The central legal point established in the judgment is the significance of consent in determining the offense of rape under section 375 of the Indian Penal Code.

( 1 ) THIS appeal has been preferred against the judgment and order of conviction dated 14. 4. 2003 passed by Shri N. N. Ghosh, learned Sessions Judge, Andaman and Nicobar Islands, in connection with Sessions Case No. 03 of 2000 corresponding to Sessions Trial No. 1 of January, 2002.

( 2 ) THE learned Sessions Judge found the accused/appellant, Shamsad Ali, guilty of the offence committed under section 376 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for a term of seven years and also to pay a fine of Rs. 2,000/- in default to suffer simple imprisonment for a further term of six months.

( 3 ) THE facts of the case in brief are that the accused/appellant was the brother's friend of the victim girl Ms. Saroj Minj and this was what opened the opportunity for the accused/appellant to have frequent visits at the house of the victim girl. Thus, on one of such occasions i. e. on 23. 3. 96 at night (in the deposition of the prosecutrix the time of commission of offence has been described as at 8. 00 p. m. while in the FIR the time was shown as at 11. 00 p. m.) when the prosecutrix was alone in the house only with the accused/appellant, the accused/appellant approached her for sexual intercourse which was refused by the prosecutrix, but she was forcibly pulled to their bed room whether despite resistance of the prosecutrix the accused/appellant committed rape on her. Thereafter, on another occasion i. e. on 25. 3. 96, in the absence of all the other members of the family, the accused/appellant did the same thing with the prosecutrix. On both the occasions, after the incident of sexual intercourse, the accused/appellant assured the victim girl not to be worried as he was going to marry her. Subsequently, the tentacles of the incident spread through a number of days, if not months in the culmination of giving birth of a female child by the prosecutrix.

( 4 ) THUS, the main question posed by the learned counsel for the accused/appellant before me is that the prosecutrix was a consenting party to the intercourse committed by the accused/appellant.

( 5 ) IN the instant case, as many as nine witnesses had been examined by the prosecution and out of them all, but the PWs 3, 4 and 6, were cross-examined by the defence. The PWs 3, 4 and 6 were declined to be cross-examined by the defence.

( 6 ) IT is contended by Mr. H. R. Bahadur, learned counsel appearing with Ms. A. S. Zinu, learned advocate for the accused/appellant, that the prosecutrix was absolutely a consenting party and this aspect was ignored by the learned Sessions Judge in his judgment. It is also argued by him that the case was instituted after long lapse of time from the date of occrrence. In order to substantiate his claim, the learned counsel for the accused/appellant has drawn my attention to some letters (Exhibit 'a' collectively) admittedly written by the prosecutrix to the accused/appellant. The learned counsel for the appellant has referred to the ratio decided in the case of Uday v. State of Karnataka (2003 Cr LJ 1539 ). I shall discuss the said judgment at the appropriate point of time.

( 7 ) MR. R. S. Saroop, learned Public Prosecutor, submits that the consent theory, as propounded by the learned counsel for the accused/appellant, has no legs to stand and in this connection he has drawn my attention to the evidence of the prosecutrix in particular. Mr. Saroop has also argued that the learned Sessions Judge has shunned this consent theory and the purported love affairs between the parties in the incident.

( 8 ) IN order to apprise of the situation as posed in the instant case, I feel it necessary to refer the definition of rape which is incorporated in section 375 of the Indian Penal Code which reads as below:"375. Rape.- A man is said to commit 'rape' who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions -first.- Against