IMPORTANT POINT
The absence of medical evidence does not preclude conviction for rape if the victim's testimony is credible and consistent.

JUDGMENT :

MITALI THAKURIA, J.

1. Heard Mr. J. Ahmed, learned counsel for the petitioner. Also heard Mr. D. Das, learned Additional Public Prosecutor for the State respondent.

2. This is an application filed under Sections 401 and 397 of the Code of Criminal Procedure, 1973, against the impugned Judgment and Order dated 06.12.2010, passed by the learned Sessions Judge, Goalpara, in C.A. Case No. 17/2010, whereby the Judgment and Order dated 22.09.2010, passed by the learned Assistant Sessions Judge, Goalpara, in Sessions Case No. 40/2009 under Sections 366/376(1)/34 of the IPC, was affirmed. In that case, the present petitioner was convicted and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 2,000; in default, simple imprisonment for another three months for the offence under Section 366 of the IPC. The petitioner was also sentenced to rigorous imprisonment for seven years and to pay a fine of Rs. 2,000; in default, another rigorous imprisonment for three months for the offence under Section 376 of the IPC. Both sentences run concurrently.

3. The case of the petitioner, in brief, is that one Mograb Ali lodged an FIR on 16.01.2007 against the petitioner, alleging that the daughter of the informant was kidnapped by him while she went outside of their house for her nature call. Accordingly, the FIR was registered as Lakhipur P.S. Case No. 10/2007 under Sections 447/366/34 of the IPC. After the completion of the investigation, the investigating agency submitted the charge-sheet against the present petitioner under Sections 366/376/34 of the IPC. During the course of the trial, the prosecution examined total of 12 witnesses, while the defence examined 3 witnesses. After the conclusion of evidence from both parties, arguments were heard, and accordingly, Vide Judgment and Order dated 22.09.2010, the learned Assistant Sessions Judge, Goalpara, passed the order of conviction and sentenced the petitioner as stated above.

4. Being highly aggrieved and dissatisfied with the impugned Judgment and Order dated 22.09.2010, passed by the learned Assistant Sessions Judge, Goalpara, in Sessions Case No. 40/2009, the petitioner preferred an appeal which is registered as C.A. Case No. 17/2010 before the learned Sessions Judge, Goalpara. However, the appeal was dismissed, and the judgment and order passed by the learned Assistant Sessions Judge, Goalpara, was upheld. Consequently, the petitioner has preferred the instant criminal revision petition, praying for the setting aside and quashing of the impugned judgments and orders dated 22.09.2010 and 06.12.2010 respectively.

5. Mr. Ahmed, learned counsel for the petitioner, has submitted that the learned Trial Court committed irregularities and illegalities while convicting and sentencing the petitioner. In passing the judgments and orders, the Trial Courts failed to appreciate the evidence on record, particularly the medical evidence provided by the doctor. According to the radiological report, the victim was approximately 20 years old and showed no signs of injury to her private parts. Additionally, the examination of the vaginal smear did not yield any positive test for the presence of sperm, indicating a lack of evidence for rape based on the medical report. However, the Trial Courts passed its judgments and orders without properly considering the evidence in its true perspective, arriving at a wrong decision which is liable to be set aside and quashed.

6. Moreover, the prosecution witnesses, specifically P.Ws. 1 to 7, provided contradictory statements. At the same time, these witnesses are relatives of the victim, which raises doubts about the reliability of their testimonies unless they corroborate or inspire confidence. He further submitted that the Trial Courts failed to consider the evidence presented by DW- Nos. 1 to 3. The judgments and orders were based solely on the testimonies of the P.Ws., without giving appropriate consideration to the evidence of the D.W