IMPORTANT POINT
The confessional statement of the appellant and testimonies of witnesses can be crucial in establishing guilt and determining the appropriate sentence.

JUDGMENT

Sanjib Banerjee, CJ. - Though one or two feeble grounds are urged to assail the judgment of conviction of April 27, 2021 finding the appellant guilty under Section 376(2) of the Indian Penal Code, 1860, the main thrust of the argument is against the sentence of 20 years' rigorous imprisonment awarded along with the fine of Rs.50,000/-.

2. The appellant was taken into custody, as indicated in the impugned judgment, on September 6, 2009 and obtained bail after three months and two days. The period of detention already undergone by the appellant was required to be set off against the sentence. As to the judgment of conviction, the appellant complains that the survivor did not issue any statement and, in a sense, no case was made out by the prosecution, as a consequence. The appellant also contends that the eye-witness accounts by two young boys, both aged about seven at the time of the incident, should not have persuaded the trial court to find the appellant guilty as there was no other material brought by the prosecution in such regard.

3. However, what the appellant overlooks is the rather candid confession made by the appellant under Section 164 of the Code of Criminal Procedure, 1973 without any attempt to retract the same. The appellant confessed that on September 4, 2009, when the survivor was alone, the appellant picked her up and took her to a bedroom. He went on to add as follows:

' ... I pinned her down and removed her cloths (sic clothes). I took out my penis and tried to penetrate the girl. However, as I could not penetrate her properly as the girl was screaming, I removed my penis and put my finger (middle right finger) inside the girl's vagina to which (she) screamed and cried loudly. My sisters who were in the other room called out to her when they heard the noises. Immediately, I removed my finger from her vagina. (The survivor) climbed down from the bed crying and rushed outside ...'

4. The survivor was all of three years and a half at the time of the incident and the evidence of the medical practitioner who examined her immediately after the first information report was lodged was that she was young, unable to speak and had a condition that impaired her speech. Even the investigating officer testified at the trial that he tried to elicit information from the survivor, but failed since the survivor was unable to speak clearly. The survivor was not called as a witness at the trial. In addition to the unequivocal confession of the appellant, the medical examiner reported and, later, testified that he found the hymen torn, that the area around the vagina was swollen and it was his opinion that the survivor had been subjected to forcible intercourse within a few days of the survivor being examined on or about September 7, 2009.

5. The two young boys were the only eye-witnesses and testified at the trial. Both the boys were aged about seven at the time of the incident. One of the boys was a brother of the survivor and the other boy was a brother of the appellant herein. The common version of both the boys was that they were sent on an errand by the appellant herein to get the appellant a bottle of liquor. When the two boys returned after purchasing the bottle they found the survivor not playing with the other children outside and the appellant was inside a room that was bolted from within with the survivor alongwith the appellant. The brother of the appellant also rendered a statement under Section 164 of the Code and confirmed in course of his testimony at the trial that he had made such statement. He identified his signature on the relevant document. As per such statement which was corroborated by the testimony of the survivor's brother, after purchasing liquor for the appellant when they found the bedroom bolted from within, they peeped in from a window. Both the witnesses asserted that they could see what was going on inside the room through a crack and where the curtain in the room did not fully cover the crac