A. M. BADAR, J.:–By this appeal, appellant/convicted accused, Reyaz Ahmad @ Chunnu @ Md. Riyaz @ Munna is challenging the Judgment and order dated 18.04.2017 and 21.04.2017 passed by the learned Presiding Officer, Fast Track Court -I, Madhubani, in Sessions Trial No. 540 of 2012 between the parties, thereby convicting him of the offence punishable under Section 376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for four years apart from imposition of fine of Rs.10,000/- and in default to suffer further rigorous imprisonment for six months. For the sake of convenience, the appellant shall be referred to in his original capacity as “an accused”.

2. Facts leading to the prosecution of the accused projected from the police report can be summarized thus:—

A. The prosecutrix, P.W. 5 Ms. K. (identify concealed) and the accused used to reside at village Pachhi falling under the jurisdiction of Police Station Madhepur, District Madhubani in the State of Bihar. It is case of the prosecution that by making false promise to marry the prosecutrix (P.W.5), the accused allured her and committed sexual intercourse with her few days after 15.02.2010 to 28.10.2010. Because of the act of sexual intercourse by the accused, in the meanwhile, the prosecutirx (P.W.5) become pregnant. Ultimately the prosecutrix was required to abort her foetus. On 28.12.2010, the accused approached the prosecutrix (P.W. 5) and again committed sexual intercourse with her with a promise to marry her. However subsequently, where the prosecutrix (P.W. 5) insisted to fix the date of marriage, the accused refused to marry her and had assaulted her.

B. The prosecutrix (P.W. 5), on 07.01.2011, approached the learned Additional Chief Judicial Magistrate by filing the complaint. The learned Magistrate was pleased to pass an order under Section 156(3) of the Cr.P.C. on the said complaint directing investigation vide order dated 07.01.2011. That is how on 08.04.2011, Crime No. 41 of 2011 came to be registered against the accused at Police Station Madhepur for the offences punishable under Sections 376 and 323 of the Indian Penal Code.

C. Routine investigation followed. The prosecutrix was sent to the Sadar Hospital Madhubani for her medical examination. On conclusion of investigation, the accused came to be charge sheeted.

D. The learned trial court had framed and explained the charges for the offences punishable under Sections 376 and 323 of the Indian Penal Code to the accused. He pleaded not guilty and claimed trial.

E. In order to bring home the guilt to the accused, the prosecution has examined as many as eight witnesses. P.W. 1 Md. Hussain is a co-villager. P.W. 2 Maksud Alam is uncle of the prosecutrix. P.W. 3 Ms. S. (identify concealed) is her mother and P.W. 4 Nanhi Khatoon is her aunt. The prosecutrix Ms. K. (identify concealed) is examined as P.W. 5. P.W. 6 Dr. Gargee Sinha, is the Medical Officer of Sadar Hospital, Madhubani. P.W. 7 is Deo Narayan Choubey is the Investigating Officer. P.W. 8 Ram Ashish Kamti is another Investigating Officer, who had filed charge sheet against the accused.

F. The defence of the accused was that of total denial. He however did not enter in the defeance.

3. After hearing the parties, by the impugned Judgment and order, the learned trial court was pleased to convict the accused and to sentence him as indicted in the opening para of this Judgment.

4. I heard Mr. Prince Kumar Mishra, the learned Amicus Curiae appointed to represent the accused/appellant at the cost of the State. He vehemently argued that even according to the case of prosecution, the prosecutrix was major at the time of the alleged incident. The sexual relations in between the parties were consensual in nature and the provision of Section 90 of the Indian Penal Code is not applicable to the case in hand. The prosecutirx was indulging in the act with her free consent and free will. In support of these submissions, apart from relying on evidence of the pr