Crl.A. 198/2003 BEFORE THE HON’BLE MR JUSTICE B D AGARWAL This criminal appeal is directed against the judgment and order dated 23 .08.2002 passed by the learned Assistant Sessions Judge, Dhubri in Sessions Case No.84 of 1999 whereby the learned Judge has acquitted the accused from the offe nce under section 376 of the IPC. Heard Mr. J Ahmed, learned counsel for the accused / Respondent. Also he ard Mr. B S Sinha, learned Addl.P.P. for the state. I have also perused the impugned judgment and the evidence tendered by t he prosecution in the Trial Court. The prosecution case is that the victim was deaf and dumb girl and she w as sexually molested in the dark hours in an isolated place. It is also the pros ecution case that at the relevant time, the victim girl was watering her filed a nd then she was subjected to forcible sexual intercourse by the Respondent and i t was noticed by the victim’s minor brother (pw-1). Admittedly, the FIR was lodged at a time when the victim was carrying 7 (seven) months pregnancy. According to the prosecution witness, the victim was d eaf and dumb whereas the medical officer who had examined the victim girl has ca tegorically stated that she was not deaf and dumb as she herself had mentioned h er name during the medical examination. Besides, this, the alleged eye-witness w as 10 9ten) years old boy. His deposition was recorded twice. In the first state ment, PW-1 has deposed that his sister was weeping and she was undressed. Howeve r, in the second statement, PW-1 has improved the version by stating that he tri ed to catch hold of the accused but the accused fled away after pushing him. Bes ides the conflicting statement, it is also difficult to believe that a body of t en years would make any attempt to catch a boy of 20 years. The deposition of PW -1 also suffers from other contradictions and remains uncorroborated. PW-1 has o nce deposed that he was reported about rape committed by the accused by his sist er, contradicting his statement of witnessing rape. Because of these contradicti ons, the Trial court has rightly not relied upon the testimony of PW-1. The mother (pw-2) has deposed that having been reported about the sexual molesta tion, a village ’mel’ was convened and in the said meeting, the accused had prom ised to marry the victim girl but, after ten days, the accused married another g irl and as such the case was filed. Her testimony is thoroughly self-contradicte d and not corroborated by other witnesses. In the cross- examination, pw-2 has a dmitted that she did not attend the village meeting. Besides this, FIR was lodge d after seven months of sexual intercourse and not within ten days as stated by PW-2. PW-3 has spoken about a village meeting but this witness is also silent to elabo rate whether the meeting was attended by the accused and confessed his guilt. Be sides this, in the cross-examination, pw-3 has admitted that no allegation of se xual intercourse was alleged to them. At this stage, it would be apposite to ref er to the deposition of pw-1. Again in the cross examination, pw-1 has admitted that the wearing apparels of his victim sister were in normal position, ruling o ut the possibility of sexual intercourse at that relevant point of time. The independent witnesses were reported about the incident after three m onths. Victim girl has been examined as pw-6. In the chief examination, she has stated that other than the accused, none came to the place of occurrence. In th is way, the deposition of pw-1 claiming to have witnessed the rape is difficult to believe. Besides this, in the cross-examination, the victim has stated that t wo persons were involved in the crime and out of them one person committed rape. It also appears to me that the interpreter could not elicit answers to m any questions as the person was not a trained one in this regard. I say so, beca use in the cross examination, the victim girl has stated that she was never prod uced before Judicial Magistrate nor her statement was recorded by any Magistrate . On the other hand, IO has brought on record the statement of the victim girl r ecorded by the Addl. Chief Judicial Magistrate, Dhubri on 13.09.1999. The said s tatement was recorded without the help of any interpretor. Hence, the statement of the Doctor stating that the victim was not deaf and dumb assumes significance since the lady Judicial Magistrate was capable to record the victim statement w ithout the help of any interpretor. Hence, it can be presumed that the victim wa s capable to speak may be with little difficulty. In the said 164 Cr.P.C. statem ent, the victim said that she was subjected to sexual intercourse twice. Apparen tly, the victim was 20 years old and the accused was also of the same age. Hence , she was capable to resist any sexual assault. However , the victim girl is tot ally silent to speak that she had resisted the attempt of rape. On the other han d, from the medical findings, it is gathered that the vagina of the victim girl was admitting two fingers, which suggests that the victim was habituated to sexu al intercourse. From this fact the possibility of consensual sex also cannot be ruled out. For the foregoing reasons, I hold that it is not a fit case for re-trial after 11 years of occurrence. In the result , the appeal stands dismissed.