Point of Law: Criminal Law - Charge of Rape - Conviction Upheld - Age of Prosecutrix - Victim was at her tender age when she met the appellant on her way to school. There is no evidence at all that they were in deep love.

JUDGMENT :

S.G. CHATTOPADHYAY, J.

1. The appellant has preferred this appeal against judgment and order of conviction and sentence dated 07.08.2019 delivered in case no. S.T. (T-1) 31 of 2015 by the Sessions Judge of Dhalai Judicial District Ambassa whereby the appellant was convicted for having committed offence punishable under Section 376 (1) IPC and sentenced to RI for 10 years and fine of Rs. 20,000/- with default stipulation.

2. Factual back ground of the case is as under:

The victim (name withheld to hide her identity) lodged the written FIR with the Officer in charge of Ambassa police station on 13.11.2014 alleging that the appellant had repeated sexual intercourse with her on the assurance of marriage as a result of which she became pregnant. When she was having 8 months’ pregnancy, the appellant at the instigation of his mother, refused to maintain any relationship with her. Eventually, she delivered a female child. When she met the appellant at his home with her new born baby, the appellant and his mother ousted her from their home after committing physical assault on her. Since then she was living with her parents along with her child.

3. Based on her FIR, Ambassa P.S. Case No. 56 of 2014 under Section 376, 417 read with Section 109 IPC was registered against the appellant and his mother and the case was entrusted to Smt. Mukta Ghosh, a Sub-Inspector of Police of Ambassa police station [PW-12] for investigation. During investigation, victim gave a statement under Section 164 (5) Cr.P.C. [Exbt.8] before the Sub-Divisional Judicial Magistrate, Kamalpur wherein she had stated that she came to know the appellant 2 years back. He had an auto rickshaw in which he used to drop the victim at her school. Gradually they developed a relationship and the accused proposed to marry her. On his assurance of marriage, she had consented to sexual intercourse with the appellant. On several dates thereafter, the appellant on the pretext of marriage had sexual intercourse with her as a result of which she became pregnant and delivered a female child. After the birth of the child, the appellant stopped meeting her. The victim and her mother then met the mother of the appellant and proposed for marriage between the victim and the appellant. They refused to accept the victim and her daughter. Since then, the victim had been living with her parents.

4. The blood sample of the victim as well as the blood sample of the new born baby of her and that of the appellant were sent to the State Forensic Science Laboratory for DNA profiling which revealed that the victim was the biological mother and the appellant was the biological father of the child. In the course of her investigation, the IO also examined the material witnesses including the victim and recorded their police statement under Section 161 Cr.P.C. The charge sheet came to be filed on 01.03.2015 against the appellant and his mother for having committed offence punishable under Section 376, 417 and 323 IPC.

5. At the commencement of trial, the learned trial court framed the following charge against the appellant:

“Firstly, You on within the intervening period from August 2011 A.D. to 04-11-2013 on several times at Raipasa in an abandoned hut under Ambassa Police Station committed rape on (name withheld to hide her identity) and that you thereby committed on offence punishable u/s. 376 (1) of Indian Penal Code and within the cognizance of this court.

Lastly, that you on the above mentioned date time and place, cheated (name withheld to hide her identity) to do sexual intercourse with you on false promise of marriage which she would not do, if she was not so deceived and such act caused her harm in her body, mind and reputation that you thereby committed an offence punishable u/s 417 of Indian Penal Code and within the cognizance of this court. And I hereby direct that you be tried on the said charges.”

6. Charge framed against the mother of the appellant was as under:

“Firstly, You on within the