JUDGMENT : P.K. Tripathy, J. - This Jail Criminal Appeal has been filed by the accused in S.T. Case No. 4/62 of 1997 of the Court of Assistant Sessions Judge, Rairangpur, challenging the order of conviction u/s 376, Indian Penal Code 2. According to the case of the prosecution, P.W. 1, the ravished girl, is the niece of Appellant inasmuch as Appellant is the younger brother of P.W. 3 and said P.W. 3 is the mother of P.W. 1. P.W. 2 is the mother of both Appellant and P.W. 3. The Appellant and the aforesaid three witnesses remains in the same locality. P.W. 1 was staying in one house with her maternal grand-mother (P.W. 2) and the Appellant. According to the prosecution, by the date of occurrence P.W. 1 was aged in between 14 to 16 years. It is alleged that on 17.11.1996 P. Ws 1 and 2 were sleeping in the occurrence house. As the Appellant had gone to Tata and his wife (D.W. 1) had gone to her maternal home. In that occurrence night when both P. Ws 1 and 2 were in slumber, Appellant returned to the house along with some 'Bhog'. Appellant refused to take 'Bhog' because he had taken food in a hotel. P. Ws 1 and 2 took some 'Bhog' and thereafter Appellant slept in one room and the P. Ws 1 and 2 in another. After lapse of some time Appellant came and approached P. Ws. 1 and 2 to sleep in his room as he has scared to sleep alone. Keeping his request, P. Ws 1 and 2 came and slept in a separate bed. A 'dibiri' (country-made lamp) was burning and lightening the room. Appellant extinguished the light and came and forcibly slept in between P. Ws 1 and 2. P.W. 1 wanted to leave that bed to go and sleep on the bed deserted by the Appellant. Such attempt by P.W. 1 was resisted by the Appellant and he started making passes for fruition. P.W. 1 unsuccessfully resisted to that urge of the Appellant. Her cry for help was though responded by P.W. 2, but P.W. 1 could not further shout for help because Appellant gaged her mouth by a napkin (towel). Such attempt by P.W. 1 was resisted by the Appellant and he started making passes for fruition. P.W. 1 unsuccessfully resisted to that urge of the Appellant. Her cry for help was though responded by P.W. 2, but P.W. 1 could not further shout for help because Appellant gaged her mouth by a napkin (towel). The attempt of P.W. 2 to resist such a heinous conduct on the part of the Appellant was put to an end by the Appellant who terrorised her by showing a knife. As alleged, thereafter the Appellant made sexual intercourse with P.W. 1 against her will and by use of force. In the morning P. Ws 1 and 2 left the house to report the incident to P.W. 3 and on the way P.W. 1 disclosed the incident to some other female villagers and P. Ws 6 and 7 are two of such ladies. After reporting the incident to P.W. 3 all the three went to the nearby police-station where the F.I.R was lodged and process of investigation started. In course of investigation, both Appellant and P.W. 1 were medically examined on police requisitions, search and seizure were made, witnesses were examined and ultimately a charge-sheet was submitted. 3. As against that, while denying to the charge, Appellant claimed for trial. His defence plea is one of complete denial to the allegation of rape and he also advanced a further contention that with a view to oust him from the possession of the houses which belong to his father, a false case has been concocted by P. Ws 1 to 3. Off-late at the stage of adducing defence evidence, Appellant also raised a defence plea that P.W. 2 is not his mother and therefore, P.W. 3 is his step-sister and P.W. 2 is his step-mother. In support of such defence Appellant examined his wife as D.W. 1. 4. On analysis of the evidence on record trial court found evidence of P. Ws 1 to 3 to be true and trustworthy and unimpeachable. Trial Court also recorded the finding that medical evidence and the other circumstantial evidence lends corroboration to the allegation of rape by the Appellant on P.W 1. Accordingly, trial court found the Appellant guilty u/s 376 Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of ten years with fine of Rs. Trial Court also recorded the finding that medical evidence and the other circumstantial evidence lends corroboration to the allegation of rape by the Appellant on P.W 1. Accordingly, trial court found the Appellant guilty u/s 376 Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of ten years with fine of Rs. 100/- and in default to undergo R.I. for two months more. 5. In the application sent to this Court, which has been accepted as an appeal memo to register the Jail Criminal Appeal, Appellant has not pleaded anything in specific while claiming for his acquittal. But having been engaged by the High Court Legal Services Committee, learned Counsel for the Appellant, addresses the Court on various aspects while challenging the impugned order of conviction. 6. Mr. P.K. Sahoo, learned Counsel for the Appellant, argues that when there is some evidence on record to substantiate the defence plea of animosity between the parties relating to the two houses which P. Ws 1 to 3 want to grab from the possession of the Appellant, the trial court should not have ignored that defence plea while assessing and accepting the evidence of P. Ws 1 to 3. In that respect, on perusal of the evidence on record this Court finds that while each of P. Ws 1 to 3 has admitted about two houses being acquired by the father of the Appellant they have stated that both the houses are under the control of the Appellant, one being inhabited by him. The defence suggestion that the father had desired one house to be given to P.W. 3 has been admitted by P.W. 2 though P. Ws. 1 and 3 pleaded their ignorance about any such arrangement having been made by the deceased father of the Appellant. D.W. 1 in her evidence though has stated P. Ws 1 and 2 wanted to oust the Appellant from the possession of the house, but there is no whisper by her if P. Ws 1 and 2 succeeded in that respect after the Appellant went to Jail having been arrested in this case. On the other hand, her evidence in cross-examination is clear to the effect that she and her children together are residing in the same house along with P. Ws 1 and 2. On the other hand, her evidence in cross-examination is clear to the effect that she and her children together are residing in the same house along with P. Ws 1 and 2. Therefore, the plea taken but not substantiated even in remotest way cannot be a ground to discard the prosecution evidence or to look to the prosecution evidence with suspicion. Under such circumstance, this Court finds no fault with the trial Court for assessing the evidence of P. Ws 1 to 3 without bringing to his mind a plea of enmity between the Appellant and the P. Ws. 7. Learned Counsel for the Appellant further argues that evidence of P. Ws 8 and 9, the two Doctors and Exts. 4 to 8 belie the theory of rape. On perusal of Ext. 4, it is seen that on the requisition made by the Investigating Officer Appellant was examined by P.W. 8, He opined that accused is capable of sexual intercourse, swegma was absent from penis, no injury was seen on his body or private parts, he is not suffering from any venereal disease, and no foreign particle was found present. That report has been marked as Ext. 5,. He has stated that "I am of opinion that absence of swegma on the penis of the accused is a sign of recent sexual intercourse provided he had not taken a bath and washed the part within last twenty four hours". P.W. 9, who examined the prosecutrix, has submitted his report Ext. 6/1 stating that she was of average built, secondary sexual character developed, pubic hair sparedly developed, no external injury could be noted on the private parts though some foul smelling of discharge noted on the vulva, no injury was found on thigh, buttock, back, cheek, chin and breast but on internal examination of vagina he found there was laceration injury of the dimension of 1 cm. x 1 cm. The hymen was ruptured and on examination, P.W. 1 complaint of pain and tenderness was found and besides that, on touch that tender portion was bleeding. P.W. No. 9 opined that such rupture may be within 48 to 72 hours and that was a sign of recent sexual intercourse. On her further examination, as per the report Ext. 7, P.W. 9 opined that age of the prosecutrix was within 14 to 16 years. P.W. No. 9 opined that such rupture may be within 48 to 72 hours and that was a sign of recent sexual intercourse. On her further examination, as per the report Ext. 7, P.W. 9 opined that age of the prosecutrix was within 14 to 16 years. On a thorough reading of the aforesaid medical evidence along with the evidence of P.W. 1 regarding the allegation of rape, this Court finds no inherent improbability or glaring contradictions so as to form an opinion that the evidence of P.W. 1 is contradictory or inconsistent with the medical evidence on the question of a sexual cohabitation in the occurrence night. Once on record aforesaid evidence satisfactorily proves a case of cohabitation or sexual intercourse, thereafter, it is the version of P. Ws. 1 and 2 which matters most to decide whether it was a consented cohabitation or a cohabitation by use of force and terror. In this case the evidence of P. Ws. 1 and 2 leaves no room for doubt that Appellant forcibly cohabitted with her. Therefore, by displaying that conduct of perversity Appellant has committed no other but the offence of rape. When there was lack of consent it is of no importance whether she was below 16 years or above 16 years of age. 8. In the process of aforesaid argument, Mr. Sahoo, learned Counsel for the Appellant made his best to persuade this Court to accept that everything was not well between the Appellant and P.W. 2, she being a step mother of the Appellant and therefore, no credibility should have been attached to her evidence. As rightly argued by Mr. A.K. Misra, learned Standing Counsel, the aforesaid plea advanced by the Appellant at the stage of defence evidence is an after-thought plea inasmuch as during the prosecution evidence no such plea was advanced nor even a suggestion was given to P. Ws 1 to 3. Be that as it may, after witnessing a ghastly occurrence of the son committing rape on the grand daughter, any mother with reasonableness will be hostile to a rappist-son and P.W. 2 could not have been an exception to that, Whether she is a mother or a step-mother, that does not make any difference when admittedly she was inside that room where the occurrence took place. Thus, the aforesaid contention of the Appellant does not improve his case in any manner. 9. Thus, the aforesaid contention of the Appellant does not improve his case in any manner. 9. For the reasons indicated above and looking to the different contentions raised by the Appellant, this Court finds that the order of conviction of the Appellant u/s 376, Indian Penal Code is unassailable. 10. As the last limp of submission, of course as an alternative, Mr. Sahoo, learned Counsel for the Appellant argues that for the conviction u/s 376(1), Indian Penal Code, the trial Court has awarded the sentence of 10 years rigorous imprisonment. He argues that according to the provision in Sub-section (1) of Section 376, Indian Penal Code the maximum period of imprisonment provided is for ten years and the minimum punishment provided is for seven years. Therefore, keeping in view the age factor and the uneducated, undeveloped character of the Appellant and the fact that he has a wife and four children, the sentence be modified and reduced. Learned Standing Counsel even does not concede to that. But, keeping in view the aforesaid provision of law in Sub-section (1) of Section 376, Indian Penal Code and the aforesaid contentions raised by the Appellant, this Court feels it reasonable to accede to that prayer. Under such circumstance, the sentence of 10 years is modified and the Appellant is imposed with the minimum sentence, i.e. rigorous imprisonment for seven years. The order for fine is also set aside by way of modification. Accordingly, for his conviction for the offence u/s 376 (1) Indian Penal Code Appellant is to suffer R.I. for a period of seven years. Though the order of conviction is not interfered with on merit, but the sentence is modified in the aforesaid manner and the appeal is accordingly allowed in part. Appeal partly allowed. Final Result : Allowed