- (1.) By judgment and order, dated 4.11.2006, passed in Sessions Case No. 107 of 2005, the learned Sessions Judge, Kokrajhar, has convicted the accused-appellant under Section 376 IPC and sentenced him to suffer rigorous imprisonment for seven years and pay fine of Rs. 5,000/- and, in default of payment of fine, simple imprisonment for a period of six months. The case of the prosecution may, in brief, be described as under : (i) The victim JM (PW4) used to live with her elder sister (PW1) in the house of PW6 as tenant, where the accused also used to live with his mother as tenant. On the day of the occurrence, i.e., 28.3.2005, PW1, who is elder sister of JM (PW4), left the house, at about 4 a.m., to attend her duty as Homeguard. At about 4.30 a.m., on 28.03.2005, when PW4 was alone at the said rented house, the accused entered into her room and committed 'rape' on her, while she was lying on the bed. When PW4 raised hullah, the accused gagged her mouth. As a result of the' rape' committed on PW4, bleeding from her vagina started. The accused gave her some medicines to eat. However, as her bleeding continued, the accused, accompanied by his mother, took PW4, at about 4.30 p.m., to Civil Hospital, Kokrajhar, where PW4 became senseless due to pain and excessive bleeding. She (PW4) regained her senses, at the hospital, on the following day, i.e., 29.03.2005, and reported the occurrence to her sister (PW1) and her parents, whereupon her father (PW2) lodged a First Information Report on 29.03.2005. Based on this FIR, a case was formally registered against the accused under Section 376 IPC. (ii) Before, however, the case was registered by police as mentioned above, an information was, on 28.03.2005, received, at Kokrajhar Police Station, from RNB Civil Hospital, Kokrajhar, that at about 5.25 p.m. on 28.03.2005, a girl, by the name of JM (PW4), had been admitted for vaginal tear. Based on this information, GD Entry No. 1366, dated 28.03.2005, was made. Acting upon the entry, so made in the general diary, the investigating officer visited the hospital; but on meeting the alleged victim, he found that she was unable to speak. On the following day, i.e. 29.03.2005, at about 9.45 a.m., a written information, in the form of Ejahar, was lodged by EM (PW2), father of the alleged victim JM (PW4) as mentioned above and, based on this Ejahar, a case was registered against the accused under Section 376 IPC. (iii) During investigation, PW4 was medically examined and the doctor, who examined her, found tear and contusion on the edges of tears on her vagina. The doctor also found blood clot and fresh blood in the vulva, vagina and cloth of PW4. The radiological examination of PW4 revealed that she was about 15 to 17 years of age. As far as the vaginal swab was concerned, the same did not reveal presence of spermatozoa.
(2.) During trial, a charge, under Section 376 IPC, was framed against the accused. To the charge, so framed, the accused pleaded not guilty.
(3.) In support of their case, prosecution examined as many as 8 (eight) witnesses. The accused was, then, examined under Section 313 CrPC and, in his examination aforementioned, he denied to have committed the offence, which he was alleged to have committed, his case being that of total denial. No evidence was, however, adduced by the defence. In fact, the defence alleged that there was love affair between the accused and PW4.;