The main legal point established in the judgment is the reliance on consistent evidence of the prosecution witnesses, medical examination report, and statement recorded by the Judicial Magistrate under Sec. 164 CrPC to establish the commission of the offence of rape under Sec. 376 IPC.

JUDGMENT :

KALYAN RAI SURANA, J.

1. Heard Mr. G. Tarak, learned amicus curiae, appearing for the appellant. Also heard Mr. G. Tado, learned Addl. Public Prosecutor, appearing for the State. As per office note dtd. 2/3/2022, notice has been served on the informant/ complainant, through the Court process, served through the Court of Chief Judicial Magistrate, Changlang, but none appears on call.

2. The appellant, namely, Shan Kumar Chakma @ Rango Suli Chakma, who is currently lodged in District Jail, Tezu has preferred this appeal against the judgment dtd. 25/9/2019 and consequent order of sentence dtd. 17/10/2019, passed by the learned Sessions Judge, Tirap, Khonsa in connection with KSA Sessions Case No. 22/2019, arising from Diyun P.S. Case No. 22/2012, by which the appellant was convicted for commission of offence punishable under Sec. 376 of the Indian Penal Code (IPC for short) and sentenced to undergo rigorous imprisonment for 14 (fourteen) years and to pay a fine of Rs.25,000.00, with default clause of undergoing a further sentence of 6 (six) months.

3. The prosecution case was set rolling by the father of the minor victim that while his minor daughter, then aged 11 years, was going home from Dumpathar agriculture field, at about 17.30 hours, the appellant had raped her by putting cloth on her mouth and also by putting her fear of hurt. Accordingly, the above referred police case was registered and the case was investigated. The victim girl was sent for medical examination and the appellant was arrested with one small pocket knife, shown by him, as a weapon used for threatening the victim. The I.O. recorded the statement of witnesses and also got the statement of the victim girl recorded by the Judicial Magistrate under Sec. 164 (5) of the Code of Criminal Procedure (CrPC for short). On completion of investigation, charge-sheet was submitted against the appellant. After compliance of initial formalities, the learned Court below had framed charge against the appellant under Sec. 376(2)(f) I.P.C. and on being read over, he pleaded not guilty to the same. The prosecution had examined 6 (six) witnesses, viz., (i) Shri Dakto Ribo, Judicial Magistrate, First Class; (ii) mother of victim; (iii) father of victim (informant/ complainant); (iv) victim; (v) brother of the victim; and (vi) Shri Pradeep Kalita in support of the charge. Thereafter, the learned trial Court had confronted the appellant with incriminating material that had appeared against him and recorded the same under Sec. 313 CrPC. The appellant took the defence of total denial and declined to examine any defence witnesses.

4. The learned trial Court had relied on the statement made by the PW-1 that on 26/6/2012, while he was posted at Diyun as JMFC-cum-Executive Magistrate, he had recorded the statement (Ext.1) of the minor victim girl, who was 11 years old, as per declaration of her father, and forwarded the said statement to the I.O. He had also exhibited his signature. In cross-examination, the PW-1 had admitted that he had not administered oath to the victim girl. He had also stated that the statement of the victim was not recorded by way of audio and video recording.

5. The Court had also relied on the statement of PW-2, the mother of the victim, who had stated that she knew the accused on the dock and that about 4 years ago, her daughter was with them in the paddy field and had left before them and when they arrived at their home, she found her daughter crying. Her daughter had stated that the appellant had given her his cycle and caught hold of her and forcibly raped her. It was stated by the PW-2 that she had seen injury on victim's private part and lower part of her body. She had taken the daughter to Gaonburah , who suggested them to take her to medical. Thereafter, she took the victim to hospital and then to police station. She had stated that at the time of incident, the victim was minor but could not say the age and had stated that she was not studying in any