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It is apparent on the face of the record that PWs-5 and 6 who along with PW-2 heard from PW-1 [the victim] how she was kidnapped and forced to marry the appellant and how she was sexually assaulted by commission of rape. The evidence of PWs-5 and 6 has been noted.

37. PW-1, the victim has stated in the trial that the appellant used to be called by her as uncle [Kaka] and he used to keep his motor cycle in their residence at Sonapur. She was reading in Class-VI of that school and residing in a rented house, adjacent to the house of the appellant. She was staying with her younger sister who was reading in another school. She used to go to the school by an auto rickshaw. The appellant used to restrain her on her way to the school. She had refused to accept the indecent proposal. For such annoyance, she had stopped going to school by riding bi-cycle. On 28.01.2015, when she was proceeding towards school on foot and reached in a place nearby Rainbow Club, suddenly, the appellant arrived there with a vehicle and forcibly took her inside the vehicle by gagging her mouth. For that reason, she could not raise alarm from inside the vehicle. There was another boy besides the driver and the appellant asked the driver to go to Rangamatiya which place was known to her from earlier. At that stage, the recording of the deposition was discontinued at the request of the victim. Thereafter, she has stated that she was taken to a hut. At that time, one woman asked the appellant about her identity but the appellant threatened the woman not to ask any question. Two other women, one girl, one baby and one male person were there in that house. The appellant gave her one saree to wear on changing the school uniform. Thereafter, she was taken before the qazi but she expressed her unwillingness, but under threat, she communicated her willingness. There were two photographers who recorded the entire proceeding of marriage by their camera. The house inmates were not known to her. One „Bacchu‟ asked the appellant why he had brought one school going student with school uniform in their house. Then the appellant had assured that they would leave shortly. After marriage, she was bolted in the room where the appellant committed sexual intercourse forcibly and the victim became senseless. When she regained sense, she was asked to change dress and put on the school uniform. She was released at a place nearby the Sonamura Motor Stand. Before her release, she was threatened of dire consequence if she had disclosed the incident. Out of fear, she did not disclose the incident to anyone but she complained to her mother about the pain in her lower abdomen when her mother had taken her to a homeopathy doctor. After the incident, which occurred on 28.01.2015, the victim was attending the school usually and the appellant was monitoring her and sometimes threatened her not to disclose the incident to anyone. She was threatened by the appellant of circulating the video recording of his marriage with her in the internet. Later on, she narrated the episode of receiving chocolates in the class from one teacher [PW-3]. She has also stated that after completion of school on that day, the appellant asked her whether she would like to get any gift from him. Thereafter, she has stated that on 20.02.2015, PW-4 asked her to inform her mother to visit the school and meet her. After returning from the school, her mother [PW-2] asked her whether the information about her marriage was correct or not. Her mother told her to narrate everything fearlessly. Then she had narrated the entire episode to her and also to PWs-5 and 6. Thereafter, the complaint was lodged in the police station. The police officer recorded her statement and taken her for medical examination and she was sent for recording of her statement by the Judicial Magistrate. One day she visited the place of sexual assault with the investigating officer. She has admitted certain facts during her cross-examination viz. she did not state to the Judicial Magistrate that the appellant used to visit her rented house, proposed her and used to threat by saying that he would kidnap her younger sister and cousin to Bangladesh and murder them, unless, she agreed to his proposal. She has also admitted that she did not tell the Magistrate that the appellant directed the driver to take the vehicle towards Rangamatiya. She denied the suggestion projected to her but she had admitted that she did not state to the Magistrate or to the Investigating Officer that due to forceful sexual intercourse, she lost her sense. Even, she did not disclose about the pain in her abdomen to her mother.

The female teacher, according to PW-2, did not inform anything more. But she has corroborated that when victim returned home from her school, she along her two sisters [PWs-5 and 6] asked her to disclose everything to them. Initially, she appeared frightened and thereafter, the victim told them that the appellant used to restrain her on her way to the school on the road almost every day. The appellant expressed his love towards the victim. Even he had threatened the victim that if she had refused to marry him, he would kill their youngest daughter Fahmida and their cousin Farhana Islam. The victim told them that on 28.01.2015 when she was proceeding towards her school on foot from the motor stand, in a place nearby Rainbow Club, she was intercepted by the appellant who arrived there with a vehicle. The appellant lifted her daughter inside the vehicle by gagging her mouth by his palm. Thereafter, the vehicle rushed towards Rangamatiya and from there, the vehicle took a turn towards the village road. After reaching one house, the appellant compelled her to change her dress and to wear saree. One qazi and two cameramen were waiting there for performance of marriage. The appellant compelled her daughter to accept the proposal of marriage with the help of qazi. Her daughter told that one Bacchu was owner of that house. Their lived two aged women and one child. On completion of the marriage, everybody was asked to leave that room and then the appellant made her daughter undressed and committed intercourse on "three occasions". For such forceful intercourse, she became senseless. When she regained her sense, the appellant asked her daughter to wear the school uniform. The appellant released her daughter near Sonamura Motor Stand. But before releasing her, she was threatened not to divulge the fact to anyone. Out of fear, the victim did not reveal anything to anyone. It has been also stated by the victim that the appellant threatened to circulate the video clip of the marriage in the internet. She complained of adnominal pain. She had stated that on 24.02.2015 she filed the written ejahar [Exbt.2]. Her daughter was taken to Sonamura CHC for her medical examination and she was also sent to the Judicial Magistrate for recording her statement. The police seized the original birth certificate [Exbt.3] which was later on released on bail. To show that PW-2 had suppressed the material fact, the cross-examination was accordingly directed but PW-2 denied all the suggestions contrary to what she has stated in the examination-in-chief. She has admitted that she did not mention her meeting with PW-4 in the FIR. Even she did not state that her two sisters were reported by her in respect of what she had learned from the female teacher [PW-4]. She has admitted that she did not reveal in the FIR that the driver of the vehicle was directed to ply the vehicle towards Rangamatiya or that one qazi and two cameramen were waiting in that house for purpose of marriage. Cross examination was directed towards why the every bit of details were not exposed in the FIR but she has admitted thus :

She has denied that she had tutored the victim for framing the appellant.

39. It is to be noted with adequate emphasis that the prosecution had completely failed to adduce in the trial, the witnesses who were examined under Section 161 of the Cr.P.C. by PW-13 and who did narrate what happened in the second place of occurrence. Not a single witness neither from the crowded place on the road wherefrom the victim was „lifted‟ inside the vehicle nor from the second place of occurrence where the inmates of that house were in close proximity of „marriage‟ or "sexual intercourse", if any had taken place could be adduced. Even though, PW-1 has made a categorical statement that the owner of the house namely Bachchu Miah raised objection for bringing a school going child in his house when the appellant, according to the victim girl, assured him [Bachchu Miah] that he would leave with the school going girl shortly. This circumstances as introduced by the victim girl has unfolded a „charged situation‟. Evidently, there is no witness for kidnapping with or without intent of marriage, marriage and sexual intercourse after driving all persons in the hut in the noon and when there is a single hut. Even, PW-2 has negated the information as claimed to have imparted to her by PW-4. PW-4 has stated that she had informed PW-2, the mother of the victim about the rumor of marriage of her daughter, but PW-2, the mother of the victim has stated PW-4 had only informed that someone had sent chocolates for her daughter. The other witnesses from that school, PWs-3, 7 and 8 did not tell anything about the rumor of marriage. Even PW-4 did not reveal to the police who were the guardians reported her about the rumor. The statement of PW-1 if read keenly, it would be apparent she has negated that PWs-5 and 6 were present when she told the occurrence to her mother [PW-2] but PWs-2, 5 and 6 have claimed that the victim revealed the occurrence when they are all together and as such, unless this court believes the victim entirely the finding of conviction cannot be sustained. The medical examination of the victim did not categorically state that the victim was subjected to forceful intercourse but her hymen was found torn and PW-12 has stated for cycling even the hymen can get torn. The victim herself has stated that she used to go to her school by cycling. That apart, while discussing about rape, even if this court acceded that the victim was not physically so powerful to resist the appellant but for forceful intercourse according to the medical jurisprudence, the vulva would in all likelihood be injured. But there is no such injury.

42. Moreover, the version of the victim in respect of marriage in one hut and rape in other hut has completely made her trustworthiness at peril. The element of exaggeration or imagination in respect of the occurrence has inflated or deflated when PW-2 has categorically stated that the victim was raped thrice in series forcefully. But the victim is silent about such consecutive rape. Moreover, the vulva of the vagina even not found swollen. Though the penetration to the labia majora may not be the essential ingredient, even the rapture of hymen is not material as proof of rape, but from the description of rape it appears that it is not a case of attempt but forceful intercourse out of which the victim lost her consciousness. Even the medical evidence has not been indicated to such violation.