Crl.A. 381/2002 BEFORE HON’BLE MR. JUSTICE H. N. SARMA This appeal is directed against the judgment and order dated 13/ 8/2002 passed by the learned Additional Sessions Judge (Adhoc), Kokrajhar in Ses sions Case No.2/2001 convicting the accused u/s 376 IPC and sentencing him to un dergo 7(seven) years of rigorous imprisonment and to pay fine of Rs.5000/-, in d efault to suffer another six months simple imprisonment. 2) I have heard Mr. I. Hussain, learned counsel led by Mr. AS Choud hury, learned counsel for the appellant and Mr. BB Gogoi, learned Public Prosecu tor for the State. 3) The prosecution case in brief is that an FIR was lodged on 23/4/ 98 by one Smt. Menoka Barman alleging that on 22/4/98 at about 6-30 PM in her ab sence, the accused /appellant entering into her house committed rape on her mino r daughter aged about 7 years. On the basis of the aforesaid FIR, the Gossaigao n PS Case No. 62/98 u/s 376 IPC was registered against the accused and the proce ss of investigation started. The Investigating Officer (for short, ’I/O’) durin g the course of investigation visited the place of occurrence, seized articles a nd got the victim medically examined and arrested the accused. After completion of the investigation having found a prima-facie case, police submitted chargesh eet against the accused u/s 376 IPC. The case being exclusively triable by the court of Sessions, after registering the case as GR No. 334/98 the learned CJM, Kokrajhar committed the case to the court of learned Sessions Judge, Kokrajhar. 4) The learned trial Judge, upon consideration of the materials pro duced by I/O u/s 173 Cr.P.C., so far collected during the course of investigatio n, upon hearing learned counsel for the parties and having found sufficient mate rials, framed charge u/s 376 IPC against the appellant. The charge having been read over and explained, the accused pleaded not guilty and claimed to be tried. 5) During the course of trial, the prosecution examined as many as 7(seven) PWs including the Doctor and the I/O. After completion of the prosecut ion side, the circumstances that appeared in the evidence against the accused ha ve furnished to him during his examination u/s 313 Cr.P.C. to which the accused denied. The accused did not adduce any defence witness. 6) The learned trial Judge, upon consideration and appreciation of the evidence and materials available on record, convicted and sentenced the accu sed in the manner as indicated above and hence this appeal. 7) During the course of argument, learned counsel for the appellant submits that there is no independent corroboration of the statement of the vict im girl, PW.2 who admittedly was a child of 7 years at the time of occurrence an d admittedly she was aged about 10 years at the time of her evidence and in the in the absence of corroboration of her statement, it is not safe to rely upon he r evidence. It is further contended that the Doctor, PW.1 having specifically f ound that there was no sign of rape upon the victim girl and also in terms of th e result of the medical examination of the victim girl, no case u/s 376 IPC has been made out and at best it may be a case falls u/s 366 A IPC. Accordingly, th e conviction u/s 376 IPC is not sustainable in law. It is further submitted tha t at the relevant time the accused was a minor of 14 years and he ought to have been tried by a juvenile court and on failure of the prosecution to do so, the e ntire process is vitiated. 8) Learned Additional Public Prosecutor, however, submits that al though the victim girl who was examined as PW.2 was a minor of 7 years at the ti me of occurrence, she had sufficient capacity to understand what she has deposed and on such consideration and satisfaction her statement was recorded by the le arned trial Judge. That apart, her statement was also recorded u/s 164 Cr.P.C. after necessary satisfaction by the learned Magistrate. The evidence of victim g irl is sufficiently corroborated by other evidence, more particularly, of PW.3 a nd PW.5. in spite of the evidence of Doctor, PW.1, who stated that there is no sign of rape, the learned trial Judge is perfectly justified to hold the accused guilty of the offence committed u/s 376 IPC on the basis of the facts as proved by the prosecution witnesses including the victim girl. It is contended by the learned Public Prosecutor that it is a full proof case which needs no interfere nce, more particularly, considering the gravity of offence committed upon the a minor girl. 9) Submissions of the learned counsel for the parties have received due attention of this Court and their submissions have led me to go through met iculously through the evidence and materials on record including the statements of prosecution witnesses. 10) Let us now examine how far the prosecution has been able to prov e the case keeping in mind the basis of criminal jurisdiction regarding proof be yond reasonable doubt, on the basis of the evidence on record. In this case, out of 7(seven) witnesses proved by the prosecution, PW.1, Dr. H.C . Brahma is the Doctor who examined the victim girl on 23/4/98 while he was serv ing as Superintendent of RNB Civil Hospital, Gossaigaon, in his evidence before the court he deposed that on 23/4/98 he medically examined the victim girl, PW.2 and on her examination he found that her labia-majora of both sides were swolle n and reddish in colour, hymen intact, no semen stains on her private parts, no male pubic hair was found on her private parts, no external injuries were found on her cheeks and body and as per x-ray finding her age was 7 to 8 years. There was no sign of rape. The medical report was proved as Ext.1 and Ext.1(1) is his signature. In cross, he stated that if there was penetration question of intact hymen does not arise. 11) PW.2, Anima Barman, the victim girl at the time of her productio n before the court, she was aged about 10 years. Before her examination, the le arned trial Judge by putting certain questions tested her general intelligence a bout her capacity of understating and after such consideration and satisfaction, he proceeded to examine her witness as PW.2. In her deposition, she stated tha t on the date of occurrence about 4 years ago at about 7-30 PM the accused came to their house in absence of her parents. She identified the accused in the doc k. The accused asked her to press his back. Then he lied her down in the bed a nd opened her pant. The accused put his male organ on her female organ. She fe lt pain and tried to raise alarm. But the accused gagged her mouth and did not allow her to shout. The accused penetrated his male organ into her vagina with s aliva. She further deposed that when her parents returned home she narrated the incident to them and she further intimated regarding the occurrence to Kamala an d Subodh. In her cross, she stated that nobody came to their house when th e occurrence took place but a girl saw the occurrence through a window. There w as bleeding from her female organ. She further denied that the accused did not committed rape on her. Suggestion of false evidence was also denied by her. 12) PW.3, Smti. Menaka Barman, the mother of the victim girl who lod ged the FIR, in her deposition, stated that about 4 years ago the accused came t o their house at abut 6-30 PM and at that time her daughter was alone in their h ouse. When she returned home the witnesses Purnima and Uma told her that the ac cused has forcibly committed sexual intercourse with her daughter and when her d aughter tried to cry, the accused gagged her mouth. She also told about the inc idence when the father of the victim girl returned. The victim girl was medical ly examined at Kokrajhar RNB Civil Hospital on the next day. She lodged an ejah ar on the next day which was written by one Subudh Sarkar. She further deposed that she saw bleeding from the vagina of the victim girl and the pant wore by the victim girl was seized by police and a ’kupi’ whi ch was burning inside the room at the time of occurrence. She further deposed t hat the accused penetrated his male organ into her female organ. In cross, she denied that Purnima and Uma did not tell her anyth ing regarding the occurrence. She further denied the suggestion that she told the I/O that her victim daughter did not tell her about the occurrence in detail s. She saw semen on the pant of the victim girl, PW.2. The suggestion given by the accused that he did not committed any sexual intercourse with her daughter was denied. 13) PW.4, Subodh Sarkar wrote the ejahar on 23/4/98 as per the dicta tion of PW.3 wherein he put his signature vide Ext.2(1). He had no personal kno wledge about the occurrence. 14) PW.5, Smti. Uma Baskey who is one of the vital witness of the pr osecution, deposed that on the date of occurrence about 4 years ago at about 6-3 0 PM while the victim girl was reading book in the veranda of their house, the a ccused came to the house and took her inside. The accused asked the victim girl to press his body and when they did not come out for some time, PW.5 peeped thr ough the window and saw that accused committed sexual intercourse with the victi m girl. The victim girl was lying on a bed. At that time, parents of the victim girl were not present at all. She could identify the accused and the victim gi rl with the help of the light of the lamp which was burning in the house. In cross, she stated that the victim girl did not tell her about the occurrence and the lamp was burning in the table inside the room. She deni ed that there was darkness in the room. She also denied the suggestion that the accused did not commit rape on the victim girl. 15) PW.6, Anukul Barman, is the father of the PW.2, victim girl. In his statement, PW.6 stated that the occurrence took place at 6-30 PM on 22/4/98 while he and his wife were not at home. In return to his house, his wife inform ed that her daughter was raped by the accused. After the occurrence, the accuse d was not found at home and was absconding. The FIR was lodged by his wife. At that time her daughter was 6 years old. He denied the suggestion that his dau ghter tell anything regarding the occurrence. He further denied the suggestion that the accused did not commit rape on her daughter and the case was instituted on grudge. 16) PW.7, Ranjit Kr. Basumatory, S.I. of Police of Gossaigaon Police Station is the I/O of the case. He stated that O/C of the police station recei ved an ejahar and registered the same. The O/C endorsed the same in the name of the PW.7 for investigation as the I/O of the case. Visiting the place of occur rence, he prepared sketch map and recorded the statement of witnesses and sent t he victim girl to RNB Civil Hospital, Gossaigaon for medical examination. He al so seized one ’Jangia’ vide Ext.4 and a ’Chaki’ vide Ext.5. He could not arrest the accused who was absconding. On 9/8/98, the accused surrendered and he was arrested by the police. After completion of the investigation, he submitted the chargesheet vide Ext.6 against the accused u/s 376 IPC. In cross, he mentioned that victim girl did not tell before him that the accused penetrated his male organ into her female organ with the help o f saliva. It is further stated that PW.3 did not tell him that ’chaki’ was burn ing inside the room. He further stated that PW.6 told him that the victim girl felt pain on her female organ. 17) The victim girl, PW.2 was admittedly a minor and aged about 6 ‰ years at the time of occurrence and her age was not challenged by the defence. Few days after the occurrence, her statement was recorded by a Magistrate u/s 16 4 Cr.P.C. Before recording her statement, the learned court below was fully sat isfied about the understanding capacity of the victim girl. Right from the reco rding of her statement made us/ 164 Cr.P.C. by the Magistrate to her examination before the court during trial as PW.3, the victim girl maintained the same stan d that the accused committed rape on her. Although she was subjected to cross e xamination at length by the defence, but her clear and cogent statement could no t be dislodged at all by the defence in cross examination. She maintained the sa me stand that the accused committed rape on her inside the room on the date of o ccurrence in absence of her parents by putting inside his genital organ into her genital organ. The statement of PW.2 is further corroborated by another eye-wi tness of the occurrence i.e. PW.5, whose statement was also recorded u/s 164 Cr. P.C.. In her cross examination, PW.5 specifically stated that she had personall y seen the occurrence. The description of the occurrence as narrated by PW.5 fu lly corroborated to the description given by the victim girl, PW.2. Immediately after arrival of the parents, PW.5 narrated the story. PW.3, the mother of the victim girl was informed by the victim girl as well as by PW.5. PW. 3 saw the bleeding through the genital organ of the victim girl and she lodged the FIR. S o also the father of the victim girl, PW.6 was immediately intimated about the o ccurrence by the victim girl as well as by PW.3 has narrated the occurrence as d isclosed before them by the eye-witness of the occurrence i.e., PW.5. 18) Now let us see how far the medical evidence can rescue the accus ed. PW.1 is specific in his statement that upon medical examination the age of the victim girl was found to be 6 years. Although he has stated that the hymen of the victim girl was found to be intact and he found her labia-majora was swol len and reddish in colour. There is no cross examination as to cause for such u nnatural stage of labia-majora as disclosed in the report. From the face of the facts as proved by the prosecution witnesses such unnatural stage of female org an, namely labia-majora to be swollen or reddish cannot be but for the reason of the actions and acts committed by the accused. PW.1 was of the impression all along that there was no sign of rape. Such impression certainly was expressed by PW.1 on the ground that hymen was found to be intact. 19) It has been projected by the learned counsel for the appellant t hat intact position of hymen as found by PW.1 would not attract the offence unde r Section 376 IPC upon the accused and thus the medical evidence belies the test imony of the prosecutrix as well as other PWs. But we find that the prosecutri x specifically stated that the male genital organ of the accused was inserted in to her female genital organ and it caused her pain and she cried. The correspon ding medical evidence to the effect that the labia-majora of the genital organ o f the victim girl was found to be swollen and become reddish and this is suffici ent proof of the fact that in fact there was some penetration of the genital org an upon the female organ of the victim girl, howsoever less it may be. In the c ase of penetration, however, slight penetration is sufficient. In certain cases of such nature it cannot be conclusively held that there was no rape as because the Doctor did not find that hymen was not ruptured. Direct, specific and clea r statements of the prosecutrix tested by cross-examination will not be evaporat ed along with statement of eye-witness, the PW.5 only on such observation of the Doctor, PW.1. 20) Rape is a crime and not a medical condition and it is a legal te rm and not a diagnosis to be made by the Doctor by examining the victim. The D octors is only to examine the victim and to narrate the finding and he is not re quired to state whether there was a sign or rape or not. Such fact can be proved only by the statement of witnesses including that of the prosecutrix. 21) The Apex Court in the case of State of H.P. vs Gian Chand rep orted in (2001) 6 SCC 71 categorically held that absence of any external bleedin g mark on the body of the victim does not mean that rape did not take place. Mo di’s Medical Jurisprudence and Toxicology, 23rd Edn. at page 897 reflects that t o constitute the offence of rape, it is not necessary that there should be compl ete penetration of the penis with the emission of semen and the rupture of hymen . Partial penetration of the penis within the labia majora or the vulva or pude nda, with or without the emission of semen, or even an attempt at penetration is quite sufficient for the purpose of law. It is therefore, quite possible to co mmit legally, the offence of rape without causing any injury to the genitals or leaving any seminal stains. In such a case, the medical officer should mention the negative facts in his report, but should not give his opinion that no rape h ad been committed. 22) The word ’intercourse’ has not been defined in IPC. The word ’i ntercourse’ for the purpose of Section 375 IPC means ’sexual connection’ (Concis e Oxford Dictionary). In Khanu v. Emperor reported tin AIR 1925 Sind 286, the meaning of the word ’intercourse’ was considered. Intercourse may be defined a s mutual frequent action by members of independent organization. Then commercia l intercourse, social intercourse, etc. have been considered; and then appears, by a metaphor the word intercourse, like the word commerce, is applied to the r elations of the sexes. Here also here is the temporary visitation of one organi sm by a member of the other organization, for certain clearly defined and limite d objects. The primary object of the visiting organization is to obtain euphori a by means of a detent of the nerves consequent on the sexual crisis. But there is no intercourse unless the visiting member is enveloped at least partially by the visited organism, for intercourse connotes reciprocity. Therefore, to deci de whether there is intercourse or not, what is to be considered is whether the visiting organ is enveloped at least partially by the visited organism. In the instant case which are found on record, had there been no such envelope by the v isiting organ and in that event both sides of the labia -majora of the prosecutr ix would not have swollen and became reddish in colour ( Ref. AIR 1969 CRLJ 818 ) 23) Although learned counsel strenuously urged about the non-corrobo ration of the evidence of prosecutrix, I am not impressed with the argument on t hat grounds that, firstly, in a case u/s 376 IPC, the conviction can be based on the sole evidence of the prosecutrix , if it is found to be reliable. In the i nstant case, as indicated above, right from the recording of statement u/s 164 C r.P.C. till her examination in the court, the prosecutrix maintained the same st and. Infact no second story of the occurrence has been propounded. Defence of the accused is total denial. Secondly, the conduct of the accused that he absco nded himself immediately after the commission of offence has not been explained which goes against him. Thirdly, there is another eye-witness, PW.5, who saw th e occurrence and her statement was also recorded u/s 164 Cr.P.C. Although the attack made on the veracity of the statement of PW.5 on the ground of improvemen t of evidence to the effect that she has not given detail description before the I/O of the case while examination u/s 161 Cr.P.C. is also not acceptable on the ground that such an omission was not proved in accordance with the provision of Section 162 Cr.P.C. by putting them to the witnesses. It is now well settled t hat the conviction of the offence of rape can be based on the sole testimony of the prosecturix if it lends support by other circumstances, short of corroborati on. 24) In this regard, we recall the observation of the Apex Court rend ered in the case of State of H.P. vs. Lekh Raj and another reported in (2000) 1 SCC 247, wherein the Supreme Court stated that - The criminal trial cannot be equated with a mock scene from a stunt film. The legal trial is conducted to ascertain the guilt or innocence of the accused arra igned. In arriving at a conclusion about the truth, the courts are required to adopt a rational approach and judge the evidence by its intrinsic worth and the animus of the witnesses. The hypertechnicalities or figment of imagination shou ld not be allowed to divest the court of its responsibility of sifting and weigh ing the evidence to arrive at the conclusion regarding the existence or other of a particular circumstance keeping in view the peculiar facts of each case, the social position of the victim and the accused, the larger interest of the societ y particularly the law and order problem and degrading values of life inherent i n the prevalent system. The realities of life have to be kept in mind while app reciating the evidence for arriving at the truth. The courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administer ing justice in a criminal trial. Criminal jurisprudence cannot be considered to be utopian thought but have to be considered as part and parcel of the human ci vilization and the realities of life. The courts cannot ignore the erosion in v alues which are a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and mankin d. 25) Again the Apex Court in another case of State of Punjab vs. Gurm it Singh and others reported in (1996) 2 SCC 384 held as follows: The testimony of the victim of sexual assault is vital and unless there are com pelling reasons which necessitate looking for corroboration of her statement, th e courts should find no difficulty in acting on the testimony of a victim of sex ual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before rely ing upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual mo lestation, be viewed with doubt, disbelief or suspicion? The court while apprec iating the evidence of a prosecutrix may look for some assurance of her stateme nt to satisfy its judicial conscience, since she is a witness who is interested in the