JUDGMENT : JOYMALYA BAGCHI, J. 1. The appeal is directed against the judgment and order dated 12th June, 2013 passed by the learned Additional Sessions Judge, Fast Track Court III, Barasat North 24 Parganas in Sessions Case No. 12(01)/2010 [Sessions Trial No. 06(01)/2012] convicting the appellant for commission of offence punishable under Section 376 IPC and sentencing him to suffer simple imprisonment for 10 (ten) years and to pay fine of Rs.50,000/-, in default, to suffer simple imprisonment for 2 (two) months. 2. The prosecution case as alleged against the appellant that on the eighth day of Falgun the victim had gone to the house of one Taslima bibi. When Taslima went to the bathroom, the appellant caught hold the victim and by showing a knife forcibly raped her. Her wearing apparels were also torn. Thereafter, the appellant ravished the victim on a number of times when her mother was not at her residence. As a result the victim became pregnant. When the victim confronted the appellant, he promised to marry her. One occasion when the appellant was having sexual intercourse with the victim, mother of the victim (P.W.1) came to the house. The victim narrated the aforesaid facts to her and when her mother approached the appellant, the latter refused to marry. Under such circumstances, P.W.1 was constrained to lodge FIR with the police resulting in registration of Deganga Police Station Case No. 228 of 2009 dated 6.7.2009 under Sections 417/376 IPC against the appellant. In conclusion of investigation charge sheet was filed and the case was committed to the Court of Sessions and transferred to the Court of the Additional Sessions Judge, Fast Track Court III, Barasat, North 24 Pgs for trial and disposal. Charges were framed under Sections 417/376 IPC. The appellant pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 9 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. It is pertinent to note that in the meantime the victim P.W 2 had given birth to a minor girl. On the prayer of the appellant, DNA examination of the appellant and minor girl was conducted. DNA report confirmed that the appellant was the father of the minor child. It is pertinent to note that in the meantime the victim P.W 2 had given birth to a minor girl. On the prayer of the appellant, DNA examination of the appellant and minor girl was conducted. DNA report confirmed that the appellant was the father of the minor child. In conclusion of trial, the trial Judge by the impugned judgment and order dated 12th June, 2013 convicted and sentenced the appellant, as aforesaid. 3. Mr. Basu, learned Counsel appearing for the appellant submits that the age of the victim has not been proved beyond doubt. He also submits that the alleged birth certificate of the victim has not been proved in accordance with law. He further submits that version of P.W.1 mother of the victim relating to the age of the victim does not corroborate the birth certificate which disclose a lower age. No ossification test was conducted. Taslima Bibi in whose house the first incident occurred has not been examined. Evidence of P.W.2 with regard to the forcible intercourse is patently absurd. She did not complain of forcible intercourse upon her to anyone. It is most strange how the appellant entered the house without the assistance of the victim when the house was locked from outside and the key was left with the victim. The allegation of forcible rape is, therefore, a myth and ought not to be believed. Accordingly, he prayed for acquittal of the appellant. 4. Mr. Das, learned advocate who is requested to appear as amicus curiae supports the contentions of Mr. Basu. 5. On the other hand, Mr. Ahmed, learned Counsel appearing for the State submits that the victim was a minor. Birth certificate shows that she had not even attained the age of consent. Evidence on record shows that the victim was forcibly ravished and was constantly threatened. As a result she did not divulge the incident to her mother and came out with the history of sexual assault upon her when she had become pregnant. Subsequently the appellant promised to marry but did not keep his promise. Sexual intercourse between the parties stands proved as the DNA report established that the appellant is the father of the child born out of such cohabitation. Hence, the appeal is liable to be dismissed. 6. Subsequently the appellant promised to marry but did not keep his promise. Sexual intercourse between the parties stands proved as the DNA report established that the appellant is the father of the child born out of such cohabitation. Hence, the appeal is liable to be dismissed. 6. At the outset, I note that the DNA examination of the appellant and the minor daughter born from the victim (P.W.2) was conducted at the behest of the appellant. DNA report proves that the appellant is the father of the minor child. Hence, there is clinching evidence to show that there was a sexual relationship between the appellant and the victim, P.W.2. 7. The most vital question is whether such sexual intercourse was a forcible one or not. P.W 2 deposed that she was ravished by the appellant on 8th Falgun when she had gone to the house of one Taslima Bibi. Taslima requested her to remain seated and went inside the bathroom. At that time the appellant came and forcibly embraced P.W.2 by showing a knife. He tore her wearing apparels and ravished her. Her wearing apparels got blood stained. He threatened her not to disclose the incident to anyone. Accordingly, she remained mum. Her mother used to go out for work after keeping her locked in the room from outside. Taking advantage of such situation the appellant used to enter her room by opening hash-bolt. He threatened her not to disclose such fact to her mother. One day her mother returned home early and found the appellant was raping her. She was five months' pregnant at that time. She disclosed the incident to her mother. When she was two months' pregnant she confided in the appellant who assured he would marry her. Subsequently, he refused to marry. She lodged a case and made a statement before the Magistrate. She proved her signature on the statement. She was also examined by the doctor. 8. In cross-examination, she stated that she was raped on several occasions on promise of marriage. She disclosed the incident to her mother five months after the first occurrence. As the appellant did not agree to marry, she lodged the case. Her mother used to keep the door under lock and key from outside and left the key with her. 9. P.W.1, Maonara Bibi is the mother of the victim. She disclosed the incident to her mother five months after the first occurrence. As the appellant did not agree to marry, she lodged the case. Her mother used to keep the door under lock and key from outside and left the key with her. 9. P.W.1, Maonara Bibi is the mother of the victim. She stated one day she returned home early and heard her daughter crying. She noticed that the appellant was forcibly having sexual intercourse with her daughter against her will. She informed the matter to her neighbours. Her daughter was pregnant at that time. She went to the father of the appellant who, however, threatened them with dire consequences if they disclosed the incident to anyone. On the advice of Khalil Sardar (P.W.3) and others she lodged first information report. She proved the signature thereon. At that time, her daughter was 16/17 years old. She produced the birth certificate of her daughter which was exhibited with objection. 10. In cross-examination, she admitted that she had stated in the first information report that the victim aged about 17 years had cohabited with the appellant on the promise of marriage. She admitted that she had not stated in the first information report that she heard the sound of crying of her daughter and when she entered the room she found that the appellant was having forcibly sexual intercourse with her daughter against her will. She stated she had not handed over the birth certificate to the police nor the police had demanded the birth certificate. 11. P.W.3, 4, 5 & 7 are the neighbours of P.W.1. They stated one day P.W.1 came to them and disclosed that she had seen the appellant forcibly cohabiting with her daughter. Thereafter they along with P.W.1 went to the appellant and his father and held a meeting. In the meeting appellant and his father denied the incident. 12. P.W.9, Sanat Kumar Bose is the first investigating officer in the instant case. He prepared rough sketch map with index of the place of occurrence. He examined the witnesses including the victim girl. He forwarded the victim girl for medical examination and ossification test. He arrested the appellant. He also forwarded the victim girl for recording her statement under Section 164 Cr.P.C. before the Magistrate. 13. P.W.10, Arabinda Sarkar is the second investigating officer in the instant case. He submitted charge sheet. 14. He examined the witnesses including the victim girl. He forwarded the victim girl for medical examination and ossification test. He arrested the appellant. He also forwarded the victim girl for recording her statement under Section 164 Cr.P.C. before the Magistrate. 13. P.W.10, Arabinda Sarkar is the second investigating officer in the instant case. He submitted charge sheet. 14. From the aforesaid evidence on record, particularly, that of P.W.1 and P.W.2 it appears that the said witnesses have sought to make out a case of forcible rape committed by the appellant upon P.W.2. P.W.2 claimed that she had been initially raped on 8th Falgun in the house of Taslima Bibi. Taslima Bibi has, however, not been examined in the instant case. It is alleged that the appellant threatened the victim and as a result she kept quite. P.W.1, mother of the victim is a day labourer and used to go out for work after keeping the victim locked in the room from outside. Key of the room was kept with the victim. P.W.2 contendered taking advantage of the absence of her mother appellant used to enter the room by opening the hash lock. It is not understood as to how the appellant could open the lock of the door without the help of the victim with whom the key of the room had been kept. It was only with the assistance of the victim could the appellant have access to her in her residence. The aforesaid circumstances prompts me to hold that it is unlikely that the victim had been forcibly ravished by the appellant. On the other hand, it is more likely that the appellant and the victim had consensual sexual intercourse with one another. P.W.1, mother of the victim deposed that one day when she returned home early she found the appellant was forcibly raping her daughter. The allegation of forcible rape as narrated by the said witness in court is in sharp contrast to the first information report lodged by her wherein she claimed that the appellant and the victim had sexual intercourse with one another on the promise of marriage which the appellant did not subsequently fulfill. The aforesaid factual matrix, therefore, leaves no doubt in my mind the sexual intercourse between the appellant and the victim was not a forcible one but a product of consensual cohabitation. The aforesaid factual matrix, therefore, leaves no doubt in my mind the sexual intercourse between the appellant and the victim was not a forcible one but a product of consensual cohabitation. Although a birth certificate issued by the panchayat shows that the age of the victim was below 16 years i.e. below the age of consent, however, P.W.1 deposed that the victim was between 16/17 years at the time of occurrence. Furthermore, the birth certificate was exhibited during trial with objection and its production in Court is shrouded in mystery. No panchayat member proved the birth certificate. P.W.1 admitted that she had not produced the birth certificate earlier before the police. Under such circumstances, I am not inclined to rely on the birth certificate in the face of the contradictory evidence of P.W.1, mother of the victim, relating to the age of her daughter. If the version of P.W.1 is to be believed the victim had crossed 16 years (age of consent) at the time of occurrence. 15. In the light of the aforesaid discussion, I am constrained to hold that the prosecution has failed to prove its case beyond reasonable doubt and the appellant is entitled to order of acquittal. 16. Accordingly, I set aside the conviction and sentence of the appellant. 17. Appeal is allowed. 18. Appellant shall be forthwith released from custody upon executing a bond to the satisfaction of learned CJM, Barasat, North 24 Parganas for a period of six months in terms of section 437A Cr.P.C. if he is not wanted in any other cases. 19. I record my appreciation for the able assistance rendered by Mr. Das as amicus curiae in disposing of the appeal. 20. Let a copy of this judgment along with the lower court records be forthwith sent down to the trial court at once. 21. Photostat certified copy of this judgment, if applied for, shall be made available to the appellant within a week from the date of putting in the requisites. Ravi Krishan Kapur, J. : I agree.