GITESH RANJAN BHATTACHARJEE, J. - (1.) This is an appeal against the judgment and orders of conviction and sentence under S. 376, IPC passed by the ld. Addl. Sessions Judge, Siliguri in Sessions Case No. 30 of 1993. The prosecution case as stated in the FIR which was lodged at Kharibari P.S. on 9-2-1991 by PW. 1 Sri Sonabali Singha is that her daughter Saraswati Singha alias Mousumi aged about 14/15 years was a student of class-V of Kharibari Uchaya Madhyamik Vidyalaya and the appellant/accused Bachhu Nath alias Sudhamoy used to teach her for the last 2/3 years and he allured the said minor girl in various ways and also secretly became physically close to her on assuring that he would marry her as a result of which the said minor daughter became pregnant, the pregnancy running into three months when, in the middle of December, 1990 the girl became indisposed and then on enquiry she revealed the aforesaid facts.It is also stated in the FIR that on 21-12-90 the appellant/accused came to the house of the complainant at night and he was confronted with the matter when he assured that he would marry the girl and take all her responsibility for her food and clothing and also gave an undertaking in writing in his own handwriting and told them to keep quiet for a month and within that time he would make necessary arrangements and marry the girl. It is also the case in the FIR that after a month the accused however refused to marry the girl and accordingly the FIR was lodged when the girl was running pregnancy for 5 months. Charge was accordingly framed against the appellant/accused under S. 376, IPC and in the trial he was sentenced to rigorous imprisonment for 10 years and fine of Rs. 10,000/- i.d. to R.I. for 2 years. The ld. trial Judge has also directed that the fine, if realised shall be paid to the victim girl to be spent for the maintenance of herself and her illegitimate son. Being aggrieved by the judgment and the orders of conviction and sentence passed by the trial Court the appellant/accused has preferred the present appeal.
(2.) P.W. 1 Smt. Sonabali Singha is the mother of the girl Mousumi, she says that Mousumi was aged 12/13 years at the time of the incident when she was reading in class-V. She further says that she engaged the accused as a private tutor of her said daughter. Her evidence is that in course of such private coaching her daughter fell ill and then by interrogation she came to know from Mousumi that the accused had allured her by saying that he would marry her and had sexual intercourse with her as a result of which she became pregnant. Her further evidence is that in the evening when the accused came to her house she confronted him with the situation and he gave out that he would marry Mousumi and that is why he had sexual intercourse with her and that thereafter the accused gave a written undertaking to the effect that he would marry Mousumi. Ext. 1 is that undertaking said to have been written and signed by the accused in presence of P.W. 1, her daughter and her husband. The defence case is, however, a case of denial and the accused also has denied that this document of undertaking was written or signed by him. The further evidence of P.W. 1 is that after giving the said undertaking the accused visited her house for about a month and thereafter he stopped coming to her house, and one day about 11/2 months thereafter when P.W. 1 came across the accused and asked him as to why he had stopped visiting her house, the accused told her that he was not prepared to marry her daughter and further disclosed that his parents had objected to the proposed marriage and he would go away to Calcutta. P.W. 1 also says that the accused further gave out that the undertaking given by him was valueless and that they could do whatever they liked. From her we get that her daughter subsequently gave birth to a child which is still alive and she also filed a petition before the ld. S.D.J.M. for maintenance for herself and her child which is still pending. In her cross-examination she says that she herself went to the school for getting her daughter admitted to the school named Howdahvita Primary School. It has been suggested to her in cross-examination by the defence that many other persons also visited her house and that Mousumi had intimacy with other persons as a result of which she became pregnant, which however has been denied by the P.W. 1.
(3.) P.W. 2 is Mousumi Singha. Her evidence is that since she was a student of class-III, the accused used to teach her as a private tutor and a love affair grew between them and at the relevant time she was 13 years old and was a student of class-V and thereafter he used to bear all expenses of her education. She says that when she was a student of class-III she had cohabitation secretly with the accused for which she became pregnant and she was first taken to KhariBari Hospital by the accused where she was medically examined by a doctor and thereafter the accused took her to a woman at Bihar side with help of whom her pregnancy was terminated. She says that her parents did not know this incident, and besides herself and the accused none else knew the incident. That is however not a subject-matter of the present charge. Her further evidence is that even thereafter the accused used to visit her house and teach her regularly and thereafter he again promised to marry her and in view of such premise she again had sexual intercourse with the accused as a result of which she again became pregnant, and she told the accused about it and thereafter the accused sent some medicines for her which she did not take. She says that thereafter she fell ill and narrated the incident to her mother and thereafter her mother called theaccused who confessed everything and told her mother that he would marry her and also gave a written undertaking, Ext. 1. She says that she herself, her father and her mother were present when the accused wrote the undertaking. She also deposes that subsequently the accused refused to marry her. She also says that she gave birth to a male child who is still alive and she filed an application under S. 125, Cr. P.C. before the ld. S.D.J.M., Siliguri praying for maintenance for herself and her child (against the accused she denies that she ever mixed with any other person besides the accused). In her cross-examination she says that it is true that since Puja festival of 1990 she had cohabitation with the accused. She also says that she used to love the accused and that at first she did not like to love the accused but subsequently she used to rely on him. She also admits that due to their love affair she had cohabitation with the accused. She says that the accused promised that he would marry her after four years and also told her that he would marry her after getting an employment. She says that towards the middle of December, 1990, she disclosed about her pregnancy to her mother. She says her mother did not know about her first pregnancy.;