The reliability of the victim's testimony and medical evidence is crucial in establishing guilt in cases of sexual violence against minors.

Judgment :

Subhasis Dasgupta, J.

1. This Criminal Appeal No. 327 of 2014 is directed against the judgment and order of conviction dated 20.03.2014 and 21.03.2014, passed by learned Additional Sessions Judge, 2nd Fast Track Court, Alipore, South 24- Parganas in Sessions Trial No. 4(2) of 2009, arising out of Sessions Case No. 53(1) of 2009, convicting the appellant under Section 376 (2) (f) of Indian Penal Code, and thereby sentencing him to suffer rigorous imprisonment for eight years, and fine of Rs.5000/- (rupees five thousand), in default Simple Imprisonment for two months.

2. The factual position in a nutshell, as established during trial, is that father/complainant, a man lying below the poverty line maintaining his life by begging from others, and having tuberculosis at the relevant point of time, sent his victim daughter, a seven year old girl, after returning to home, for the purchase of puffed rice (muri) from a nearby shop at about 8 P.M. in the night on 13th October, 2008.

The victim daughter failed to return home within a reasonable point of time.

3. The father/complainant became anxious of her return, when victim/daughter returned home with evidence of bleeding from lower private parts of her body. On being interrogated by the father/complainant, the victim daughter replied that on her way to shop accused appellant, while playing carrom in a club situated by the side of road, suddenly appeared before her and took her behind a library, near the chamber of a latrine, and committed rape upon her. Witnesses like PW-8 (Akashay Mondal) and PW-4 (Sudeb Sarkar) found accused/appellant attempting to flee away, and while catching hold of accused appellant, the accused appellant managed to flee away leaving a confession of his guilt to them.

4. On the basis of this complaint, police took up investigation, produced the victim for recording her statement under Section 164 Cr.P.C., but her statement could not be recorded on the ground that she was highly frightened for she being threatened with dire consequence by the accused/appellant, if she dared to disclose his misdeed to anybody else.

5. Victim was, however, medically examined, apart from the medical examination of accused/appellant. Wearing apparels of the victim was seized during investigation, and sent for F.S.L examination and report. On conclusion of investigation, police submitted charge sheet.

6. The Trial Court after framing charge against the appellant under Section 376 (2) (f) of the Indian Penal Code examined as many as nine (9) witnesses, including parents of the victim girl (PW-1 and PW-3), victim herself (PW-5) and two (2) other witnesses namely PW-4 and PW-8, who are said to have caught hold of accused appellant immediately after the occurrence while attempting to flee away and before whom the accused appellant was alleged to have confessed his guilt by making an extra judicial confession, and the Investigating Officer/PW-9 of this case.

7. The court conducting trial, after collection of evidence proceeded to hold the appellant guilty of offence under Section 376 (2) (f) of the Indian Penal Code, relying upon the evidence of victim (PW-5), her parents (PW-1 and PW-3), two (2) independent witnesses (PW-4, PW-8) together with medical examination report of the victim (Exhibit-6), transpiring existence of small tear found on her hymen.

8. Learned advocate Mr. Partha Sarathi Bhattacharya, appointed as amicus curiae in this case for appellant, sought to assail the order of conviction with an ultimate object of creating a doubt in the prosecution version so that accused appellant could be favoured with benefit of doubt in managing an order of acquittal and proceeded to argue extensively advancing multiple grounds, mentioned as hereunder:

1. That though victim could disclose the name of her culprit to witnesses like PW-4 and PW-8, as available from the testimony of the PW-1/father of the victim, but the victim girl failed to make statement before the learned Magistrate under S