Crl.A. 94/2006 BEFORE THE HON’BLE MR JUSTICE P.K. MUSAHARY Heard Mr. B.K. Mahajan, learned counsel appearing for the appellant. Also heard Mr. B.S. Sinha, learned Addl. Public Prosecutor, appearing for the State of Assa m. 2. The conviction u/s. 376 (f)/511 and sentence to undergo RI for 7 years with default stipulation handed down by the learned Sessions Judge, Jorhat vide judgment and order dated 19.4.2006 is under challenge in this criminal appeal. 3. The mind disturbing facts as disclosed in the first information repo rt are that while the informant was residing in a rented house of accused appell ant her daughter Kalpana (the real name kept in secret) aged about 7 years was subjected to sexual abuse by the appellant on several occasions. The first incid ent took place on the day of celebration of Shiv Ratri when the first informant went to temple of the Lord Shiva leaving her minor daughter Kalpana and son in h er rented house. The accused appellant induced informant’s children to come to h is house in her absence for showing them C.D. At one point of time, on the first day of the incident, Kalpana was taken in a separate room by the appellant and she was forced to lie down on the bed and removing her clothes forcibly raped he r by penetrating his penis in her vagina. She was put into fear not to disclose the fact to any body, else she would be killed. The same sexual abuse upon the m inor girl took place on several occasions. The victim girl did not dare to discl ose it to her parents or anybody out of fear of being killed by the accused appe llant. The victim girl used to have a depressed mind and now and then she used t o complain of feeling pain on her sexual organ. Ultimately she narrated before her mother the entire incidents. This led to lodging of an FIR with the local p olice which was registered as Golaghat P.S. Case No. 302/2003 u/s. 376 IPC. Dur ing investigation the Police got her examined medically and got her statements r ecorded by a Magistrate u/s. 164 Cr.P.C. The accused appellant was arrested and a charge-sheet was submitted against him u/s. 376 (f) IPC. The case was committe d to Court of Sessions and it was registered as Sessions Case No. 90/2004. The l earned Sessions Judge, Golaghat framed charge u/s. 376 IPC and after convulsion of the trial convicted and sentenced the accused appellant as mentioned earlier. During trial prosecution examined as many as 7 witnesses and the defence also e xamined 3 witnesses. 4. Mr. B.K. Mahajan, learned counsel for the appellant submits that the p rosecution story is absolutely false and the same could not be proved beyond rea sonable doubt. The FIR was lodged after about 5 months from the date of alleged first occurrence without any satisfactory explanation and the said FIR was lodge d out of personal vendetta as the father of the victim girl defaulted in payment of house rent and he used to come late in the night in drunken state. The FIR w as lodged after the informant along with her family shifted to a different rente d house. Moreover, the allegation of rape is not supported by medical evidence i nasmuch as the medical officer who examined the victim girl found no injury on h er private part and found her hymen intact. The defence, according to Mr. Mahaj an had dis-proved the allegation that the victim girl was raped in the house of the appellant when her wife was absent, by adducing evidence of appellant’s wife and two other witnesses who deposed to the effect that they performed the Shivr atri in the house of the accused and they did not go to other place for celebrat ing Shivaratri. 5. For disposal of this appeal I would first look into the evidence on rec ord. PW. 1 is one Dr. Uttam Prasad Dutta who was working as Senior Medical & Health Officer at Golaghat Civil Hispital, Golaghat and on that day as per Po lice requisition in connection with Golathat P.S. Case No. 302of 2003 he examine d Miss. Kalpana, daughter of Sri Munin Nath of Golaghat at 11.30 A.M. on being e scorted and identified by Constable No. 221 Mrs. Rashida Begum, he examined the victim in presence of female attendant Smt. Putali Bora and recorded a report as under - Identified Mark : Black mole on the posterior aspect of the left scapular re gion. Height- 115 cm, Weight- 19 kg, build-Average, Teeth 12/12 1st Moler presen t, Axilliary hair- absent, breast- Not developed, Pubic hair- absent, Hymen- int act, Vagina does not admit the tip of finger. No injury seen to her private part . Virginal Smear :- No spermatozoa seen. X-Ray of Right wrist joint shows non ap pearance of epiphysis of pisiform bone. PW-2 is one Smti. Tulimoni Nath, who happens to be the aunt of th e victim. She stated that the occurrence took place on 1.3.2003 and she resided in the house of the accused appellant along with the victim, her brother, sister -in-law for about five years. She further stated that her elder brother used to work at Golaghat Court and as such they resided in the rented house of accused a ppellant. She stated that the occurrence took place two years ago and she was at home and the victim was also at home, although her sister-in-law Sunumoni Nath went to Shiv Temple at about 3 p.m. and the accused appellant called the victim and her brother to enjoy C.D. She further stated that thereafter they returned a t 3-30 p.m. and on the next day also as her brother and sister-in-law went to Nu moligarh, the accused appellant called both of them to enjoy C.D. She further st ated that after three days of the date of occurrence her elder brother shifted t o the house of Keshab Borthakur and the FIR was lodged after the victim disclose d about the incident and at that time they were not in the house of the accused appellant. In cross-examination she stated that some other tenant also used to r eside with their children in the same compound of the accused appellant. She fur ther stated that if some one enters into the house of accused appellant the othe r tenant could witness the same. 6. PW-3 is the victim girl. She stated that she stayed in the house of the accused appellant for six months and on 1st of March, it was the day of Shi v Ratri and her mother went to the Shiv Temple. She further stated that she was in the house along with her brother and aunt Tulumoni (PW-2) and the accused ap pellant called her and her brother to enjoy TV, while her aunt was at the house. She further stated that thereafter while they were enjoying TV, the accused app ellant on the pretext of showing some thing to her called her in the bed room an d laid her on the bed and thereafter penetrated the male organ of the accused ap pellant in her private part. It continued for about five minutes and when she to ld him that it is paining, it is paining. The accused appellant gagged and thr eatened her that if she tells such thing to her parents, he would kill and throw her in the jungle. She was afraid and thereafter returned home with her brother . She did not state to her parents as she was so threatened. After three days wh ile she was playing Lodu and while her parents were not at home at about 2 p.m . the accused appellant again repeated the same thing. She could not tell her pa rents as she was threatened in a similar manner as was done on earlier occasion. She further stated that after some days when her parents went to Numaligarh, th e accused appellant again called her and repeated the same act and she did not d isclose to her parents as she was under threat and the accused appellant repeate d the same act on another date which she could not disclose to her parents. She further stated that after one month of commission of such act her father changed the house and they shifted to another rented house situated at Amalapatty. She further stated that her statement was recorded under section 164 of the Code of Criminal Procedure. She identified and proved her signature which are marked as Exhibit 3(1) and 3(2). In cross-examination she stated that they shifted to the hous e of accused appellant only on 1.3.2003 and some other tenants also used to resi de in the house of accused appellant who are known as Dutta and Das. She admitte d that her father used to work in Golaghat Court although she has no knowledge as to what duties he used to perform. She further stated that on the first day o f occurrence the families of Dutta and Das were at home and her mother along wit h wife of Haren Bora went to Shiv Temple. She admitted that on the day they left the house of accused appellant her father paid house rent to another person. S he denied that there was a dispute between her father and the accused appellant due to non payment of rent. She also denied that a false case has been lodged du e to such dispute. 7. PW-4 Smti. Sunumoni Nath, is the mother of the victim girl. She sta ted that she lodged the FIR. It does not contain the signature of the writer and date. She signed the FIR on 28.7.03. She stated that no explanation has been me ntioned in the FIR for the delay in lodging it. She admitted that she stated b efore the police that she went to Shiv Temple along with the wife of the app ellant. She further stated that the wife of the accused appellant and the famili es of Dutta and Das used to live in the rented house of the accused along with t heir children. PW-5, is Sri Momin Nath, the father of the victim. He stated tha t the victim is his daughter and he stayed in the house of accused appellant fro m 12.2.2003 to 17.7.2003. He further stated that he did not know anything about the incidents while he was residing in the rented house of the accused appellant and he came to know about the incident after he shifted to the present rented h ouse. He stated that her daughter used to ask him to change the house but she di d not state the reason whenever she asked him to change the house. He further st ated that after coming to know about the same from his daughter and after consul tation the FIR was lodged. In cross examination he stated that his daughter did not st ate the dates of subsequent occurrence although she stated him the date of the f irst occurrence. He further stated that on 29.7.2003 he got the FIR drafted by a n advocate’s clerk (Toroni). PW-6 is one Jagat Gogoi who is a hearsay witness on ly. 8. PW-7 is the Investigating Officer. He stated that on 29.7.2003 he w as working as town Assistant Sub-Inspector at Golaghat police station and on th at day the Officer-in-charge received the FIR (Ext.5) and entrusted him to inves tigate the case. He further stated that he visited the place of occurrence, exam ined the witnesses and sent the victim for medical examination and also got the statement of the victim recorded under section 164 Cr.P.C. and after receiving t he medical report submitted charge-sheet against the accused appellant. 9. The defence also adduced his evidence. Smti. Binapani Bora (DW-1 ) is the wife of the accused Horen Borah. She stated that on 1.3.2003, Shivratr i was celebrated in their house and on that day she was at her house along with her husband. She further stated that 2/3 neighbours also visited their house. O ther tenants namely Sunumoni and Minu Das also came. She again stated that Puja started at about 12 noon and her husband was at home till evening. She further s tated that the informant party left without paying house rent for three months a nd the informant’s husband used to rebuke after consuming liquor and also used t o threaten whenever he was asked for the rent. In cross-examination she stated t hat she was never examined by police and police never visited her house. The ten ants were also never examined by police. DW-2 Minu Das, is a tenant of the accused Horen Borah. She sta ted that she used to live in one of the rented houses of the accused appellant a nd on 1.3.2003 Shiv Ratri was celebrated in the house of the accused appellant. She was present at home. Some other devotees came and they stayed at appellant’s house till 4 P.M. She further stated that accused appellant and his wife were a lso at home. DW-3 is one Kula Kr. Bora. He stated that on 1.3.03 the Shi v Ratri was celebrated at the house of the accused appellant by singing devotion al songs. He stayed in the house of the accused appellant from 10 A.M. to 4 P.M. Some other tenants namely, Minu, Sunumoni and other neighbouring people also ca me. Accused appellant along with his wife was also present. In cross-examination he stated that police did not examine him and Momin Nath used to work in the Judge’s Court at Golaghat. 10. Mr. B.K. Mahajan, learned counsel appearing for the accused/ appell ant submits that the evidence of prosecutrix (PW-3) is full of contradictions, e xaggerations and improvements and the sane makes her evidence untrustworthy, unr eliable and devoid of sterling quality. The evidence of the prosecutrix that on the date of occurrence i.e. on 1.3.03 they shifted from the house of accused app ellant has been controverted by the evidence of PW-4 who deposed that in fact th ey started living in the rented house of accused appellant since 12.2.03 and as such the claim of the prosecutrix that on that very day the alleged incident occ urred is palpably false and renders her as the most un-reliable witness. The evi dence of prosecutrix is also contradictory on another material point inasmuch as , she, in her cross-examination stated that her mother went to Shiv Temple along with the wife of accused appellant, although the mother of the prosecutrix (PW- 4) has admitted by stating before police that she went to Shiv Temple along with appellant’s wife. Even the evidence of PW-2 also revealed that the mother of th e prosecutrix went alone to Temple and as such the evidence of PW-4 cannot be re lied upon. The aforementioned piece of evidence has been brought in for the fir st time before the Court but the same are missing in her statements recorded und er section 164 of the Cr.P.C. 11. The learned counsel for the accused appellant further submits that th ere are several improvements as well as contradictions regarding claim of the pr osecutrix that after a gap of three days of the first incident she was again cal led up by the accused appellant and thereafter also again after some days, when her parents went to Numaligarh to sell a plot of land, the accused appellant cal led her and repeated the same act and again on another date he repeated the same act, were not stated in her statement recorded under section 164 Cr.P.C. and th e same makes her a most un-reliable witness. Further, in her statement under sec tion 164 Cr.P.C. she did not state that the appellant gagged her mouth on the fi rst day of the occurrence. He assertively submits that conviction can be based o n solitary evidence of the prosecutrix only when her evidence is found cogent, r eliable and of sterling quality but in the instant case there are contradictions , improvements and exaggerations which are apparently the result of tutoring and rendering her evidence most un-reliable witness. To bring home his point he wo uld refer to State of Arunachal Pradesh Vs. Samail Baiju,reported in 2010 (4) G LT 95 and Arbind Singh Vs. State of Bihar, reported in AIR 1994 SC 10678. The le arned counsel further submits that the evidence of the prosecutrix is not reliab le as there was no prompt disclosure of the alleged offence and the delay has be en caused to manipulate, fabricate and to give a colourized and false version of the occurrence. According to him there was a delay of about 5 months in lodging the FIR and there is no instance of giving threat to the prosecutrix and a disp ute arose due to non-payment of the house rent by the father of the prosecutrix to the accused appellant. It has also been argued with great force that the medi cal evidence belies the oral evidence of the victim inasmuch as, on medical exam ination, no injury was found in the person of the prosecutrix. Further it is arg ued that the evidence of the defence witnesses should be given similar weightag e to that of the evidence of prosecution witnesses. Last of all, it is argued t hat in the instant case on the basis of the evidence adduced it is possible to t ake two views, one to the guilt of the accused appellant and the other to his in nocence. Relying upon the decision reported in (2003) 12 SCC 646 (Ramananda Yada v Vs. Prabhu NathJha and Others) the learned counsel submits that in such cases the view which favours the accused appellant should be adopted. 12. The appellant has laid much stress and importance on the medical evid ence. Repeatedly reference has been made to Ext. 1 medical report and the evide nce of the medical officer. As per medical evidence there is no sign of sexual i ntercourse as no injury was found in her private parts, the relevant portion of evidence of Medical Officer, is quoted hereunder :- &..I also signed the vaginal report and the scigram report. Exh ibit-1 is my report where Exhibit-1(1) is my signature. Exhibit-2 is the vaginal smear report where Exhibit-2(1) is my signature. Exhibit-3 is the scigram repor t where Exhibit 3(1) is my signature. Cross-examination : For the accused There is no injury in the private parts. There is also no sign of sexua l intercourse. To the Court : I had not taken the history regarding the alleged oc currence or occurrences either from the alleged victim or any of her parents. Va ginal spermatozoa in a case of rape/ sexual intercourse can be there present in the vagina up top 48 hours, if not washed away or in anyway wiped out spermatozo a may be there outside the vagina. I did not ask the alleged victim or her paren ts whether the private parts I examined for the spermatozoa had been washed away before coming to me. If there was any particles of spermatozoa outside the vagi na that might have been disappeared after washing & 13. From the evidence on record it has been established undisputedly that th e victim girl was minor at the time of occurrence. She was merely 7 years old. T his has not been disputed. From the nature of cross-examination of the PWs, part icularly the victim girl PW-3, it appears that the defence tried to impeach the evidence of the victim girl as being tutored and it was purposefully done by he r parents to malign the reputation of the appellant as he occasionally objected to late coming of victim’s father as a tenant in the nights in drunken state. Th e defence tried to demolish the evidence of the victim with the help of the medi cal evidence inasmuch as the PW-1, Medical Officer tendered evidence contrary to the claim of the victim girl. 14. This case has to be decided bearing in mind that the victim girl is not an accomplice of the offence. She being a victim, her evidence should be giv en prior importance and there is no need of corroboration by other witnesses, no t even by any supporting medical evidence, provided her evidence is consistence, trustworthy, reliable and of sterling quality gaining the confidence of the cou rt. This aspect has to be examined on the basis of the evidence on record. 15. It is no doubt correct that the Doctor, PW-1, after examining the victim girl opined that there was no sign of sexual intercourse. As per medical report the hymen was found intact. Apparently, if the Medical Report Ext. 1 is r ead with the evidence of the PW-1, there is no case of rape on the person of t he victim girl and the accused appellant is entitled to acquittal. Can it be don e so by a Court ? For answering this question, it is necessary to examine the pr ovisions of law u/s. 376 IPC and the laws laid down by the Apex Court in differe nt cases on various occasions. Rape has been defined u/s. 375 IPC as under :- 375 : A man is said to commit rape who except in the case hereinafter except ed, has sexual intercourse with a woman under circumstances falling under any of the five following description :-First- Against her will, Secondly- without her consent. Thirdly-with her consent, when her consent has been obtained by puttin g her or any person in whom she is interested in fear of death, or of hurt. Four thly- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes, that he is another man to whom she is or believes herself to be lawfully married. Fiftly- With her consent, when at t he time of giving such consent , by reason of unsoundness of mind or intoxicatio n or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequence s of that to which she gives consent. Sixthly- With or without her consent, when she is under sixteen years of age. 16. As per the first explanation to section 375 IPC penetration is suffi cient to constitute the sexual intercourse but there is no further explanation a s to what amount of penetration is required for the purpose of establishing a c ase of offence of rape. In the present case the hymen is found intact which impl ies that there was no penetration of a full grown male organ like that of the ac cused person. In medical terms to constitute rape it is not necessary that there should be complete penetration of penis with emission of semen and rapture of h ymen. What is indeed necessary is a partial penetration of penis with labia majo ra or vulva or pudenda with or without emission of semen. Medically speaking, e ven an attempt at penetration is quite sufficient for the purpose of law. Raptu re of hymen is therefore not really necessary to establish a case of rape inasmu ch as it is legally possible to commit offence of rape without causing any injur y to the genitals or leaving any seminal stains. For the purpose of clarifying t his medico-legal aspect of the matter I would respectfully refer myself to decis ion of the Hon’ble Supreme Court in State of M.P. Vs. Munna Choubey and another, reported in (2005) 2 SCC 710. I would also refer to Tarkeswar Sahu Vs. State of Bihar (Now Jharkhand) reported in