Anima Hazarika, J.

1. Heard Mr. N. Chakravorty, learned Counsel for the appellant. Also heard Mr. D. Das, Additional Public Prosecutor, Assam.

2. The accused appellant has questioned the legality and validity of the judgment and order dated 30-4-2002 passed under Section 366/376(1) IPC in sessions case No. 46(D-M) 1998 by the learned Sessions Judge, Darrang, Mangaldoi, convicting the accused appellant under Section 366 IPC and sentencing him to suffer RI for 4 years and to pay a fine of Rs.1,00/-, in default, further RI for 2 months. The appellant was further convicted under Section 376(1) IPC and sentenced to suffer RI for 7 years and to pay a fine of Rs.3,000/- in default, further RI for 2 months.

3. The prosecution case In brief is that an FIR dated 5-1-98 has been lodged by one Smti Narmada Bhuyan, mother of the victim girl alleging that in the afternoon of 2-1-98 the victim girl was on the road at Tangla Town where she was intercepted by the accused. The accused appellant took her in his bicycle to his house and kept her there for the night. It is further alleged that the accused committed rape upon her. The following morning the victim came home and reported the incident to her mother. Her mother then called the villagers and the accused was also called there. The accused did not deny the incident in presence of the villagers.

4. The said FIR was lodged with the Tangla Police Station whereupon, the police registered a case under Section 366/376 IPC and started investigation. The victim was examined by the doctor of Forensic Department of Gauhati Medical College Hospital. Police also recorded statement of victim girl as well as other witnesses and on completion of the investigation submitted charge sheet under Section 366/342/376 IPC.

5. The offence being exclusively triable by the Court of Sessions, the learned Judicial Magistrate, Mangaldoi committed the same to the Court of Sessions. The learned Sessions Judge, Darrang, Mangaldoi, on perusal of materials available on record framed charge under Sections 366/342/376 IPC. The charges were read over and explained to the accused to which he pleaded not guilty and claimed to be tried.

6. During the trial, prosecution examined 8 witnesses. The defence adduced none. The defence plea was of complete denial. On completion of the trial, the learned Sessions Judge found the accused guilty of the charges under Sections 366/376(1) IPC and convicted and sentenced him as indicated hereinabove. Hence, this appeal.

7. Mr. Chakravorty, learned Counsel appearing for the appellant has challenged the order of conviction on the following grounds:

1) (sic) PW-7, who examined the victim girl, had opined that the victim girl was aged between 18-19 years and no evidence of any struggle or sexual intercourse were seen in her body or private parts. The said opinion was given on the basis of physical examination of the Radiological Department upon the victim girl. Thus, the learned trial Court in absence of any reliable evidence as to the majority of the victim from the side of her parents ought to have relied on the evidence of the doctor that the victim girl was aged about 18 and 19 years.

2) The learned trial Court ought not to have relied on the evidence of PW 2, the mother of the alleged victim girl that she (PW-2) was married 17 years back and after one year of her marriage her daughter (victim girl) was born, inasmuch as, being the mother of the victim she could not have given the date of birth of her own child, the victim.

3) While passing the judgment of conviction, the learned trial Court has relied upon the date mentioned in the school certificate in absence of evidence as to the basis of information on which entry of the age of the victim was made at the time of admission. The learned trial Court therefore committed grave error in law by refusing to accept the medical evidence holding that the girl was a major one at the time of occurrence.

4) The learned trial Court having held that the v