Consent obtained through deception and the accused's intentions were central to the court's decision in finding the accused guilty under section 376 of the IPC.

( 1 ) THIS appeal by the convict is against the judgment and order of conviction dated 12. 6. 97 and the sentence dated 13. 6. 97 passed by the learned assistant Sessions Judge, Jalpaiguri in Sessions Case No. 92/96 arising out of kotwali P. S. , Jalpaiguri case number 425 of 1994 under section 376 of IPC (G. R. Case No. 1503 of 94 ). By the said judgement the learned Assistant Sessions judge found the accused Nripen Das guilty under section 376 of the IPC and convicted him thereunder and sentenced him to suffer R. I. for 10 years and also to pay a fine of Rs. 5,000/- i. d. to suffer further R. I. for one year. Direction was also given that the fine amount, if realised, shall be paid to the victim kalpana Biswas as compensation. It is also directed that the period of detention of the convict in course of the trial is to be set off under section 428 of the Code of Criminal Procedure.

( 2 ) PROSECUTION case in brief is that Kalpana Biswas became blind at the age of seven being attacked by Typhoid and she used to reside in her house with her mother and sister while her father was not heard of for a long period. She used to go out for begging with the aid of her sister Anjana. In course of such begging she came in contact with the accused who promised her to marry as well to take step for the treatment of her eyes and during the Durga Puja days of 1994 the accused Nripen Das started to cohabit with her with such false assurances, but ultimately Nripen Das denied to marry her. The matter was communicated to the relatives and then to local Panchayat and ultimately a written complaint was filed, on the basis of which the FIR was drawn and a case was started. The accused was arrested in course of investigation and his potency was confirmed by medical examination. The victim girl was also medically examined in which confirmation of sexual intercourse is indicated. The victim also made a statement which was recorded by a learned Magistrate under section 164 Cr. PC. Ultimately on completion of investigation chargesheet was submitted against the accused Nripen Das. The case was committed to the court of Sessions where charge under section 376 of the IPC was framed. Since the accused pleaded not guilty to the charge, prosecution produced as many as twelve witnesses including the Investigating Officer. Other documents were also produced along with the ossification test report of the victim girl to prove her age.

( 3 ) OF course no defence witness was examined in this case and the defence case, as can be ascertained from the trend of cross-examination and the answers given in course of examination under section 313 Cr. PC, is complete innocence.

( 4 ) IN course of hearing of this appeal the learned Counsel appearing on behalf of the appellant by scanning the school certificate (Ext. 5) tried to argue that the date of birth of the victim girl being 27. 1. 77, it can safely be concluded that at the time of the alleged incident the victim girl was above sixteen years of age. The learned Counsel also placed reliance on the ossification test report (Ext. 3) in which the victim girl was shown to be between 15 years and 16 years of age. It is contended that if two years, plus or minus, is taken into consideration it can be said that the victim was above 16 years of age. So scanning the evidence of the victim (PW. 4) it has been argued that the alleged sexual act was the outcome of the consent given by the victim.

( 5 ) THE learned Counsel also pointed out that to conceal the story of consent the story of starting sexual act by threat of a knife was tried to be introduced and in fact in her statement under section 164 Cr. PC the victim tried to say so. It is argued by pointing out that PW. 4 Anjana, who is sister of the victim girl (PW. 2) also stated that she saw knife when the accused was lying in the same bed with Kalpana. There was no specific indication that sexual act was done on the point of knife. So, the learned Counsel co