Crl.A. 251/2007 BEFORE HON’BLE MR JUSTICE H BARUAH Heard Mr. H Das, learned counsel for the appellant. Also heard Mr. K Munir, lear ned Addl.Public Prosecutor for the State. 2. The appellant herein was tried under charges 448 / 376 of the Indian Pen al Code by the learned Additional Sessions Judge (FTC) Bongaigaon in Sessions Ca se No. 32(J) of 2006 for alleged commission of rape on the victim (PW 1) on 22. 05.2005 at about 1 pm after entering into her house. After due trial, the appel lant was convicted, having found him guilty under section 376 of the Indian Pena l Code and sentenced to suffer rigorous imprisonment for 10(ten) years and to p ay ‘ 5000 in default to suffer rigorous imprisonment for 1(one) one year. The a ppellant was also found guilty under section 448 of the IPC and accordingly conv icted and sentenced to suffer rigorous imprisonment of 1(one) year. The learned Addl. Sessions Judge, FTC, Bongaigaon directed that both the sentences would run concurrently and the period of detention would be set off from the substantive period of imprisonment. 3. Being not satisfied with the judgment of conviction and sentence as indi cated above, appellant has preferred this appeal challenging its legality and co rrectness. 4. Before entering into the merit of this appeal, we think it appropriate t o project the case of the prosecution appearing in the face of the records. Appe llant Md. Muzmil @ Majam Ali is a co-villager of the informant Abdul Gafur (pw-3 ) . On 22.05.2005 at about 1 pm, the victim ( PW 1) was alone in her house. Her sister-in-law Mustt. Rabia Khatun(PW 2) at the time was not present. She went ou t to collect vegetables from outside. At that time, the appellant Mozamil Ali su ddenly entered into their house and forcibly committed rape on the victim (pw-1) by gagging her mouth by a gamosa. To this incident, an FIR was lodged by PW-3 A bdul Gafur being informed to the officer-in charge of Jogighopa Police Station o n 23.05.2005. On lodgment of such FIR, Jogighopa Police Station Case No.55 of 20 05 was registered under section 448/376 of the IPC. Investigation commenced . Th e I.O. visited the place of occurrence and recorded the statement of the witness es including the victim (pw-1). The victim was sent for medical examination. She was also produced before the Magistrate to record her statement under section 1 64 of the Cr.P.C. I.O. arrested the appellant Mozamil Ali. On completion of the investigation laid the charge sheet against the appellant under section 448/376 of the IPC. The case being made over to the Court of Addl.Sessions Judge (FTC) B ongaigaon by the learned Sessions Judge, Bongaigaon after committal, having prim a facie materials to presume that the appellant did commit offences under sectio ns 448/376 of the IPC, charges were accordingly framed. On being read and explai ned, the appellant pleaded not guilty to the charges and claimed to be tried. 5. The prosecution in order to substantiate the charges so framed against the appellant brought 6(six) witnesses altogether to the witness box including the Investigating officer and the doctor. The defence adduced no evidence either ora l or documentary. The defence plea is of one denial. The learned trial court aft er meticulous consideration of the facts and circumstances and evidence on recor d, both oral and documentary found the appellant guilty under both the charges a s indicated herein before and convicted and sentenced accordingly. 6. The Judgment and order of conviction and sentence is under challenge mai nly on two different grounds: (i) that the witnesses examined by the prosecution to bring home the charges ar e all related and for that reason no reliance can be put in their testimony : an d ( ii) that there appears no consistent testimony in regard to time of medical ex amination of the victim. 7. The victim is examined as PW 1 by the prosecution. She in her evidence c ategorically stated that on the relevant day and time, she was alone in their re sidence. Her sister-in-law (PW2) was away from home for the purpose of collectin g vegetables. At that time, the appellant suddenly entered into their house and fell her on the ground forcibly. When she tried to raise alarm, appellant threa tened her not to raise any alarm else she would be killed. She also stated that she was gagged with the help of a gamosa and thereafter removing her undergarmen t committed rape on her forcibly. In the meantime, her sister-in-law came home a nd witnessed the incident. Appellant fled away after arrival of her sister-in-la w. The victim also stated that she became senseless. After sometime when she reg ained her senses, reported the incident to her sister-in-law who too informed th e incident to the neighbouring people. When her father arrived in the night, he was also informed. Abdul Gafur came and being informed, on the next day lodged a n FIR with the police. The victim also stated that she was medically examined an d her statement was recorded by the Magistrate. She further stated in her eviden ce that she sustained injury in her private part. 8. PW 2 is the sister-in law of PW 1 who also testified that on the day of occurrence, the victim (PW 1) was alone in their residence. She went out to col lect vegetables and when she arrived at the residence, she had witnessed the inc ident of rape on PW 1. She also stated that seeing her arrival at their residenc e, the appellant fled away. The victim became senseless and after some time when she regained senses reported the incident to her in detail. She also stated th at she informed the incident to her father and the uncle on the following mornin g. Abdul Gafur taking the victim with him went to the police station and lodged the FIR. 9. Evidence of PW 3 and PW 4 appears to be hearsay. Both testified that in cident of rape on PW 1 by the appellant was reported to them by PW 1 and PW 2. P W 3 further testified that being informed, he filed FIR with police. 10. PW-5 is the doctor. He stated in his evidence that on police requisition , he examined the victim girl (PW 1) on 23.05.2005 and found the following : 1.Height- 132 cm 2.Weight- 35 kg 3.Gait normal except facial appearance, worry to walk more. 4.Dentition- 7/7 7/7 5.Growth of sexual characters: 6. Axillary hair - starts to grow Pubic hair- starts to grow. At mons no pubic hair. Only near the clitoris. A few sparse dark hairs on the pubis. 7. Sign of struggle- No sign of Struggle. Physically good health & average built. 8.Mental state- Normal 8. Vaginal swab- No report submitted. 9. Urine for HCG- Not submitted (advised) Breast- It starts to develop , Sign of injury etc. One scratch mark over right breast 1 (inch) length. Breast just starts to develop and she has got first mens 6 months back. 10. Vavla & Vagina- Vulva & Vagina well developed. Pubic hair present, scant y and starts to grow. No semen or semen like substance around. 11. Hymen- Not present. Corrugated edge of the hymen is lacerated, inflamed, Blood clots are attached over the edge of the hymen. Forcette is found torned a t medial part which is tender and swollen, size- is 1.5 cm x 1 cm. No active ble eding present. 12. Age determination/ estimation- On history she got first mens 6/8 months back (normal time is 13/14 years). Height-132 cm, weight- 35 kg, teeth 7/7 7/7 Age-14/16 years (Page 68, Mallik Medical Jurisprudence). Opinion- Age is between 16 to 18 years. Not more than 17 years. Final impression :- Age is 16/17 years. Village innocent girl. Examined at Abhay apuri 30 Beded Rural Hosipital and found having sign of forceful intercourse dur ing last 48 hours with violation marks on her right breast. 11. PW -6 is the Investigating officer. He in his evidence very categoricall y stated that on 23.05.2005 one Abdul Gafur filed an FIR and the same was regist ered as Jogighopa P.S. No. 55 of 2005 by the Officer-in-Charge Jatindra Nath Sai kia who endorsed the investigation in his name. He stated that he visited the pl ace of occurrence and examined the witnesses. The victim was sent to Abhayapuri Civil Hospital for her medical examination. He also stated that sh e was also produced before the Magistrate to record her statement under section 164 of the Cr.P.C. He arrested the appellant. On his transfer, subsequent theret o, charge sheet was laid by one Babul Chandra Das, Sub Inspector of police . 12. On meticulous perusal of the evidence as indicated above, we would see t hat the occurrence was witnessed by PW 2, the sister-in-law of PW 1 on her arri val after collecting vegetables. Evidence of PW 1 and PW 2 when considered metic ulously, the same appear to be corroborative to each other in the context of pre sence of PW 1 in their residence alone on the day of occurrence. PW 1 , the vict im stated categorically that she was alone in the residence and PW 2 , her siste r-in law went out of their residence for collection of vegetables and in the mea ntime, the appellant entered into their house and committed rape on her after ga gging her mouth with the help of a gamosa. PW 2 in her evidence stated that she had witnessed the incident of rape on PW 1 by the appellant . So there appears c onsistency in between the evidence of PW 1 and PW 2 in the context of commission of rape by the appellant. This court therefore finds no major discrepancies in between the evidence of PW 1 and PW 2 either to reject their evidence in whole or to brand it tainted with doubt. Their evidence is found corroborative in ma terials particulars. The evidence of PW 3 and PW 4 also speaks about commission of rape on PW 1 by the appellant. Both have stated categorically in their eviden ce that they were informed about the incident by PW 1 and PW 2. PW 3 accordingly , lodged the FIR in writing with the police. 13. PW-5, the doctor appears to have supported the case of the prosecution t hat has been projected through the mouth of the PW 1 in particular. On examinat ion of PW-1, he discovered laceration on the Hymen though not present prominentl y. Corrugated edge of the hymen was found lacerated, inflamed. Blood clots were found attached over the edge of the hymen. Forcette was found torned at medial part which was tender and swollen of size- 1.5 cm x 1 cm. No active bleeding pre sent. After examination, he opined the age of the victim girl (PW1) about 16/17 years. He also opined that there was forcible intercourse during the last 48 hou rs. Thus it appears to this court that the evidence of PW 5 also lends support t o the evidence of the victim(PW 1). In view of such corroboration in between the evidence of the victim, PW 2 and the doctor (PW 5), this court finds no ground to disbelieve the evidence of PW 1 and PW 2. 14. Though the judgment is challenged on the ground of relationship of the w itnesses, we find no ground to disbelief their testimony on this score. In cases of rape, the evidence of the victim would be more pivotal ,appropriate in the f acts and circumstances and always to be considered carefully, cautiously. If the victim’s testimony is found reliable truthful, no corroboration is required eit her from other independent witness or the doctor and conviction of the offender can be warranted basing her evidence. In this case, we have also found additiona l evidence in regard to the commission of rape on PW 1. Such evidence is coming from the mouth of the sister-in-law (PW 2). Since the doctor (PW 5) also lends s upport in respect of commission of rape on PW 1 during 48 hours prior to the tim e of examination, it would not be reasonable rather justiciable for this Court t o disbelief the evidence on record more particularly, evidence of PW 1 and PW 2 . 15. It is true that there appears some discrepancies in regard to the time o f examination of PW 1 by the doctor. Such discrepancy is traceable in the evide nce of PW-6, the I.O. who stated that the victim was sent to Abhayapuri Civil Ho spital on 23.05.2005 at 10.55 pm. But PW-5 stated that on 23.05.2005 at about 1 2.15. am. This particular discrepancy in recording the time of examination in o ur considered view cannot override the testimony of PW--1 for PW-2. 16. Learned counsel for the appellant, Mr. H Das while arguing the appeal al so contends that the appellant is the only wage earner in his family and a boy o f 24 years of age and he in the meantime served out 5(five) years of the subst antive sentence. Considering the nature of the offence we find no ground to red uce the sentence. The sentence of imprisonment for 10 years appears to be approp riate in a case of rape that too on a minor girl. We find no substance in the su bmissions advanced by Mr. H Das. There is no merit in this appeal. We are unable to interfere with the impugned judgment and order of conviction and sentence. 17. In the result, the impugned judgment and order of conviction and sentenc e is upheld. 18. Appeal stands dismissed.