The relevance of the victim's age in determining consent and the parameters required for sentencing an offender.

JUDGMENT

Subhasis Dasgupta, J. - This appeal emerges out of an order of conviction and sentence. Learned Additional Sessions Judge, Islampur, Uttar Dinajpur in Sessions trial No.09/07 arising out of Sessions Case No. 03/07 convicted accused/appellant under Section 376 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for eight (8) years and pay fine of Rs.3000/-(Rupees three thousand) in default to suffer rigorous imprisonment for one year for the offence under Section 376 of Indian Penal Code.

2. Facts established during trial precisely may be mentioned as follows for perfectly addressing the issues raised in this appeal.

3. The victim/prosecutrix being urged by nature came out of her room on 20/21.06.2005, night for urinating purpose, when suddenly accused caught hold of her, gagged her mouth, took her away to nearby mango garden and finally committed rape upon her against her wish under a threat with dire consequence, leaving behind a promise of marriage therefor. About two months before also in a similar manner accused/appellant did sex with victim girl by doing violation after forcibly taking her to a jute filed, when victim went to the field for bringing back goats from field. Victim received threat from accused/appellant with a promise to marry this time too. She lost her sense receiving assault from accused, when she tried to get into the house of accused. She was rescued by her parents and villagers on the following morning. Ultimately, accused refused to marry the victim on being challenged with the incident by parents of the victim, when accused/appellant also threatened victim and her family members with dire consequence. A child was, however, born to victim/prosecutrix.

4. Police started investigation after receiving a complaint from victim herself, subjected the victim to Ossification Test for determination of her age, collected the statement of victim recorded under Section 164 Cr.P.C. by learned Magistrate, and finally concluded the investigation submitting charge sheet against the accused/appellant.

5. Trial Court conducted the trial after framing charge under Sections 376/506/418 I.P.C. with collection of as many as six (6) witnesses, and thereafter learned Judge conducting the trial held the accused to be guilty of offence under Section 376 I.P.C. and awarded him sentence accordingly, mentioned hereinabove.

6. At the very beginning of this case this may be put on record that due to the absence of learned advocate for the appellant, a report from the concerned correctional home was obtained to know about status of the accused/appellant, and ultimately we decided to proceed with the appeal taking assistance of Mr. Navanil De, as amicus curiae for accused/appellant.

7. Mr. Navanil De, learned amicus curiae, while challenging the order of conviction submitted that the learned Trial Judge failed to appreciate the consensual sexual acts performed between the parties in context with a promise to marry in its true perspective, and held the accused person guilty most illegally, disbelieving the consent, voluntarily given by victim/prosecutrix.

8. It was contended by Mr. De, learned amicus curiae, that though the Trial Court doubted the report of ossification test, performed in this case, for determination of age of victim girl, but the benefit of doubt could not be given to the accused/appellant.

9. Further contention of Mr. De, learned amicus curiae, was that when victim herself contradicted in several respects with her own version recorded in F.I.R., the Trial Court ought to have disbelieved her version, and the conviction so recorded by the Trial Court will not be sustainable for such discrepancy in her evidence. Referring loopholes contained in the evidence of victim/prosecutrix, Mr. De, proposed that at best, the case could be regarded as a consensual sex with a promise to marry, for which conviction under Section 376 I.P.C. and the sentence awarded thereunder would not be sustainable.

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