The main legal point established is that penetration into the labia majora is sufficient to constitute rape within the meaning of Section 375 of the IPC, and the absence of hymen rupture does not negate the occurrence of rape.

This is an appeal filed by the convict, herein after referred to as the appellant, under Section 374(2) of the Cr. P.C. against the judgment of conviction dated 24.01.2011 delivered in S.T. 122 (WT/A) of 2006 by the Addl. Sessions Judge, West Tripura, Agartala, Court No. 3. By the said judgment dated 24.01.2011, the appellant has been convicted under Section 376(2)(f) of the IPC for committing offence of rape and as consequence thereof he has been sentenced to suffer rigorous imprisonment for 10(ten) years and to pay a fine of Rs. 5000/-and in default to suffer further rigorous imprisonment for one year.

2. In a nutshell the prosecution cae is that by filing a complaint, one Smti. Pratima Barman(PW-5) disclosed that her daughter, name withheld for protecting her identity, aged about 5½ years was raped by the appellant on 19.08.2005 around 7.30 p.m. The appellant is a distant relation of the informant. On 19.08.2005, at about 5.00 in the afternoon the appellant came to attend the invitation in the residence of the father of the informant. At about 7.30 in the evening, she noticed both her daughter and the appellant were missing. She immediately started search her daughter. When she arrived at her home, she found the appellant trying her daughter to sleep. On her sight, the appellant tried to make a slip. That time the informant confronted the appellant asking why he had taken out her daughter without allowing her to take food. At about 1 0'clock at night when her daughter rose from the sleep and went for passing the urine, she expressed that she was having painful sensation in her private part. On query of the informant, her mother, she, the minor, indicating to the appellant has stated that he had took off her panty and the appellant, he had done 'something'. In the morning, the informant informed the entire episode to the relatives of her father's house and she forced the appellant to rise from his bed. She scolded him by stating that the victim was his niece and how he could do such 'thing' with her. He remained silent. Thereafter, the informant revealed that episode to the villagers and they advised her to go to the police and accordingly she filed the written ejhar at 10.55 in the morning on 20.08.2005.

3. On the basis of that written ejhar, Bishalgarh P.S. case No 125 of 2005 was registered under Section 376(2)(f) of the IPC and taken up for investigation. On completion of the investigation, the final police report chargeshetting the appeallant was filed. The police papers were committed to the court of the Sessions Judge, West Tripura, Agartala. Having the police papers transferred, the Addl. Sessions Judge, West Tripura, Agartala, Court No. 4 framed the charge under Section 376(2)(f) of the IPC against the appellant, to which he pleaded innocence and claimed to face the trial.

4. To substantiate the charge, the prosecution adduced as many as 10(ten) witnesses including the Medical Officers who examined the victim and the appellant, the Investigating Officer, the informant and the victim. The prosecution has also adduced documentary evidence including the medical examination report of the victim (Exbt.2), the potency examination report of the appellant (Exbt.1) and the statement of the victim under Section 164 (5) of the Cr. P.C. (Exbt.8). After the prosecution evidence was recorded, the appellant was examined under Section 313 of the Cr.P.C when he reiterated his plea of innocence by denying the incriminating materials those surfaced in the evidence. On appreciation of the evidence on record, the trial court by the impugned judgment has returned the finding of conviction holding that the prosecution has been successful to prove the charge under Section 376(2)(f) of the IPC.

5. Ms. R. Purakayastha, learned counsel appearing for the appellant has raised two pronged objections for questioning the impugned judgment of conviction:

(i) There is no evidence of penetration and as such it cannot be held there had been sex