Kanchan Chakraborty, J. - (1.) THIS Criminal Appeal is directed against the judgement and conviction dated 21.8.2010 and order of sentence dated 23.8.2010 passed by the learned Additional District and Sessions Judge, Fast Track, 1st Court, Tamluk, Purba Medinipur in S.T. No. 114(09)/2004 corresponding to sessions Trial no. 04(05)05 thereby convicting the appellant under Section 376 and 417 of the Indian Penal Code and sentencing him to suffer R.I. for 7 years with fine of Rs. 1000/ - for the offence committed under Section 376 of the Indian Penal Code and to suffer R.I. for 1 year with fine of Rs. 1000/ - for committing the offence under Section 417 of the Indian Penal Code. One Sk. Ansar Ali lodged one complaint in the Court of learned Chief Judicial Magistrate, Tamluk, Purba Medinipur with a prayer to refer the same to the concerned police station under Section 156 (3) of Code of Criminal Procedure, stating therein that the appellant being his neighbour enticed his minor daughter Mansur Khatun in various way and ensuring her to marry, established sexual relation with her. Mansur Khatun became pregnant. The matter came to the notice of the neighbours as well as father of Mansur Khatun five months thereafter. The matter was also referred to the village meeting wherein the appellant was present and confessed his guilt. The appellant and his relation also agreed to arrange marriage between appellant and Mansur Khatun but after words they removed the appellant from the place and ultimately denied to give marriage of appellant with Mansur Khatun. On the basis of said F.I.R., Bhawanipur police station case no. 59 of 2001 dated 22.7.2001 was registered against the appellant and three others under Section 376 of IPC. The case was investigated into and ultimately a charge -sheet was filed against the appellant and co -accused under Section 376/120B of IPC. The learned Trial Court, however, arrayed the appellant Hasibul Mallick to face charge under Section 376 and 417 of IPC while the other accused persons were charged for committing offence under Section 114/376 and 114/417 of IPC. The appellant and other accused pleaded not guilty and as a consequence, the trial commenced. The learned Judge upon consideration of the evidence on record found that the appellant Hasibul Mallick @ Kana was guilty of offence under Section 376 and 417 of IPC. The co -accused were found not guilty to the charges. The appellant Hasibul Mallick has come with this appeal challenging the sustainability of the judgement impugned on manifold grounds mentioned below : i) that while the learned Court accepted the fact that the victim was a major and the F.I.R. was lodged after 7 months of the incident, the trial Court ought to have concluded that the victim was a consenting party to the alleged sexual intercourse with the appellant; ii) that the learned Court was oblivious of the fact that not only there was inordinate delay in lodging the F.I.R. but there was delay also in sending the F.I.R. to Court by the police authorities which obviously had given the prosecution a chance of embellishment and development of the case; iii) that the learned Court recorded the order of conviction and sentence on the basis of contents of a Salishnama which was not at all admitted into evidence; iv) that the learned Trial Court failed to take note of contradictory statements on materials points which touched the root of the prosecution case; v) that the learned Court misread and misinterpreted the provisions of law laid down under Section 90 of the Indian Penal Code in order to record the order of conviction and sentence; vi) that the learned Trial Court was oblivious of the fact that the statement of victim on important and material issues were not supported by the Investigating Officer and; vii) that the learned Court failed to take note of the fact that the appellant was a juvenile at the relevant point of time;
(2.) MR . Mukherjee, Learned Counsel appearing on behalf of the appellant contended that the judgement is entirely confusing as the learned Court observe something but came to a conclusion in a different way. Mr. Mukherjee contended further that the learned Court ought to have read the evidence of the witnesses as a whole and not in an isolated manner. The contradiction of the statement of the P.W. 2 (victim) and the P.W. 12 (I.O.) not only have given rise to a strong suspicion but also demolished the entire prosecution case. He contended again that the learned Court did not accept the prosecution case that the victim was a minor. When the learned Court came to such a findings, it ought to have considered that the victim was a consenting party to the sexual intercourse with the appellant especially when she never resisted the appellant to have sexual relation with her. Mr. Mukherjee contended that learned Court should have taken all the facts into consideration. The alleged incident had taken place in the 1st week of December 2000. The fact of her pregnancy was disclosed 5 months thereafter i.e. in the month of May. The F.I.R. was not lodged then and there. The victim and her relation tried to settle the matter. The village meeting was called on and ultimately, the appellant and his guardian disagreed to obey the decision taken in the meeting. Even then, the F.I.R. was not lodged before 9.7.2001. After receiving the petition of complaint under Section 156 (3) Cr.P.C. the police authorities did not sent the F.I.R. before 22.7.2007. In course of this period, the prosecution has developed the case because the fact stated in the F.I.R. and the fact stated by the witnesses found contradictory to each other. Mr. Mukherjee contended further that the charge -sheet, column X shows that no article was seized by the I.O. in course of investigation but, Salishnama was placed before the Court and signatures thereon were marked Ex. The contents of the Salishnama were never admitted into evidence and marked Ex. That the learned Court relied on the contents of such unadmitted evidence and recorded conviction. It is contended further that the learned Court agreed to the proposition of the defense that it was not a rape but co -habitation. If so, in a case of a major girl it can well be stated that such co -habitation was only possible as the victim was a consenting party to that cohabitation. This apart, Mr. Mukherjee contended that while the learned Sessions Judge granted bail to the appellant noted clearly that he was a juvenile if so, the learned Trial Judge ought to have ascertained the juvenility of the appellant. That was not done and it was a mistake on the part of the Court which cannot be overlooked.
(3.) ON perusal of the record it is found that the F.I.R. was lodged by the father of the victim. He was examined as P.W. 1. He stated that Jarina Bibi, Jamila Bibi and others reported him about the pregnancy of her daughter. She was carrying for five months at that time. He enquired into the matter and came to know that the appellant came to his residence at one evening and raped Mansur resulting in her pregnancy. Therefore, he discloses the matter to the village people and arranged for a meeting. He stated further that the meeting was held the residence of Aube Mallick. He named some persons who were also present in the meeting wherein the appellant admitted that due to sexual intercourse with him, Mansur became pregnant. In the meeting it was decided that marriage between them would be solemnized. But, the appellant ran away to avoid the marriage and thereafter the case was initiated.;