The court established that consent is not a factor in cases of rape when the victim is a minor.

1. The challenge in this appeal is to the judgement and order dated 25th/26th November, 2009, passed by the learned Additional District and Sessions Judge, Fast Track Court- 3, North 24 Parganas at Barasat in Sessions Trial case no. 1 (11) of 2008, corresponding to Sessions case no 25 (9) of 2008, thereby convicting the appellant under Section 366 A and 376 of IPC and sentencing to suffer R.I. for 7 years and to pay fine of Rs. 5000/- for both the offences which would run concurrently.

2. Hari Nandi, the appellant has assailed the judgement on the following grounds :

a) that the learned Court framed charges against the appellant wrongly and thereby caused gross miscarriage of justice;

b) that the learned Court failed to appreciate the evidence on record in its proper and true perspective;

c) that the learned Court admitted irrelevant evidence and materials into evidence and failed to consider material and relevant portion of evidence while recording the conviction;

d) that the learned Court failed to take into consideration the discrepancies in the evidence of the prosecution witnesses on material points;

e) that the learned Court failed to appreciate the fact that the victim was a major girl at the relevant point of time and there was no case of kidnapping against the appellant;

f) that there was no injury on the private parts of the victim suggesting commission of rape;

g) that the judgement impugned is based on surmises and conjecture and it being bad in law is liable to be set aside;

h) that the learned Court failed to adopt proper method of examining the appellant under Section 313 Cr.P.C.

3. Sandhya Banerjee, mother of Sutapa Banerjee lodged one complaint in the Court of Chief Judicial Magistrate, Barasat alleging therein that the appellant Hari Nandi and two others eloped her minor daughter Sutapa Banerje,e aged about 13 years, with mala fide intention to give marriage with the appellant Hari Nandi. Hari Nandi was married man having children. The Minor Sutapa was found missing since 23.2.2008 and a G.D. entry to that effect was recorded in Ashoknagar Police station on 26.2.2008. Sandhya Banerjee came to know that Hari Nandi, the appellant had been living with her minor daughter as her husband somewhere in Kolkata within the knowledge of other two accused persons. Sandhya Banerjee prayed for referring the complaint to Ashoknagar Police station to investigate into the matter treating the same as F.I.R. On the basis of said F.I.R, Ashoknagar police station case no. 76 dated 24.3.2008 was registered against appellant and two others.

4. On conclusion of investigation, charge-sheet was filed against Hari Nandi only under Section 366A and 376 of IPC while two other accused persons were not sent up for trial. Appellant Hari Nandi pleaded not guilty to the charges and accordingly, the trial commenced. The learned Trial Court upon consideration of evidence on record found the appellant Hari Nandi guilty of offence under Section 366A and 376 of IPC and, accordingly, recorded his conviction and sentence which is impugned in this appeal on the grounds mentioned already.

5. Mr. Kaji Safiulla, learned Senior Counsel appearing on behalf of the appellant contended that the prosecution failed to established that the victim was a minor on the date of incident. There was a birth certificate which was produced in Court and admitted into evidence but not in accordance with provision of law. The birth certificate was a photocopy of the original one and the Court admitted the same without any reason which is against the provisions of Section 76 of the Indian Evidence Act. This apart, he contended that the I.O. of the case did not state anywhere that he seized the original birth certificate. Again, the P.W. 8 makes it clear that Sutapa was the adopted daughter of Sandhya. The G.D. Entry dated 26.2.2008 shows that Sutapa passed Class IX examination already on the date of incident. Besides everything, ossification test of the victim Sutapa was no