C.R. Sarma, J.

1. Heard Mr. Y.S. Mannan, learned Counsel, appearing for the appellant. Also heard Mr. B.B. Gogoi, learned Additional Public Prosecutor, Assam. This appeal has been preferred by Mr. Sukhil Mallick, against the judgment and order, dated 19.12.2006, passed by the learned Additional Sessions Judge (FTC No. 2), Kamrup, Guwahati in Sessions Case No. 365(K)/2005.

2. By the impugned judgment and order, the learned Sessions convicted the appellant, under Section 376 I.P.C. and sentenced him to suffer R.I. for 10(ten) years and pay fine of Rs. 2,000/-, in default, R.I. for 4 (four) months.

3. The prosecution case, in brief, is that on 02.12.2004, at about 8.30 P.M., the victim girl along with Sri Pradip Barman and Sri Sajal Sutradhar, went from her house in the motor cycle of Sri Pradip Barman for enjoying Rashpuja at Lakhitari. After enjoying Rashpuja at Lakhitari, she along with Sri Sajal Sutradhar and Sri Sukhil Mallick, i.e. the appellant, in a motor cycle, went to Tetelia to enjoy Rashpuja. From Tetelia, she was taken to Jalisora concrete bridge, by Sajal Sutradhar and Sukhil Mallick and Sajal Sutradhar was waiting with the motorcycle near the bridge aforesaid, the appellant, i.e. Sukhil Mallick, committed rape on her. After said incident, the victim girl along with the appellant and Sajal Sutradhar returned to Lakhitari and from there, she along with Pradip Barman and others went to her house. On the next day, she informed the incident to the members of the family.

4. On receipt of the information about the said incident, Sri Soni Barman (P.W.-6), who was brother of the victim girl, lodged an FIR with the Police, on 14.12.2004, i.e. after 12 (twelve) days of the occurrence.

5. On receipt of the said FIR, Police registered a case under Section 376/34 IPC, examined witnesses, got the victim girl examined by the Medical Officer and at the close of the investigation, submitted charge-sheet, under Section 376/34 IPC, against the appellant and others.

6. The offence being exclusively triable by the Court of Sessions, the learned Additional Chief Judicial Magistrate, Kamrup, Guwahati, committed the case to the Court of Sessions and accordingly, the learned Sessions Judge framed charges under Sections 376/34 IPC, against Pradip Barman and Sajal Sutradhar.

7. The prosecution examined as many as 12 (twelve) witnesses, including the Medical Officer, who examined the victim girl and the Investigating Officer.

8. At the close of the evidence for the prosecution, the accused persons were examined under Section 313 Cr.P.C. They denied the allegations, brought against them and declined to adduce defence evidence.

9. Considering the evidence on record, the learned Sessions Judge, convicted the appellant, under Section 376 I.P.C., and sentenced him to suffer R.I. for 10(ten) years and pay fine of Rs. 2,000/-, in default, R.I. for 4 (four) months. The other two accused persons aforesaid were convicted under Section 376/109 IPC and accordingly, sentenced to suffer R.I. for 7 (seven) years each and pay fine of Rs. 2,000/-, in default, suffer R.I. for another 4 (four) months.

Aggrieved by the said conviction and sentence, the appellant has come with this appeal.

10. Mr. Y.S. Mannan, learned Counsel, appearing for the appellant, referring to the evidence, on record, more particularly, the evidence of the victim girl and the Medical Officer, has submitted that as revealed from the evidence, on record, the victim girl, at no point of time, put up any resistance against the alleged act, committed by the appellant and as per the medical evidence, her age was above 16 (sixteen) years and below 18 (eighteen) years. Therefore, it is submitted that she was a consenting party and she being above 15 (sixteen) years, the conviction of the appellant under Section 376 IPC is not maintainable in the eye of law.

Therefore, it is submitted that the impugned conviction and sentenced, recorded against the appellant, under Section 376 IPC, is bad in law and as