This instant appeal has been filed U/s 374 r/w Section-383 CrPC challenging the impugned Judgment & Order dated 27.06.2014 passed by the Special Judge, Fast Track Court, Nongstoin in GR Case No. 94 of 2010 convicting the accused U/s 376 IPC.

2. The Memo of Appeal disclosed the appellant’s case in brief is that, “the appellant herein is assailing the impugned Judgment & Order dated 27.06.2014 passed by the Special Court/Fast Track Court, Nongstoin. The accused/appellant was charged under Section-376 IPC on the basis of the fact that he was found indulging in sexual activities with the victim from 02.04.2010 which continued till 02.06.2010. Further, the learned Court below has passed the impugned Judgment & Order without considering the fact and evidence on records especially the deposition of PW-15 who is an expert in determining the age of the victim. Moreover, the accused/appellant was convicted on the wrong provision of law as the alleged incident took place on 02.04.2010 and the accused/appellant was convicted under Section 376 IPC as per the Amended provision of Section-376 IPC which came into effect from 03.02.2013. Hence this appeal.”

3. Mr. B Bhattacharjee, learned counsel appeared for on behalf of the appellant argued that, the learned Court below has totally failed to appreciate the law and facts of the case. The learned counsel further argued that, in this instant case an FIR was lodged by the NGO and from the evidence of the victim, it is clear that sexual intercourse has taken place with mutual consent between the accused and the victim, as such, it cannot be considered as rape, besides that, the age of the victim has not been proved beyond doubt. The learned counsel also argued that, at the time of commission of the offence, Provision of Section 375 IPC i.e. definition of rape is different from the present Amended Act and further argued that the case has been registered on 4.06.2010. As per the FIR, the offence continued from 02.04.2010 till 02.06.2010, therefore, the law laid down in IPC prior to Amended 2013 should apply and further prayed that the impugned Judgment dated 27.06.2014 need to be set aside. In support of his submission, the learned counsel relied on 2002 (2) GLT 103 (Para-24), (2004) 10 SCC 699 (Para- 30 & 33) and (2005) 3SCC 702 (Para-30).

4. On the other hand, Mrs. NG Shylla, the learned counsel appeared for on behalf of the State argued that that, there is nothing wrong in the said Judgment & Order dated 27.06.2014 passed by the Special Judge, Fast Track Court, Nongstoin in GR Case No. 94 of 2010 convicting the accused U/s 376 IPC and also argued that from the evidence, it is clear that there was sexual assault upon the victim by the convict which is proved beyond doubt and the victim was a minor at the time commission of offence. The learned counsel also argued that, the learned Court below has given only 2 years sentence which needs to be enhanced. In support of her submission, she relied on (2008) 16 SCC 758 (Para-9), (2005) 5 SCC 412 (Para-17 & 21), (2003) 8 SCC 13 (Para-17) and (2012) AIR SCW 3237 (Para- 19, 20, 22 & 23).

5. To answer this instant appeal, let me examine and discuss the evidence as recorded by the learned Court below.

6. From the deposition of PW-1, it appears that she has recorded the statement of the victim and 3(three) others witnesses and exhibited the statement as Ext-1, Ext-2, Ext-3 & Ext-4.

7. On perusal of Ext-1, i.e. statement given by the victim to the Magistrate-PW-1, it appears that sexual intercourse has taken place voluntarily and with the consent of the victim. Ext-1 is reproduced herein below:

“I am 15 years old. I am studying at Rilyngngam School and reading in Class VIII. For the last few months I have stopped studying. The incident took place on 2nd April 2010. On that day I came from my village Myriam and arrived Nongstoin at 9 P.M. Being night time I dare not proceed to my sister’s place near Petrol Pump, Nongstoin. Accordingly I had gone to my