Subhasis Talapatra, J.

1. Heard Mr. P.K. Ghosh along with Mr. S. Ghosh, learned counsel, appearing for the appellant and Mr. R.C. Debnath, learned Special Public Prosecutor, appearing for the State-respondent. This appeal is presented against the judgment & order of conviction and sentence, dated 17.12.2009, passed by learned Sessions Judge, South Tripura, Udaipur, convicting the appellant to suffer Rigorous Imprisonment (RI) for 10 years and to pay a fine of Rs.1,000/- (Rupees one thousand) and in default to suffer further R.I for 2 (two) months punishable under Section 376 of Indian Penal Code (I.P.C).

2. The prosecution case, as transpired from the records, is required to be encapsulated and noticed briefly.

One Rabindra Das, PW.4, filed a written ejahar to the Officer-in-Charge, Birganj Police Station, Amarpur stating that one Simal Datta alias Maru, a neighbour of the complainant, enticed her minor daughter in one of the rooms while Kirtan (religious hymns) was being performed in their house and closing the door Shimal Datta alias Maru raped his minor daughter and also threatened that she should not disclose the occurrence to anyone. The said minor daughter (name concealed), the prosecutrix, did not say anything at once out of fear. When the complainant had seen some suspicious materials in her inner-garment he pressurized her to disclose what happened, then the prosecutrix narrated in detail how the appellant had committed rape. In the ejahar the complainant had stated that there were allegations previously also against the appellant that he committed such type of incidence in the past. On the basis of this complaint Birganj Police Case No.31/2008 under Section 376 of I.P.C was registered.

After completion of the investigation, the Police submitted charge sheet against the appellant for the offence punishable under Section 376(1) of I.P.C. Since the offence was exclusively triable by the Court of Sessions the case was committed to the Court of Sessions by the learned Judicial Magistrate, 1st Class, Amarpur, for trial.

The learned Additional Sessions Judge, South Tripura, Udaipur, framed the charge against the appellant as under:-

That you, on or about the 13th day of May, 2008, at Santipalli, P.S. Birganj, South Tripura committed rape on (name concealed) a minor girl and that you thereby committed an offence punishable U/s. 376 of the Indian Penal Code and within the cognizance of this court.

The appellant pleaded not guilty and claimed to be tried and thus the trial commenced.

3(a) During investigation statement of the prosecutrix under Section 164(5) of the Criminal Procedure Code, 1973 (Cr. P.C in short) was recorded.

In the said statement the prosecutrix stated thus:

Two days ago, one day, at about 7.30 P.M, I went to the adjacent house of Amulya Datta with my paternal grandmother for the purpose of seeing (listening to) Kirtan (hymns sung in praise of God). On going there, (my) paternal grandmother was sitting and listening to the `Kirtan' and I too was sitting on a cot inside the room and was listening to the `Kirtan'. Meanwhile, paternal uncle (Kakku) namely, Maru Datta (Shimul Datta) came and called me and on pulling me to an adjacent room, all on a sudden, (he) closed the door of the room. Thereafter uncle made his penis touch my vagina. Uncle kept my mouth pressed with his hand. At this I could not raise alarm. Uncle told me not to tell my father and mother about all these matters. Uncle opened the new panty on my wearing and inserted his penis inside my vagina. At this I started feeling severe pain. Thereafter, there was much semen/fluid ejaculation from my uncle's penis and it fell on my pant and cloths. Uncle told me that if I told my father and mother about this matter, then he would kill me. On saying this, uncle set me free.

The prosecutrix also examined, as PW.1, by the prosecution where she stated in examination-in-chief thus:

on 13.05.2008, in the evening at around 7.30 P.M I along with my grand-mother Kan