Crl.A. 75/2008 BEFORE HON’BLE MR JUSTICE B D AGARWAL This appeal under Section 374 of the Code of Criminal Procedure, 1973, h as been filed by the convict Md Alhaj Ali, against the Judgment and Order dated 15.03.2008, passed by the learned Additional Sessions Judge (FTC) No. 4, Kamrup, Guwahati, convicting the appellant under Section 376 of the Indian Penal Code. After such conviction, the appellant has been sentenced to undergo Rigorous Impr isonment for 7 (seven) years and to pay fine of Rs. 1,000/-, with default senten ce of 6 (six) months Rigorous Imprisonment. 2. Heard Sri P Sarmah, learned counsel for the appellant and Sri Z Kamar, learned Public Prosecutor for the State of Assam. I have also perused the impugned Judgment and the evidence of both the parties tendered at the trial Co urt. 3. The gist of the prosecution case is that both the victim girl an d the accused were living in the same locality. In the afternoon of 16.01.2001, the mother of the victim girl had gone for collection of firewood and the victim ’s father was away from the village for earning daily wages. Taking the advantag e of absence of the parents from the house the accused/ appellant entered the ho use of the victim girl and subjected the victim girl to forcible sexual intercou rse. While the accused was committing the offence, the mother of the victim retu rned home and saw the accused fleeing away. Simultaneously, the victim’s aunt (P W-5) also heard the cries of the victim girl and she also rushed to the place of occurrence and immediately after entering house she found that the prosecutrix was lying on the ground with injuries on her private parts. This witness also sa w the accused running away from the victim’s house. 4. The FIR was lodged on the next day and it was registered as Boko P S Case No. 10 of 2001 under Section 376 of the Indian Penal Code. As usual, t he victim was also taken to a Doctor for her medical examination and statements of witnesses were also recorded. After investigation, chargesheet was filed on 2 9.07.2003, showing the accused as absconder. On receipt of the chargesheet, the case was committed to the Sessions Court and ultimately, the case was transferre d to the Court of Additional Sessions Judge. 5. In order to establish the offence, the prosecution examined alto gether 7 (seven) witnesses. PW-1 is the Medical Officer; PWs - 2 and 3 are the p arents of the victim girl; PW-4 is the victim herself; PW - 5 is the aunt of the victim girl; PWs - 6 and 7 are the Investigating Officers. 6. During the trial, the accused also took a plea that on the relev ant day he was away to his uncle’s house at village Jambari and that he was not involved in the offence. To establish the aforesaid alibi, the accused also exam ined his uncle as DW - 1. 7. Having found the prosecution witnesses reliable and corroborated by medical evidence, the learned Additional Sessions Judge has recorded the con viction. 8. Sri Sarmah, learned counsel for the appellant submitted that the trial Court has overlooked serious discrepancies in the depositions. The learne d counsel particularly attacked the deposition of PW-5 who claimed that she had witnessed the crime of rape. According to the learned counsel, while giving her statement under Section 161 of the Code of Criminal Procedure, 1973, PW - 5 had stated that on the relevant day she was not at home, but while giving testimony in the Court she claimed herself to be the eyewitness. However, PW-5 has not co ntradicted about the aforesaid testimony in her statement under Section 161 of t he Code of Criminal Procedure, 1973. Hence, even otherwise, if the testimony of PW - 5 is left out of consideration the appeal can still be disposed of and deci ded on the basis of the remaining evidence. 9. It is the settled position of law that if a victim’s testimony i s believable and found to be not suffering from any inconsistencies, conviction for offences like rape and molestation can be recorded on her sole testimony. 10. In the case before me, the victim girl was examined as PW - 4 an d she has deposed that while she was alone at home the accused suddenly came and grabbed her and after gagging her mouth she was subjected to forcible sexual in tercourse. The victim has further deposed that as a result of sexual intercourse she had sustained injuries on her private parts and took treatment for about on e month. 11. PW - 2 is the mother of the victim girl and she has deposed that while returning home from the jungle after collecting firewood she heard the cr ies of her daughter and soon thereafter, she saw the accused running away from t he place. PW - 2 has further deposed that after the incident her daughter could not walk properly and she was under medical treatment for about 2 (two) months. 12. PW - 3 is the father of the victim girl and he is the reported w itness. In this way, the case rests upon the testimony of the victim girl, mothe r and the medical evidence. 13. The prosecution evidence has been challenged on the ground that a false case has been concocted since the elder brother of the accused/ appellan t refused to marry the victim girl. However, the elder brother of the accused hi mself did not come to the Court and speak anything about the earlier marriage pr oposal. It is true that according to prosecution witness earlier also a rape cas e was filed against the elder brother of the appellant but the said case ended i n acquittal. Coming to the case at hand, it appears that the victim was examined on the very next day and during examination the Doctor found that the hymen of the girl was torn and blood was oozing from the private parts. The Doctor also n oticed tenderness and swelling and the tear was a recent one. It is true that in the cross-examination, the Doctor (PW-1) has stated that probably, the sexual i ntercourse was committed 3 (three) days before. In this regard, the learned Sess ions Judge has also opined that the medical evidence is merely an opinion and it cannot over-ride direct evidence. I also agree with the view taken by the trial Court. Going by the injuries found on the private parts of the victim girl, the possibility of sexual ravishment within 2 to 3 days of medical examination cann ot be totally ruled out. On the other hand, the findings of medical examination thoroughly corroborates the victim’s testimony. 14. The other minor contradictions have been adequately dealt with b y the trial Court. According to the learned counsel for the appellant, according to the mother, she had taken both the minor children with her for collecting fi rewood, whereas, according to PW-5, one children was at home. I have already sta ted earlier that the appeal is being decided without taking into consideration t he testimony of PW-5, because her statement was recorded by the second Investiga ting Officer after lapse of a long period. The other contradiction is that accor ding to the victim’s mother, her daughter was cleaning rice at the relevant time whereas according to the victim girl, she was cleaning a kerosene lamp. In my c onsidered opinion, this difference in testimonies cannot be treated as a discrep ancy. It can be so that, when the mother left home the victim was cleaning rice and after finishing that job she might have started cleaning the lamp as evening was descending. In other words, these discrepancies are not fatal so as to give an extreme benefit of acquittal. 15. In the result, I do not find any merit in the appeal and consequ ently, the appeal stands dismissed. I also do not find any good ground to reduce the sentence. 16. The Registry is directed to return the LCRs along with a copy of this Judgment, forthwith.