JUDGMENT : Pradeep Kumar Srivastava, J. 1. Heard learned counsel for appellant Navneet Sahay as well as learned Special Public Prosecutor appearing for the State Mr. V.K. Vashishta assisted by learned counsel for the informant Mr. Madhav Prasad. 2. Present appeal is preferred against the judgment and order of conviction and sentence of the appellant dated 17.06.2006 passed by Additional Sessions Judge, Fast Track Court-V, West Singhbhum at Chaibasa in S.T. Case No. 10 of 2005 whereby and whereunder the appellant has been held guilty for the offence under Section 376 of the I.P.C. and sentenced to undergo R.I. of seven years. FACTUAL MATRIX 3. Factual matrix giving rise to this appeal is that one Dumbi Gagrai (father of the informant) lodged the F.I.R. on 20.09.2004 stating inter alia that on 14.09.2004 in the night while his minor daughter aged about 14 years was sleeping in her room along with her younger brother aged about eight years and informant was sleeping in another room. The appellant who have concealed himself in the room of his daughter suddenly he caught hold the victim girl, threatened her to kill and forcibly committed rape upon her in the night at about 10:00 hours. It is further alleged that due to fear, the victim girl did not disclose about the above occurrence, but on 17.09.2004, she told to her mother and after getting informant about the occurrence, he asked the accused about the occurrence, then he admitted his guilt and he asked informant to solemnize marriage of the victim with him. It is further alleged that the accused was uncle of the victim girl in village relation and is a widower, hence he declined to perform marriage of his daughter with the accused. The informant after consultation with village Munda Bhimsen Bari and his family members lodged a written report about the occurrence.On the basis of written complaint Jhinkpani P.S. case No. 33 of 2004 (Exhibit-6) dated 20.09.2004 was registered for the offence under Section 376 of the I.P.C. The charge of investigation was given to S.I. Arun Kumar Singh who after completion of investigation submitted charge-sheet against the accused for the offence under Section 376/452 of the I.P.C. The case was committed to the Court of Sessions and trial proceeded against the present appellant due to denial from charges and trial. 4. 4. In order to prove the charges against the appellant, the prosecution has examined 10 witnesses and apart from oral testimony of witnesses following documentary evidences were also adduced:- Exhibit-1:- Signature of Dumbi Gagrai (informant) in the written report. Exhibit-2:- Writing and signature of Gangaram Bari in the written report. Exhibit-3:- Signature of Dr. Sujata Jha on the examination report of the victim. Exhibit-4:- Medical examination report of victim girl. Exhibit-5:- Endorsement on the written report. Exhibit-6:- Formal F.I.R. 5. The case of defence is denial from the occurrence and false implication.However, no oral or documentary evidence has been adduced by the defence. 6. The learned trial court after evaluating the prosecution evidence arrived at conclusion about the guilt of the appellant for the offence under Section 376 of the I.P.C. and sentenced as stated above which has been assailed in this appeal. 7. Learned counsel for the appellant has vehemently argued that the learned trial court has failed to properly assess the age of the victim girl and only on the basis of his own analysis and imagination. No school certificate of the victim girl has been brought on record. The victim girl was examined by two doctors i.e. P.W.8 (Dr. Sujata Jha) and P.W.9 (Dr. Neeru Jha) who were members of the Board constituted for examination of the victim girl. It is admitted by both the above doctors that none of the members of Board were specialist in radiology and on the basis of assessment of age of the victim is from perusal of X-Ray plates and no separate report was submitted by the Radiologist. The ossification test regarding assessment of age has also not been brought on record. As per the opinion of both the doctors, the age of the victim may vary +/- two years of either side. Other physical characteristics noted in the medical examination report of the victim girl also shows that she was fully grown up and more than 18 years old. It is further submitted that in the instant case except the victim girl (P.W.7), there is no eye-witness of the occurrence. The parents of the victim, her brother and other villagers examined in this case to testify the occurrence are hearsay witnesses from the victim herself or her parents. It is quite surprising that the victim girl speaks in her “Ho” language which is prevalent in tribal community. The parents of the victim, her brother and other villagers examined in this case to testify the occurrence are hearsay witnesses from the victim herself or her parents. It is quite surprising that the victim girl speaks in her “Ho” language which is prevalent in tribal community. The learned trial court has recorded her testimony in Hindi language which is mentioned at the front page of the deposition that ^^xokg ^^gks Hkk"kh gS Jh lksukjke vuqoknd gS There is no whisper that who have is Sonaram and in what capacity, he was authorized to translate the evidence of victim girl and there is no certificate in that regard even after completion of evidence of the victim it is not certified by the translator that he has read over and explained the evidence of the victim in “Ho language” before putting her thumb impression rather the bench clerk of the court who was not the translator and there is no certificate that he was knowing the “Ho” language as usual has put the certificate. The sole eye-witness (P.W.7), the victim herself was examined on 16 th September, 2005 and she has simply stated that she has voluntarily established relation with the accused while her younger brother was sleeping in another room. It is further submitted that the victim in her examination-in-chief stated about the commission of rape, but in her cross-examination, she clearly stated that the accused was frequently visiting to her house and both developed friendship. She does not know the meaning of rape, she did not raise any alarm and she was not threatened to be killed by the accused and she has no complain against the accused. Her mother and father have been dead. She also admitted that this case was lodged at the instance of villagers who prompted her father to lodge this case. She also admits that villagers want that the accused should not reside at his matrimonial home and go back to his own village at Purnapani. It is further submitted that the medical examination report of the victim also shows that no sign of commission of recent rape was found rather the victim was accustomed to sexual intercourse. She also admits that villagers want that the accused should not reside at his matrimonial home and go back to his own village at Purnapani. It is further submitted that the medical examination report of the victim also shows that no sign of commission of recent rape was found rather the victim was accustomed to sexual intercourse. The learned trial court has miserably failed to properly appreciate the overall aspects of the case and motive behind the false implication of the accused and arrived at wrong conclusion about his guilt which is fit to be set aside.In the alternative, learned counsel for the appellant has pointed out towards new facts and development in this case through I.A. No. 9647 of 2022 and apprised that after death of parents of the victim girl, the appellant has solemnized marriage with the victim girl in the year 2010 through court and filed marriage certificate (Annexure-1) dated 04.09.2010. It is further stated that after solemnization of marriage, both have been blessed with two children out of their wedlock namely Budhan Singh Sundi and Dishu Sundi. Elder son is aged about 13-14 years and younger son is aged about more than 8 years (Aadhar Card of both sons is also annexed as Annexure-2). The appellant and victim girl belong to tribal community and there is no prohibition against the marriage in between close relatives. Therefore, the appellant deserves leniency in the matter of sentence who has already remained in custody about one year. Learned counsel for the appellant has placed reliance upon the judgment of K. Dandpani vs. State through Inspector of Police, 2022 SCC Online SC 1056 wherein the appellant who was working as woodcutter on daily wage in private factory was charged for having committed rape of the victim/prosecutrix aged about 14 years, on the date of occurrence and she gave birth to first child when she was of 15 years and second child when she was of 17 years of age. Hon’ble Apex Court taking into consideration the peculiar facts and circumstances was of the view that conviction and sentence of the appellant deserves to be set aside, in view of subsequent events that have been brought to the notice of this court as this court cannot shut its eyes to the ground reality and disturb the happy married life of the appellant and the prosecutrix. 8. 8. On the other hand, learned A.P.P. appearing for the State has vehemently refuted the aforesaid contentions raised on behalf of the appellant and submitted that the learned trial court has very wisely and aptly apprised and appreciated the evidence available on record. The age of the victim cannot be stretched to be 18 years without any cogent reasons. There is concrete evidence on record that victim was minor at the time of occurrence, therefore, her consent plays no role and sexual act committed with her even with her consent makes no defence. The appellant was Mausa of the victim girl and frequently used to visit her home and taking advantage of the situation, he has committed rape with the minor girl. No settlement/composition can be arrived at between the parties in such cases, as the offence is non-compoundable. There is no illegality or infirmity in the impugned order of conviction and sentence passed by learned trial court and there is no valid reason to interfere with the impugned judgment and order.This appeal is devoid of merits and fit to be dismissed. 9. For better appreciation of the case, I have to take brief resume of the prosecution evidence.The most important witness is the victim girl who has been examined as P.W.7. According to her evidence, the accused/appellant stealthily entered into her room and committed rape upon her when her younger brother (Budhram) was sleeping. She admits that no one has threatened her and she herself has made physical relation with accused/appellant.In her cross-examination, she admits that accused belongs to the same village. It is also stated that accused is related to her as “Mausa”. After the death of his wife, accused is residing in his matrimonial home. She also admits that the accused used to visit her home on regular basis, as such the friendship developed between them and both were liking to each other. She further admits that she doesn’t know the meaning of rape. No threatening was extended to her by the accused and they are in good friendship. She also admits that she was in the talking terms with accused even after he was released from jail and after the death of her parents. Further, she admits that she has no complain with the accused.P.W.3 Dumbi Gagrai is the informant and father of the victim girl. She also admits that she was in the talking terms with accused even after he was released from jail and after the death of her parents. Further, she admits that she has no complain with the accused.P.W.3 Dumbi Gagrai is the informant and father of the victim girl. According to his evidence, his daughter told his wife about the incident that the accused/appellant has committed rape upon her. He has further stated that the accused was living at his matrimonial home and his wife was dead. On the date of incident, the accused had concealed himself in the room and when his daughter bolted the door from inside then, he committed rape upon her by threatening to kill, if she raise any alarm and out of fear his daughter did not disclose about the incident to anyone. But after some days, she disclosed the above incident to her mother and when this witness got to knowledge about the occurrence, he called for the accused and interrogated with him, then he confessed his guilt and also promised to marry with victim girl. This witness further convened a meeting in his house, where the accused didn’t come.Thereafter, he went to police station and lodged this case.In his cross-examination, this witness admits that accused is “Mausa” of victim girl, hence he could not solemnize marriage.P.W.4 Sita Gagrai is the mother of the victim. According to her deposition, the incident was of 14 th September, 2004, the rape was committed with her minor daughter by the accused. She further states that the accused concealed himself in the room of her daughter and all the family members went to sleep, then he forcibly committed rape and due to fear her daughter told the incident to her after two-three days. She further admits that accused is the husband of her deceased sister. She further admits that a meeting was called for, but the accused did not come, thereafter, her husband has lodged this case.P.W.1 Damu Singh Tubid is the hearsay witness, he came to know about the occurrence by the informant.P.W.2 Sadhu Charan Gagrai is the real brother of the victim and a student. According to his evidence, he came to know about the occurrence, when his parents were discussing about the incident. According to his evidence, he came to know about the occurrence, when his parents were discussing about the incident. He further states that a meeting was called for in which the accused proposed to marry with his sister, but the accused is “Mausa” of the victim girl, hence, said proposal was declined.P.W.5 Bhimsen Bari is the village Munda. According to his evidence, the father of the victim has called him to intervene in the matter of commission of rape with his daughter by the accused where it was decided that the matter will be decided through panchayati, which could not be decided.In his cross-examination, he has admitted that he came to know about the occurrence from father of the victim girl.P.W.10 Arun Kumar Singh is the Investigating Officer of this case who has endorsed the formal F.I.R. as exhibit 5-6 respectively. He has recorded the statement of informant and the victim girl and other witnesses. He has also visited the place of occurrence and inspected the same which is situated in village Indikuri which is Kuccha house with mud tile roof of the informant consisting of three rooms and two rooms with veranda, three rooms opening towards the southern side fitted with doors, but two rooms towards north exit have no doors. The occurrence took place in the room opening towards south, but no seizure of wearing cloths of the victim or other materials found in the room has been seized. Admittedly, there was no pot in the room and the victim girl along with her brother were sleeping on earth. The statement of victim recorded under Section 164 of the Cr.P.C. on 21.09.2004. Thereafter, she was sent for medical examination and after the conclusion of investigation, he submitted charge-sheet against the accused for the offence under Section 376/452 of the I.P.C.In his cross-examination, this witness admits that the younger brother of the victim girl was not interrogated by him and nothing was seized from the room and the door was intact. Wearing clothes of the victim and the bed-sheets were no seized by him. No witnesses of fact have claimed to see the accused while entering in the room of the victim or heard any noise or alarm raised by the victim. He was not apprised about any Panchayati convened by the informant in connection with this occurrence. Wearing clothes of the victim and the bed-sheets were no seized by him. No witnesses of fact have claimed to see the accused while entering in the room of the victim or heard any noise or alarm raised by the victim. He was not apprised about any Panchayati convened by the informant in connection with this occurrence. He also admits that the mother of the victim has not disclosed before him that she has seen blood spots on wearing cloths of victim as well as on the mat upon which they were sleeping which was washed away.P.W.8 Dr. Sujata Jha who was posted at Sadar Hospital, Chaibasa as Lady Medical Officer has examined the victim girl on 20.09.2004 and found following:- (i) Vagina examination - Old torn, menstrual bleeding present, vagina admits one finger. (ii) Swab Report:- No spermatozoa either dead or living found. (iii) Epi Pelvis- Illiac crest not fused. (iv) The age of girl is opined to be 15 to 16 years. In her cross-examination, she admits that she given the opinion about the age on the basis of radiological examination which may vary +/- two years. 10. P.W.9 Dr. Neeru Jha who was also posted at Sadar Hospital, Chaibasa and was a member of the board constituted to examine the victim girl and after examining the victim found following:- (i) Hymen – old torn. (ii) No spermatozoa either alive or dead was found. (iii) Epi wrist lower end of Radio and ulna not fused. (iv) Epi Pelvis- Illiac crest not fused. In her cross-examination, she admits that the age of the victim girl was fifteen to sixteen years old and she has proved the medical report by her pen and put signature which is marked as Exhibit-4. She further admits that none of the members of the board was specialist in Radiology. She also admits that no report of radiologist was put up before the board. 11. From the aforesaid discussion of testimony of witnesses particularly the victim girl (P.W.7), it transpires that the victim girl has not disclosed her age before the court rather it was mentioned as 16 years by own calculation of the court. The victim in her testimony although stated about commission of rape with her, but admits in clear terms that the accused has not threatened her rather she established relation with him of her own accord and voluntarily. The victim in her testimony although stated about commission of rape with her, but admits in clear terms that the accused has not threatened her rather she established relation with him of her own accord and voluntarily. She also admits that Sikandar Sundi was his uncle in relation (Mausa) who was a widower and frequently visiting her home as such intimacy and friendship developed between them. She also admits that she does not know the meaning of rape and this case was lodged on instigation of the villagers who were desiring to oust the accused from the village Indikuri and go back to his own village Purna Pani. So that cousins of deceased father-in-law of the accused may grab his landed property. The informant Dumbi Gagrai (P.W.3) has also admitted that the accused is his Sadhu ¼lkMw½ The wife of this witness and deceased wife of the accused were sisters. He came to know about the commission of rape with his minor daughter after four days after the occurrence from the mother of the victim girl and lodged this case. This witness has also not claimed entry of accused at any point of time at the date of occurrence to his house rather he admits that mother of the accused came to his house asking for some food. Thereafter, she went away. He also admits that Panchayati convened by him in presence of village Munda and other persons, but the accused and the victim were not present. He also not been able to disclose the correct date of birth of the victim girl. Further, this witness admits that in his community marriage can be solemnized between Mamera and Fufera brothers and sisters. He has denied the suggestion of defence that he wants to grab the landed property of father-in-law of the accused along with his other relatives namely Damu Singh Tubid (P.W.1), hence, lodged this false case to deprive the accused from the landed property. It is also note-worthy that the P.W.4 Sita Gagrai, mother of the victim girl got first knowledge from the victim about the occurrence, but surprisingly she has testified that she did not see the accused while entering into the room of victim girl. She also admits in her cross-examination that on the date of occurrence her younger sons Budhram Gagrai and Bhimsen Gagrai were sleeping in the room along with victim girl. She also admits in her cross-examination that on the date of occurrence her younger sons Budhram Gagrai and Bhimsen Gagrai were sleeping in the room along with victim girl. No household articles were kept in the said room and it was empty. All were sleeping on earth. No alarm was raised by the victim in the night or at any point of time. She also admits that after two days, the victim told her that Sikander Sundi was also sleeping with her in the same room and nothing else was disclosed by her. Only on this basis, the rape case was instituted on suggestion of villagers namely, Damu, Tubid and others. She also admits that when the accused attempted to solemnize marriage with the girl, then also villagers forbade from marriage. She also admits that on the basis of suggestion of villagers, she has given evidence in this case. Sadhu Charan Gagarai who happens to be the brother of the minor girl has clearly stated in his evidence that commission of rape with victim was not disclosed to him by his parents or victim girl rather he came to know about the same overheard from his parents. The medical examination report of the victim girl also shows that she was accustomed to sexual intercourse, but recent commission of rape was not found rather at the time of examination, victim was under menstrual status. It also appears that the statement of the victim girl recorded under Section 164 of the Cr.P.C. was also not brought on record by the prosecution. As per the medical examination report of the victim that she was in between 15 to 16 years which may vary +/- two years on either side, therefore, it can be assumed that the victim was 18+ on the date of occurrence. The evidence of the victim herself goes to show that there was friendship and intimate relation with the accused and the physical relation also take place with her consent. In the aforesaid factual background of the case proved by the prosecution. There is no material to conclusively prove the commission of forcible rape against the victim girl by the appellant. The evidence of the victim herself goes to show that there was friendship and intimate relation with the accused and the physical relation also take place with her consent. In the aforesaid factual background of the case proved by the prosecution. There is no material to conclusively prove the commission of forcible rape against the victim girl by the appellant. The testimony of witnesses particularly, the parents of the victim clearly suggest that they were not in agreement with the relationship between their daughter and the accused due to close relationship and in their view, the marriage was not possible and with a view to avoid the marriage this case was lodged. 12. It appears that the learned trial court has failed to properly appreciate the evidence of witnesses in the light of materials elicited in their cross-examination as well as evidence of doctors in relation to the age of the victim girl and her own testimony before the court. The learned trial court has further committed serious error of law in not believing the testimony of the victim girl who is the sole eye witness of the occurrence and conjectured about the age of the victim. Therefore, impugned judgment and order of conviction and sentence of the appellant is not legally sustainable which is hereby set aside and this appeal is allowed. 13. Appellant is on bail, hence, he is discharged from the liability of bail bond and sureties are also be discharged. In view of the above final findings recorded in this case I.A. No. 9647 of 2022 stands disposed of. 14. Let a copy of this judgment along with trial court records be send back to the court concerned for information and needful.