The central legal point established in the judgment is the interpretation of tacit consent in the context of alleged rape, and the application of Section 482 of the Cr.P.C. to prevent a miscarriage of justice.

JUDGMENT

Siddhartha Roy Chowdhury, J. - This proceeding stems out of an application under Section 482 of the Code of Criminal Procedure filed by the Pradip Kumar Roy @ Haru who has been saddled with an order of conviction for allegedly committing offence of rape upon the victim girl (in view of Section 228 A of the I.P.C. I am not inclined to disclose the name of the girl allegedly deflowered; hereinafter she will be referred as to 'victim girl').

Smt. Fulmala Mondal depicting herself as mother of the victim girl set the criminal administration of justice into motion by submitting a petition of complaint before the learned S.D.J.M., Ranaghat, District- Nadia which was forwarded to Officer-in-charge, Dhantala P.S. under Section 156 (3) of Cr.P.C. Accordingly, Dhantala P.S. Case No. 50/1995 dated 5th May, 1995 was registered. Police took up investigation which culminated into submission of charge sheet against the accused person. After compliance of the provision of Section 207 and 209 of the Cr.P.C. the case was transferred to learned Assistant Sessions Judge, 2nd Court, Krishnanagar, Nadia for disposal.

2. Learned Trial Court framed charge under Section 376 of the I.P.C. to which the accused/petitioner pleaded his innocence and claimed to be tried.

3. Prosecution examined as many as 11 witnesses and Doctor Tarun Kanti Ghosh was examined as Court Witness No. 1. Learned Trial Court having considered the evidence adduced by prosecution witnesses recorded an order of conviction against the accused and he was sentenced to suffer rigorous imprisonment for 5 years and to pay fine of Rs. 1000/- with a default clause.

4. The convict made an unsuccessful attempt to get the order of conviction reversed in an appeal being Criminal Appeal No. 19 of 1998 before the learned Additional Sessions Judge, 2nd Court, Krishnanagar, Nadia. Learned Appellate Court, however, modified the order of sentence by reducing the term of imprisonment from 5 years to 2 1/2 years and fine of Rs. 1000/-.

5. The petitioner has called in question the legality of the said judgement of learned Appellate Court by filing this application under Section 482 of the Cr.P.C.

6. Assailing the impugned judgement learned Counsel for the petitioner Mr. Abhijit Basu submits that the victim girl at the relevant point of time attained the age of consent. She was found to be of 17 years by the doctor during ossification test.

7. Section 375 of the I.P.C. before amendment used to define rape in the following manner:-

'375. Rape. - A man is said to commit 'rape' who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-

First. - xxxxxx

Secondly. - xxxxxx

Thirdly. - xxxxxx

Fourthly. - xxxxxx

Fifthly. - xxxxxx

Sixthly. - With or without her consent, when she is under sixteen years of age.

Explanation. - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception. - Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.'

8. Drawing my attention, the impugned judgement passed by the learned Appellate Court, learned Counsel for the petitioner submits that learned Appellate Court also observed that the age of the victim at the relevant point of time was more than 16 years but without setting aside the order of conviction, reduced the sentence. But for all practical purposes, when the victim girl was above the age of 16 years it should have been considered that she was consenting partner in the union of two and thereby the alleged incident should not have been brought within the mischief of Section 375 of the I.P.C.

9. Drawing my attention to the petition of complaint submitted by the mother of the victim girl, learned Counsel for the petitioner submits that the victim girl and the accused who turned out to be the convict had intimate relationship and she preferred to turn deaf ear to the advice of her mother and ind