P.W.-3 is a Doctor.P.W.- 7 is the sister of victim's mother.She came to the saloon of Lalan for getting the hairs of Arifa being cut but she was told to go back.The accused further said to P.W.- 7 that he will keep Arifa after hair cutting of her to house.After half an hour Arifa came back home crying and on being asked Arifa told about the commission of offence.She found Arifa was naked and holding the Jangia in her hand.According to her statement, Arifa told her "Khala, Lalan tar Sona diye amar prosraber dware, paikhanar dware gunto ganta merechhe".P.W.- 8 also found on examination of the vagina of Arifa that it had become reddish.She successfully answered the cross-examination.P.W.- 9 is another Doctor.P.W.- 13 is an A.S.I. of Police.P.W.- 14 is another Medical Officer.IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION CRA No. 745 of 2008 Lalan Seikh --Appellant/AccusedThis appeal arose out of the judgment and order dated 18.11.2008 passed by the learned Sessions Judge, Nadia, in Sessions Trial No. 4 of August, 2008 arising out of Sessions Case No. 55 of August, 2008, convicting the appellant under section 354 of IPC and sentencing him accordingly.In the background of this appeal, the fact in a nutshell is as follows : A FIR was lodged to the effect that complainant's daughter Arifa Khatun, aged about 9 years and a student of class-V came to the house of her maternal uncle in village Patharghata within P.S. Tehatta in summer vacation.During her stay at the matrimonial home, she had been to the wayside saloon of accused Lalan Sheikh on 15.5.2008 at about 2-00 p.m. for cutting her hair.At that time accused Lalan Sheikh forcibly raped her.She raised hue and cry.Neighbouring people assembled there and then the accused fled away from the spot.The victim girl felt ill.The victim girl was first taken to Tehatta Sub-divisional Hospital and therefrom she was referred to District Hospital at Shaktinagar.After investigation, police submitted charge-sheet.Police got the statement of the victim girl recorded by the learned Judicial Magistrate under section 164 Cr.P.C. Further allegation was that the accused inserted some cut hair into her vagina and pushed his finger into the vagina on the pretext of taking out the cut hair therefrom.It was further alleged that the accused tried to insert his penis into her rectum but failed.It was further alleged that the accused tried to insert his penis into her vagina but failed.After investigation, police submitted charge-sheet against the accused person under sections 376/377 of the Indian Penal Code.After hearing of both sides, the learned Trial Court framed charge under sections 376(2)(f)/511 and also 377/511 of IPC against the accused.The contents of the charges were read over and explained to him and he pleaded not guilty and claimed to be tried.To contest this case the prosecution examined as many as fifteen witnesses while none was examined on the side of the accused.However, the accused person was examined under section 313 Cr.P.C. The defence case as it appeared from the trend of cross-examination and the replies given by the accused person at the time of cross- examination under section 313 Cr.P.C. is denial of offence with a plea of innocence.On trial the learned Trial Court convicted the present appellant by the impugned judgment.- Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section"Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.-- Whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with [imprisonment of any description provided for the offence, for a term which may extend to one- half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both."Amongst others learned Counsel for the appellant argued mainly on the following points :P.W.-1 scribed the complaint as per the instruction of Lalan Sheikh.He examined on 15.5.2008 one Arifa Khatun, aged about 10 years.The girl complained of severe pain in her private parts.According to the version, the Doctor recorded the history of "physical assault and sexual abuse".He did not examine the private parts of the child.She was referred to Saktinagar District Hospital at Krishnagar.P.W.-4 is the father of victim.He proved the Birth Certificate of his daughter showing that she was 10 (ten) years old.He learned from his sisters-in-law Alekjan, Bulbuli and Selena that his daughter was sent to the saloon of one Lalan Sheikh, but there she was subjected to rape.She took her daughter to the Hospital and then at Saktinagar on referral.He lodged the complaint to the police.It was suggested to him that they are supporters of CPI(M) party while the accused is the supporter of BJP and that is why out of political rivalry he was falsely implicated.P.W.- 5 is a teenager girl.She was examined but knows nothing about incident.P.W.- 6 was declared hostile.He examined the victim.He found her hymen was ruptured but there was no injury in her private part.He stated that such rupture of hymen may be caused if the index finger is forcefully introduced into the vagina.He also examined the accused Lalan Sheikh and opined that he was capable of sexual intercourse.P.W.- 10 is the mother of the victim.After getting information she went to Patharghata.She enquired everything from her daughter and learnt the incident.She accompanied her daughter at Krishnagar Sadar Hospital.P.W.- 11 is another sister of victim's mother.The victim girl after returning from saloon of Lalan Sheikh reported everything to all of them.P.W.- 12 is a Home Guard who escorted the victim girl to the S.D. Hospital there.He examined the victim.He found no injury in the vulva and vagina.Vulva and vagina were found intact.Because of strain of the patient her digital examination into the internal parts could not be made.Further he stated that comment regarding rupture of hymen was not possible because the patient refused her vagina examination.No injury also could be detected over anal orifice.P.W.- 15 is the I/O. After investigation, he submitted charge-sheet.The accused was asked pinpointed questions over the incriminating material available in evidence against him but he simply denied all the questions.The translated version of the 164 statement is reproduced below."On last Thursday I had been to the wayside saloon at Patharghata for cutting my hairs.I was accompanied by my aunt (Masi).My Masi came back home after dropping me in the saloon.Thereafter when my cutting of hair was over, barber Lalan Sk. asked me to lie.I did not agree.Then Barber Lalan Sk. asked me to daub oil in the hairs of my head.I again came back to the saloon of Lalan Sk.after daubing oil in the hairs of my head.Then Lalan asked me to be nude.Then Lalan put cut hairs on my vagina.Lalan moved his finger inside my vagina.Then Lalan was going to push his penis into my rectum.But despite such attempt, Lalan failed to do it.Lalan removed my panty.He forcibly closed the gate of the shop.Afterwards Lalan of his own opened the gate.Then Lalan was going to insert his Sona (penis) into my vagina (the urinating private organ) but failed.The record does not show that de facto complainant cherished any grudge or animosity against the present appellant.Rather he used to call accused 'Mite'.Doctors' evidence more or less support the story of attempt of rape.The victim suffered enormous pain in her private parts.This fact points towards the possibility of commission of attempt to rape by the accused person.The other relation witness more or less supported the prosecution story.The evidence of the prosecutrix has to be sifted to separate the grain from the chaff because the theory of 'falsus in uno, falsus in omnibus' is not applicable.The elegance of the evidence of the victim girl inspires confidence.Rather consistency of her version makes her sterling witness.The accused was known to the father of the victim girl.So, too the victim.The accused was aged about 26 years whereas the victim was 10 years.

Cited provisions: Section 354 in The Indian Penal Code; Section 511 in The Indian Penal Code; Section 376 in The Indian Penal Code