D.G.R.PATNAIK, J. - (1.) THIS appeal is directed against the judgment of conviction and sentence dated 28" of August, 2003, passed by the learned Additional Sessions Judge, Fast Track Court -II, Chaibasa in Sessions Trial No. 300 of 2001, whereby the appellant was convicted for the offence under Section 376 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for a period of ten years and also to pay a fine of Rs. 5,000/ -.
(2.) THE case against the appellant was registered on the basis of the complaint filed by the prosecutrix before the learned Chief Judicial Magistrate, Chaibasa, which on being forwarded by the Magistrate to the Police, was registered at the Tonto Police Station for the offences under Sections 366A, 376 and 201 of the Indian Penal Code. At the conclusion of the investigation, the Police submitted chargesheet recommending trial of the appellant for the offences under Sections 366A, 376 and 201 of the I.P.C. The cognizance for the aforesaid offences was taken by the learned Magistrate, whereafter the trial commenced against the appellant in the court of the Additional Sessions Judge. The case of the prosecution in brief is that the prosecutrix, a girl aged about 16 years, used to live with her mother at village -Hessabera. In the early hours of the morning of 18.11.2000, she went to attend the call of nature towards a nearby pond. The appellant accosted her at the pond and forcibly took her up to the nearby bushes, where he forced himself upon her and committed tape on her against her will and consent and in the process, he had threatened her of dire consequences and had also silenced her by promising to marry with her. However, the girl came home and reported the matter to her mother, Lalita Nayakin. The mother called her brother Kuiso Nayak and informed him about the occurrence, whereafter the mother accompanied by her brother and others went to the house of the father of the appellant and reported the matter to his father. On query made by his father, the appellant admitted to have committed the offence and had agreed to marry the girl. On such an understanding, the matter was not reported to the Police. Later on 21.04.2001, the appellant and his father had refused to consent for the marriage of the appellant with the prosecutrix and thereafter, the complaint was lodged on 24.04.2001 in the court of the Chief Judicial Magistrate.
(3.) THE appellant had denied the charges and had preferred to be tried. His case in defence was of total denial of the allegation and of false implication. (sic) has not reported the alleged occurrence to the Manki or the Munda of the Village or to the village head and such conduct on the part of the prosecutrix raises serious doubt about the veracity of her testimony. It is further submitted that contrary to the claim of the prosecutrix of her being a minor on the alleged date of occurrence, the opinion of the Doctor (P.W.7), confirms that the prosecutrix was more than 18 years of age on the alleged date of occurrence and she was not a minor. Referring to the evidences of the prosecutrix, learned Counsel submits that the evidence of the prosecutix, it read together with the evidence of the Doctor would confirm that the prosecutrix was not a virgin on the alleged date of occurrence and was in fact a lady habituated to sexual intercourse and the allegation of physical contact, even if taken to be true, the evidence of the prosecutrix suggests that she was a consenting party. Learned Counsel argues that the testimony of the prosecutrix cannot, therefore, be relied upon to infer the offence of rape against the appellant.;