- (1.) The appeal is directed against the judgment and order dated 30.05.1984 passed by learned Additional Sessions Judge, third Court, Midnapore in Sessions Trial Case No. VI/July, 1983 under Sections 366 and 376 of the Indian Penal Code convicting the appellant for commission of offences punishable under section 366 of the Indian Penal and section 376 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for four years and to pay a fine of Rs.1000/ -, in default to suffer further imprisonment for six months for the offence under Section 366 of the Indian Penal Code and to suffer rigorous imprisonment for five years and to pay a fine of Rs.1000/ -, in default to suffer further rigorous imprisonment for six months for the offence under Section 376 of the Indian Penal Code, both the sentences to run concurrently.
(2.) The prosecution case, as alleged, against the appellant is to the effect that the victim girl Neepa Maji, P.W. 3, was a student of Class X in the Girls' Section of Nirmal Hriday Ashram, locally known as Church School at the time of occurrence. On 29.04.1982 she went to her school as usual but did not return till evening. The father of the girl, namely Bishnu Pada Majhi (P. W. 1) made unsuccessful attempts to trace her. P.W. 1 suspected that the appellant who used to disturb the victim on her way to school for the last six months must have kidnapped her. Accordingly, he lodged written complaint on 29.04.1982 with local police station resulting in registration of case being Kotwali P.S. Case No. 41 dated 29.04.1982 under Section 363/366 of the Indian Penal Code. In the course of investigation the victim was recovered and as she was found to be aged below 16 years and had cohabited with the appellant, Section 376 of the Indian Penal Code was also added. In conclusion of investigation, charge sheet was filed against the appellant under Sections 363/366/376 of the Indian Penal Code. The case being a sessions triable one was committed to the Court of Sessions, Midnapore, and transferred to the Court of Additional Sessions Judge, Midnapore for trial and disposal. Charges were framed under Sections 366 and 376 of the Indian Penal Code.
(3.) The appellant pleaded not guilty and claimed to be tried. In the course of trial, the prosecution examined as many as eleven witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. It was his specific defence that the victim was in love with him and had written various letters to him which were exhibited as Exhibits A to A4 in the course of trial. In conclusion of trial, the learned Trial Judge by judgement and order dated 30.05.1984 convicted the appellant for commission of offence punishable under Sections 366 and 376 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for four years and to pay a fine of Rs.1000/ - in default to suffer further imprisonment for six months for the offence under section 366 of the Indian Penal Code and to suffer rigorous imprisonment for five years and to pay a fine of Rs.1000/ - in default to suffer further rigorous imprisonment for six months for the offence under section 376 of the Indian Penal Code, both the sentences to run concurrently.. Hence the present appeal. Ms. Biswas, learned Counsel, appearing as amicus curiae, submits that the appellant was aged about 20 years at the time of his examination under Section 313 of the Code of Criminal Procedure and was a young boy aged about 18 years at the time of occurrence. She further submits that from the evidence of P.W. 3 it is clear that the victim had voluntarily left her parental home as she was in love with the appellant. It is also come out from her evidence that the couple voluntarily married out of love and thereafter they cohabited. She also submits that it is not clear from the evidence on record that the victim was below 15 years at the time of occurrence. She accordingly prays for acquittal of the appellant.;