Point of Law: When a full grown girl consents to act of sexual intercourse on promise of marriage and continues to indulge in such activity until she becomes pregnant, it is an act of promiscuity on her part.

JUDGMENT :

(Mridul Kumar Kalita, J.)

1. Heard Md. M. H. Rajbarbhuiyan, learned counsel for the appellant. Also heard Ms. S. Jahan, learned Additional Public Prosecutor for the State of Assam.

2. This Appeal has been preferred under Section 374 (2) of the Code of Criminal Procedure, 1973, by the appellant Mufosil Ali @ Mubosil Ali, impugning the judgment and order dated 24.02.2012, passed in Sessions Case No. 03/2011 by the learned Additional Sessions Judge (FTC), Karimganj whereby the present appellant was convicted under Section 376 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 2,000/-, and in default of payment of fine to undergo simple imprisonment for a period of another one month.

3. The facts relevant for adjudication of the instant Criminal Appeal, in brief, are as follows:

(i) That on 11.02.2010, one Abul Hussain lodged an FIR before the Officer-in-Charge of Patharkandi Police Station, inter-alia, alleging that about eight months prior to lodging of the FIR, when the daughter of the first informant, who was aged about 15 years at that time, went to fetch water to the house of the accused Mufosil Ali @ Mubosil Ali (present appellant), he forcefully committed rape on her and threatened her that he would kill her if she discloses the matter to anyone.

(ii) It is also alleged in the said FIR that thereafter the appellant made physical relationship with the daughter of the first informant on several occasions on the assurance of marrying her and as a result of which the daughter of the first informant became pregnant. It is also stated in the FIR that the first informant was not in his home during this period as he was in jail for four months in connection with some criminal case and when he came home after getting released from the jail and when he noticed the condition of his daughter, he enquired from his daughter who narrated the incident to him. It is also stated in the FIR that in the intervening night of 6th and 7th February, 2010, at about 3.00 am, the daughter of the first informant gave birth to a stillborn baby girl.

(iii) On receipt of the said FIR, Patharkandi P. S. Case No. 22/2010 under Sections 376(e)/417 of the Indian Penal Code was registered and one Durjamoni Singha, S. I. of police was entrusted to conduct the investigation.

(iv) After completion of the investigation, charge-sheet was laid against the present appellant under Sections 376(e)/417 of the Indian Penal Code.

(v) Though, the present appellant was arrested during the course of investigation, however, he was released on bail by order dated 26.05.2010 passed in Criminal Misc Case No. 163/2010 and thereafter, he faced the trial remaining on bail. On 21.01.2011, learned Additional Sessions Judge (FTC), Karimganj framed charges under Section 376 and Section 417 of the Indian Penal Code against the present appellant and when the said charges were read over and explained to the present appellant, he pleaded not guilty to the said charge and claimed to be tried.

(vi) During trial, the prosecution side examined ten(10) numbers of prosecution witnesses including the victim girl. The appellant was examined under Section 313 of the Code of Criminal Procedure, 1973, during which he pleaded his innocence and denied the incriminating evidence adduced against him by the prosecution witnesses. The defense side also adduced three(03) numbers of defense witnesses in support of the case of the present appellant. On completion of the trial, the present appellant was convicted and sentenced by the trial Court in the manner as stated in paragraph No. 2 herein before.

4. Before considering the rival submission of learned counsel for the appellant as well as learned Additional Public Prosecutor, let me go through the evidence which is available on record.

5.1 PW-1, Md. Abul Hussain, who is the first informant in this case, has stated in his deposition that the victim is his daughter and she was about 15 years