Crl.A. 267/2003 BEFORE THE HON’BLE MR JUSTICE P.K. MUSAHARY Heard Mr Subhash Ch Biswas, learned counsel for the appellant. Also heard Mr BB Gogoi, learned Addl PP, Assam. 2. This appeal is directed against the judgment and order dated 21-6-2003 p assed by the learned Sessions Judge, Sonitpur, Tezpur in Sessions Case No.80/200 0 convicting the appellant u/s 376 IPC and sentencing him to undergo RI for seve n years and fine of Rs.1000/-, in default further RI for three months. 3. The prosecution story, in brief, is that on 9-1-98 at about 12 noon, tak ing advantage of absence of other family members, the victim girl was taken out by the accused appellant to a nearby tea estate and she was raped by him. The mo ther of the victim girl lodged an FIR on the basis of which a case being Dhekiaj uli PS Case No.7/98 was registered u/s 376/34 IPC. After completing the formalit ies and the investigation, including examination of the victim girl by medical o fficer, charge sheet was submitted against the accused appellant u/s 376/34 IPC. On charges being read over and explained, the appellant denied the allegation a nd pleaded not guilty. The accused appellant, however, did not examine any witne ss in his defence. The learned Trial Court on the basis of evidence and materials on record convict ed and sentenced the accused appellant as stated earlier. 4. I have gone through the evidence on record and appreciated the same. The victim girl was examined as PW-2. In her deposition she categorically stated th at she was raped by the appellant. She sustained injury on her person as she res isted when she was forcibly laid on the ground and raped. In her statement u/s 1 64 CrPC also she made similar statement before the Magistrate. It is a settled p osition of law that conviction can be ordered solely on the basis of evidence of the victim girl, if her statements are found to be cogent, reliable and inspiri ng confidence of the court. It is the duty of the court to evaluate the truthful ness of the statement of the victim girl. To testify the same it is necessary to consider the other materials and evidence on record. First of all, the medical evidence/report (Ext-1) may be taken into consideration. The said Ext-1 was prep ared by Dr. Achinta Kr Barua (PW-1). The relevant portion of the said report is reproduced for convenience of all :- Height - 154 cm Weight - 45 kgs No of teeth - 15 + 15 Secondar sex character - Breast well developed, Pubic and axillary hair well developed Vulva and vagina - intact No sign of injury detected on the body or in private parts. Hymen torn not tender (old tear) Vaginal swab taken for detection of human sperm. No spermatozoa was seen. No evidence of rape found on her body. No mark of violence found on her body and private parts. PW-1, who examined the victim girl, proved the aforesaid medical report and clea rly stated that the victim girl sustained injury on her person and he stood by t he finding recorded in the medical report (Ext-1). The medical report does not s upport the evidence of the victim girl inasmuch as no injury has been found on h er person although she deposed that she resisted the appellant and in course of such resistance she sustained several injuries. It is quite natural that if some resistance was put against the forceful ravishment by a young man, the victim g irl would sustain some injury/injuries on her person. But that is found absent i n the present case. In such a situation it is difficult to accept the evidence o f the victim girl as cogent, truthful and reliable, not to speak of inspiring co nfidence of the Court. 6. There is no eyewitness to the incident, which is, of course, quite natur al,, because the incident took place in the Tea Estate. But there is no such evi dence to the effect that the accused appellant forcefully took out the victim gi rl from her house or she made hue and cry as a mark of her opposition to accompa nying the appellant or she was unwilling to accompany him. The evidence of the v ictim girl is very clear that an arrangement for marriage between her and the ap pellant was made inasmuch as her parents had agreed already and there was exchan ge of gifts from both the families to celebrate the settlement of the marriage. The mother of the victim girl Smti. Labanya Das (PW-3) has also corroborated the statement of the girl in respect of settlement of the marriage. This indicates that she was allowed by her parents to move out with the appellant so that they can talk and know each other and under such circumstances it can be legally pres umed that the prosecutrix went out from her house willingly. 7. On appraisal of the evidence on record, particularly the medical evidenc e, I am unable to persuade myself to agree with the finding of the learned Trial Court that the accused appellant committed rape on the prosecutrix but there is a case for outraging the modesty of the prosecutrix or an attempt on the part o f the accused appellant to that end, as the prosecutrix, being engaged for marri age with the accused, moved with him freely but when moving inside the tea estat e the appellant had done something which was not acceptable for her and at that moment it is but natural that she objected, resisted and cried for help. From th e records I have verified that the accused was not examined medically to testify his possible sex, forcefully or otherwise, with the prosecutrix. The defence di d not raise any point in this regard during the trial. 8. Considering the aforesaid facts and circumstances of the case and the ev idence on record I am of the considered view that there is no case of rape commi tted by the present accused appellant except indulging himself in an attempt to outrage the modesty of the prosecutrix attracting the offence u/s 354 IPC. The c onviction awarded by the learned Trial Court is liable to be converted to one u/ s 354 IPC and consequently reducing the sentence to a fine which is quantified a t Rs.2000/- to be deposited in the Court of the learned CJM, Sonitpur, Tezpur wi thin a period of two months from today and in default, he shall suffer SI for tw o months. The accused appellant shall be set a liberty as soon as the aforesaid fine is deposited. 9. The appeal stands disposed of with modification in the conviction and se ntence as indicated above. Return the LCRs immediately.