JUDGMENT AND ORDER :

Rumi Kumari Phukan, J.

Heard Mr. H.R.A Choudhury, learned senior counsel for appellant. Also heard Mr. B. Sarma, learned additional public prosecutor.

2. This appeal is directed against the judgment and order dated 17.12.2013 passed by the learned Assistant Sessions Judge, Karimganj in sessions case 86/2013 whereby the appellant is convicted u/s 376(1) of the IPC and sentenced to rigorous imprisonment for 8 years with a fine of Rs 5,000/- and in default to rigorous imprisonment for 6 months.

3. The prosecution case arose from a complaint filed by one Moriom Bibi alleging inter alia that the accused/appellant taking advantage of her absence committed rape on her minor daughter and as a result of which her daughter gave birth to a baby girl who however expired after 28 days. On the basis of the said complaint a case was registered against accused and after due completion of investigation charge sheet was submitted against accused u/s 376 of the IPC. The case was committed to the Court of Sessions and accordingly the learned trial court framed charge under Section 376(1) of the IPC which was explained to the accused who pleaded not guilty.

4. In course of trial prosecution examined 8 witnesses while the defence examined 2 witnesses to prove his plea of innocence and on conclusion of trial the learned trial court convicted the accused person as aforesaid.

5. Being aggrieved by the aforesaid judgment and order the present appeal has been preferred raising certain grounds that the learned trial court without proper appreciation of evidence on record came to a perverse finding. It has been contended that the learned trial court did not take into consideration the defence evidence and ignored the same. That apart the material portion of cross-examination of witnesses was not scrutinsed by the learned trial court when there is specific evidence that the victim maintained unfair relation with one Iraj Ali with whom she even tried to flee away and there was a proposal for marriage between the two.

6. Assailing medical evidence it is contended that the age of the victim is stated to be between 14 and 17 years and she has no birth/school certificates to prove her age and therefore her age can be taken as 17+2 = 19 years. That apart the conduct of the victim girl coupled with the fact of long delay in filing the FIR and unfair relation of the victim girl with a boy is stated to be vital aspect which raised serious doubt about the veracity of the prosecution case.

7. I have heard argument of learned counsel for both parties as well as considered the evidence on record and the grounds of appeal.

8. As per the evidence of the victim girl/PW1 whose age is stated to be 15 years she alleged that accused committed such sexual intercourse with her firstly about 1½ years back and thereafter on many occasions with a plea that he will marry her and when she became pregnant of 3-4 months the victim reported the matter to her mother who in turn approached the parents of the accused and a bichar was held. Though the parents of the accused assured the victim to solemnize their marriage, they declined later on. After 10 months of the first sexual conduct the victim girl gave birth to a child in her house and after 28 days the child died and thereafter only her mother lodged the FIR.

9. The mother of the victim girl Mayuran Bibi/PW2 in her evidence stated that the accused used to come to her house in her absence and commit sexual intercourse with PW1 which she came to know only after physical change of her daughter due to pregnancy. As soon as she was reported by PW1 about such matter she approached the parents of the accused and asked them to arrange for marriage of PW1 with the accused but they did not agree. A bichar was also held in their village but nothing was finalized and in the meantime PW1 gave birth to a child and the child died after few days. She thereafter filed a case but it was withdrawn on the pressure of local people and thereaf

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