Amitava Lala, J. - (1.) This is an old appeal. It arises out of an order of conviction of the learned Assistant Sessions Judge, Jalpaiguri in the Sessions Case No. 135 of 1997 and Sessions Trial No. 30 of 1997 being dated 24th February, 1999 under section 376 of the Indian Penal Code. The convict was produced for the purpose of pronouncement of sentence. However, rigorous imprisonment for 8 years and to pay fine in default further imprisonment was ordered. He is suffering imprisonment for about last 6 years. As per the deposition of the mother, victim got married one year after incident. Record says she has husband, father-in-law and mother-in-law. Accused got married after the incident. Record says he has one daughter. There is no doubt at least about one fact that both the families are co-villagers. Intrinsic evidence does not rule out possibility of marriage amongst themselves but failed. Against this social background now the case of the parties and reasons for coming to conclusion by the learned Trial Judge has to be adjudged. It is further to be remembered that all such facts and figures were available before the learned Trial Judge.
(2.) The victim's case is that on the fateful day at about 7 p.m. when the victim attended nature's call in a nearby field the accused came there from behind and caught hold herself. Then he put 'gamcha' on her mouth and tied down the same. He put her down in a nearby place. Thereafter he forcibly took away her chastity. The accused put his male organ inside the victim's vagina forcibly. The accused threatened her not to disclose the fact. The victim was lying at the place for sometime since she was feeling very much unwell. Blood came out from the private parts. She was feeling sick. She returned home and narrated the matter to her mother. They started going to the house of the father of the accused. Victim's mother shouted about taking chastity of her daughter by the accused. Altercation took place between them and the accused's father and other persons of the family. The mother was assaulted. Mother then returned home with the victim. She narrated the facts to the neighbours and demanded intervention. 'Salishi' was convened by the local Panchayat. The accused and the family members did not turn up. After expiry of 7 days they wanted to make police complaint. At that stage police advised them to lodge complaint in the Court. Victim was medically examined. According to the victim she was 14 years old at the time of the incident.
(3.) In her cross-examination she said that she never studied in school. Her age was specifically challenged by the defence saying that she was 19 to 20 years old at the relevant point of time. Victim's mother stated in her examination that at the time of incident the age of her daughter was 13 to 14 years. But as per ossification test of the doctor held in or around 6 months of the incident victim's age was in between 18 and 19 years. Mother again said that victim was given marriage after one year of the incident. Learned Trial Judge never felt to enquire whether the victim was given under-age marriage or not although it has a sound corroborative effect with the ossification test. For the sake of argument one may say that even today giving under-age marriage by the rustic villagers is not a news. At the same time giving marriage in a rustic village after one year of such publicly known incident might be a news. It is a matter of believable testimony not the emotion. Chastity of a girl will be given utmost importance but that does not necessarily mean respect of a boy will be totally ignored with a prefixed mind. Learned Trial Judge ignored the defence case and held margin of error ascertained by radiological test is two years of either side. Therefore, the age of the victim was in the margin of 16 years. The victim was not sufficiently grown up. According to us either side does not necessarily mean one side. No explanation is given by the learned Judge about higher side when marriage of the victim was solemnized after one year of incident.;