The main legal point established in the judgment is that the victim was violated without her consent, as she was put in a fear of death by the accused. The court invoked the presumption under Section 114(A) of the Evidence Act against the accused, leading to his conviction under Section 376 I.P.C.

JUDGMENT

Subhasis Dasgupta, J. - This criminal appeal is against the order of conviction and sentence. Learned Additional Sessions Judge, 2nd Court, Purulia, by his order of conviction dated 22.08.2014 and sentence dated 25.08.2014, in Sessions Trial No. 9 of 2010, arising out of Sessions Case No. 34 of 2014, convicted the accused/appellant after holding him guilty for offence under Section 376/448/506 (Part-1) of Indian Penal Code, and sentenced him to suffer ten (10) years rigorous imprisonment with a fine of Rs.5000/- (rupees five thousand), in default to suffer rigorous imprisonment of one (1) year for the first count, and six (6) month for the offence under second count, and one (1) year for the offence under third and last count. The established facts during trial may be mentioned here for addressing the issue raised in this appeal most effectively, which may be mentioned as hereinbelow.

2. A tribal girl belonging to Santal community perusing her study in class VIII of a school was physically violated by accused of tribal community living in the same village on 7th Ashar 1415 B.S. corresponding i.e. 22.06.2008, getting her alone in home during day time. The accused/appellant subjected the victim girl to threat on repeated occasions while doing physical violation putting her in a fear of death. The girl concealed her physical violation by accused to her parents in consequence of threat of accused. The parents of the victim suddenly noticed physical changes of victim daughter, when on being interrogated, the victim carrying then six (6) months old pregnancy, narrated everything to her parents as to how her pregnancy was brought about pointing out her finger towards the accused/appellant, as culprit of her pregnancy. The bewildered parents sought for interference of their Majhi Samaj, what is largely followed in the Santal Community for a local resolution of the dispute cropped up in them with an effort for a discussion in salish so that there could be an arrangement of marriage of their daughter. The accused/appellant remained absent on two dates in the meeting. The de-facto complainant/father of the victim girl had to obey the instruction/decision given by his fellow community members asking the father to wait for few months, and upon completion of which the de-facto complainant father was given free hands to take recourse to law. In the mean time, the victim/prosecutrix had delivered a child. Irresistibly there was delay of about seven (7) months thus caused in lodging the F.I.R.

3. The defense version in simpliciter is that victim girl consented to the sexual act performed on her mutually and voluntarily, as the victim girl was about twenty (20) years of age at the relevant point of time. So, the sexual intercourse was held by reason of conscious decision of the victim girl for her consent to the sexual acts performed voluntarily.

4. The Trial court after framing charge under Section 376/448/506 I.P.C. against the accused person proceeded to hold trial, and ultimately concluded the trial collecting as many as sixteen (16) witnesses, out of which PW-1 is the victim herself, while PW-2 and PW-4 are the parents of the victim girl, PW-3 to PW-5 are the aunt and uncle respectively, PW-6 determined the potency of accused, PW-7 to PW-9 are the co-villagers attending the salish convened for the purpose at the request of the PW-4 so that there could be an arrangement of marriage of the victim girl, PW-10 is doctor examining the victim and measuring/calculating age of pregnancy of victim, PW-11 is doctor performing Ossification Test for the determination of age of the accused, PW-12 is Recording Officer, PW-13 is the scribe of F.I.R, PW-14 is doctor performing Ossification Test for the determination of age of the victim, and PW-15 and PW-16 are the Investigating Officers in this case.

5. Learned advocate for the appellant principally focused his argument urging two (2) submissions. Firstly; he strenuously made his submission that