Joymalya Bagchi, J. - (1.) Judgement and order dated 13th June, 1988 passed by the learned Additional Sessions Judge, 6th Court, Alipore in Sessions Case No. 7(8) 1985 (Sessions Trial No. 5(1) 1988) convicting the appellant for commission of offence punishable under Section 376 of the Indian Penal Code and sentencing him to suffer detention for a period of five years in a reception home during the said period has been assailed.
(2.) The prosecution case as alleged against the appellant is as follows: On 2nd July, 1984, the informant, Anwara Khatoon (PW1) alleged that on 1st day of Pous, 1390 B.S. while she was alone in the house, appellant had come to her house as they were known to each other. The appellant committed rape upon her on the promise of marriage. After that the appellant left the house and thereafter, they cohabited together a number of times on such promise. As a result of cohabitation, she became pregnant but the appellant did not marry her and she reported the incident to her mother and in the course of Salish, appellant stated that he would marry her if she swore by the Quran that the child was his. Later on his maternal uncle, Jafar Ali took him away and the marriage was not solemnised. Accordingly, FIR was lodged. Upon conclusion of investigation, charge-sheet was filed under Section 376 IPC. In the course of enquiry, the appellant was held to be below 18 years of age at the time of commission of offence and the case was committed to the Court of Sessions to be tried under the provisions of the West Bengal Children Act, 1959. Charge was framed under Section 376 of the Indian Penal Code and the appellant pleaded not guilty and claimed to be tried. In course of trial, prosecution examined as many as 14 witnesses. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the learned trial Judge convicted the appellant for commission of offence punishable under Section 376 IPC and directed that he shall suffer detention for five years in a reception home. Hence, the present appeal.
(3.) Ms. Sriparna Das, learned Amicus Curiae, submitted that it appears from the evidence of PW3 that the victim girl was between 16 to 17 years of age and accordingly, had attained the age of consent. Evidence of PW1, victim, would show that the appellant and the victim had cohabited together out of love and it cannot be said that such cohabitation was against her consent or will. She further submitted that there is nothing to show that at the time of cohabitation the appellant did not intend to marry but subsequently, the marriage could not be solemnised due to the advice of the elders in the family of the appellant.;