, the police seized the Aadhar
Card of his daughter, the discharge certificate of the mother of
the daughter, polio card issued by the Health Department and
one photocopy of the Aadhar Card of her daughter. At the trial,
photocopies of such four documents were tendered in evidence
which were marked as Exhibits subject to objection.
12. In cross-examination, the father of the victim as
prosecution witness no. 4 denied the suggestion that the
seized documents were manufactured and that the age of his
daughter was more than 19 years.
13. A neighbour of the victim was examined as prosecution
witness no. 5. There is nothing material so far as his evidence
is concerned in the facts of the present case.
14. The Doctor who examined the victim at Delhi was
examined as prosecution witness no. 6. She examined the
victim on April 19, 2020. She stated in her examination-in-
chief that the victim told her that the victim got married to the
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appellant on January 22, 2020 at Metropolitan Durga Mandir
at Kolkata. They did not register the marriage. Only proof
with regard to the marriage was in the mobile phone of the
appellant. They were living together in Okhla, Delhi and they
started consensual sex. Their last contact was on April 15,
2020 at around 09.00 pm. Prosecution witness no. 6 as the
Doctor produced the medical examination report of the victim
which was marked as Exhibit-13 subject to objections. In the
cross-examination, she stated that all the medical examination
papers were photocopies of the original.
15. The sub-Inspector of Delhi Police who arrested the
appellant was examined as prosecution witness no. 7. He
arrested the accused on April 20, 2020. He produced the
accused before the jurisdictional Court whereupon the learned
Court sent the appellant to jail custody at Tihar Jail, New
Delhi. He stated that the appellant and the victim were in a
rented house situated in Tekhkhand Villa, New Delhi. In cross
examination, prosecution witness no. 7 stated that the victim
confided in him that she was a friend of the appellant. He also
stated that her father went along with her to drop her at the
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school and she married to the appellant at Calcutta
Metropolitan Durga Mandir. She also stated that the
appellant did not apply force upon her.
16. Another police personnel of Delhi Police was examined
as prosecution witness no.9 who produced the seizure list. He
also produced the medial examination papers of the accused
and the victim and other papers which were seized by
preparing a seizure list. Such documents were marked as
Exhibits-10 to 13.
17. The Sub-Inspector of Police conducting the investigation
was examined as prosecution witness no.10. He narrated how
the First Information Report was made. After conclusion of the
investigations, he submitted charge sheet under Section
363/34 of the Indian Penal code read with Section 4 of the
POCSO Act, 2012. He also narrated the police obtaining
assistance of the Delhi Police for the purpose of rescuing the
victim. He stated that on June 15, 2020, he seized Aadhar
Card of the victim, discharge certificate of Gouri Devi, Polio
Card and one photocopy of the Admit Card of the victim also.
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He stated that such seizure was made by preparing the seizure
list which was marked as Exhibit-5.
18. The appellant had been examined under Section 313 of
the Code of Criminal Procedure where he had denied his
involvement. He had claimed that the victim had told him that
she was more than 20 years of age.
19. Learned Advocate appearing for the appellant submits
that the prosecution failed to prove the charges against the
appellant beyond all reasonable doubts. She submits that the
age of the victim was not established conclusively. She refers
to the examination-in-chief and cross-examination of the
victim as also the various witnesses produced by the
prosecution. She submits that there was no recovery of any
obscene photo or video. She refers to the time of recovery of
the victim. She also refers to the submission of the appellant
recorded under Section 313 of the Code of Criminal Procedure.
20. With regard to the age of the victim, she submits that
her age was not conclusively established for the learned Trial
Judge to invoke the provisions of Section 4 of the POCSO
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against the appellant. She submits that the prosecution
sought to rely upon four documents for the purpose of
establishing the age. Photocopies of such documents were
sought to be tendered as evidence and they were marked
exhibits being Exhibits-6 to 9 with objection. The learned
Trial Judge did not decide on the objection raised by the
appellant prior to relying upon such documents in the
impugned judgment of conviction. She submits that the
learned Trial Judge erred in not deciding the objection as to
the documents sought to be marked as Exhibits on behalf of
the prosecution in particular the Exhibits-6 to 9.
21. Learned Advocate for the appellant relies upon (2001) 3
SCC 1 ( Bipin Shantilal Panchal vs. State of Gujarat & Anr.),
(2003) 8 SCC 752 (R.V.E. Venkatachala Gounder vs. Arulmigu
Viswesaraswami & V.P. Temple and Anr, (2010) 8 SCC 423
(Shalimar Chemical Works Limited vs. Surendra Oil and Dal
Mills (Refineries) & Ors. and (2013) 2 SCC 114 ( U. Sree vs. U.
Srinivas) in support of her contention that exhibits 6 to 9
cannot be looked into and considered by the learned Trial
Judge to convict the appellant.
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22. So far as the age of the victim is concerned, she submits
that leaving aside the documentary evidence which should not
be looked into, the parents of the victim claimed that the
victim was 17 years of age and 2 months old. She submits
that even such claim of the parents of the victim are
unreliable. The appellant in his statement under Section 313
of the Code of Criminal Procedure stated that he was informed
by the victim during their relationship that the victim was 20
years of age. She points out to the evidence of the prosecution
witness no.2, the mother of the victim, who stated in her
deposition that the family of the victim was looking out for the
bridegroom of the victim. She submits that such action
presumes the fact that the victim was an adult. She submits
that the prosecution did not undertake ossification test of the
victim in order to establish her age.
23. Learned Advocate appearing for the appellant submits
that in absence of the age of the victim being conclusively
established, the provisions of the Act of 2012 cannot be
invoked as against the appellant.
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24. So far as the charge of Section 363/34 of the Indian
Penal Code, 1860 is concerned, she submits that the co-
accused was acquitted. She refers to the evidence of the
prosecution witnesses and submits that the victim at various
places confided with various independent witnesses that the
prosecution examined, that she went voluntarily with the
appellant. Consequently, according to her, the charge under
Section 363 of the Indian Penal Code, 1860 was not
established as against the appellant. In any event, she
submits that since the prosecution failed to establish the age
of the victim, the question of invocation of Section 363 of the
Indian Penal Code, 1860 as against the appellant does not
arise. She refers to Section 363 of the Indian Penal Code,
1860 and submits that the same can be invoked only and only
if the person concerned is a minor and that the accused takes
away such minor from the custody of lawful guardian under
which the minor was at the material point of time. She
submits that since none of the ingredients under Section 363
of the Indian Penal Code, 1860 was established, the appellant
should be acquitted of such charge also.
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25. Learned Advocate appearing for the State submits that
the prosecution was able to prove the charges beyond all
reasonable doubt. He submits that the victim was a minor
daughter when she was abducted. Therefore, the provisions of
Section 363 of the Indian Penal Code, 1860 stands attracted.
Since the victim was a minor and there was a physical
relationship between the appellant and victim so also the
provisions of Section 4 of the Act of 2012 stands attracted.
26. The central issue in the present case is the age of the
victim. Determination of the age of the victim is crucial in
view of the nature of charges levelled as against the appellant.
The charges are under Section 363/34 of the Indian Penal
Code, 1860 and under Section 4 of the Act of 2012.
27. Section 363 of the Indian Penal Code, 1860 stands
attracted when a person is kidnapped from India or from
lawful guardianship. Kidnapping from lawful guardianship has
been defined in Section 361 of the Indian Penal Code. It
involves taking away or enticing a minor. Section 4 of the Act
of 2012 also will stand attracted when the victim is a minor.
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To bring home the charges under Section 363 of the Indian
Penal Code, 1860 and Section 4 of the Act of 2012 the
prosecution, therefore, needs to prove beyond all reasonable
doubt the age of the victim.
28. In the facts of the present case, the prosecution relied
upon documents as well as oral testimony to establish the age
of the victim. Four documents which were marked as Exhibits-
6 to 9 were the documents that the prosecution relied upon to
establish the age of the victim. Exhibits-6 to 9 were tendered
by prosecution witness no.4, who is the father of the victim in
his testimony. At the trial, Exhibits-6 to 9 were marked with
objection.
29. Exhibits-6 to 9 are photocopies of the Aadhar Card, the
discharge certificate of Gouri Devi, Polio Card issued by the
NRS NC & H and photocopy of the West Bengal Board of
Secondary Education Admit Card of the victim.
30. Section 64 of the Indian Evidence Act, 1872 requires
documents to be proved by primary evience except in the cases
mentioned in the Act of 1872. Section 65 of the Act of 1872
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specifies the cases in which secondary evidence relating to
documents may be given. Section 65 of the Act of 1872 is as
follows:
65. Cases in which secondary evidence relating to
documents may be given.--Secondary evidence
may be given of the existence, condition, or
contents of a document in the following cases:--
(a) When the original is shown or appears to be in
the possession or power-- of the person against
whom the document is sought to be proved, or of
any person out of reach of, or not subject to, the
process of the Court, or of any person legally
bound to produce it, and when, after the notice
mentioned in section 66, such person does not
produce it;
(b) when the existence, condition or contents of the
original have been proved to be admitted in writing
by the person against whom it is proved or by his
representative in interest;
(c) when the original has been destroyed or lost, or
when the party offering evidence of its contents
cannot, for any other reason not arising from his
own default or neglect, produce it in reasonable
time;
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(d) when the original is of such a nature as not to
be easily movable;
(e) when the original is a public document within
the meaning of section 74;
(f) when the original is a document of which a
certified copy is permitted by this Act, or by any
other law in force in [India] to be given in evidence;
[India] to be given in evidence;"
(g) when the originals consists of numerous
accounts or other documents which cannot
conveniently be examined in Court, and the fact to
be proved is the general result of the whole
collection. In cases (a), (c) and (d), any secondary
evidence of the contents of the document is
admissible. In case (b), the written admission is
admissible. In case (e) or (f), a certified copy of the
document, but no other kind of secondary evidence,
is admissible. In case (g), evidence may be given as
to the general result of the documents by any
person who has examined them, and who is skilled
in the examination of such documents.
31. The prosecution did not lead any evidence at the trial to
establish any of the circumstances enumerated under Section
65 of the Act of 1972 to be attracted so as to allow the
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prosecution to tender the documents marked Exhibits 6 to 9
in evidence. The learned Judge also did not decide the
question of admissibility of secondary evidence particularly in
relation to Exhibits 6 to 9 at any stage of trial or while
directing the case finally.
32. Bipin Shantilal Panchal (Supra) deals with Sections 3
and 5 of the Indian Evidence Act, 1872 and issues certain
practice directions with regard thereto. It is of the following
view:
"14. When so recast, the practice which can be a
better substitute is this: Whenever an objection is
raised during evidence-taking stage regarding the
admissibility of any material or item of oral evidence
the trial court can make a note of such objection and
mark the objected document tentatively as an
exhibit in the case (or record the objected part of the
oral evidence) subject to such objections to be
decided at the last stage in the final judgment. If the
court finds at the final stage that the objection so
raised is sustainable the Judge or Magistrate can
keep such evidence excluded from consideration. In
our view there is no illegality in adopting such a
course. (However, we make it clear that if the
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objection relates to deficiency of stamp duty of a
document the court has to decide the objection
before proceeding further. For all other objections
the procedure suggested above can be followed.)
15. The above procedure, if followed, will have two
advantages. First is that the time in the trial court,
during evidence-taking stage, would not be wasted
on account of raising such objections and the court
can continue to examine the witness. The witness
need not wait for long hours, if not days. Second is
that the superior court, when the same objection is
recanvassed and reconsidered in appeal or revision
against the final judgment of the trial court, can
determine the correctness of the view taken by the
trial court regarding that objection, without
bothering to remit the case to the trial court against
for fresh disposal. We may also point out that this
measure would not cause any prejudice to the
parties to the litigation and would not add to their
misery or expenses."
33.R.V.E. Venkatachala Gounder (Supra) deals with Section
65 of the Indian Evidence Act, 1872 and secondary
evidence. It however does not take note of Bipin Shantilal
Panchal (Supra). It is of the following view:
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" 20. The learned counsel for the defendants-
respondent has relied on Roman Catholic Mission v. State
of Madras in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do no have any dispute with the proposition of law so laid down in the abovesaid case. However, in the present one is a case which called for the correct proposition of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes:
(i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging document has been marked as "an exhibit", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document is admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as 20 an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropirate point of time, would have enable the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular.The omission to object becomes fatal because by his failure the party entitle to object allows the party tendering the evidence to act as an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the parity tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objection, referred to hereinabove, in the latter case failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, 21 acquiescence would be no bar to raising the objection in a superior court."
34. In Shalimar Chemical Works Limited (Supra) while dealing with the admissibility of documentary evidence and taking note of R.V.E. Venkatachala Gounder (Supra) makes the following observations:
"15. On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stage. The trial court should not have "marked" as exhibits the xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging. By making them as exhibits subject to objection of proof and admissibility. The appellant, therefore, had a legitimate grievance in appeal about the way the trial proceeded."
35. Similarly, U. Sree (Supra) also deals with the admissibility of secondary evidence. It is of the view that mere admission of a document in evidence does not amount to its proof.
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36. All the four documents on the basis of which age of the victim was sought to be proved by the prosecution being Exhibits 6 to 9 are photocopies. Photocopies are secondary evidence. The prosecution did not lead any evidence at the trial to establish the factual foundational basis as why the primary evidence was not being produced and why secondary evidence should be admitted at the trial. Till the prosecution establishes the photocopies of primary documents to be within Section 65 of the Act of 1872 secondary evidence cannot be looked into. In the facts of the present, given the nature of the documents of which secondary evidence was sought to be adduced, until the prosecution accounts for the non- production of the original documents, photocopies thereof cannot be admitted into evidence as exhibits. The learned Trial Judge erred in sustaining the objection raised by the appellant at the trial for marking the photocopies as Exhibits.
37. In absence of the prosecution leading evidence to account for the absence of primary evidence so as to lead secondary evidence thereon, the documents being marked Exhibits 6 to 9 cannot be treated as being validly exhibited at the trial. 23 Therefore, they cannot be considered as part of the evidence of the prosecution.
38. Age of the victim cannot be determined on the basis of such documents. The learned Trial Judge erred in not sustaining the objections, the appellant, at the trial, regarding marking of the photocopies as Exhibits. Once the documents being exhibits 6 to 9 goes out of the zone of consideration, then, the oral testimony of the prosecution witnesses remain so as to establish the age of the victim.
39. The oral testimony of the prosecution witnesses are not consistent with regard to the age of the victim. The mother of the victim does not speak of the age of the victim. Rather, she speaks of the family of the victim including her trying to find a bribe groom for the victim at the material point of time and prior to the incident. The provisions of the Prohibition of Child Marriage Act, 2006 allows one to infer that the victim was an adult at the material point of time as her family was in search of a bridegroom for her.
40. The father of the victim in his evidence claim that the victim was 17 years 2 months at the time of the incident. Such 24 claim is not backed up by any other evidence. The statement of the appellant recorded under Section 313 of the Code of Criminal Procedure shows that the appellant claimed that the victim confided in him that she was 20 years of age. In the facts of the present case, the oral testimony of the witnesses and the statement of the appellant recorded under Section 313 of the Criminal Procedure Code places the age of the victim anywhere between 17 years and 20 years.
41. In absence of conclusive evidence being led by the prosecution as to the age of the victim, it cannot be said that the prosecution was able to establish the age of the victim. The prosecution failed to establish that the victim was a minor. Since the age of the victim cannot be established conclusively, and more since it cannot be said conclusively that the victim was a minor, the question of invocations of the provisions of Section 363 of the Indian Penal Code, 1860 as against the appellant does not arise. On the parity of the same reasoning the invocation of Section 4 of the Act of 2012 also does not arise.
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42. The learned Judge in the impugned judgment of conviction in paragraph 11 thereof proceeded on the basis of photocopies of documents being Exhibits 6 to 9 in order to determine the age of the victim. We cannot agree with such finding as was returned by the learned Judge for the reasoning as enumerated hereinabove.
43. The learned Judge also relied upon Section 29 of the Act of 2012 to state that the appellant failed to rebut the presumptions of the age of the victim. With the deepest of respect, we are unable to agree with such a view being taken by the learned trial Judge.
44. The appellant in his statement recorded under Section 313 of the Code of Criminal Procedure claimed that the victim confided in him that she was above 20 years old. Moreover the question of rebuttal of the presumption under Section 29 of the Act of 2012 will arise after the prosecution was able to prove the age of the victim beyond all reasonable doubt. In the facts of the present case, the prosecution failed to establish the age of the victim and consequently of the victim being a minor on the date of the incident beyond all reasonable doubt. 26 In such circumstances, we set aside the judgment of conviction and the order of sentence both dated August 24, 2021. The appellant is acquitted from all charges.
45. The Court is informed that the appellant is presently on bail. In view of Section 437A of the Code of Criminal Procedure, bond furnished by the appellant will continue to remain in force for a period of six months from date.
46. CRA 300 of 2021 along with all applications, if any, are disposed of.
47. Trial Court Records be returned to the appropriate Court forthwith.
48. Photostat certified copy of this judgment, if applied for, be given to the parties on priority basis on compliance of all formalities.
(Debangsu Basak,J.)
49. I agree.
(Bibhas Ranjan De, J.) Dd/Aloke/AD