The central legal point established in the judgment is that a man is said to commit rape if he has sexual intercourse with a woman under 16 years of age, irrespective of her consent, as per the legal provision under Section 375 of the Indian Penal Code.

R. K. Bag, J.

This appeal is directed against the judgment and order of conviction and sentence passed by Learned Additional Sessions Judge, 4th Court, Krishnanagar, Nadia in Sessions Trial No.17(6) of 2011 arising out of Sessions Case No.23(12) of 2010, by which the appellant was sentenced to undergo imprisonment for seven years and to pay fine of Rs.10,000/- in default to suffer imprisonment for one year more for the offence under Section 376 of the Indian Penal Code.

2. The backdrop of the conviction and sentence of the appellant is as follows:

On June 18, 2010 the de facto complainant Chittaranjan Mondal filed a written complaint before the Officer-in-charge of Dhubulia Police Station disclosing the fact that the appellant had committed sexual intercourse with his minor daughter aged about 14 years without her consent for about one month. The appellant is married but his wife left him due to torture inflicted on her. However, Dhubulia Police Station Case No.213 of 2010 dated June 18, 2010 under Section 376 of the Indian Penal Code was started on the basis of the written complaint of the de facto complainant. The police investigated the criminal case and submitted chargesheet against the appellant for the offence under Section 376 of the Indian Penal Code.

3. Learned Additional Sessions Judge framed charge against the appellant for the offence under Section 376 of the Indian Penal Code. On conclusion of trial the appellant was found to be guilty and was sentenced to imprisonment for seven years and also fine for the offence under Section 376 of the Indian Penal Code. The appellant preferred appeal before the High Court and the said criminal appeal being CRA No.364 of 2012 was heard by Learned Single Judge of this Court. On February 7, 2009 Learned Single Judge of this Court disposed of CRA No.364 of 2012 by sending back the case on remand to the trial court with direction to take further evidence about the age of the victim girl and to admit the statement of the victim girl recorded under Section 164 of the Code of Criminal Procedure and to dispose of the case within a period of three months from the date of receipt of the order. Accordingly, Learned Judge of the trial court examined three witnesses in connection with the proof of document of age of the victim and one witness for proving the statement of the victim recorded under Section 164 of the Code of Criminal Procedure and examined the appellant afresh under Section 313 of the Code of Criminal Procedure and delivered the judgment by holding the appellant guilty for commission of the offence under Section 376 of the Indian Penal Code and imposed sentence of imprisonment for seven years and fine, in default to suffer imprisonment for one year more. The said judgment and order of conviction and sentence passed by Learned Additional Sessions Judge, 4th Court, Nadia is under challenge in the instant appeal.

4. Mr. Mahammad Mahmud, Learned Counsel for the appellant contends that there is discrepancy in the evidence of the prosecution witnesses with regard to the age of the victim girl who is a consenting party to the sexual intercourse. According to Learned Counsel for the appellant, the prosecution has failed to establish the charge against the appellant and as such the appellant is liable to be acquitted of the charge.

5. Mr. Ayan Basu, Learned Counsel for the State has pointed out from the evidence adduced before the trial court after remand that the victim girl was born on September 6, 1996 and as such she was only 14 years old at the time of sexual intercourse with the appellant. According to Mr. Basu, the prosecution has been able to prove by oral and documentary evidence that the victim girl was 14 years of age at the time of her sexual intercourse with the appellant and as such the appellant is guilty of the charge under Section 376 of the Indian Penal Code, irrespective of whether the victim girl gave consent for such sexual intercourse.

6. One Chittaranjan Mond