IMPORTANT POINT
Rape – Conviction and sentence – Although absence of injuries or non-rupture of hymen is not a sine qua non to prove offence of rape, where victim herself states that appellant attempted to rape her absence of injuries in her private parts corroborate conclusion that case was one of attempt to commit rape.

JUDGMENT

Joymalya Bagchi, J.—Appeal is directed against judgment and order dated 28th June, 2013 and 29th June, 2013 convicting the appellant for commission of offence punishable under Section 376(2)(f) of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for ten years and also to pay a fine of Rs.10,000/-, in default, to suffer rigorous imprisonment for one year more.

2. Prosecution case, as alleged against the appellant is to the effect that on 20.05.2010 at 11 p.m. in the night when family members of the victim girl aged around 11 years had gone to attend ‘Namsankritan’, the appellant came into the house and embraced her. Thereafter, he committed rape on her. Hearing shouts of the victim, local people came to the spot. Written complaint was lodged by the mother of the victim girl (P.W. 1) resulting in registration of Bishnupur P.S. Case No. 236 of 2010 dated 21.05.2010 under Section 376(2)(f) of the Indian Penal Code against the appellant. In course of investigation, the victim was medically examined and her statement was recorded before Magistrate. Appellant was arrested and charge-sheet was filed. Charge was framed under Section 376(2)(f) of the Indian Penal Code.

3. In conclusion of trial, prosecution examined 12 witnesses to prove its case. Defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial Judge by judgment and order dated 28th June, 2013 and 29th June, 2013 convicted and sentenced the appellant, as aforesaid.

4. Nobody appears for the appellant. Mr. Pawan Gupta, appearing as Amicus Curiae draws our attention to the evidence of the victim girl (P.W. 3) and submits that the victim girl had not spoken of penetration. Lack of penetration is corroborated by medical officer (P.W. 7) who did not find any injury on the private parts of the victim. Hymen was also found intact. Hence, he prayed for acquittal.

5. Ms. Gaur, learned Advocate appearing for the State submits that the evidence of the P.W. 3 is corroborated by other witnesses including a neighbour. Lack of injury simplicitor cannot be ground to disbelieve the prosecution case. Hence, the appeal is liable to be dismissed.

6. I have considered the rival submissions at the bar.

7. P.W. 3, is the victim girl. She was aged around 11 years at the time of occurrence. She deposed on 20.05.2010 around 11 p.m. her parents along with her elder brother and sister had gone to their neighbour’s house to hear devotional songs. She was sleeping alone. Suddenly, she woke up and found that the appellant was lying beside her. He forcibly kissed her, placed his penis over her vagina after opening her underwear. She shouted and the appellant fled away from the room. She narrated the incident to her mother. In cross-examination, she stated that the appellant attempted to rape her but as she protested he could not commit the offence.

8. P.W. 1, Kalpana Karan, is the mother of the victim girl and informant in the instant case. She has corroborated the deposition of her daughter. She proved her signature on the First Information Report.

9. P.W. 2, Sunita Karan @ Goswami, is the elder sister while P.W. 4, Tulsi Karan is the father of the victim girl. Both the witnesses have corroborated P.W. 1. P.W. 4 stated that the appellant tried to rape the victim.

10. P.W. 6, Jagannath Khamaru, is a local witness who stated that on that night the victim had come to Harinamtala and stated that the appellant had outraged her modesty.

11. P.W. 10, Ashok Kr. Singha, is the Head Teacher of Khiristala F.P. School. He proved the date of birth of the victim as 20.07.1998 as per entry in the school register.

12. P.W. 12, Malay Kr. Chatterjee, is the Investigation Officer of the case. He visited P.O., recorded statements of the witnesses, seized wearing apparels of the victim and sent the victim for medical examination as well as recording her statement before Magistrate under Section 164 Cr.P.C. He submitted charge-sheet.

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