The central legal point established in the judgment is the requirement to prove consent was obtained under fear or misconception of fact, as outlined in Section 375 of the Penal Code.

Gopal Prasad, J.

1. Heard the counsel for the Appellant and the State.

2. The Appellant has been convicted under Section 376 of the Penal Code and has been sentenced to undergo rigorous imprisonment for five years.

3. The prosecution case, as alleged in the fardbeyan, dated 06.07.1988, by the informant, Tusiya Devi, the prosecutrix, that in the month of poosh at about 10.00 a.m. she has been to take rahri field pressing her mouth and committed rape. When she protested then he told that he will keep her if she becomes pregnant and threatened to kill if she disclosed to others. Then she did not disclose out of fear and he was under confidence that if something wrong would happens Dilo Rabidas will keep her. It is further alleged that thereafter Dilo Rabidas continued cohabitation in the pretext of marriage. It is further alleged that she become pregnant and then she disclosed about the occurrence to her mother in the month of baisakh. There was Panchayati, but, Dilo Rabidas refused to keep her. Two days prior to the filing of the complaint Dilo Rabidas demanded Rs. 5,000/- for keeping her and when she refused to pay the amount, Dilo Rabidas resiled from his commitment. On the fardbeyan the first information report lodged and after investigation the charge sheet submitted, the cognizance taken and the case was committed to the Court of sessions. After commitment, charge was framed for offence under Section 376 of the Penal Code against Appellant and under Section 3 of the Dowry Prohibition Act.

4. However, during the trial four witnesses examined. P.W. 1 is the mother of the informant, P.W. 2 is the victim, P.W. 3 is Kaleshwar Rabidas, who turned hostile and P.W. 4 is the doctor.

5. The accused pleaded innocence and set up defence that he has falsely been implicated by Tusiya Devi who had trapped Dilo Rabidas in love affairs and made the attempt to marry him and when he failed she filed this case falsely implicating Dilo Rabidas.

6. At the trial the question raised about the age of the girl that the girl is less than sixteen years and, further the victim was a consenting party and there is No. corroboration to the evidence of rape.

7. The trial Court held on the basis of medical evidence and the report of the doctor that the victim was less than sixteen years old on the date of occurrence and, hence, her consent is No. consent and further held that she was raped after taking her in rahri field by closing her mouth.

8. On the evidence of prosecutrix who supported the prosecution case in fardbeyan and the evidence of P.W. 2, the mother of P.W. 1 that when she returned from the sisters daughters house then the victim disclosed about the occurrence and, hence, the victim was not a consenting party and the evidence of the victim can not discarded on the ground that she is the solitary witness as No. corroboration is required to record conviction on the evidence of solitary witness.

9. The learned Counsel for the Appellant, however, challenged the finding of the lower Court on age of victim and asserted that the age of the victim was more than sixteen years and was in a consenting age and the evidence of victim suffers from inherent improbability and contradiction to be relied upon. The evidence clearly indicates that she was a consenting party and in view of the nature of the evidence of the victim it is not safe to dispense with the advisability of the corroboration to pass the order of conviction on the sole testimony of the prosecution.

10. So far the first point is concerned, the age of the victim stated in her deposition on 02.02.1993 as 22 years. The Court has also assessed her age as 22 years and taking her age as 22 years on 02.02.1993, the date of deposition of this witness, her age is more than sixteen years on the date of occurrence, i.e., on 06.07.1988 and, hence, the victim was having age more than sixteen years and, hence, was in consenting age. The learned lower Court, however, rejected the evidence of the vict