The main legal point established in the judgment is the application of Section 376 IPC in cases of rape, particularly in relation to the victim's age and consent.

1. THE present appeal is directed against the order of conviction dated 26.05.2008 and sentence dated 27.05.2008 passed by the learned Additional Sessions Judge, Fast Track Fifth Court, Malda in Sessions Case No. 51 of 2007 (Sessions Trial No. 27(2) of 2007). By such order the learned Additional Sessions Judge has convicted the appellant Kashmir Sk. @ Sk. Kashmir under Section 376 IPC and sentenced him to suffer rigorous imprisonment for seven years and to pay fine of Rs. 1,000/-, in default to suffer simple imprisonment for three months.

2. THE prosecution case in short is that on 05.10.2005 at about 8 p.m. one Rahima Khatun, minor sister of the complainant Md. Harun Seikh went outside to attend nature's call while accused Kashmir Seikh took her to a desolate place and committed rape upon her with a promise of marrying her. Thereafter, he took her to another married sister of the complainant namely, Anguri Bibi in Milki and then fled away. Over the issue there was a Salish in the locality. But the accused refused to accept the verdict of the Salish. On the basis of such complaint, the case was initiated being no. EBPS Case No. 500 of 2005 dated 12.10.2005 under Sections 493/376 IPC which resulted in filing of charge-sheet on 03.04.2006. Charge was accordingly framed under Sections 493/376 IPC, read over and explained to the accused who pleaded not guilty. THE prosecution has tendered 13 witnesses and adduced and exhibited nine documents to prove the case while no defence witness has been tendered. THE defence case appears to be a denial of the above allegation. From the impugned judgment of the learned Trial Judge it appears that he has carefully examined the testimony of all the 13 witnesses tendered by the prosecution along with the documents exhibited in this case.

3. P.W. 1, Md. Harun Sk. is the de facto complainant who has reiterated the allegations made in the FIR (Exhibit 1). P.W. 2, Anguri Bibi is the elder sister of the victim Rahima Khatun. She has corroborated the allegation of rape as well as the incident of local Salish over the issue in presence of co-villagers. P.W. 3, Rahima Khatun, is the victim. In her statement she has claimed that on the date of occurrence she was forcibly caught hold by the accused person who proposed to marry her but she asked to inform his parents but the accused declined. From her testimony it also transpired that the accused was previously not known to her. She has categorically stated that the accused committed rape upon her by removing her wearing apparels forcibly in the said garden behind their house where she went to attend nature's call. Thereafter, the accused took her to her elder sister's house (P.W. 2) on the plea of marrying her. On arrival the accused asked the P.W. 2 to arrange for marriage and to call a Moulabi. When her elder sister's husband went to call Moulabi, the accused went outside with torch light and a badni on the plea of attending nature's call and fled away. On the next morning her elder sister took her to her father's house and reported the incident to her parents and brother. She also corroborates the attempt to settle the dispute through local Salish which yielded no result so the matter was reported to police. In her statement recorded under Section 164 Cr.P.C. (Exhibit 2) she has reiterated the same incident. P.W. 4, Dr. Kalyan Mishra examined the victim on 14.10.2005 and found absence of hymen from which it could be presumed that the girl has experienced sexual intercourse (Exhibit 4). P.W. 5, Piaru Sk. has admitted the holding of a Salish in 2005 over the incident at the instance of Aruf Sk., father of the victim Rahima Khatun and also claims that in such Salish accused confessed his guilt and agreed to marry Rahima but on condition that her father will have to pay a sum of Rs. 40,000/- in cash and a piece of land measuring 2 cottahs to the accused. As the poor father of the victim could not concede to such demand, no decision was arrived at in