JUDGMENT

Ajit Borthakur, J. - Heard Mr. S. Islam, learned Amicus Curiae appearing for the appellant and Mr. D. Das, learned Additional Public Prosecutor, Assam appearing for the State respondent No. 1. None appeared for the respondent No. 2/informant, although the notice was duly served.

2. This jail appeal is filed against the Judgment & Order, dated 19.12.2017, passed by the learned Sessions Judge, Darrang, Mangaldai in Session Case No. 54(DM) of 2013, whereby the appellant is convicted and sentenced to undergo Rigorous Imprisonment for 7 years and to pay a fine of Rs. 5000/-, in default to undergo further simple imprisonment for 3 months under Section 376 of the IPC.

3. The prosecution case, precisely, is that an FIR was lodged by the father of the victim girl, with the Officer-in-charge of Mangaldai P.S., on 02.07.2012, alleging, inter-alia, that on 29.06.2012, he along with his minor victim girl, aged about 13 years, went to his brother-inlaw''s house to take stock of the health condition of the daughter of his brother, who was suffering from some serious illness. He along with his brother-in-law had taken his brother-inlaw''s daughter for medical treatment in Guwahati leaving his victim daughter at the house of his brother-in-law to look after his house. While the victim daughter was alone in the house of his brother-in-law, on that day, at around 5:00 PM, the appellant taking advantage of absence of any other family member in the house, committed rape on her by gagging her mouth. At that time, the son of his brother-in-law namely, Shri Pankaj Das arrived at the place of occurrence and having witnessed the incident chased him away with a ''dao''. The appellant managed to escape leaving his bicycle in their house. On the 02.07.2012, when the appellant came to take back his said bicycle, at that time, the local people apprehended him and handed over him to the police.

4. Based on the above FIR, Mangaldai P.S. Case No. 410/12 under Section 376 of the IPC was registered and after completion of investigation, the Investigating Officer laid a charge sheet against the appellant under Section 376 of the IPC. The learned Chief Judicial Magistrate, Darrang at Mangaldai committed the case to the Court of learned Sessions Judge, Darrang at Mangaldai for trial, as charge-sheeted offence was a Session triable one. The learned Sessions Judge, Darrang at Mangaldoi, after perusal of the case diary and hearing the learned counsel for both the sides framed a charge under Section 376 of the IPC against the appellant. The appellant pleaded innocent. Thereafter, in order to bring home the charge aforementioned, the prosecution examined as many as 9 (Nine) witnesses including the informant/victim girl, the Medical Officer and the Investigating Officer of the case. After closing the evidence of the prosecution side, the statement of the appellant was recorded under Section 313 Cr.P.C. The appellant reiterated his innocence and declined to examine any witness in defence. Thereafter, on hearing the arguments advanced by the learned counsels for both the sides and appreciation of the evidence, oral and documentary, the learned Session Judge convicted and sentenced the appellant, as stated above.

5. In order to establish the charge of ''rape'', defined in Section 375 of the IPC, the prosecution must prove that the accused had sexual intercourse with a woman under any of the circumstances mentioned in six clauses therein and as such, penetration in vulva, even to a slight extent, is necessary to constitute the offence Section 375 of the IPC, as amended, is extracted hereinbelow:..

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"[375. Rape.- A man is said to commit "rape" if he,-

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(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

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(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so wit