JUDGMENT I.A. Ansari, J. 1. This appeal has been preferred against judgment and order, dated 25-5-99, passed by the learned Sessions Judge, Barpeta, in Sessions Case No. 49/ 96, convicting the, accused-appellant under Section 376 IPC and sentencing him to suffer rigorous imprisonment for 10 years and also to pay a fine of Rs. 2000/-, half of the said amount of fine being payable as compensation to the victim girl, and to suffer, in default of payment of fine, rigorous imprisonment for a further period of 2 months. 2. The case of the prosecution, as unfolded at the trial, may in brief, be stated as follows : The accused-appellant, Ainal Uddin Ahmed @ Aynal, and the informant, Kitab Ali, are neighbours, their houses being located close to each other. On 16-9-94, at about 10.30 p.m. the appellant came to the house of the informant, when the informant was not at the home, and requested informant's wife, Joygun Nessa, to come to the house of the appellant to treat the informant's ailing son. The wife of the informant, who used to work as a quack in the village, declined to go, because there was no adult male person present in her house at that time. The appellant assured Joygun Nessa that he would keep watch on her house and on his repeated requests, Joygun Nessa went to the house of the appellant leaving her daughter, Jameela Khatun, who was a student of class IV and aged less than 16 years, sleeping on the floor of the bedroom in her house. Taking advantage of the absence of any adult male person in the house, the appellant forcibly had sexual intercourse with Jameela. Hearing cries of Jameela, her minor brother, Rahim, who was sleeping along with his another minor and mentally retarded brother, Hukum, on a different bed in the same room, woke up and came to the place, where Jameela was sleeping, and on lifting the mosquito-net, which had kept the bed of Jameela covered, found the appellant inside the mosquito-net. The appellant attempted to hit Rahim and, then, offered to pay him money to keep him silent. While returning home, Joygun Nessa too heard the cries of pain of Jameela, she hurriedly came to her house and found Jameela lying on her bed and the appellant fanning her. Jameela reported to her mother that the appellant had sexual intercourse with her. While returning home, Joygun Nessa too heard the cries of pain of Jameela, she hurriedly came to her house and found Jameela lying on her bed and the appellant fanning her. Jameela reported to her mother that the appellant had sexual intercourse with her. Joygun Nessa also noticed bleeding from the vagina of her daughter. The appellant, who was still present at the house, apologized and promised to pay compensation. When Joygun's husband, Kitab Ali, returned home, he was informed about the occurrence. Kitab Ali, then, lodged a written Ejahar. Treating the Ejahar as FIR, Barpeta PS Case No. 500/ 94 under Section448/376, IPC was registered against the accused-appellant. During the course of investigation, the victim girl was medically examined. On such examination, the doctor found injuries on her private parts and the doctor opined that she was less than 16 years of age and there were signs and symptoms of recent intercourse on her body. On completion of the investigation, police laid charge sheet against the accused-appellant. In course of time, the case was committed for trial to the Court of Sessions. 3. During the trial, charges under Sections 448 and 376, IPC were framed against the accused-appellant, but when the said charges were read over and explained to the accused, he pleaded not guilty thereto. 4. In support of their case, prosecution examined altogether 6 witnesses including the Investigating Officer. The accused-appellant was, then, examined under Section 313, Cr.P.C. and in his examination aforementioned, the accused-appellant denied that he had committed the offences alleged to have been committed by him, the case of the defence being that of complete denial and of his being falsely implicated in the case with an ulterior motive. No evidence was however, adduced by the appellant. 5. The trial ended with the conviction of the appellant under Section 376, IPC and sentence, as indicated hereinabove, was passed against him. Hence, the present appeal. 6. I have perused the materials on record. I have heard Mr. J. M . Choudhury, learned senior counsel appearing on behalf of appellant. None has appeared on behalf of the respondent. 7. While presenting the case on behalf of the appellant, Mr. Choudhury has not been able to assail the finding of the learned trial Court that at the time of the alleged occurrence, Jameela (PW-1) was less than 16 years of age. Choudhury, learned senior counsel appearing on behalf of appellant. None has appeared on behalf of the respondent. 7. While presenting the case on behalf of the appellant, Mr. Choudhury has not been able to assail the finding of the learned trial Court that at the time of the alleged occurrence, Jameela (PW-1) was less than 16 years of age. In fact, the fact that Jameela was less than 16 years of age at the time of the alleged occurrence is not disputed before me. This apart, both oral as well as medical evidence on record leave, I find, no room for doubt that Jameela was less than 16 years of age at the time of the alleged occurrence. Hence, if the evidence on record proves that the accused-appellant had sexual intercourse with Jameela, it becomes immaterial whether the intercourse, which the accused-appellant had with Jameela, was with or without her consent. 8. Assailing the impugned Judgment, Mr. Choudhury has submitted to the effect that the evidence of the victim, namely, PW-1 is not believable inasmuch as it is not reasonable to infer that when the younger brothers of the victim were sleeping in the same room in which PW-1 was sleeping, the accused would have committed rape on the victim girl. At any rate, submits Mr. Choudhury, the evidence adduced by the prosecution was not fully convincing and the learned trial Court committed serious error of law in convicting the appellant on such evidence. 9. As already indicated hereinabove, the prosecution, in order to prove its case, has examined altogether 6 witnesses, PW-1 (Jameela Khatun) is the victim girl, PW-2. (Joygun Nessa) is her mother, PW-3 (Dr. Chittaranjan Das) is the doctor, who had medically examined the victim girl, PW-4 (Kitab Ali), father of the victim girl, is the informant of this case, PW-5 (Abdul Rahim), though a minor, is the elder brother of the victim girl and PW-6 is the Investigating Officer. 10. Though it is the evidence of PW-1 around when revolves the whole case of the prosecution, it is necessary to consider, first, the evidence of her mother, Joygun Nessa (PW-2). 10. Though it is the evidence of PW-1 around when revolves the whole case of the prosecution, it is necessary to consider, first, the evidence of her mother, Joygun Nessa (PW-2). According to the evidence of PW-2, on the day of occurrence, accused Aynal came to their house at about 10.00 p.m. at night and requested her to go and treat his ailing son, but she refused to leave her house as at that time, her husband was not at home, but the accused assured her that he would keep watch oh her house and requested her repeatedly to go and treat his son. It is the evidence of PW-2 that she lit a chaki (lamp) in the room, where her daughter, Jameela, was sleeping and she made the accused sit in the same room and, then; she left for the house of the accused. It is also in her evidence that when. she was returning home after about an hour, she heard the cries of pain coming out from the mouth of Jameela and when she reached home, she found Jameela lying on her bed and the accused fanning her. PW-1 has deposed that on being asked by her, Jameela told her that Aynal (i.e. the appellant) had committed rape on her and she (PW-2) also noticed bleeding from Jameela's private parts. PW-2 has also deposed that the accused Aynal begged for mercy from her and offered to give her money. 11. I have carefully scrutinised the cross-examination of PW-2, but I find that her evidence has remained wholly unshaken. In fact, to a pointed query made by this Court, Mr. Choudhury too could not point out anything in the evidence of PW-2 to show that her evidence is not believable and/or cannot be relied upon. 12. Keeping in view the above aspect of the case, when I turn to the evidence of PW-1 (Jameela), I notice that this witness has deposed that on the day of occurrence, while she (PW-1) along with her mother and brothers was at home at night, accused Aynal came to their house and requested her mother to go to his house and treat his ailing son. PW-1 has also deposed that her mother, at first, refused, but as the accused requested her mother repeatedly, her mother went to the house of the accused leaving the accused at their house to keep watch on the house. PW-1 has further deposed that while she was asleep, the accused, suddenly, pulled her panty, got up on her body and committed sexual intercourse with her and when she cried out in pain, the accused closed her mouth, the accused asked her not to raise any hue and cry and offered to pay her money. It is in the evidence of PW-1 that in the meanwhile, her mother arrived at home and she reported to her mother about the occurrence. It is also in the evidence of PW-1 that blood had come out of her private parts. During her cross-examination, PW-1 has clarified that she was sleeping alone on the floor and her brothers, Rahim and Hukum, were sleeping separately on a 'chang' (i.e., a raised platform). She has further stated that at that time, she was studying in LP School and that she had not attained, her puberty. 13. Close on the heels of the evidence of PW-1, PW-5 (Abdul Rahim), who is elder brother of victim girl, has deposed that on the night of occurrence; he (PW-5) along with his mother and his sister, Jameela, and his mentally retarded brother, Hukum, was present in their house and that he (PW-5) and his brother, Hukum, were sleeping together on a bed and when they were so asleep, he (PW-5) suddenly, woke up on hearing the cries of his sister, Jameela, and when he came to Jameela's bed and raised the mosquito-net, he found the accused lying over Jameela, the accused attempted to assault him (PW-5) and, later on, offered to pay him money, but in the meanwhile, their mother came back from the house of the accused. 14. On a dispassionate scrutiny of the evidence of PW-5, I find that his evidence too has remained wholly unshaken in material particulars. That his evidence has remained unshaken could not be disputed before me at the time of hearing of the present appeal. 15. 14. On a dispassionate scrutiny of the evidence of PW-5, I find that his evidence too has remained wholly unshaken in material particulars. That his evidence has remained unshaken could not be disputed before me at the time of hearing of the present appeal. 15. Lending support of the evidence of PWs-1, 2 and 5, PW-4 (Kitab Ali) has deposed that on the night of the occurrence, he reached his home late and on reaching home, he was informed by his wife (PW-2) that Aynal master (i.e., the accused-appellant) had come to take her (PW-2) for giving treatment to Aynal's son and though she was reluctant to go, Aynal promised to keep watch on her house and leaving the accused at her house accordingly, PW-2 went to the house of the accused and when she was returning home, she heard Jameela's cries and she came to know from Jameela (PW-1) that the accused had committed rape on her. 16. Though PW-5 was cross-examined by the defence, nothing could be elicited from his cross-examination too to show that what he had deposed was false. I, therefore, see no reason to disbelieve his evidence. 17. Coming to the evidence of PW-3, I notice that this witness has deposed that on 17-9-94 at 3.25 p.m., at Barpeta Civil Hospital, he examined Jameela and found as follows : General built……………………………average. Gait………………………..……………abnormal. Height……………………………………147 cm Weight……………………………………35 kg Breast……………………………………..not developed No of teeth………………………………28 Vulva……………………………………….not developed Vagina………………………………………bruises present in ……………………………………………… the posterior wall ……………………………………………… and very tender to ……………………………………………… touch Hyman……………………………………….torn Uterus………………………………………..normal size Mens…………………………………………has not attained 18. According to PW-3, age of the victim girl was below 16 (sixteen) years, there were injury marks present on her private parts and that signs and symptoms of recent intercourse were present on her person. During his cross-examination, PW-3 has clarified that the victim girl was sent on police requisition and one home-guard personnel had accompanied the girl. PW-3 has also stated that he had examined the victim as an outdoor patient. I find, no pertinent cross-examination of PW-3. I, therefore, see no reason to ignore his evidence or not to place reliance on his evidence. 19. PW-3 has also stated that he had examined the victim as an outdoor patient. I find, no pertinent cross-examination of PW-3. I, therefore, see no reason to ignore his evidence or not to place reliance on his evidence. 19. Thus, upon a close and dispassionate scrutiny of the evidence on record, what emerges is that on the facts that on the alleged day of occurrence, the accused came to the house of the informant namely, Kitab Ali (PW-4) in the absence of the informant, the accused informed the informant's wife, Joygun (PW-2) that the son of the accused was sick and requested Joygun (PW-2) to visit the house of the accused and treat his son have remained Unshaken. The fact that the informant's wife, Joygun (PW-2) works, as a quack in the village is also not in dispute. It also clearly emerges unshaken from the evidence discussed above that on persistent requests made by the accused-appellant, Joygun (PW-2) agreed to go to the house of the accused-appellant on the promise made by the accused-appellant that he would keep watch on the house of the informant during the absence of Joygun and in accordance with this understanding, PW-2 went to the house of the accused-appellant leaving the accused-appellant at her own house, where her daughter Jameela (PW-1) was sleeping on her bed, on the floor, covered by a mosquito-net, which was hanging, and her two sons, namely, Rahim and Hukum were also sleeping on a chang (i.e., raised platform) and that of her said two sons, Hukum, was mentally retarded. 20. In a situation as depicted above, we have to, now, ascertain if the accusation made against the accused-appellant that he had committed rape on Jameela (PW-1) is true. In this regard, it is of immense importance to note that the fact that while returning to her house, (PW-2) Joygun had heard cries of pain of her daughter, Jameela, and on reaching her house, she found Jameela lying on her bed with bleeding from her vagina has remained unshaken. It is also not seriously in dispute that the accused-appellant was also present at the home of PW-2. This question, which, now, arises for consideration is as to how and when Jameela sustained injuries on her vagina. It is also not seriously in dispute that the accused-appellant was also present at the home of PW-2. This question, which, now, arises for consideration is as to how and when Jameela sustained injuries on her vagina. From the evidence discussed above, it is clear that the injuries were caused during the period when PW-2 was absent from her house, she having left her house to go to the house of the accused-appellant on the request made by the latter. From the evidence of the doctor (PW-3), it also surfaces unscathed that at the time of occurrence, Jameela was less than 16 years old and there were signs of recent intercourse on her person. In the facts and circumstances, which have so emerged unscathed from the evidence on record, when we consider the evidence of the victim girl, namely, Jameela (PW-1), it becomes clear from her evidence that it was the accused, who forcibly had sexual intercourse with her. 21. However, while considering the above aspect of the matter, it is of utmost importance to note that it has been submitted by Mr. Choudhury that had the intercourse been against the will of Jameela and had she really raised the cries for help, her brother, particularly, Rahim, was also sleeping in the same room, would have woken up. While considering this aspect of the matter, it is of immense importance to note that Rahim was also, as transpires from the evidence on record, a minor boy; hence, it is not unlikely that the accused-appellant, who had been left by PW-2 at her house, having found both the minor sons of PW-2 sleeping, one of whom was mentally regarded, could have taken the risk of having sex with PW-1, this inference gains strength from the fact that according to the evidence of PW-5 (Rahim), when he (PW-5), on hearing the commotion, woke up came to the bed, where Jameela was sleeping, and picked up the mosquito-net, he found the accused inside the mosquito-net. This aspect of the evidence of PW-5 could, not be shaken by the defence. This aspect of the evidence of PW-5 could, not be shaken by the defence. In the light of these facts, emerging unscathed from the evidence on record, when we consider the remaining evidence on record given, to the effect that Jameela was found lying with blood coming out of her vagina and there, were signs of recent intercourse on her person, there remains no room for doubt that it was none but the accused, who had sexual intercourse with Jameela (PW-1). 22. I may, at this stage, pause to point that had Jameela been a major or at least, above 16 years of age, the question of her willingness or otherwise would have acquired some importance. Had Jameela been above 16 years of age, one could have, perhaps, considered that it was possible that the accused-appellant had with Jameela's consent, sexual intercourse with her in the room, where her brothers were sleeping, but when Jameela sustained injuries, she made it out as a case of forcible intercourse with her by the accused. Thus, even if the sexual intercourse, which the accused-appellant had, according to the evidence on record with PW-1, was with the consent of PW-1, the fact remains that the same would still amount to rape. When considered from this angle, the evidence of PW-1 shows, I find, that though this, witness has been put to cross-examination at length, nothing could really be elicited from her cross-examination by the defence to show that her evidence as regards the rape committed on her by the appellant was untrue or false. 23. Coupled with the above, the evidence PW-1 receives, as already indicated hereinabove, material corroboration from the remaining witnesses of the prosecution, namely, PW-2, PW-4 and PW-5. Even a careful scrutiny of the evidence of PW-3 shows that he found bruises present in the posterior wall of the vagina and the same was very tender to touch. This witness opined, if I may reiterate, that there were signs and symptoms of recent intercourse. Hence, the medical evidence on record also lends support to the evidence of PW-1. 24. I have gone through the impugned judgment and I find that the learned Sessions Judge has discussed the evidence on record elaborately and; upon due consideration of the evidence on record, has come to the findings of guilt of the accused-appellant under Section 376, IPC. Hence, the medical evidence on record also lends support to the evidence of PW-1. 24. I have gone through the impugned judgment and I find that the learned Sessions Judge has discussed the evidence on record elaborately and; upon due consideration of the evidence on record, has come to the findings of guilt of the accused-appellant under Section 376, IPC. The conviction of the accused-appellant is, I find wholly consistent with the evidence on record and the law relevant thereto. I see, therefore, no reason to interfere with the conviction of the accused-appellant. 25. At the time of hearing of this appeal, Mr. Choudhury has also submitted that the occurrence took place in the year 1994 and the trial ended in the year 1999. The appellant, points out Mr. Choudhury, is a teacher and the sentence passed against him is too harsh. The appellant's case, according to Mr. Choudhury, deserves to be dealt with leniently. Apart from the fact that the learned trial Court has assigned cogent reasons for imposing the sentence passed against the accused-appellant, it is of utmost importance to note that the accused was a married person and, admittedly, he was a teacher by profession, yet taking advantage of the absence of any adult male person in the victim's family, he mercilessly committed rape on a minor girl. The act of the accused does not call for any leniency and, hence, I see no reason to interfere the sentence passed against him. 26. For the reasons discussed above, I find no merit in this appeal. The appeal is, therefore, dismissed. 27. Send back the case record with a copy of this judgment and order. Appeal dismissed