Crl.A. 226/2007 BEFORE THE HON’BLE MR JUSTICE.P K MUSAHARY JUDGMENT AND ORDER (Oral) This appeal is directed against the judgment and order dated 28. 9.2007 passed by the learned Additional Sessions Judge, Fast Track Court, Biswa nath Chariali in Sessions Case No.32/2006 convicting the accused appellant under Section 451/376 IPC and sentencing him to undergo for 1(one) year and to pay a fine of Rs.1000/ under Section 451 IPC and further sentencing to undergo rigor ous imprisonment for 7(seven) years and to pay a fine of Rs.1000/- in default ri gorous imprisonment for 3(three) months under Section 376 IPC. 2. The convict appellant has presented this appeal before this cour t u/s 374(2) of the Cr.P.C.,1973. Briefly stated the prosecution story is that on 20.3.2005 at 2.30 pm one Sri Jairam Gore lodged an FIR with Jinjia Out P ost alleging that on 17.3.2005 at around 6 pm while the informant and his wife w as not present in their house, the appellant criminally trespassed into their ho use and took out his 12-year old daughter (victim) by gagging her mouth and forc ibly committed rape on her in the adjacent garden (bari). The informant on arriv al of his house came to know about the alleged incident and filed an Ejahar whic h was registered u/s 451/376 IPC. The victim girl was examined medically on 19.3 .05 and her statement was recorded u/s 164 Cr.P.C. by a Magistrate. On completi on of investigation the police submitted charge-sheet and the matter was commit ted to the court of Sessions, Sonitpur at Tezpur which was made over to the Addi tional Sessions Judge, Fast Track Court, Biswanath Chariali for disposal. On con sideration of the materials collected by the Police, the learned trial court fr amed charge u/s 376/451 IPC. On being read over and explained, the appellant pl eaded not guilty and demanded trial. The prosecution examined as many as 10 wit nesses to establish the case while the defence examined only one witness. The le arned trial court on the basis of the materials and evidence on record and also upon hearing the learned counsel for the parties passed the impugned judgment an d order convicting and sentencing the appellant as indicated above. 3. Mr. T J Mahanta, learned counsel for the appellant submits that evidence of medical officer, P.W.5 clearly indicates that there is no case of fo rcible rape on the victim inasmuch as proof/evidence of penetration is absent a nd there was no mark of violence on the person of the victim girl. Moreover, acc ording to him, the victim girl did not resist the alleged rape committed by the appellant. Under such premises, he submits that the appellant can be convicted u /s 354 IPC and sentenced to undergo imprisonment for 2 years. In support of hi s submissions learned counsel for the appellants would refer to decision rendere d by this court in Pallab Das -vs- State of Tripura, reported in 2011 (1) GLT 85 ; Alauddin Ali (Md) -vs- State of Assam 2010(3)GLT 821; Diganta Mazumdar -Vs- St ate of Assam, reported in 2010 (1) GLT 731; Bishnu Gupta -Vs- State of Assam, re ported 2005 (2)GLT 157 and also the decision of the Apex Court rendered in Koppu la Venkat Rao -vs- State of A.P. reported in (2004) 3 SCC 602. 4. Mr. B B Gogoi, learned Addl. Public Prosecutor, per contra submi ts that prosecution has been able to make out the case beyond reasonable doubt that the victim was forcibly raped and the learned trial court rightly convicte d and sentenced the appellant under the aforesaid Sections of the IPC which need s no interference at all. In a case of rape direct ocular evidence is hardly ava ilable. 5. The court is dependent on the evidence of the prosecutrix and th e medical evidence for coming to a conclusion. The court is required to apprecia te the medical evidence on record to find corroboration or to testify the veraci ty of the evidence of the victim girl. First of all let me have a look at the or al evidence of the victim girl who was examined as P.W.6. As per her evidence, t he accused came to the house of the victim and forcibly took her out by pulling towards the back side of the house where he laid her down in the nearby bushes a nd committed rape. After committing rape he left the scene immediately. In her cross-examination she stated that she was gagged with a piece of cloth by one ha nd and pulled by another hand. In cross-examination she denied the suggestion th at she did not make attempt to escape from the grip of the accused. She also de nied the suggestion that the appellant did not commit rape on her. 6. The medical officer, Dr. (Mrs. Dulumoni Saikia was examined as P .W.5. She testified that on police requisition she examined the victim girl medi cally on 19.3.2006. She proved the medical report, Ext.5 and her signature Ext.5 (1). The relevant portion of the medical report Ext.5 is reproduced hereunder: Name & add :- Anju Gore D/o Sri Jayram Gore, Gharamari, Behali Dt & time :- 19.3.06 at 3.10 PM Place of exmn. :- 100 Beded Civil Hosp. Blchariali Examination finding:- general examn_ Built Moderate Breast-Moderately developed. (small) public- hair- absent. Plv. Exmn. :- With due consult, plvegiral exmn. Dose , Tendernes s tv. Clotted blood stained around the genital organ. 1 finger pierce. M Examination of urinal swab- Negative For determination of age: Adviced Exray of both writ, (2) both elbow (3) both pelv is. Report enclosed t X ray plats. Remarks:- Suspected sign of intercourse Age of the victim is above 12(twelve)yrs & Below 15 (fifteen) yrs. Sd/ Illegible Dr. (Mrs. Dulumoni Saikia 29.6.05 As per medical report and opinion of the medical officer, the age of the victim girl was above 12 years and below 15 years. She was not major at the time of all eged occurrence. The age of the victim girl has not been disputed by the defenc e. It can, therefore, be accepted that the victim was minor at the time of alleg ed incident. If the victim was a minor girl at the relevant point of time, the q uestion of consent would not arise. Of course, the defence, as it appears, is no t trying to take any advantage on the ground of age of the girl. What is found f rom the submission of the learned counsel for the appellant is that story of for cible rape should not have been accepted by the court. However the learned couns el for the appellant fairly submits that court may accept the story of attempt t o commit rape by the appellant on the victim on the basis of the medical report and the evidence given by the medical officer, P.W.5. 7. The settled position of the law is that penetration of male orga n/ genital is the sine qua non in the rape case. The penetration does not mean full penetration. In medico- legal sense partial penetration of penis touching labia majora or the vulva or pudenda with or without emission of semen or even attempt at penetration is quite sufficient for the purpose of the law. The victi m girl in her evidence did not state as to whether there was penetration or an attempt on the part of the appellant to penetrate his penis. What she said was that she was forcibly raped by the appellant. A minor girl may not be able to say whether there was penetration or not for which she could not properly make s tatement before the learned trial court. The medical officer in her report reco rded tenderness on the private part of the victim girl and clotted blood stain around the genital organ which admits one finger. The medical officer was not s ure but she suspected that there was sign of intercourse. The opinion of the d octor was not very positive. Her opinion may be taken in the negative also. Ev en if a positive opinion is given by the medical officer it may be accepted o r rejected by the court. As discussed earlier, the victim girl did not utter a s ingle word regarding penetration which is necessary for the purpose of establish ing the case of rape. 8. The prosecution did not send the blood stained wearing apparels for FSL examination to establish that the seized wearing apparels contained huma n blood and the said blood group tallies with the blood group of the victim. The recovery and seizure of blood stained wearing apparels is also not found proved inasmuch as the I.O. (P.W.10), in his evidence stated that he never seized wear ing apparels of the victim girl which were stained with blood. But at the same t ime, the said I.O. has proved the seizure list Ext.4 and his signature Ext.4(2) . Surprisingly, the defence also did not put any suggestion to the I.O. that he never recovered and seized any blood stained wearing apparel during investigatio n. 9. On consideration of the entire evidence on record particularly t he evidence of the prosecutrix and the medical officer, I am of the considered v iew that the prosecution is not successful in establishing the charge of offenc e u/s 376 IPC inasmuch as it could not prove beyond reasonable doubt that there was penetration of penis as required under the law and that the victim girl w as raped forcibly. The evidence is otherwise clear that the accused appellant ex ploited the situation of the absence of victim’s parents and tried to commit rap e on her which was resisted and due to which she received injuries on her privat e part resulting into clotting of blood and that may be the reason as to how th e medical officer entertained a suspicion while recording the report that it was a suspected case of rape. In my considered view, such suspicion or presumption can not be accepted as a piece of legal evidence and it can not be a basis of c onviction. The charge of rape u/s 376 IPC having not been established or proved beyond reasonable doubt, the conviction and sentence u/s 376 IPC is liable to be set aside and quashed. It is ordered accordingly. However, in my considered vie w, a case of attempt to commit rape is found established on the basis of the evidence on record for which the accused appellant is liable to be convicted u/ s 511 IPC. The appellant stands convicted u/s 511 IPC. The ends of justice, in m y considered view, would be served if the appellant is sentenced to a period alr eady undergone. It is so ordered. As per record the accused appellant has been serving sentence since 28.9.07 and he has been in jail for more than four years. The appeal is partly allowed with modification in the conviction and sentence as indicated above. The appellant be set at liberty forthwith if his further det ention is not required in connection with any other case. Send down the LCR fo rthwith.