The absence of a victim's testimony does not preclude conviction if medical and corroborative evidence substantiate the crime.

1. This appeal arises out of the judgment of conviction and order of sentence dated 6.5.2009 passed by the Sessions Judge, Mahasamund in S.T. No. 14/09 convicting the accused / appellant under S.376 of the Indian Penal Code (for short 'the IPC') and sentencing him to undergo R.I. for 10 years and fine of Rs.5,000/-, in default to undergo additional R.I. for 2 years.

2. Case of the prosecution, in brief, is that on 9.10.2008 at 10.30 a.m. report was lodged by the prosecutrix and based on which FIR (Ex.P - 7) under S.376 & S.506 (B) IPC was registered against the accused / appellant. It is alleged that in the intervening night 8-9/10/2008 the prosecutrix (PW - 1) along with her friends Kalindri & Raju had gone to see religious programme organized near her house. In the midst of said programme, when she had gone to the compound of Chandrakar to answer the call of nature, the accused / appellant, who was already hiding there, caught hold of her and forcibly took her inside the compound and thereafter committed forcible sexual intercourse with her after removing her clothes. It is further alleged that she raised her cries but accused / appellant gagged her mouth by his hand and asked her to keep quiet or else she would be killed and therefore due to fear, she did not raise cries. While she was being subjected to sexual intercourse by accused / appellant, Kumari Basanti, younger sister of prosecutrix, & Chhotu came there in search of her and upon seeing the light of torch, accused / appellant fled from the spot. The prosecutrix was sent for medical examination which was conducted by Dr. (Smt.) Alka Pardal (PW - 3) on 10.10.2008 vide Ex.P - 2 and she noticed following injuries / symptoms on the person of the prosecutrix:
* secondary sexual characters were at the developing stage.
* No injury on any part of the body.
* Scanty pubic hairs were present.
* Hymen torn radially with irregular margin which were red.
* Vagina was admitting one finger with pain.
* Laceration of 2x1cm at lower end of vagina.
According to the doctor's opinion, the prosecutrix was sexually exploited within 48 hours of examination. Accused / appellant was also medically examined by Dr. Vipin Kumar Rai (PW - 5) who gave his report of Ex.P - 6 opining him to be fully capable of having sexual intercourse.

3. On completion of investigation, charge sheet was filed against accused / appellant for the offences punishable under S.376 & S.506(B) of IPC followed by framing of charges by the Court below under the aforesaid sections. The prosecution in order to bring home the charges levelled against accused / appellant examined 13 witnesses in all. Statement of accused / appellant was recorded under S.313 Cr.P.C. in which he abjured his guilt and pleaded innocence & false implication.

4. During the course of trial, the prosecutrix committed suicide, therefore, she was not available for examination and cross - examination by the trial Court.

5. After hearing counsel for the parties and considering the material available on record, the trial Court by the impugned judgment, while acquitting the accused / appellant of the charge under S.506B of IPC, convicted & sentenced him under S.376 of IPC.

6. Learned counsel for accused / appellant submits that; -
* in absence of court statement of the prosecutrix, the accused / appellant cannot be convicted for the offence of rape.
* the prosecutrix was a consenting party and there is no legally admissible evidence showing her to be minor on the date of incident;
* lastly she submits that the matter pertains to the year 2008, accused / appellant is in custody s