1. This is an appeal filed under Section 374 (2) of the Cr.PC challenging the judgment and order, dated 17.09.2011, passed by the learned Additional Sessions Judge, Kamrup (FTC No. 1) in Sessions Case No. 397 (K)/2009 convicting and sentencing the accused-appellant under Section 376 (1) of the IPC and sentencing him to rigorous imprisonment for 7 (seven) years with a fine of Rs. 2,000/-, and in default of payment of fine, simple imprisonment for 5 (five) months.

2. I have heard Mr. J Ahmed, learned counsel for the accused-appellant as well as Mr. PS Lahkar, learned Additional Public Prosecutor, appearing for the State respondent.

3. I have also perused the record of the learned trial court including the evidence of the witnesses.

4. The fact leading to the case is that, on 14.07.2009, at about 4:00 pm, while the younger sister of the informant, i.e., the victim girl, was alone in the house and other family members were absent, the accused-appellant, hailing from the same village, came to their house and dragged the victim inside the house while the victim was sitting in the verandah and committed rape on her person forcefully and at that moment, the younger brother of the informant arrived home and saw the accused committing rape on the victim. The younger brother of the victim, Khaibar Ali, tried to nab the accused-appellant but he managed to escape.

5. On the basis of the above facts, the FIR was lodged by Nur Box Ali, the father of the victim girl.

6. On receipt of the FIR, on the above facts, the Chaygaon Police Station registered a case, being No. 115/2009 under

Section 376 of the IPC, investigated into it and after completion of investigation laid the Charge-Sheet against the accused-appellant under

Section 376 of the IPC.

7. After exhausting all the required legal formalities, the learned trial court of the Additional Sessions Judge, FTC No. 1, Kamrup framed a formal charge against the accused-appellant under

Section 376 of the IPC to which he pleaded innocence, and therefore, the trial commenced.

8. The prosecution examined as many as 8 (eight) witnesses who were subjected to cross-examination by the defence. The defence appears to have taken the plea of denial during the cross-examination of the prosecution witnesses. After closure of the prosecution witnesses, statement of the accused-appellant under Section 313 of the Cr.PC was recorded and in his such statement also he is heard denying the accusations levelled against him. The defence did not examine any witnesses.

9. Now, to determine whether the accused-appellant committed rape on the victim on 14.07.2009, as alleged, let us scan the evidence on record.

10. The victim being the prime witness in a case under

Section 376 of the IPC, this Court proposes to examine her evidence first. The victim in this case is examined as PW1.

11. The evidence of PW1/victim is that while she was alone in her house on the date and time of occurrence, the accused-appellant came and grabbed her and then dragged her inside the house, undressed her and committed sexual intercourse. She told the accused-appellant that if she indulges in such acts of sexual intercourse, then she would be assaulted by her younger brother and asked him not to repeat such acts. But, the accused-appellant refused to pay heed to such words of the victim and committed sexual intercourse. Then, her brother appeared and saw both of them in a compromising state and intervened. Then, the accused-appellant left the place of occurrence. She, of course, admitted in the cross-examination that she did not raise any alarm at the time of committing of rape on her person.

12. The PW2 is the younger brother of the victim whom she referred in her evidence to have appeared at the place of occurrence and intervened. In his evidence, he is heard saying that he came home from outside at the time of occurrence and when he entered into his house; he found that the accused-appellant was committing rape on his sister/victim and th