1. This is an appeal against the judgment dated 29.11.1997 passed by the Sixth Additional Sessions Judge, Durg, in Sessions Trial No. 342/96, whereby, the appellant has been convicted under Section 376 of IPC and has been sentenced to 7 years R.I.

2. The brief facts of the prosecution case is that the prosecutrix was residing with her father and brothers at village Nandni Khundni. Her mother had left and married somewhere and the prosecutrix was living with her three brothers namely Nand Kumar, Ishwari & Baldau. Along with brother of prosecutrix Ishwari, one boy named Tikendra, the accused, was also studying. Because of the friendship, the said boy used to visit the house of the prosecutrix and was in conversation with her. It is the case of the prosecution that when the prosecutrix used to remain alone in her house, the accused Tikendra used to visit there and expressed her that he is in love with her. Further, the case of the prosecution is that at about one year before the incident, the accused came to the house of the prosecutrix when she was alone. Thereafter, the accused had told her that he is in love with her and will marry her and wanted to commit sexual intercourse with her. The prosecutrix tried to avoid it since she was blind girl, but the prosecutrix was told by the accused that he will marry her and will give her all support and therefore, she submitted herself to the accused. Thereafter, the accused committed sexual intercourse with her. It is the case of the prosecution that whenever the prosecutrix remained alone in the house, the accused used to come and commit sexual intercourse with her. By such course of action, when the prosecutrix became pregnant, the prosecutrix told the accused to marry her. At that point of time, the accused stop visiting the house of the prosecutrix. Subsequent to it, the incident were disclosed to the father of the prosecutrix who called the meeting of Panchayat in the village. In such Panchayat, the accused was also called. It is the case of the prosecution that in the Panchayat, the accused admitted the fact that he had committed sexual intercourse with the prosecutrix but refused to marry her and left the Panchayat. It was the specific case of prosecution that though the prosecutrix was blind, she could recognize the person i.e. the, accused by his voice and by touch.

3. After the matter was reported, the prosecutrix was subjected to medical examination and the Doctor gave its report by EX.P-2 & P-3 and the age of the prosecutrix was also confirmed by radiological test by EX.P-4. After the entire examination and recording the statement of the witnesses, charge sheet was filed under Section 376 of IPC, wherein the learned Court below after evaluating the evidence on record had convicted the accused appellant as aforesaid. Hence this appeal.

4. I have heard the learned counsel for the parties at length and have perused the evidence and the statement adduced during the course of trial.

5. The learned counsel for the appellant submits that the prosecutrix was blind and therefore, she could not recognize or identify the accused. He further submits that in order to hold a person guilty in criminal trial, the prosecution was under obligation to prove the fact that the accused has committed rape on the prosecutrix. He submits that the evidence on record would show that there had been a number of person who were visiting the house of the prosecutrix and therefore attributing the charges of rape to the accused was completely wrong. He further submitted that, even if, the identification is not in question, in such case too, since the age of the prosecutrix was more than 18 years, she can be said to have a consenting party to the incident and therefore, the conviction made by the Court below under Section 376 of IPC is bad in law.

6. Per contra, the learned State counsel would submit that the appellant has neither raised the defence before the Court below with respect to his identificati