JUDGMENT :

Sudhanshu Dhulia, J.

Heard Mr. I.H. Saikia, learned counsel for the appellant. Also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam, appearing for the respondent No.1.

2. This criminal appeal has been filed by the appellant challenging the Judgment & Order dated 22.03.2017 passed by the learned Special Judge, Dhubri in Special Case No.14/2016, by which he has been convicted under Section 376 IPC and was sentenced to undergo Rigorous Imprisonment for life and to pay a fine of Rs. 50,000/-(Rupees Fifty Thousand), in default to undergo simple imprisonment for one year.

3. The prosecution case as per the FIR dated 05.02.2016 lodged at Golokganj Police Station and registered as Golokganj Police Station Case No.90/2016 by the prosecutrix herself, is that in the evening of 15.01.2016, the accused, i.e. the present appellant before this Court, called the prosecutrix over phone and when the prosecutrix met him, he gagged her with a piece of black cloth and took her to a deserted place on his two wheeler, and thereafter raped her several times. The accused had also impersonated as a Hindu and promised to marry her but later on from the conversation of the accused she realised that he is in fact a Muslim. Then she somehow persuaded him to drop her at her house. She was dropped by the accused at her house and was handed over to her family members. She immediately lodged the FIR.

4. Police after its investigation filed charge-sheet against the accused under Sections 366A IPC read with Section 4 of the POCSO Act. Thereafter, the matter was committed to the Court of sessions, being a sessions triable case. Charges were framed against the accused by the Court on 10.08.2016 u/s 366A/376 IPC and Section 4 of POCSO Act.

5. The prosecution in order to establish its case examined as many as seven witnesses and also presented other related materials, such as medical reports, etc. The learned Trial Court on the weight of the evidence came to the conclusion that the prosecution has not been able to establish that the victim at the relevant point of time was a minor and hence, the accused has been acquitted of charges under Section 366A IPC as well as under Section 4 of the POCSO Act but has been convicted under Section 376 IPC on ground that there could not be a consent of the prosecutrix as such a consent has allegedly been given under misconception in view of Section 90[90. Consent known to be given under fear or misconception.- A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or

Consent of insane person.- if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or

Consent of child.- unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.] of the IPC.

6. PW-1, Narayan Roy, before the Trial Court was the father of the prosecutrix. All he states in his examination-in-chief is that the victim is his daughter and he does not know the accused. One day his daughter had gone out from his house to watch KaliPuja. He was informed that she arrived at the venue of KaliPuja but thereafter she went missing. At the relevant point of time his daughter was sixteen years of age. His daughter was with a boy called Joy Roy (real name Abu Taher Prodhani), i.e. The present appellant before this Court. In his cross-examination, he admits that his daughter is now married and that she has studied up to Class VII. She was with Joy Roy and before returning to his house, she had a talk with him on phone. He admits in his cross-