Judgment :- Ashim Kumar Roy, J. The appellant Atul Roy in a trial held before the learned Assistant Sessions Judge, Alipurduar in connection with Sessions Trial No. 7 of 2001 was convicted under Section 376 IPC and was sentenced to suffer simple imprisonment for 8 years and to pay fine with default clause. The said judgments was delivered on 18th of November, 2003 and challenging the order of conviction and sentence the convict preferred this appeal being CRA No. 589 of 2003 on 23rd of December, 2003. Which was admitted and on 13th of February, 2004 a Division Bench, on merit, rejected the appellant’s prayer for suspension of sentence and bail. Soon thereafter while the aforesaid appeal was pending the appellant filed another appeal being CRA No. 197 of 2004 with an application for condonation of delay. Such appeal was filed completely suppressing the fact that against the self-same judgment and order of conviction and sentence another appeal is pending before this Court. On 1st 20th of April, 2004 the delay in filing the appeal was condoned and on 21 of April, 2004 the appeal was admitted. Thereafter by an order passed on 26th of April, 2004 another Bench of this Court allowed the petitioner’s prayer for bail during the pendency of the appeal. Subsequently, such fraud came to the notice of this Court on 2 nd of April, 2012 and the bail was cancelled and the appellant was directed to be taken into custody. Accordingly he was apprehended and he is now in custody. Having regard to the fact that CRA No. 197 of 2004 was filed before this Court by the convict Atul Roy challenging the self-same judgment and order of conviction, against which he earlier preferred an appeal being CRA No. 589 of 2003 and during the pendency of the said appeal, the next appeal i.e. CRA No. 197 of 2004 is totally incompetent and not maintainable and same stands dismissed. However so far as the CRA No. 589 of 2003 is concerned the same still survives. 2. The background fact of the prosecution case out of which the CRA No. 589 of 2003 is arising are as follows: The victim girl aged about 12 years and was a class – VI student at the time of the occurrence. However so far as the CRA No. 589 of 2003 is concerned the same still survives. 2. The background fact of the prosecution case out of which the CRA No. 589 of 2003 is arising are as follows: The victim girl aged about 12 years and was a class – VI student at the time of the occurrence. About 7 months before the lodging of the FIR one day she got asleep while was studying, at that time her parents were not present in the house. When on being called by the appellant, one of her neighbour, she woke up and found the appellant was inside his room and he sat on the bed. Then the appellant told her that she need not be afraid and started pressing her breast. Although she tried to resist him but, could not succeed and the appellant raped her against her will. Later he consoled the victim and promised to marry her and forbade her to inform anything about the incident to her parents. Thereafter the appellant regularly cohabited with her in absence of her parents and after became pregnant, she informed the appellant who asked her not to worry and he would marry her. Nearly after about 6 months the victim once again requested him to marry but he refused to marry, and asked her to go for abortion. She then informed her parents and police was informed. 3. The aforesaid incident being reported to the Madarihat police station a case under Section 376 was registered and after completion of investigation police submitted charge-sheet for the self-same offence. Thereafter the appellant was placed on trial to answer charge under Section 376 IPC before the learned Assistant Sessions Judge, Alipurduar. 4. During trial, prosecution examined as many as 10 witnesses. The victim girl was examined as PW/1 while her parents were examined as PW/2 and PW/4. PW/3 was their neighbour and PW/5 was a Gram Panchayat Member. PW/6 and PW/7 are the police personnel. PW/8 and PW/10 are the doctors who examined the victim girl and the appellant. PW/9 is the Investigating Officer of the case. However none was examined by the defence. 5. It appears from the trend of cross-examination and the answer given by the appellant during his examination under Section 313 CrPC that the defence case is one of innocence and false implications at the behest of some politically motivated persons. PW/9 is the Investigating Officer of the case. However none was examined by the defence. 5. It appears from the trend of cross-examination and the answer given by the appellant during his examination under Section 313 CrPC that the defence case is one of innocence and false implications at the behest of some politically motivated persons. 6. In support of this appeal, the learned Advocate for the appellant firstly contended that even assuming the appellant had frequently cohabited with the PW/1 on the assurance that he shall marry her, then in that case also, no offence for which the appellant has been convicted can be said to have been made out, since the victim was a consenting party. He further submitted that the PW/1 clearly admitted in his cross-examination that she had a visiting terms with the family of the appellant and appellant was a married man, therefore it was very much known to her that it would not be possible for the appellant to marry her and consequently it cannot be said that her consent was obtained by practicing fraud. He then contended that no material was produced by the prosecution to prove its case that at the time of the alleged incident the victim was under the age of 16 years or that she was pregnant when the FIR was lodged. According to him, there has been a long delay in lodging the FIR and reason put forth by the prosecution to explain such delay is not at all acceptable. He further submitted that it is absolutely unbelievable that even when PW/1 was carrying for 6 months change in her physical appearance was not noticed by her parents. He vehemently urged that for non-production of the ossification test report and the discharge certificate of the PW/1 and adverse inference under Section 114(g) of the Evidence Act ought to have been drawn by the Trial Court against the prosecution. He then pointed out that according to the prosecution case the appellant suddenly entered inside the bed room and started pressing her breast and then forcibly raped her, but surprisingly enough she never raised any alarm, which clearly shows that she was a consenting party. The learned Counsel for the appellant then with reference to the evidence of PW/8 Dr. He then pointed out that according to the prosecution case the appellant suddenly entered inside the bed room and started pressing her breast and then forcibly raped her, but surprisingly enough she never raised any alarm, which clearly shows that she was a consenting party. The learned Counsel for the appellant then with reference to the evidence of PW/8 Dr. Bipul Kanti Sikdar submitted according to case history the PW/4 gave her consent for the intercourse and the last episode of the intercourse was on 15 April 1998 i.e. about 4 months before from the day when she was medically examined on 10 August 1998. He further draws our attention to the evidence of PW/2 who happens to be the father of the victim girl and pointed out that he admitted in cross-examination that PW/4 reported him that the appellant raped her on the day of the occurrence. He then submitted with reference to the evidence of PW/4 that in this case FIR was lodged there was some discussion between herself, her parents and one Jayanto Roy and Nepal Roy and they were belonging to a different political party. Lastly, it is contended that many important facts deposed against the appellant in the Court by the PW/1 victim girl during trial was never found placed in the FIR lodged by herself which makes the prosecution case against the appellant completely unworthy of credence. She contended this is a case of no evidence and the appellant is entitled to a clear acquittal. On the other hand, the learned counsel for the State vehemently contended the case against the appellant has been proved beyond all reasonable doubt. It is submitted that there may be minor discrepancies here and there, but that does not go to the root of the case and is no ground to disbelieve the prosecution case. She further submitted that the victim girl was only aged about 12 years at the time of the occurrence and she was cross-examined at length but nothing could have been brought out there from for which she may be disbelieved. 7. We have heard the learned counsels appearing on behalf of the parties. Perused the impugned judgment and deposition of the witnesses. 8. 7. We have heard the learned counsels appearing on behalf of the parties. Perused the impugned judgment and deposition of the witnesses. 8. So far as the first point raised from the side of the appellant, we find although now before us it is vehemently urged that the prosecution case that at the time of occurrence the victim was below the age of 16 years was not proved but we find during the trial she was examined as PW/1 and her deposition was recorded on 17th of April, 2001 when she claimed to be aged about 15 years, but during her cross-examination from the side of the defence her claim was not disputed. Even no suggestion was given to her that she was not below the age of 16 years during the occurrence. The father of the victim girl was examined as PW/2 and her mother as PW/3. The mother categorically stated in her evidence that at the time of the occurrence she was aged about 12 years, but except suggesting that it was not a fact that she was 12 years at that time to the witness by the defence, which was categorically denied by the said witness nothing could have been brought out to demolish such evidence. We find that the PW/9 is the Investigating Officer of the case, in his deposition the witness stated that from the ossification test report it was ascertained the victim was below the age of 16 years on August 18, 1998 i.e. on the date of the incident. The said ossification test report is also lying in the exhibit file and we find there from according to the opinion of the Doctor the victim was below the age of 16 years on the date of her examination which was held on August 18, 1998. It appears during the examination of the appellant under Section 313 CrPC the trial Court by the question no. 8 put to him that on medical examination the victim was found below the age of 16 years on August 18, 1998 i.e. on the date of occurrence and in reply to the said question the accused claimed that same is a lie and he is innocent. Furthermore in the FIR of the case Exhibit – 2 we find the victim girl claimed to be aged about 12 years that was also not challenged during the trial. Furthermore in the FIR of the case Exhibit – 2 we find the victim girl claimed to be aged about 12 years that was also not challenged during the trial. Therefore, we are not going to accept the contention of the learned Advocate of the appellant that it was not proved that on the date of the occurrence she was below the age of 16 years. Having regard to such facts it becomes totally immaterial whether she was a consenting party to the sexual intercourse or not. Now only question left for consideration whether the PW/1 the victim girl should be believed or not. We have very carefully scrutinized her depositions and we do not find anything to disbelieve her. During her cross-examination nothing could be enlightened by the defence to discredit her. The PW/4 the mother of the victim girl in her cross-examination categorically stated that when her daughter informed her about the incident he did not notice any change in her physique. It is true there are some contradictions in the depositions of the witnesses, the same are not only very minor but are quite natural and cannot be the ground for disbelieving the prosecution case. Now, coming to the question of sentence we find the trial Court has imposed a sentence of imprisonment for 8 years we do not find any reason at all to reduce the same. Having regard to above we find no merit in this appeal and the same accordingly stands dismissed. The office is directed to send down the lower Court records to the Court below at once. Criminal Section is directed to deliver urgent Photostat certified copy of this Judgment to the parties, if applied for, as early as possible. Subal Baidya, J. I agree