P.K. Musahary, J.

1. Heard Mr. J. Ahmed, learned Counsel for the accused/Appellant. Heard also Mr. B.B. Gogoi learned Addl. P.P., Assam.

2. This criminal appeal is directed against the impugned judgment dated 14.8.2002 rendered by learned Addl. Sessions Judge, Nagaon, in Sessions case No. 139(N)/2000 convicting the Appellant and sentencing him to undergo RI for one year under Section 417, IPC, and acquitting him for the charge under Section 376, IPC.

3. Briefly stated the facts of the prosecution case are that the Appellant proposed to marry the victim girl Meera (real name withheld) and by force committed sexual intercourse with her, as a result of which she became pregnant. Later on when she requested the Appellant to marry her, he refused to marry her. She did not disclose this fact to anybody and got herself married to one Julhaz. This marriage did not last long.

Having come to know about the past relation with the Appellant, Julhaz divorced her and sent to her parent's house. Thereafter, she again requested the Appellant Fazlul Karim to marry her but he refused to do so saying that he had no relation with her. The Appellant even tried to assault the victim girl. Having no other alternative the victim girl filed a complaint case in the court of the learned CJM, Tezpur, who took cognizance and proceeded against the Appellant. The case was committed to the Court of Sessions, as the offence alleged is exclusively triable by the Court of Sessions. The learned trial court, on consideration of the materials available on record, framed charge against the Appellant under Section 376/411/417, IPC. He pleaded not guilty and stood trial.

4. The prosecution examined six witnesses including the victim girl. The victim girl is examined as PW5. It was deposed by her, inter alia, that about three years ago one Sofia Khatun, sister of the accused/Appellant called her to her house at about 11.00/1.00 p.m. in the noontime. Accordingly, she went to Sofia's house. Sofia kept her in her house alone and went to cast vote. When she was alone in Sofia's house the accused Appellant quietly came to Sofia's house and asked for some fire to light his cigarette, which she brought, from the kitchen. The accused Appellant told her that he would marry her and then committed sexual intercourse with her by force. The accused Appellant did not marry her although such promise was made. She became pregnant and so she had to get married to Julhaz but when Julhaz came to know about the pre-marriage pregnancy, he dropped her away from his house and sent to her parent's house. After being divorced by Julhaz she again met the accused Appellant and asked him to marry her. She was rebuked and threatened by the Appellant by showing dagger. She reported the matter to the villagers and then the accused Appellant tried to assault the villagers including her father. This led her to lodge a complaint before the Magistrate.

5. The medical officer Mrs. (Dr.) Rekha Bhuyan was examined as PW6. She confirmed that she examined the victim girl when she was produced before her at Dagaon PHC on 27.12.1999. On examining the victim girl, she found her carrying 20 weeks pregnancy at that time and the victim girl, according to her opinion, was aged 20 years.

6. PW1 Sri Khairul Anam and PW4 Aktor Ali were neighbourers of the victim while PW2, Mubarak Ali is a distant relative. All of them corroboratedly deposed that about 2½ years ago when they were returning home after casting vote in the last Lok Sabha election, they heard hue and cry in the house of the victim girl as the victim was being beaten up by her mother. They came to know about the incident of rape and false promise by the accused Appellant. A village Bichar (meeting) was convened in the house of Meera. PW2 even deposed that the accused Appellant Fazlul offered Rs.5,000 to compromise the case but it was not accepted by the villagers. Meera's father Maksedui Islam was also examined as PW3 who deposed in the same manner.

7. To