Joymalya Bagchi, J. - (1.) Conviction was recorded against the appellant under Section 376 of the Indian Penal Code and he was directed to suffer rigorous imprisonment for 10 years and to pay fine of Rs. 2,000/-, in default, to suffer rigorous imprisonment for two months.
(2.) Prosecution case against the appellant is that on 13.10.2005 the victim, aged about 13 years, along with her elder sister Namita, P.W. 3 had gone to attend a fair at the School Dangi Durga Puja around 5.00 P.M. After seeing the fair, they were returning home around 8.00 P.M. along with two girls viz. Sephali Singha and Jharna Singha, P.W.s 4 and 5 respectively. The appellant came in a motor cycle and proposed that he would take the victim along with Jharna and Sephali to their respective houses. Jharna and Sephali were dropped at their houses and thereafter the appellant took the victim to a vacant field at Hochai Mallick Jote and forcibly raped her. In the meantime, Namita returned to her home and when the victim's father, P.W. 1 enquired about the victim, she stated that the victim had left the place along with the appellant and her friends. As the victim had not returned, they went to search for her and found the victim lying naked and the victim had stated that the appellant had forcibly raped her. The victim was taken to Naxalbari Hospital and from there she was shifted to North Bengal Medical College and Hospital where she was treated for five days. On the complaint of the father, P.W. 1, the instant case was registered.
(3.) Mr. Bardhan, learned amicus curiae argues that the evidence of the prosecution witnesses do not show that the victim was a minor. No ossification test of the victim was conducted to determine her age; the birth certificate of the victim was also not proved. It is also submitted that the medical evidence also does not support the allegation of forcible rape.;