IMPORTANT POINT
Consent obtained under a false promise of marriage can constitute rape, but the prosecution must prove foundational facts beyond reasonable doubt.

JUDGMENT :

1. Head Mr. S. Nawaz, the learned counsel for the appellant. Also heard Ms. S.H. Bora, the learned Additional Public Prosecutor for State respondent no. 1 and Ms. M. Barman, the learned counsel appearing for respondent no. 2.

2. This is an appeal u/s 374(2) Cr.PC against the impugned judgment & order dated 10.07.2023 passed by learned Special Judge, Bongaigaon in Special (P) Case No. 15(BGN) of 2019 convicting the accused/appellant u/s 376 IPC and sentenced to undergo Rigorous Imprisonment for 10 years and to pay a fine of Rs. 3,000/- in default Simple Imprisonment for 3 months.

3. The prosecution story in brief is that on 09.06.2019 at about 6 PM the accused/appellant took the victim girl to his house on the pretext of marrying her and committed sexual intercourse with her and in the next morning the accused along with the other family members assaulted the victim and drove her out of the house.

4. On receipt of the FIR a G.D. Entry was made at Bidyapur Police Outpost and then the same was forwarded to OC, Bongaigaon for registering a case. Accordingly, a Bongaigaon P.S. Case No. 398 of 2019 u/s 366(A)/376 IPC read with Section 6 of the POCSO Act was registered and the Investigation Officer investigated the case accordingly. After completion of investigation, recording of statement of victim u/s 164 Cr.PC and collecting her medical examination report, the charge-sheet was filed against the accused/appellant. Charge was also accordingly framed by the learned Special Judge against the accused/appellant u/s 376 IPC read with Section 4 of the POCSO Act. The accused pleaded innocence when charge was read over and explained to him and claimed to be tried.

5. The prosecution examined as many as 9 (nine) nos. of witnesses, the statement of the accused/appellant Debo Prasad Barman is also recorded u/s 313 Cr.PC in which he pleaded not guilty but did not adduce any evidence in favour of his case. The learned Special Judge heard the argumentput forward by both sides and considering the evidence on records etc. passed the judgment and order dated 10.07.2023 convicting the accused/appellant u/s 376 IPC , holding that the victim was not below 18 years at the relevant time of incident and thereby sentenced to undergo Rigorous Imprisonment for 10 years alongwith a fine of Rs. 3,000/- in default of payment Simple Imprisonment for another 3 months.

6. On being aggrieved and dissatisfied by the judgment and order of the learned Special Judge, Bongaigaon, the present appeal has been preferred by the accused/appellant.

7. It is submitted by Mr. Nawaz, the learned counsel for the appellant that the learned Trial Court below committed grave errors and mistake in law as well as of facts while passing the order of conviction against the present appellant.

8. The learned Trial Court below did not scrutinise the entire materials on record in its true perspective and passed the order of conviction which led itself to the perverse finding and conclusion, and hence, the judgment is liable to be set aside.

9. Mr. Nawaz further submitted that the PW-1,the informant and PW-2, the victim of this case deposed that she was 17 years of age at the relevant time of incident and also produced the birth certificate to that effect which is exhibited as Material Ext-1. But, the Health Educator, Bongaigaon PHC, DW-1 has proved that the Material Ext.-1, the Birth Certificate is a fake document and on the basis of which the learned Trial Court below also considered that the victim was not a minor at the time of occurrence. Thus it is seen that the prosecution had tried to make out of case on the basis of some fake documents and tried to implicate the accused/appellant in a case of POCSO.

10. Mr. Nawaz further submitted that the learned Special Judge also failed to appreciate the medical evid