- (1.) The challenge in this appeal is to the judgment and order dated 10/11.3.2010 passed by the learned Additional District and Sessions Judge, Special Court, Balurghat, Dakshin Dinajpur in .C.No.94 of 2007 thereby convicting the appellant Nitai Sarkar for committing offence punishable under Section 376 of the I.P.C. and sentencing him to suffer R.I. for 7 years with a fine of Rs.5,000/-.
(2.) The appellant Nitai has assailed the judgment on many fold grounds, such as:- a) that the learned Trial Court failed to appreciate the evidence on record in its true and proper perspective; b) that the learned Trial Court failed to ascertain the fact that at the relevant period of time, the prosecutrix was a major and that she voluntarily taken part in sexual activities within the appellant with the knowledge of everybody; c) that the learned Trial Court failed to appreciate that there was no case of misconception of facts which prompted the prosecutrix to take part in the sexual activities with the appellant; d) that the learned Trial Court failed to appreciate the fact that there was marriage between the appellant and the prosecutrix which the parents of the prosecutrix did not accept and as a result, there was a Salish and the Salishnama was admitted into evidence; e) that the judgment being entirely perverse, is not sustainable in law. On 26.9.2006, one F.I.R. was lodged by the prosecutrix, P.W.1 with Banshihari Police Station alleging therein that for about last one year, she was working in the house of Pramesh Sarkar, the father of the appellant and was having good relation with them. During that period, the appellant expressed to her that he would marry her. He told that in presence of his father and mother Pramesh and Janak. In absence of his parents, Nitai, the appellant frequently embraced her and repeatedly said her that he would not live without her. Pramesh and Janak were informed but they told Ava that they would accept her as their son's wife. She believed that the words given by Pramesh and Janak and thereafter started to cohabit with Nitai continuously.
(3.) As a result, she became pregnant in the month of March, 2006.;