Crl.A. 356/2003 BEFORE THE HON’BLE MR JUSTICE B D AGARWAL The appellant, herein, has been convicted under Section 354 of the India n Penal Code vide impugned Judgment and Order dated 10.11.2003, passed by the le arned Sessions Judge No. 1 (Adhoc), Kamrup, in Sessions Case No. 3 (K) of 2000. On such conviction, the appellant has been sentenced to undergo Simple Imprisonm ent for 1 (one) year. Being aggrieved with the conviction and sentence, the acc used has preferred this appeal. 2. Heard Sri D Talukdar, learned counsel for the appellant and Sri K A Mazumdar, learned Additional Public Prosecutor for the State of Assam. I hav e also gone through the impugned Judgment and the evidence on record. 3. The gist of the prosecution case is that the accused was the nei ghbour of the informant. In the early morning of 06.09.1999, while the informant ’s 7 (seven) year old daughter was wandering on the road with her minor sister, the accused/ appellant enticed her for going to his house to eat guava. Then the victim dropped her minor sister in her house and went to the house of the appel lant and then she was physically lifted by the appellant and taken in his back c ourtyard, where he attempted to rape her. After her ravishment, the girl came cr ying and it was noticed by her mother and on being enquired the girl reported he r mother about her ravishment. Immediately, the girl was taken to the Police Sta tion and the incident was verbally reported, which was reduced into writing as F IR and a case under Section 376 of the Indian Penal Code was registered being All Women Police Station Case No. 55 of 1999. 4. As a part of investigation, the victim girl was got medically ex amined at Gauhati Medical College Hospital (GMCH) on the same day and her statem ent under Section 164 CrPC was also obtained on the next day. Since the undergar ments of the victim girl were found smeared with semen like material, the garmen ts were also seized and sent to the Forensic Laboratory for medical examination. Thereafter, the statements of witnesses were recorded and after collecting the medico-legal report and FSL report, chargesheet was submitted under Section 376 of the Indian Penal Code. 5. After commitment of the case, the accused was tried for the offe nce of rape and the prosecution examined altogether 7 (seven) witnesses. PWs- 3, 4 and 5 are female witnesses from the locality; PW-1 is the Medical Officer who had examined the victim girl; PW-2 is the Senior Scientific Serologist of FSL; PW-6 is the Investigating Officer and PW-7 is the Judicial Magistrate, who had r ecorded the statement of the victim girl under Section 164 of the CrPC. The defe nce plea was of total denial and no evidence in defence was also tendered. 6. After the trial, the accused has been convicted under Section 35 4 of the Indian Penal Code. In other words, the accused/appellant was acquitted from the offence of rape basically on the ground that the medical evidence did n ot support the theory of sexual intercourse with the victim. 7. Sri Talukdar, learned counsel for the appellant submitted that t he conviction has been basically recorded on the basis of the statement of the v ictim girl recorded under 164 CrPC and that is not permissible under the law. 8. I agree with the submission of the learned counsel for the appel lant. It is the settled position of law that conviction cannot be recorded on th e basis of statements given under Section 164 CrPC. In other words, such stateme nts cannot be treated as primary evidence. However, the statements given before the Judicial Magistrates can be considered as corroborative evidence. At the sam e time, it is not sine qua non to examine the victim girl, more so, when the vic tim is a girl of tender age. In the case before me, PW-s 3, 4 and 5 have deposed that on the relevant morning they saw the victim girl weeping and her mother re ported that the appellant had molested her. Since the witnesses were female they also saw the undergarment of the victim girl, which was found in wet condition. Since the witnesses had seen the victim girl themselves and had direct conversa tion with her mother, their testimony cannot be declared as hearsay one. 9. In addition to the testimonies of PWs-3, 4 and 5, the learned Se ssions Judge has also taken into consideration the victim’s statement under Sect ion 164 CrPC. In the facts and circumstances, I hold that the learned Sessions J udge has not committed any serious illegality in taking into consideration the s aid statement as corroborative evidence. Even if I ignore the statement of the v ictim girl under Section 164 CrPC, wherein the victim girl has narrated the enti re story of her ravishment the prosecution case is further reinforced by the opi nion of the Serologist. After examining the underwear and the upper garment, the Serologist had opined that both the garments tested positive with human semen. This FSL report has corroborated the prosecution story that the accused had disc harged his semen on the private parts of the girl. 10. It is true that during investigation, the Doctor did not notice any mark of violence on the genital organs of the victim girl or any evidence of sexual intercourse. However, the victim girl herself had stated before the Judi cial Magistrate that the accused could not penetrate his penis in her vagina and the semen was discharged outside. Hence, there was no possibility of finding an y evidence of sexual intercourse. Hence, the negative report of the Doctor canno t favour the appellant to get the benefit of acquittal. 11. In the result, the appeal stands dismissed. I also do not see an y ground to interfere with the sentence. In my considered opinion, the offence c ommitted by the appellant almost amounts to attempt to rape. Hence, the Simple I mprisonment of 1 (one) year, by no stretch of imagination, can be said to be on the higher side. Hence, the appellant is directed to surrender in the trial Cour t immediately to serve out the sentence. 12. The Registry is directed to send back the LCRs with a copy of th is order immediately, to the learned Sessions Judge No. 1 (Adhoc), Kamrup.