JUDGMENT

S. PANDA, J. - The appellant has filed this criminal appeal challenging the order of conviction and sentence dated 7.4.2009 passed by the learned Ad hoc Additional Sessions Judge, Fast Track Court Padampur in Criminal Trial No. 195/53 of 2008 convicting him for commission of offence under Sections 366/376 IPC and sentencing him to undergo R.I. for five years and to pay a fine of Rs. 5000/- and in default to undergo simple imprisonment for six months for commission of offence under Section 366 IPC and to undergo R.I. for ten years and to pay a fine of Rs. 5000/- and in default to undergo simple imprisonment for six months for commission of offence under Section 376 IPC. The trial Court directed that the sentences shall be run concurrently and further directed that in the event of fine amount is realized, the same shall be given to the victim on proper identification.

2. The facts narrated briefly are as follows; on 20.6.2008 the informant, who is the father of the victim, lodged an FIR before the Melchhamunda Police Station alleging that on the pretext of imparting nourishment to the elder mother of the accused, the victim girl had gone with the accused to his house. The accused kept the victim at his house for some days and raped her. The father of the victim on getting information that the victim was at the house of the accused, informed the police. The police rescued her, examined the witnesses and recorded their statements. Police sent the victim and the accused for medical examination. Police seized the school admission register to ascertain the age of the victim and gave the same to the zima of the school teacher. The investigating agency submitted the charge sheet before the learned J.M.F.C., Sohela for commission of offence under Section 366/376 IPC. The learned Magistrate after taking cognizance committed the matter to the Court of Session.

3. The plea of the accused is complete denial and false implication.

4. The Trial Court found the incident, as alleged, is proved. In the opinion of the Trial Court, the testimony of the prosecutrix has inspired confidence. Though there was delay in lodging the FIR, it was satisfactorily explained. Accordingly, the accused was found guilty of the aforesaid offences and sentenced as above.

5. Learned counsel for the appellant submitted that the age of the prosecutrix, as per the medical report furnished by the doctors. (P.Ws. 5 and 6), was aged about 16 years at the time of occurrence. In case two years is added to that, in that event she will be 18 years and it cannot be held that she was a minor. Moreover, the evidence of prosecutrix who was examined as P.W.11 clearly reveals that she was a consenting party. Therefore, the order of conviction and sentence passed by the Trial Court is liable to be set aside. In support of his contention, he has cited a decision of this Court in the case of State of Orissa v. Meleka Luku reported in 103 (2007) CLT 93 and the decisions of the apex Court in the case of Shyam and another v. State of Maharashtra reported in AIR 1995 SC 2169 and Jinish Lal Sha v. State of Bihar reported in AIR 2003 SC 2081.

6. Learned Standing Counsel for the State while supporting the order of conviction and sentence submitted that the prosecutrix was a minor on the date of occurrence and in the given facts and circumstances, there is no doubt in the prosecution case. Hence, a lenient view may not be taken in the present case. Therefore, the order of conviction and sentence deserves to be confirmed.

7. From the rival submissions of the learned counsel for the parties and after going through the records, it appears that the occurrence took place on 6.3.2008. The father of the victim lodged the FIR on 20.6.2008. The victim is the cousin sister of the appellant (daughter of maternal uncle). From the statement of the prosecutrix, it transpires that on a deceptive way, i.e. to serve the ailing elder mother of the appellant, the accused took her and threatening with dire con