JUDGMENT : 

W.DIENGDOH, J.

1. This appeal is preferred against the Judgment and Order of conviction dated 24.04.2023 and the order of sentencing dated 24.04.2023 by the Ld. Sessions Judge, Khliehriat in Sessions Case No. 6 of 2020 wherein the Ld. Trial Court convicted the accused/appellant under Section 376 IPC and sentenced him to undergo 7(seven) years rigorous imprisonment and a fine of Rs. 5000/- (Rupees Five Thousand) only and in default to undergo 1(one) month simple imprisonment.

2. The factual matrix of the case is that on the 30.01.2017 an FIR was lodged before the Officer-in-Charge, Khliehriat Police Station by the victim-cum-complainant against the accused/appellant person alleging that on the 29.01.2017 the accused person had sexually assaulted the victim at her residence at Lad Sutnga.

3. FIR was registered as Khliehriat P.S. Case No. 30(01) of 2017 under Section 376 IPC, an Investigating Officer (IO) was assigned to the case, and the IO started the investigation and arrested the accused person on the 30.01.2017. During the initial stage of investigation, the IO recorded the statement of the victim under Section 161 Cr.P.C. Thereafter, the statement of the victim and the accused/appellant was also recorded under Section 164 Cr.P.C by a Magistrate. Medical examination of both the victim and the accused was also conducted by the doctor at Khiehriat CHC, the biological samples were collected and the clothes of the victim were seized and sent for FSL.

4. On completion of the investigation the IO submitted the charge sheet vide C.S. No. 91 dated 12.09.2017 after taking all the necessary steps for investigation with the opinion that a prima facie case is found well- established against the accused/appellant who is said to have committed an offence under Section 376 IPC.

5. The Ld. Sessions Judge took cognizance of the said offence and framed the charge against the accused/appellant under Section 376 IPC and trial against him proceeded. 5(five) prosecution witnesses were examined and material exhibits including the medical report were produced before the Trial Court.

6. The Ld. Sessions Judge on conclusion of the recording of evidence of the prosecution’s witnesses then recorded the statement of the accused/appellant under Section 313 Cr.P.C and on the accused/appellant calling 2(two) witnesses on his part, who were examined as DW-1 and DW-2 respectively, on conclusion thereof, argument of the parties was heard. On consideration of all the relevant evidence, the impugned judgment and order was therefore passed.

7. Mr. S. Deb, learned counsel for the appellant has maintained that the impugned judgment and order of sentence cannot be sustained as from the evidence and the materials on record, including the medical report based on the medical examination of the appellant and the victim, the same would indicate that the entire episode was not an act of rape or sexual assault upon the victim, but was actually an act of mutual consensual sex. 8. It is not denied that the victim and the appellant are known to each other since from the evidence of the victim as PW-1, she has admitted that the appellant used to come to her teashop for tea, submits the learned counsel.

9. To solidify his contention that what happened was consensual sex, the learned counsel has referred to the medical report which was exhibited in court to say that the record of injuries present in both the victim and the appellant would point to the fact that there was consensual sexual pleasure in the act of the parties and the victim’s testimony that she was pulled and strangulated by the appellant cannot be proved in absence of injuries like bruises and ligature marks on her body. Even the evidence of the PW-2 who was the Doctor who has examined the victim and the appellant, in deposition before the trial court has opined that “It is a fact that the injury, bleeding, tenderness and tear at the fourchette could be due to forceful pleasure.”

10. The learned counsel has fur