This criminal appeal has been filed against the judgment and order dated 16.9.2009 passed by the learned Addl. Sessions Judge (FTC),

Karimganj in Sessions Case No. 49/2008 convicting the accused/appellant (accused thereafter) under sections 376/448, IPC and sentencing him to undergo Rigorous Imprisonment CRF) for seven years and to pay fine of Rs. 5,000, in default, to suffer further RI for six months for the offence under section 376, IPC and to pay fine of Rs. 1,000, in default, to suffer RI for three months for the offence under section 448, IPC.

2. Prosecution case may be briefly noted.

3. The victim herself as the informant lodged first information on 26.9.2007 before the Officer-in-charge, Ramkrishnanagar Police Station, District Karimganj alleging that the accused was a very bad person. While she was offering prayer in her own house on the night of 23.9.2007 at about 10 p.m., the accused taking advantage of the absence of any male member in the house entered into her room through the open door and after gagging her mouth, he raped her. Thereafter, he left the place threatening the informant not to tell anyone about the incident. The said first information was treated as FIR and on the basis of the same, Ramkrishnanagar P.S. Case No. 92/2007 under sections 448/376/506, IPC was registered.

4. Police investigated the case. In the course of investigation, the statement of the victim was recorded under section 164, CrPC. She was also medically examined. After completion of the investigation and on finding a prima facie case against the accused, police submitted charge sheet against the accused under section 448/376/506, IPC. While submitting charge sheet, accused was shown as absconder. Subsequently, he surrendered.

5. Being a sessions triable case, the case was committed to the trial court for conducting the trial against the accused. In the course of the trial, prosecution examined 6 witnesses. At the end of the prosecution evidence, accused was examined under section 313, Cr.PC. The defence plea was of total denial and false implication of the accused because of previous grudge. However, no defence witness was produced. Evidence of Officer-in-charge of Ramkrishnanagar Police Station was taken as court witness. At the conclusion of the trial, the learned trial court came to the conclusion that accused had committed the offence under sections 448 and 376, IPC, but acquitted him of the charge under section 506, IPC. Accused was sentenced accordingly.

6. Aggrieved, the accused as the appellant has preferred the present appeal.

7. Heard Mr. F.H. Laskar, learned counsel for the appellant and Mr. D. Das, learned Add!..Public Prosecutor, Assam for the respondent State.

8. Learned counsel for the appellant submits that learned trial court had committed an error by relying on the testimony of the prosecutrix. As would be evident from the materials on record, the testimony of the prosecutrix was tainted with falsehood and exaggeration and, therefore, conviction of the accused based on such testimony is unjustified. It is clear that information about the alleged incident was given on the night of occurrence itself, on the basis of which a GD entry was also made. There was no necessity for filing fresh FIR on 26.9.2007 wherein the fact of the first information made on 24.9.2007 was suppressed. He submits that the circumstances clearly suggest that the prosecutrix was a consenting party and to wriggle out of a tight situation, she had falsely implicated the accused. Learned trial court though discarded a portion of her evidence as exaggerative, failed to consider the prosecution case from the correct perspective, thereby causing miscarriage of justice. He finally submits that there is no conclusive proof to come to any definite finding that accused had committed the offence of rape and, therefore, the conviction and sentence of the, accused is liable to be set aside and quashed.

9. On the other hand, learned Addl. Public Prosecutor supports the

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