Md. Jainal UddIn Alias Abedine Vs. State of Tripura - Court Judgment

Excerpt:
- orderu.b. saha, j.1. this appeal under section 374(2) of the code of criminal procedure, 1973 is filed against the judgment dated 21-11-2006 passed by the learned additional sessions judge, south tripura, belonia in sessions trial no. 29(st/b)/2006 whereby and whereunder the appellant was convicted under section 376(1) of the indian penal code and sentenced to suffer rigorous imprisonment for eight years and to pay a fine of rs. 5000/-, in default to suffer one year simple imprisonment.2. heard mr. s. dutta, learned counsel for the appellant and mr. a. ghosh, learned additional public prosecutor for the respondent.3. the prosecution story in short is that the victim minor girl, (p.w. 2), aged about 15 years, daughter of the informant, bipin chandra tripura,(p.w. 1), was suffering from.....

Judgment:
ORDER

U.B. Saha, J.

1. This appeal under Section 374(2) of the Code of Criminal Procedure, 1973 is filed against the judgment dated 21-11-2006 passed by the learned Additional Sessions Judge, South Tripura, Belonia in Sessions Trial No. 29(ST/B)/2006 whereby and whereunder the appellant was convicted under Section 376(1) of the Indian Penal Code and sentenced to suffer rigorous imprisonment for eight years and to pay a fine of Rs. 5000/-, in default to suffer one year simple imprisonment.

2. Heard Mr. S. Dutta, learned Counsel for the appellant and Mr. A. Ghosh, learned Additional Public Prosecutor for the respondent.

3. The prosecution story in short is that the victim minor girl, (P.W. 2), aged about 15 years, daughter of the informant, Bipin Chandra Tripura,(P.W. 1), was suffering from fever who was also afraid at the sight of fire. She was taken to the Jabaibari hospital where doctor gave her medicine, but she was not cured. At that time, the informant father came to know from others that the appellant Jainal Abedin, locally known an 'Ojha' (a person who is said to treat the person suffering from evil spirits), who used to visit their village, can cure his daughter by his spiritual power like some 'jhar fuke' (enunciation of some words which are believed to be helpful in driving away the evil power from the person). Then the informant father consulted the appellant Jainal Abedin and made a payment of Rs. 800/- as expenses, fees to cure his daughter. Accordingly, the appellant Jainal Abedin came to the house of the informant on 15-6-2006. He told the informant father and other members of his family that he would start his treatment from 9.00 p.m. and it would continue up to 3 a.m. in their living room. The appellant also asked the family members to remain outside the living room and stay in other room. He also instructed not to come out from their room even after hearing any kind of cry. If they would do so, then the devata would kill them. The appellant took the daughter of the informant father inside the living room and closed the door. At night although the informant father heard some sounds in the living room, out of fear he did not come out of their room which he thought that spiritual activities were going on. In the morning at about 5.00 a.m. the door of the living room was open and the appellant instructed the informant father to have a bath of his daughter. The daughter, of the informant father was weeping and after bath, she told to her mother about pain in her abdomen. The appellant left house of the informant hurriedly. Then the daughter of the informant disclosed to her mother that during the last night, the appellant took away her wearing apparels forcibly and raped her three times. She was trembling. Immediately, on 16-6-2006, when the condition of his daughter appeared serious, the informant father rushed to the house of the appellant. As per advice of the appellant, the informant then brought his daughter to the house of the appellant, where saline was administered by quack-doctor. Thereafter, when her condition was not improving, as per advice of the local people, she was taken to the Jolaibari Hospital where she had undergone treatment. The informant father told the doctor that his daughter was raped.

4. On the following day, i.e. on 17-6-2006 the informant fileda written complaint with the Baikhora P.S. which was written by one Nepal Chakraborty, a legal aid volunteer on the dictation of the informant father. On the basis of the said complaint, a police case was registered and at the end of the investigation, police submitted the charge-sheet against the accused appellant Jainal Abedin under Section 376(1), IPC. Cognizance of offence was taken and accordingly the following charges were also framed against the accused appellant Jainal Abedin under Sections 376(1) and 506, IPC:

Firstly, that you on or about the 15-6-2006 at about 22.00 hrs, at Tara Chandra Para (Thakur Chhara) committed rape on smt. Bhanupriya Tripura and thereby committed an offence punishable Under Section 376(1) of the IPC and within the cognizance of this Court of Session.

Secondly that you on or about the same date, time & place, committed criminal intimidation by threatening Smt. Bhanupriya Tripura with injury to her person with intent to cause alarm to the said Smt. Bhanupriya Tripura and thereby committed an offence punishable Under Section 506 of the IPC and within the cognizance of this Court of Session.

5. The accused pleaded not guilty to the charges and claimed to be tried while defence case is of total denial.

6. To bring home the charge, the prosecution examined as many as twenty-five witnesses and exhibited six documents. The defence adduced no evidence and cross-examined the P.Ws. The accused appellant was examined under Section 313, Cr.P.C. At the conclusion of the trial, the learned Additional Sessions Judge passed the impugned judgment of conviction and sentence dated 21-11-2006 as aforenoted. Being dissatisfied with the said judgment, the appellant preferred the instant appeal.

7. P.W. 9 Smt. Aba Laxmi Tripura, P.W. 10 Sri Khumbha Mani Tripura, who was the chairman of the village, P.W. 11 Sri Fajal Haque, and P.W. 12 Sri Padal Kumar Tripura, who was Pradhan of Ramraibari village, stated about the previous conduct of the accused appellant, who was called and known by them as 'Moulavi'. They stated that the accused appellant caused the similar incident about nine years ago and he was caught by the villagers for his attempt to rape on P.W. 9. The accused appellant told the father of P.W. 9 that she would die at the age of 18 and he suggested for performing ritual 'telpara' and 'jalpara' in the night time. As agreed to by her father, the accused appellant started his ritual function in the night time in a room with P.W. 9 and at the dead of night at about 1.30 a.m. he caught her (P.W. 9) and tried to rape her, but she kicked him and went out of the room. Later, Salish (village meeting) was held and the accused appellant confessed his guilt in their presence and paid Rs. 1000/- as fine. So, in the name of treatment, the accused appellant was in the habit of attempting/committing rape on others. No case was instituted at that time, as the illiterate villagers had a belief that the accused appellant could play with evil powers.

8. P.W. 1, Bipin Ch. Tripura, is the father of the victim girl stated in his deposition that in the morning, when the door of the living room was open, the appellant asked them to arrange bath of his daughter and after bath, his daughter complained about pain in her abdomen and she also disclosed that the appellant raped her three times in the night. He told his neighbours about rape on his daughter who advised him to file complaint before police. Accordingly. He filed FIR on 17-6-2006. Two days delay was in filing the FIR. The reasons for delay in filing the FIR as recorded by the learned Assistant Sessions Judge was that the informant father was in shock state of mind, and was running here and there for treatment of his daughter and also taking suggestion from others. In cross, this witness stated that there were two cottages in his house, one was kitchen and another was living room. In the living room, his two sons were 8 & 9 years old respectively. They were sleeping and 15 years old daughter who was ill was treated, was treated by Jainal Abdin in the night at that room. He and his wife arid youngest daughter/stayed in the kitchen.

9. P.W. 2 is the victim girl. The school certificate issued by the Headmaster in respect of the victim girl was exhibited and marked as Exbt. P-5 wherein the date of birth of the victim girl was shown as 8-9-1996 and the incident of alleged rape was occurred on 15-6-2006, the trial Court recorded her age to be about 15 years. She is 1 the only eye-witness of the occurrence. She stated that the appellant Jainal Abedin assured to cure her by spiritual power and on 15-6-2006, the appellant took her in their living room and started 'jharfuke' and during the period of 9 p.m. to 4 a.m., he raped her three times forcibly after making her naked. And she could not cry as the appellant pressed her mouth with his hand. After that, the appellant told her parents to arrange her bath and she informed the fact of rape to her mother. She became ill. She was brought to the house of the appellant where quack doctor was called and two salines were pushed. Thereafter, when she was not cured, her father arranged her hospitalization and she told the fact of rape to her father also.

10. She also stated that she told that fact to the Magistrate who recorded her statement, which was exhibited as Exbt. P-6. In the said statement, she told that her parents and brothers were asked to go out of the room. After taking oil, the maulavi (the appellant) undressed her and began to rub oil on her body. Thereafter, pressed her mouth and tortured her. Then he slept with her. On next day morning, she told the fact to her mother.

11. Before the learned Assistant Sessions Judge, the learned Counsel for the defence argued that the victim girl did not tell about rape on her, she told about torture on her to the Magistrate. P.W. 23 Sri Satyabrata Datta. Judicial Magistrate, 1st Class, Belonia recorded the statement of the victim girl under Section 164(5) of Cr.P.C. who stated that the victim girl told about torture on her and she meant it as a rape. But it was not recorded as she did not say in that way.

12. P.W. 3 Smt. Niranmala Trlpura is the mother of the victim girl. She stated that when she arranged bathing of her daughter as per instruction of the appellant, her daughter told to her about rape on her. In the hospital, the victim girl disclosed the said fact to her father also who then made complaint to the police and also told to others like P.W. 4 and P.W. 5 Arun Tripura and others.

13. P.W. 4 Smt. Krishnamala Tripura is the grandmother of the victim girl who stated that she came to know about the said fact from her granddaughter i.e. the victim girl. P.W. 16 Nepal Chakraborty stated that he came to know the said fact on 17-6-2006 when he wrote the FIR on the dictation of the informant father, which he confirmed and was marked as Ext. P. 1.

14. P.W. 17 Dr. Debasish Roy submitted the medical report and stated that he found no spermatozoa in the vaginal swab. P.W. 18 Dr. Jhany Solmon Reang, who examined the accused appellant opined that the appellant was capable to have a sexual intercourse. He also found injuries mark on his knees and shoulder of the accused appellant.

15. P.W. 19 Kamal Lochan Tripura arranged hospitalization of the victim girl when the father of the victim girl went to his house with her. He stated that he came to know about rape of the victim girl from the informant father. P.W. 20 Satinanda Tripura also stated that he came to know about rape of the victim girl from the informant father as well as victim girl.

16. P.W. 24 Dr. Sarmistha Choudhury, who examined the victim girl, stated that after examination, she opined that it was difficult to say about rape on the victim girl. Her hymen was ruptured. No external injury was found in the genital or other region. In the cross-examination, this witness stated that rupture may be by falling or for any other reason. She did not mention about the habitual intercourse of the girl. In the cross, she also stated that in case of forceful rape, there might be injury in the private part of the body or any other part of the body.

17. P.W. 21 Narendra Tripura is the seizure witness in respect of wearing apparels of the victim girl and bed cover P.W. 15 Sandeep Datta, a quack-doctor who pushed saline to the victim girl in the house of the appellant. P.W. 7 Rashid Mia is the seizure witness in respect of seizure of empty saline bottle from the house of the appellant.

18. Mr. S. Dutta, learned Counsel while assailing the impugned judgment of conviction has strenuously argued that the set of witnesses so examined by the prosecution miserably failed to make out a case under Section 376, IPC against the appellant as no injury was found on the body of the victim girl as well as in the private part and also found no spermatozoa in the vaginal swab during the medical examination by the doctor as in a case of first time rape to a minor girl like the victim girl by an able man of about 60 years, like the appellant, there ought to be some injuries either on the person or in the private part of the girl raped. Admittedly in the instant case, those are absent, neither in the private part of the victim girl nor on the person of the accused appellant, the doctor examined them found any Injury on account of rape. Hence, it can be easily presumed that no rape was committed on the victim girl by the accused appellant and thus the story of rape is a concocted one. Hence, the conviction recorded by the trial Court is liable to be set aside and quashed. In support of his aforesaid submission, he relied on the judgments of this Court in the case of (1) Mantu Das v. State of Assam (2007) 4 GLR 497 : 2007 Cri LJ (NOC) 956 (Gau) (2) Jamir Uddin Ahmed v. State of Assam : (2007) 4 GLR 502 : (2008 Cri LJ 586 (3) Lalbiakkimi v. State of Mizoram (2007) 4 GLR 630 : 2006 Cri LJ (NOC) 198 (Gau) respectively.

19. Learned Counsel for the accused appellant further submits that even her wearing apparels were not found in torn condition. If a person forcibly rapes a girl, then he has to apply force. As a result of which, wearing apparels is supposed to be torn. Even no hair of the appellant was found in the private part of the victim girl. In support of his contention, he relied on the decision of the Apex Court In the case of Btbhishan v. State of Maharashtra : 2007 AIR SCW 7358 : 2008 Cri LJ 721.

20. Relying the statement of P.W. 1 that during cross-examination, he stated that there were two cottage in his house - one kitchen and the other living room and in the living room, his two sons who were aged about 9 and 8 years respectively, were sleeping and his fifteen years old daughter i.e. the prosecutrix who was ill, was treated by the appellant in that living room in the night and he along with his wife and youngest daughter stayed in the kitchen, Mr. Dutta submits that the story of committing rape on P.W. 2, the prosecutrix in the dwelling house by the appellant in presence of two minor sons of the informant, P.W. 1 is unbelievable. It is also doubtful that the appellant asked the family members of the informant to remain outside of the living room. In support of his contention, he relied on a decision of the Apex Court in the case of Rajendra alias Raju v. State of Maharashtra reported in : (2002) 7 SCC 721 : 2002 Cri LJ 4353 particularly para 6 of the said report. He also contended that prosecutrix's evidence was contradicted by the medical evidence, particularly, by P.W. 24, Dr. Sarmistha Chaudhury, who examined the victim girl. Hence, Court should not place reliance upon the sole testimony of the prosecutrix, rather it would be better for the Court to rely upon the evidence of the doctor. In support of his aforesaid contention, he relied on the decision of the Apex Court in Dilip v. State of M.P. : (2001) 9 SCC 452 : 2001 Cri LJ 4721. He also contended that non-examination of two sons of the inform out creates a further doubt in the prosecution case. Had they been examined, they might have supported the prosecution story and on that count also, the appellant is entitled to be acquitted. Learned Counsel for the petitioner also contended that if the doctor who examined the victim girl is believed, then the Court is to disbelieve the victim girl and her inmates prosecution witnesses. He finally submits that it is not the duty of the defence to prove the case of the prosecution, rather it is the duty of the defence to create a cloud on the prosecution case what the defence established in this case. Hence, the appellant even not entitled to get clear acquittal, but is entitled to get acquittal on benefit of doubt. He further submits that the appellant has already suffered sentence for three years and the Court considering his age and other circumstances may release him reducing the sentence to the extent the period he has already suffered. In support of his contention, he relied on the judgment of this Court in the case of Samir Ghosh v. State of Tripura : (2008) 2 GLR 381 : 2007 Cri LJ 4204 particularly, he referred to para 9 of the judgment.

21. Mr. A. Ghosh, learned Additional P.P. while countering the argument of Mr. Dutta, referred to the evidence of the victim girl (P.W. 2), her mother (P.W. 3), Dr. Debasish Roy (P.W. 17) who examined the vaginal swab of the victim girl. Dr. Jhony Solemon Reang (P.W. 18), who examined the accused appellant and Dr. Sarmistha Choudhury, Medical Officer (P.W. 24), who examined the victim girl after two days of the alleged rape and contended that by reading of the evidence of those witnesses would establish that victim girl was raped, particularly when hymen of the victim girl was found ruptured and injuries were found on the knees and shoulder of the accused appellant. He also contended that the convict appellant cannot be considered as a human as he committed rape in the name of treatment even not on a full grown girl, but on a 10 to 15 years girl. According to him, a close scrutiny of the prosecution evidence would establish that the prosecutrix has proved its case without any doubt. He finally contended that evidence of the victim prosecutrix is enough to convict the accused appellant and no further corroboration is called for, as in the Evidence Act, no where it is said that evidence of the victim girl cannot be accepted unless it is corroborated in material parts. He also contended that by this time, it is settled that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor and even if the doctor who examined the victim does not find any sign of rape, that cannot be a ground to disbelieve the testimony of the prosecutrix. In support of his aforesaid contention, he relied on a decision of the Apex Court in a case of Moti Lal v. State of M.P. : 2008 Cri LJ 3543 and the case of State of U.P. v. Munshi : 2009 Cri LJ 393. He also contended that the order of conviction recorded by the Trial Court in the instant case is not required to be interfered with by this Court as the learned trial Court after discussing the evidences on record and taking other circumstances passed the impugned order of conviction and awarded the sentence as the defence failed to make out a case, even for getting acquittal on benefit of doubt.

22. Perused the evidences recorded by the trial Court as well as the impugned judgment. On going through the evidences, particularly the evidence of the victim girl (P.W. 2), P.W. 24, the doctor, who examined the victim girl, it cannot be said that there was no injury. From the report of the doctor, it is clear that hymen of the victim girl was ruptured.

23. In the case of Jamir Uddin Ahmed : 2008 Cri LJ 586 (supra), the victim girl was only 8 years old at the time of alleged occurrence and immediately after occurrence, she was examined by doctor who stated in her evidence that no injury was found on any part of the body of the victim, much less on private part. Hymen was found intact and the doctor specifically stated that there was no sign of rape at all. In the case of Indrajit Chandra Nath (supra) the opinion of the doctor was that the age of the victim prosecutrix was above 18 years and no injury mark was found on her body. Therefore, it could not be ascertained whether she had been raped or not.

24. In the instant case, P.W. 24, doctor, did not negate the possibility of the rape, rather stated it was difficult to say about rape on the victim girl, but at the same time, in her report, it was clearly stated that hymen of the victim girl was ruptured. In her cross, she also stated that in case of forcible rape, there might be injury in her private part or in other part of the body. It cannot be said that the alleged rape was committed forcibly, rather from the evidence of P.W. 2, victim girl, it transpires that the accused appellant undressed her by taking away her wearing apparels forcibly and raped her three times and she could not cry as the appellant pressed her mouth with his hand. Hence, the case of Jamir Uddin Ahmed : 2008 Cri LJ 586, as well as Indrajit Chandra Nath (supra) is distinguishable than the case in hand.

25. In her statement before the Magistrate, the victim girl also stated that her parents and brothers were asked to go out of the room and after closing the door, the accused appellant undressed her and began to rub oil on her body and thereafter pressed her mouth and tortured her and then he slept with her. Therefore, possibility of getting torn clothes is ruled out as the clothes were removed by the accused appellant in the name of treatment. In view of the aforesaid situation, the contention of learned Counsel for the petitioner that no injury is found on the body of the prosecutrix and no torn clothes was found and for that reason, the fact of rape is to be disbelieved, cannot be acceptable. As such, the evidence of the case of Bibhishan : 2008 Cri LJ 721 (supra) is different than the case in hand.

26. In the case of Ranjit Hazarika v. State of Assam 1998 (8) SCC 635, the Apex Court held that to constitute the offence of rape, penetration, however slight, is sufficient. While dealing with this aspect observed in para 5 of the said judgment.

5. The argument of the learned Counsel for the appellant that the medical evidence belies that testimony of the prosecutrix and her parents does not impress us. The mere fact that no injury was found on the private parts of the prosecutrix or her hymen was found to be intact does not belie the statement of the prosecutrix as she nowhere stated that she bled per vagina as a result of the penetration of the penis in her vagina. She was subjected to sexual intercourse in a standing posture and that itself indicates the absence of any injury on her private parts. To constitute the offence of rape, penetration, however slight, is sufficient. The prosecutrix deposed about the performance of sexual intercourse by the appellant and her statement has remained unchallenged in the cross-examination. Neither the non-rupture of the hymen nor the absence of injuries on her private parts. therefore, belies the testimony of the prosecutrix particularly when we find that in the cross-examination of the prosecutrix, nothing has been brought out to doubt her veracity or to suggest as to why she would falsely implicate the appellant and put her own reputation at stake. The opinion of the doctor that no rape appeared to have been committed was based only on the absence of rupture of the hymen and injuries on the private parts of the prosecutrix. This opinion cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix. Besides the opinion of doctor appears to be based on no 'reasons'.

(Emphasis supplied)

In para 6, the Apex Court also held that the evidence of the prosecutrix in the case inspires confidence. The prosecutrix of a sex offence is a victim of a crime and there is no requirement of law which requires that her testimony cannot be accepted unless corroborated. In this regard, the Apex Court took note of para 8 of the judgment in the case of State of Punjab v. Gurmit Singh : (1996) 2 SCC 384 : 1996 Cri LJ 1728 which is reproduced hereunder:

The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless, the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise, reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the change levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a women or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, takes as a whole, the case spoken of by the victim of sex crime 1 strikes the Judicial mind as probable.

27. In the case of Prithi Chand v. State of Himachal Pradesh : 1989 Cri LJ 841, the Apex Court noted that mere absence of spermatozoa cannot cast, a doubt on the correctness of the prosecution case. In the case of State v. Lekh Raj : 2000 (1) SCC 247 : 2000 Cri LJ 44 the Apex Court also held that the High Court's conclusion that absence of dead or mobile spermatozoa either in the vagina or in the cervix of the prosecutrix rules out the possibility of the prosecutrix having been subjected to sexual intercourse, is not referable to any evidence on record. The presence of spermatozoa, dead or alive, would differ from person to person and its positive presence depends upon various circumstances. Otherwise also the presence or absence of spermatozoa is ascertained for the purpose of corroboration of the statement of the prosecutrix. If the prosecutrix is believed to be a truthful witness in her deposition, no further corroboration may be insisted upon. Corroboration is admittedly only a rule of prudence.

28. The evidences of the prosecution witnesses have to be appreciated considering the facts of each case. Difference of facts between two cases may create a difference of world, even in appreciation of evidences of the witnesses also. It appears from the evidence of P.W. 9 who stated about the previous conduct of the accused appellant that the accused appellant once attempted to commit rape upon her in the name of treatment by ritual Telpara' and 'jalpara' in their house in the night time. Therefore, it cannot be ruled out that the accused appellant was in the habit of attempting/committing rape on the femaje patient in the name of treatment. Hence, mere absence of external injury on the body of the victim girl cannot be a ground for disbelieving the prosecution story, particularly the victim girl.

29. In the case of Moti Lal : 2008 Cri LJ 3543 (supra), the Apex Court held that 'in the Indian setting refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury'. It is also noted by the Apex Court in para 7 of the said judgment that'. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is not ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian woman has tendency to conceal offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case. In the instant case the suggestion given on behalf of the defence that the victim has falsely implicated the accused does not appeal to reasoning. There was no apparent reason for a married woman to falsely implicate the accused after scatting her own prestige and honour.' In the said judgment, it is also held that 'a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Court, therefore, shoulders a great responsibility while trying an accused on charges of rape.'

30. The contention of Mr. A. Ghosh, learned Additional Public Prosecutor that the Evidence Act no longer says that evidence of the victim girl cannot be accepted unless it is corroborated in material particulars has come force as the same is also supported by the decision of the Apex Court in Moti Lal : 2008 Cri LJ 3543 (supra).

31. It is also settled by this time that in a rape case it is the duty of the Court while evaluating the evidence to consider the direct as well as circumstantial evidences which would lend assurance to testimony of the victim girl. In the instant case, the victim girl surrendered her chastity to the accused appellant only for her treatment and the accused appellant taking the opportunity of her helplessness committed offence of rape which is heinous in nature. It is the admitted position that no other person except the two minor brothers who were sleeping and the victim girl was available in the room where she was raped in the night by the, accused appellant. Before entering into the room with the victim girl, the accused appellant asked the parents of the victim girl to stay in other room, following which the parents and other family members stayed in the kitchen and other cottage. The accused appellant also warned them that if they went out of the room, then Devata would kill them and saying as such, the accused appellant closed their living room in the night time. Though the father of the victim girl heard some sound in the living room at night, out of fear, he did not come out and though that spiritual activities went on and on the following morning, the victim girl disclosed to her mother during her bath that she was raped by the accused appellant three times in the night.

32. On going through the aforesaid evidence of the prosecution witnesses, this Court is of the opinion that no case is made out by the defence for disbelieving the prosecution story, particularly, the evidence of the victim girl, which is corroborated by the P.W. 1, 3 and 4.

33. This Court is unable to accept the submissions of Mr. Dutta that the story of rape on P.W. 2 as stated by the prosecutrix is improbable as alleged rape was committed in a room where two minor brothers aged about 9 and 8 years had been sleeping. There is no doubt that non-examination of natural witnesses is improper, but in the instant case, prosecution no where stated in its case that two minor brothers of the prosecutrix i.e. sons of the P.W. 1, have seen the alleged occurrence of rape, rather it is the prosecution1 case that both of them were sleeping and due to that, they could not see any occurrence. When they had not seen the occurrence, question of examination of those witnesses does not arise. More so, the case of Rajendra alias Raju : 2002 Cri LJ 4353 (supra) has no direct bearing in this case as the facts of that case is totally different than the case in hand. In the case of Rajendra alias Raju (supra), P.W. 1 and her daughter 22 when coming out of a theater after watching a matinee show, the appellant, who was going on the road on a scooter, having seen them, stopped the scooter and offered to give them a lift on his scooter up to their house. Where P.W. 1 declined to accept his offer, the appellant threatened P.W. 1 that he would kill her by pointing out a knife at her. It was stated that on account of the fright created by the appellant, P.W. 1 had to go with him on his scooter along with her daughter P.W. 22, P.W. 1 and P.W. 22 were thereafter taken to a lodge owned by P.W. 3 located in Buldi area. On reaching that place, the appellant held the hand of P.W. 1 and started taking her towards a room inside the lodge. The son of P.W. 3 started closing the door of the room from outside allegedly, on the direction of the appellant and on seeing him, P.W. 1 asked the boy not to close the door and at that time her daughter P.W. 22 was also inside the room. Thereafter, P.W. 1 forcibly pulled her hand out of the appellant's hold and managed to become free from the clutches of the appellant and went out of the room along with her daughter. Ultimately, P.W. 1 and her husband went to the police station and lodged a complaint against the appellant. On consideration of the aforesaid evidence, the Apex Court held that it is difficult to visualize that the appellant had asked P.W. 1 to have sexual intercourse with her in the presence of her eleven-year-old child, and that he allowed her to easily slip out of his hands from the lodge, if that was his intention. Hence, that part of the case also is doubtful. It is also noted that these facts are sufficient to hold that the offence alleged against the appellant was not established and the view taken by the High Court appears to us to rest on surmises. The facts of Rajendra alias Raju : 2002 Cri LJ 4353 (supra) and the facts of the case in hand is totally different as stated above. In the case of Rajendra alia Raju (supra), P.W. 1 ultimately went with the appellant to the lodge owned by P.W. 3 located at Buldi area and managed to become free from the clutches of the appellant and went out of the room along with her daughter. But in the instant case, the appellant was called by the parents of the prosecutrix, P.W. 2 for her treatment and in the name of treatment, the appellant committed rape on her pressing her mouth by hand, when her two brother were sleeping and she could not cry or express anything at that time. In the result, her two minor brothers did not feel anything wrong towards her treatment by the appellant, particularly, when she was under pathological condition. Mere non-examination of those witness cannot be a ground to disbelieve the case of the prosecution, particularly, the evidence of the prosecutrix, even where there is no suggestion about the enmity between the family of the prosecutrix and the appellant. The case of Dilip v. State of M.P. : 2001 Cri LJ 4721 (supra), relied by Mr. Dutta also not applicable in the instant case. In the said case, testimony of the prosecutrix has been contradicted by the medical evidence as well as by the version of her maternal aunt (P.W. 3) to whom she narrated the entire incident soon after its commission. But in the instant case, none of the prosecution witnesses contradicted the testimony of the prosecutrix including her mother, P.W. 3 to whom she narrated the events to her mother that had taken place towards the commission of rape at the first instance. Appreciation of evidence of a case depends upon the facts and circumstances of the case. One additional or different fact can make a worldof difference as stated supra. In such a rape case, it is hardly possible to get any direct evidence as regards rape except victim herself as she remained the only eye-witness. In view of the judgment of the Apex Court in the case of Ranjit Hazarika v. State of Assam and in the case of State of H.P. v. Lekhraj : 2000 Cri LJ 44 (supra), it can be said that medical evidence of a doctor is nothing but an adjective evidence in support of the injury caused even if such evidence is contrary with the evidence of the prosecutrix, then also order of conviction can be recorded relying upon the evidence of the prosecutrix alone subject to the condition that the same is reliable as ocular evidence get much more weight than the medical evidence i.e. the adjective evidence which is only the opinion. In the instant case, it cannot be said that the evidence of the prosecutrix is not reliable as she stated at the early stage regarding the offence committed by the accused appellant. More so, why the prosecutrix and her parents would falsely involve an innocent person for the commission of crime.

34. In the case of Moti Lal : 2008 Cri LJ 3543 (supra), the Apex Court held as to the measure of punishment in para 11 of the judgment, which is reproduced here under:

11. The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio-economic status, religion, race, caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. Courts must hear the loud, cry for Justice by the society in cases of the heinous crime of rape on innocent helpless girls of tender years, married women and respond by imposition of proper sentence.

35. Therefore, the measurement of the punishment for an offence of rape should not be taken on the social position of the parties, injured, but on the greater or less atrocity of the crime, the conduct of the criminal and defenceless and unprotected stage of the victim. In the instant case, a combine reading of the evidence of P.W. 9 and P.W. 2, the victim girl would show that the accused appellant is likely to be a hyper sex fanatic and the offence committed by him was an inhuman act taking the benefit of his so-called spiritual power. Hence, it would not be proper to show any leniency in imposition of sentence to this type of offender.

36. Keeping in mind the aforesaid observation of the Apex Court, this Court is unable to accept the submission of Mr. Dutta, learned Counsel for the appellant to reduce the sentence.

37. For the foregoing reason and discussion, there is no hesitation in the mind of this Court that indisputably, the victim girl was the only eye-witness to the alleged occurrence and, therefore, she was the source of information to her mother and other witnesses. A close scrutiny of her statement recorded under Section 164(5) Cr.P.C. her deposition before the learned Trial Court and her version to her mother would immediately inspire confidence about the truth of her allegation. As recorded by the Magistrate, the word 'torture' to the victim girl, it is not expected of her or a rustic girl of her age to know what should be said in exact verbatim word as to what precisely amounts to penetration or rape. As the medical experts did not find any violence on her body or private parts and no spermatozoa was found in her vaginal swab, it is to be understood that there must have been penetration which the accused appellant, an able body of about 60 years made on a 10 to 15 years girl three times at night in the name of her treatment which she suffered in helpless condition and when in the following morning she was set free to her parents, she told her mother that she had pain at the abdomen region and she also disclosed that she was raped by the accused appellant. To constitute rape, penetration, however, slight is sufficient. Absence of semen or spermatozoa in vaginal swab is not sufficient to disprobe the fact of rape. It is also to be noticed at this stage that except mere denial, no specific defence case was projected t6 explain why a minor girl or her parents would make such an allegation against the accused appellant with whom they had no enmity. This circumstance places the prosecution story on a stronger foundation. Considering the entire gamut of the occurrence, the trial Court has rightly convicted and sentenced the accused appellant. Hence the impugned judgment of conviction and sentence passed by the trial Court does not warrant an interference.

38. In the result, the appeal stands dismissed.