Crl.A. 4/2007 BEFORE HON’BLE MR. JUSTICE C. R. SARMA This appeal is directed against the judgment and order dated 13-11-2006 passed by the learned Sessions Judge, Golaghat in Sessions case No.12 of 2006 under Sec tion 376 of Indian Penal Code (hereinafter referred to as the ’IPC’). 2. I have heard Ms. N. Bharali, learned counsel appearing for the a ppellant. Also heard Mr. K. Munir, learned Addl. Public Prosecutor appearing for the respondent. 3. By the impugned judgment and order, the learned Sessions Judge c onvicted the appellant under Section 376 IPC and sentenced him to suffer rigorou s imprisonment for ten years and pay fine of Rs.5,000/-, in default, suffer rigo rous imprisonment for another period of one year. Aggrieved by the said judgment and order of conviction and sentence, the convict, as appellant, has come up wi th this appeal. 4. The prosecution case, in brief, as revealed during the trial may be stated as follows :- On 7-5-05 at about 4 pm when the daughter of the informant (PW 2 ) i.e victim girl was alone in her house, the appellant entered the house and fo rcefully committed rape on her. The father of the victim girl (PW 1) on 21-5-05 informed the police by filing an FIR (Exbt.2) on 21-5-05. On receipt of the said FIR, police registered Sarupathar PS case no.47 of 2005 under Section 376 IPC a nd launched investigation into the matter. During investigation, police got the statement of the victim girl recorded by the Magistrate under Section 164 CrPC and sent her for medical examination. At the close of the investigation, finding a prima facie case, police submitted chargesheet against the appellant under Se ction 376 IPC. 5. The offence being exclusively triable by the Court of Sessions, the learned SDJM, Dhansiri, Sarupathar committed the case to the court of Sessio ns Judge at Golaghat. The learned Sessions Judge, Golaghat framed charge under S ection 376 IPC. The charge was read over and explained to the appellant to which he pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution examined as many as six witnesses including the Investigating officer and the Medical officer. At th e close of the examination of the witnesses for the prosecution, the accused was examined under Section 313 CrPC. He denied the allegations, brought against him , and declined to adduce evidence. The learned Sessions Judge, by the impugned j udgment and order convicted and sentenced the appellant as indicated above. 7. Ms Bharali, learned counsel appearing for the appellant taking t his court through the evidence on record has submitted that the delay of about f ourteen days, in lodging the FIR indicates that the appellant has been falsely i mplicated in this case and that there is no sufficient evidence against the appe llant. The learned counsel has further submitted that the appellant had just cro ssed the age of juvenility at the time of occurrence and as such a lenient view may be taken in favour of the appellant. 8. Mr. K. Munir, learned Addl. Public Prosecutor appearing for the State supporting the impugned judgment and order aforesaid has submitted that th ere is sufficient material against the appellant and that the learned Sessions J udge committed no error by recording the conviction and the sentence. 9. In order to appreciate the arguments, advanced by the learned co unsel appearing for both the parties, I have carefully perused the impugned judg ment and order and the evidence on record. Admittedly, the occurrence took place on 7-5-05 and the FIR was lodged on 21-5-05 i.e after about fourteen days. The informant i.e the father of the victim girl who deposed as PW 2 stated that he u sed to work at Dibrugarh and that he came to know about the occurrence from his wife after about twelve days on his return to his residence. In the FIR i.e Exbt .2 the informant stated that the father and the brother of the accused person h ad threatened him not to lodge the FIR and that he came to know about the occurr ence only on 19-5-05. In his cross-examination, PW 2 clearly stated that he coul d telephonically know about the incident on 7-5-05. Therefore, it is not believa ble that the informant came to know about the occurrence only on 19-5-05. Howeve r, there is no dispute that the informant used to stay away from his residence a nd that he lodged the FIR after his arrival in his home. Therefore, in my consid ered opinion, in the facts and circumstances of the case, the said delay is not fatal for the prosecution case. 10. The victim girl in her evidence given as PW 1 clearly stated tha t when she was working in her kitchen, the accused person entered the kitchen an d committed rape on her. She further stated that hearing the alarm raised by her , Mustt Sofia Khatoon (PW 5) and Ainul Haque (PW 4) came to rescue her. The vict im girl has further stated that her father i.e the informant used to work at Dib rugarh and that they were waiting for arrival of her father to lodge the FIR. Th e victim girl was cross-examined on behalf of the defence. She denied the sugges tion that her age was about 20 years. In her deposition, she gave her age as 13 years. Though the victim girl was duly cross-examined on behalf of the defence, her evidence regarding rape could not be demolished. The father of the victim, w ho deposed as PW 2 has also stated that the age of the victim was 13 years at th e time of occurrence and that he came to know about the occurrence from his wife . He has exhibited the FIR as Exbt.1 and his signature thereon as Exbt.1/1. 11. PW 4 Ainul Hawk stated that he saw the accused person running aw ay from the house of the victim girl. According to this witness, he was informed by the victim girl that she was raped by the accused person. Mustt Sofia Khatoo n who deposed as PW 5, in tune with the evidence of PW 4 Md. Ainul Haque, state d that, hearing alarm raised by the victim girl, she rushed to the latter’s hous e and found the accused person running away from the house of the victim girl. S he further stated that she was reported by the victim girl that she was raped by the accused person. Though PW Nos.4 and 5 were cross-examined on behalf of the defence, no major contradiction could be elicited to render their evidence disb elievable. 12. Dr. S. G. Goswami who deposed as PW 3 examined the victim girl o n 21-5-05. The Medical officer on his examination found no sign of injury on the private parts of the victim girl. As the victim girl was examined after about f ourteen days, the absence of injury on the private parts does not negate the evi dence of the victim girl. The Medical officer opined that the age of the victim girl was below eighteen years. 13. Mr. Juren Borah, ASI of police investigated into the matter. He stated that he had submitted the chargesheet which he exhibited as Exbt.3. From the above evidence , it is found that the evidence of the victim girl remained u ndemolished. Her evidence has been fortified by the evidence of PW Nos.4 and 5, who met her immediately after the occurrence. According to PW Nos.4 and 5, the v ictim girl had informed them that she was raped by the accused person. 14. Considering entire aspect of the matter and the evidence aforesa id, I am inclined to hold that the prosecution could successfully establish the charge brought against the accused person. Therefore, in my considered opinion, the learned Sessions Judge committed no error by recording the conviction under Section 376 IPC. From the record, it appears that the age of the accused person, at the time of his examination under Section 313 CrPC on 13-11-06, was about 20 years. This indicates that the accused had just crossed 18 years at the time of occurrence. He has been undergoing imprisonment and has already spent more tha n four and a half years in the Jail. There is nothing on record against previous conduct and antecedent of the appellant. Therefore, considering the age of the appellant, I am of the considered opinion that a lenient view should be taken in respect of sentence. Therefore, considering entire aspect of the matter, while upholding the impugned conviction, the sentence of rigorous imprisonment for ten years is modified as rigorous imprisonment for seven years instead of rigorous imprisonment for ten years. No interference is made in respect of the fine amoun t. 15. With the above directions, the appeal is partly allowed. Return the lower court records.