ORDER :

SUBHENDU SAMANTA, J.

The petitioner was convicted by the learned trial Court for the offences punishable under Sections 376 and 417 of IPC and the conviction was confirmed by the learned Appellate Court by concurrent findings.

2. The brief facts of the prosecution case is that prosecutrix (P.W.1) was residing in her maternal grand-parent's house. Accused was also residing in the neighbouring house with his mother. Accused was studying II Year B.Tech in one Engineering College. Prosecutrix also I Year student of the B.Tech College. There was love affair between each other. On 29.01.2012, accused came to the house where P.W.1 was residing, by jumping over the wall and with the pretext of marriage, participated in sex with prosecutrix by saying some deceitful words. Thereafter, accused left the house. At that time, he was witnessed by L.W.5 and L.W.6. Again, in the month of June, on the pretext of talk at the house of L.W.4, accused again had sexual intercourse with prosecutrix. Later, accused stopped speaking with P.W.1 and did not lift phone calls. Finally, the accused stated to prosecutrix that his family is not allowed him to marry P.W.1. Thus, FIR was lodged to the police by a report of P.W.1 on 13.10.2012. During the course of trial, 13 witnesses were examined and 12 documents were marked. Some contradictions of 161 statement of P.W.1 and P.W.7 were also marked on behalf of defence. After taking the evidences and after hearing the arguments, the learned trial Court has convicted the accused for the office punishable under Section 376 IPC and punished him for imprisonment for seven years with a fine of Rs.5,000/- and for three months for the offence punishable under Section 417 IPC. The order of conviction went up to appeal where the learned Appellate Court has also confirmed the order of conviction by dismissing the appeal. Hence, this revision case.

3. Submission of learned counsel for the petitioner:

(a) Learned counsel for the petitioner submits that the impugned order of conviction is based on surmises and conjectures. Ingredients of offence under Section 376 IPC have never been proved by the prosecution. They have failed to bring home the accused beyond reasonable doubt. The independent witnesses not supported the prosecution case. Thereby, there is miscarriage of justice. It is categorically pointed out by learned counsel for the petitioner that there is a long delay in lodging the FIR, which itself shows that colourful version of FIR has been placed before the police authority while long-standing civil dispute between the family of P.W.1 and accused. He further pointed out that the report of P.W.1 indicates one incident on 29.01.2012, which was witnessed by two independent witnesses L.W.5 and L.W.6, but they did not support the case of the prosecution and declared as hostile. P.W.3 is one of the friends of P.W.1 who stated about the incident in the month of June, 2012. But, she did not witness the incident. Moreover, the evidence of P.W.3 is full of contradictions and exaggerations. P.W.7 is grand mother, elder of family of P.W.1, whose evidence also is full of contradictions and exaggerations and deviation from her early statement recorded by the police also under Section 161 Cr.P.C. The learned counsel for the petitioner further submits that the medical evidence specifically forensic report does not prove the offence punishable under Section 376 IPC.

(b) He further submits that the recent view of Hon'ble Supreme Court is very clear in respect of offence punishable under Section 376 IPC. He referred a decision of the Hon'ble Supreme Court in Pramod Sryabhan Pawar vs.  State of Maharashtra & Anr., 2019 LawSuit (SC) 1504. He submits that the Hon'ble Apex court in deciding the issue has specifically observed that when parties are consenting to have sexual relationship with each other, the offence punishable under Section 376 IPC is not maintainable.

“19. The allegations in the FIR indicate that in November 2009 the co