Crl.A. 97/2004 BEFORE HON’BLE MRS.JUSTICE ANIMA HAZARIKA JUDGMENT AND ORDER (ORAL) Heard Mr TH Hazarika, learned counsel for the appellant. Also he ard Mr D Das, learned Addl PP, Assam. 2. This appeal is directed against the judgment dated 12.12.03 pass ed by the learned Sessions Judge, Dhemaji in Sessions Case No.17(DH)/99 whereby and whereunder the appellant was convicted under Section 376 (I) IPC and sentenc ed to suffer RI for 7 years and to pay a fine of Rs.5,000/-, in default, further RI for three months. 3. The prosecution case, in brief, is that on 20.10.97, at about 8 PM, the prosecutrix went out of the house for passing urine. Just then, appellan t Bhuban Doley, resident of the same village appeared before her, gagged her mou th and took her towards the backside of her house. Thereafter, he laid her down on the ground and committed rape on her. After commission of rape, the accused l eft the place and the victim came home and reported the matter to her sister-in- law and her parents. Her brother Sri Bhabesh Kumar Preme lodged the FIR dated 21 .10.1997 with the Gogamukh out post under Dhakuakhana Police Station. On receipt of the FIR, police registered a case being Dhakuakhana PS Case No.239/97 under Sections 376/506 IPC and started investigation. Police visited the place of occu rrence, recorded the statement of the witnesses, sent the victim for examination by the doctor on 22.10.97 and also recorded her statement under Section 164 CrP C. After completion of the investigation, police submitted charge-sheet under Se ction 376 IPC and arrested the accused. 4. The offence being exclusively triable by the Court of Sessions, the same was committed to the Court of the learned Sessions Judge, Dhemaji, by t he learned Chief Judicial Magistrate, Dhemaji wherein the learned trial Court af ter perusal of the materials on record, being prima facie, satisfied framed char ge under Section 376 IPC. The Charge so framed was read over and explained to th e accused to which he pleaded not guilty and claimed to be tried. 5. During trial, prosecution examined as many as seven witnesses in cluding the doctor and the Investigating Officer (I/O for short). Defence also e xamined one witness. Defence plea is of complete denial. 6. PW-1 is the victim. She deposed that the accused was known to he r as he belonged to the same village. On the day of occurrence, she was reading a book in her house. At about 7 PM, she went out of the house for passing urine. Then the accused suddenly appeared before her and gagging her mouth the accused took her towards the jack-fruit tree and committed rape on her. She could not c ry for help as the accused gagged her mouth. At first she could not recognize th e accused but while he was committing sexual intercourse with her, she could rec ognize him. After committing rape the accused left the place. The victim girl ca me home and started crying. Her sister-in-law, who was staying in a ’sung-ghar’ came down and asked her why she was crying. Then she reported the matter to all her family members. Her elder brother lodged an ejahar with the police. Police a s well as Magistrate recorded her statement. She was also examined by the doctor . During cross-examination, PW-1 stated that the jack-fruit tree w as towards the back side of the house. She further stated that the accused commi tted rape on her for about half an hour. She could not offer sufficient resistan ce as at that time she was suffering from Tuberculosis. She sustained pain while the accused committed rape on her. She never had any sexual intercourse with an y person prior to this incident. She also stated that semen stained on her frock . After that incident, she got married with one Bhuban Pegu. She denied the defe nce suggestion that due to some family matters her brother and her husband filed a false case. 7. PWs-2, 3, 4, 5 and 6 supported PW-1 and deposed in the same tune of PW-1. PW-7 is Dr. Padmeswar Pegu, who examined the victim on 22.10.97 and fo und as follows: The posterior vaginal wall is swelling which is painful on touch. No any foreig n body is detected. The surrounding parts of the vaginal orifice is painful on p ressure. According to the doctor, there is no evidence of forceful act of vaginal introducing found although there is sign of sexual intercourse. The age of the girl after going through X-Ray examination and radiological report as st ated by the doctor is about 18 years. During cross-examination, PW-7 stated that though he found sign of sexual intercourse but there was no sign of violence act or rape. 8. On completion of the prosecution evidence, the statement of the accused was recorded u/s 313 CrPC where he denied the commission of rape on the victim. 9. Defence also examined one witness as DW-1, Sri Nomal Pegu. In hi s evidence, this witness stated that he came to know about the occurence after t wo days of the day of occurrence. There was village ’mel’. According to him, in the village ’mel’, the family members of the victim demanded Rs.1 lakh from the accused. But the accused refused to pay the same. He further stated that he went to meet the victim to know the actual occurrence but the victim did not come ou t from the house. 10. Referring to the evidence of PW-7, i.e. the doctor, learned coun sel for the appellant submits that doctor found no sign of violence on any part of the body of the victim as well on her private parts which shows that the vict im was a consenting party. Learned counsel for the appellant further submits tha t there was delay in lodging the FIR. The FIR was lodged after more than 24 hour s of the incident. 11. On the contrary, Mr. D Das, learned Addl. PP, submits that the prosecuti on has proved its case beyond reasonable doubt and hence the learned trial Court has rightly convicted and sentenced the accused-appellant under Section 376 IPC . He further submits that keeping in view the evidence of PW-1(victim) as well a s PW-7 (Doctor) it cannot be held that the PW-1 was a consenting party to the al leged sexual intercourse. He also submits that there is, in fact, no delay in lo dging the FIR (Ext-1). In support of his submission, Mr. Das has referred the co py of the ejahar (Ext.1) which is dated 21.10.1997 and was received at Gogamukh O.P. at 9 A.M. on 22.10.1997. He submits that during the gap period from the tim e of occurrence i.e., 7/8 P.M. of 20.10.1997 to 9 A.M. of 22.10.1997, the villag e mel was held as it appears from the evidence of DW-1. 12. I find sufficient force in the submissions made by learned Addl. PP. Ass am. By now it is settled in law that even slightest penetration against victim’s will is sufficient to constitute the offence of rape. It is also a settled posi tion of law that in a trial of rape case, the accused can be convicted and sente nced on the sole testimony of the prosecutrix provided her evidence inspire conf idence of the Court. On scrutiny of the evidence of PW-1, it is found that the a ccused-appellant picked her up and took to the jack fruit tree forcibly and comm itted rape thereunder. PW-1 was thoroughly cross-examined by the defence, but sh e remained unshaken. The suggestions made by the defence at the time of her cros s-examination was denied in unequivocal term by PW-1. In the instant case, the p lea of consent is not available to the accused-appellant, inasmuch as, in a rape case, if the plea of consent is taken by defence the burden to prove it is shif ted to defence. The defence has not been able to discharge its burden of proof t o show that the PW-1 was a consenting party to the alleged sexual intercourse. O n the contrary, the medical report (Ext.2) as well as the evidence of PW-7 estab lished it beyond any doubt that PW-1 was subjected to sexual intercourse without her consent for which her posterior vaginal wall was found to have been swellin g painfully on touch and the surrounding parts of the vaginal orifice was found to be painful on pressure. Under such circumstances, I failed to persuade myself to hold that the PW-1 was a consenting party to the alleged sexual intercourse, more so, when the defence has not led any positive evidence to that effect. Tha t apart, the PW’s 2, 3, 4, 5 and 6 have fully corroborated the evidence of PW-1 on material point. 13. So far the argument advanced by the learned counsel for the appellant on the point of delay in lodging the FIR is concerned, I find no force in the same . The occurrence took place on 20.10.1997 at about 7/8 P.M. The ejahar dated 21. 10.1997 is stated to have been received at Gogamukh Police Out Post at 9 A.M., o n 22.10.1997. It appears from the ejahar vide Ext.1 that it was written on 21.10 .1997, i.e., on the next day of the occurrence. The victim in this case is a mar riageable girl, who was certainly passing through unbearable trauma after the oc currence. In such cases, the family members of the victim happen to take a decis ion keeping in view all the relevant factors, viz., future of the victim girl, r eputation of the family, etc. In that view of the matter, the delay in question is not at all fatal to the instant prosecution case. 14. In view of the discussions made hereinabove, I find no merit in the inst ant appeal. The same is liable to be dismissed, which I hereby do. 15. The appeal, accordingly, stands dismissed. 16. Send down the LCR.