Crl.A. 273/2003 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. NJ Das, learned counsel, for the appellant. State is represent ed by Mr. BB Gogoi, the learned Addl. PP, Assam. 2. The appellant challenges the judgment dated 18.07.2003, in Sessions Case No.24/2003 rendered by the learned Sessions Judge, Golaghat, whereby the accuse d appellant is convicted under Sections 376 IPC and sentenced to RI for 2 ‰ yea rs and fined Rs.1,000 and, in default of payment of fine, to undergo further RI for one month. 3. The criminal process was set in motion with the FIR lodged on 05.06.2002 in the Dhekial Police outpost by Deben Das (PW2) with the information that on 0 3.06.2002 at about 3.30 pm, the informant’s minor daughter Monimala Das was enti ced away by their neighbour Pankaj Das alias Akanman in his Ambassador car and t he said accused committed rape on the victim inside the car. The victim did not reveal anything about the incident on that day. The father stated that his daugh ter was an ’Akori’ (dim witted) person. Next day, when the victim’s mother Lakhi mai Das saw her daughter crying while passing urine, on being questioned the vi ctim disclosed that the accused had sexually assaulted her in his Ambassador car . The police arrested the accused on 06.06.2002 and after completion of the inve stigation, he was charged under Section 376 of the IPC. 4. During the trial, eight witnesses were presented by the prosecution whil e the defence adduced no evidence. 5. PW1, is the victim girl who stated that she knew the accused who was a n ear neighbour. The accused took her for a ride in his Ambassador car and taking the car near the bamboo bushes where nobody else but the two were present, the a ccused forcibly took off her pant and removing his own pant, lay down the victim on the seat of the car and raped her despite the protest of the victim. When the victim returned home, her mother was not present. She told her mother about the incident on the next day. In her cross evidence, the victim stood by her tes timony and denied the suggestion given to her that she had made false allegation s out of enmity against the accused. 6. PW2, Deben Das, is the informant and the father of the victim. According to him, the victim was disabled since birth and was aged about 14 years at the relevant time. On the afternoon of the incident at about 3.30 pm, he saw his dau ghter standing in the verandah of the house of the accused. He also saw the vict im being taken by the accused for a ride in his Ambassador car. Then the witness went to the rice mill. On the given date, nobody told him about the incident. O n the next day, the victim disclosed to her mother that on the previous day’s af ternoon, the accused had sexually assaulted her in the car. The father took th e victim to the Golaghat hospital and thereafter he lodged the FIR. During cross -examination, he denied the suggestion that the case was filed out of enmity wit h the accused. 7. Lakhimai Das (PW3) is the mother of the victim. She stated that her daug hter is a disabled person and also suffers from speech disability. According to her, the victim was a frequent visitor to the house of the accused and on 03.06. 2002, the accused enticed away the victim in his Ambassador car and after sexual ly assaulting her near the bamboo bushes, he left her on the road side. The next day, the mother saw her daughter crying during urination and on being questione d, the victim disclosed that the accused on the previous day’s afternoon, had ta ken her in his car and inappropriately touched her and did ’bad things’ with her . After her husband returned from the plough fields, PW3 informed him about the incident. She stated that she saw blood stains on the undergarments of the victi m which were later on seized by the police. In his cross-examination, PW3 stated that the victim is ’bengi’ (dim witted) person with speech disability. 8. PW4, Smt. Bulu Das is a neighbour of both the victim and the accused. On the day of the incident, while she was proceeding with her relative Nakul Das(P W6), she saw the victim in the Ambassador car being driven by the accused. There was nobody else inside the car, when she saw them. 9. PW6, Nakul Das was the other neighbour. When this witness was proceeding with Bulu Das (PW4), he saw the accused giving lift to the victim in his Ambass ador car. He also saw the accused dropping the victim near the Hari Mandir. 10. PW5 Dr. Ashok Kr. Barkataky was the senior Medical and Health Officer at the Golaghat Civil Hospital. He examined the victim on 05.06.2002 and recorded that hymen shows old healed tear and admits one finger only. No other injury was detected. Laboratory examination of the vaginal smear vide Lab. R/No.27/02 show s no spermatozoa. X-ray of wrist joint shows non completion of ossification of l ower ends of radius and ulna. According to the witness, the victim was below 18 years and he did not see any sign of rape/injury on her person. 11. PW7 was Pradip Das who is the uncle of the victim. According to him, aft er the incident was disclosed to the family of the victim, they advised that the victim be taken for medical treatment to Golaghat Civil Hospital. Accordingly, the uncle accompanied the father of the victim with few others for giving medica l treatment at Golaghat Civil Hospital. In his cross-examination, the witness ad mitted that he learnt of the incident from his elder brother Deben Das (PW2). 12. PW8, Mukunda Murari Mahanta was the in-charge of the Dhekial outpost whe n the FIR was lodged. After recording the GD Entry No.58 dated 05.06.2002, he fo rwarded the FIR to the Golaghat Police Station for registration of the case. He seized the wearing apparels of the victim and arranged for recording her stateme nt before the Magistrate. According to the I/O, the victim girl was a slow witte d person but is capable of understanding when spoken to. The victim told the I/O that the accused had done ’bad things’ with her. 13. The counsel for the appellant argues that because of the delay in lodgin g of the FIR, the prosecution case is not believable. Mr. NJ Das also submits th at victim’s statement given before the Magistrate doesn’t suggest rape and accor dingly her evidence cannot be relied upon, to upheld the conviction under Sectio n 376 of the IPC. The Medical evidence given by PW5 is also read by the counsel to submit that the conviction under Section 376 IPC is unjustified in the presen t case. 14. As regards the delay in lodging of the FIR, it must be borne in mind tha t this Court is dealing with a dim witted person who may be incapable of reactin g like a normal person in a given situation. On the day of the incident, she had not disclosed to anyone of the assault made on her person. Next day when she wa s having difficulty in urinating and was crying, only on being questioned by her mother, the victim disclosed about the sexual assault made by the accused. Ther eafter, the victim was taken to the Golaghat Civil Hospital. The mother could ac t upon on the information of the victim only after her husband returned home fro m the plough fields. Thereafter, the victim was taken to the Golaghat Civil Hosp ital in the afternoon and on being advised by the Doctor, the father of the vict im lodged the FIR on the next day. Considering this and the rustic backgrou nd of the victim and her family, I see no reason to doubt the correctness of the prosecution case on the assault on the victim merely because, there was delay i n informing the police. 15. In the statement given under 164 Cr.PC before the Judicial Magistrate, G olaghat, the victim stated that the accused committed the ’act’ by laying her do wn in the car. She also stated that the accused touched her in various parts of her body. Thus the victim clearly stated about the sexual assault made on her pe rsons. According to me, minor discrepancy in her testimony, does not alter the veracity of her evidence insofar as a case of sexual assault. 16. In a case of rape, the sole testimony of the victim can be the basis for conviction if her evidence is found to be truthful. The evidence of the victim, her statement before the police under Section 161 Cr.PC, the statement under se ction 164 Cr.PC before the Magistrate are consistent on all material particulars and there is no reason to disbelieve her version about the commission of sexual assault, by the accused. 17. In the evidence of the doctor, it is recorded that he did not see any si gn of rape on the victim. That apart, the victim’s hymen showed old tear. The vaginal smear did not show spermatozoa. Therefore, the medical evidence is inco nsistent with rape of the victim. 18. On the day of the incident, the independent witnesses saw the victim in the accused’s car. The testimony of the victim is believable on this point and is supported by her partents who had no reason to implicate the accused or to ex pose their own daughter as a victim of sexual assault. 19. However, considering the medical evidence which rules out rape and in th e absence of any recent injury on the victim’s private parts, it is difficult to sustain the conviction of the accused under Section 376 of the IPC. But at the same time, the entire evidence of the victim can’t be discarded altogether, bec ause of the other evidence in the case. 20. In her statement before the Magistrate, the victim hadn’t specifically m entioned rape. But she has indicated that the accused disrobed her, made her li e down on the seat of the car and touched her breasts and other parts. The 2 in dependent witnesses had seen the accused giving a ride to the victim in his amba ssador car. The victim at the time of the incident and her examination was a mi nor. The evidence of the I.O and the parents show that she was a ’bengi’ (dim w itted) disable girl. Therefore, although this mayn’t be a case of rape, it appe ars to me to be a case of assault with intent to outrage the modesty of the vict im. Accordingly, instead of Section 376, the accused is held to be guilty under Section 354 of the IPC. For such conviction, he is sentenced to 1 ‰ years R.I . and fine of Rs.2,000/- and in default of fine, to simple imprisonment for 2 mo nths. The impugned conviction and sentence is modified, accordingly. 21. Since, the appellant was granted bail by this Court, he will surrender i n the trial Court to serve out the sentence. The benefit of set off be given to him for the time spent in custody. Lower Court records be returned forthwith.