JUDGMENT I.A. Ansari, J. 1. By the impugned judgment and order, dated 05.12.2001, passed in Sessions Case No. 28/2000, the learned Sessions Judge, Nalbari, has convicted the accused-Appellant under Section 376/448 IPC and sentenced him, for his conviction under Section 376 IPC, to undergo rigorous imprisonment for ten years and pay fine of Rs. 1,000/- and, in default of payment of fine, to undergo rigorous imprisonment for a further period of two months and also to undergo, for his conviction under Section 448 IPC, rigorous imprisonment for a period of six months with direction that both the sentences shall run concurrently. 2. The case of the prosecution, in brief, be described as follows: While the victim girl, who is hereinafter referred to as M, aged about 13 years, was alone at her home and her mother had gone out for fishing, the accused, on noticing that 'M's mother had gone to rivulet, came to her house, forcibly put her on a bed and had sexual intercourse with her. On being informed, the victim's mother, who is hereinafter referred to as D, came home and was reported about the occurrence by M, whereupon M was taken to. Bangapara PHC, where the doctor examined her and found her hymen torn with the edge of her vagina red, painful and bleeding. Thereafter, M lodged a written Ejahar with the police and a case was accordingly registered against the accused under Sections 376/448 IPC. On completion of investigation, police laid charge-sheet against the accused under Section 376 and 448 of the IPC. 3. To the charge framed against the accused under Sections 376/448 IPC, at the trial, the accused pleaded not guilty. 4. In support of their case, the prosecution examined ten witnesses including the alleged victim. The accused was, then, examined under Section 313 Code of Criminal Procedure and in his examination aforementioned, the accused denied that he had committed the offences alleged to have been committed by him, the case of the defence being that of total denial. No evidence was, however, adduced by the defence. Having found the accused guilty of the offences under Section 376 and 448of the IPC, the learned trial Court convicted the accused accordingly and passed sentences against him as mentioned hereinabove. Aggrieved by his conviction and the sentences passed against him, the accused has preferred the present appeal. 5. I have heard Mr. Having found the accused guilty of the offences under Section 376 and 448of the IPC, the learned trial Court convicted the accused accordingly and passed sentences against him as mentioned hereinabove. Aggrieved by his conviction and the sentences passed against him, the accused has preferred the present appeal. 5. I have heard Mr. P. Mahanta, learned Counsel, appearing as Amicus Curiae and Mr. B.S. Sinha, learned Additional Public Prosecutor, Assam. 6. While considering the present appeal, what is of paramount importance to note is that the victim's mother, D (P.W. 3), has deposed that at the time of occurrence, her daughter, M, was aged about 12 years. The evidence, so given by P.W. 3, has gone unchallenged and undisputed by the defence. This apart, the evidence of the victim (P.W. 1), in her cross-examination, is that she had attained puberty about 6 months before the occurrence took place. This assertion too has gone unchallenged and undisputed by the defence. 7. Notwithstanding, therefore, the fact that there had been no radiological examination of the victim, the un-assailed evidence on record is that the victim M was aged about 12/13 years at the time of the alleged occurrence. With this reality in mind, let me, now, scrutinize the evidence of P.W. 1 and 3 to ascertain if the conviction of the accused for offences under Sections 376 and 448 of the IPC is sustainable. 8. It is, undoubtedly, the alleged victim M around whose evidence the entire case of the prosecution revolves. Necessary it is, therefore, that her evidence is carefully scrutinized. This witness's evidence, I notice, is that on the day of the occurrence, at about 12 pm, while she was at her home with her friend, Runjun (P.W. 6), the accused came there and he sent Runjun to bring some tobacco and as soon as Runjun left, the accused caught hold of her (M's) hands, forcibly laid her on the bed and had sexual intercourse with her. It is in the evidence of P.W. 1 that after having sexual intercourse with her the accused fled away. It is in the evidence of P.W. 1 that after having sexual intercourse with her the accused fled away. It is also in the evidence of P.W. 1 that when the accused was having sexual intercourse with her, she raised hullah; but no one turned up and after the accused fled away, when she raised hue and cry, Kanika Haloi and Himani Das came and Himani Das was the one, who called her mother from the rivulet and soon thereafter, people gathered there and she told them about the occurrence. P.W. 1 has deposed that she was, then, taken to a doctor, who examined her and sent her to police. 9. Close on the heels of the evidence of her daughter, M, P.W. 3 (D) has deposed that on the day of the occurrence, she went for fishing to a nearby rivulet and while she was fishing, the accused came there and after seeing her fishing there, he left. P.W. 3 has also deposed that after some time, Himani Das came to the place, where she was fishing, and told her about the occurrence and on being so informed, she (P.W. 3) came home and was reported by her daughter that the accused had forcibly put her on the bed and had sexual intercourse with her. P.W. 3 has further deposed that she sent her daughter, M, to Bangapara PHC where M was given treatment and, then, she (P.W. 3) lodged Ejahar with the police. The fact that P.W. 3 had gone for fishing and the accused went to the rivulet and saw P.W. 3 fishing and also the fact that P.W. 3 came home, on being informed about the occurrence have all gone unchallenged by defence. In the backdrop of these admitted facts, when I revert to the evidence by P.W. 1, I find that from her cross-examination, nothing, in particular, was elicited by the defence to show that her evidence given to the effect that the accused had sexual intercourse with her was false. Far from this, her unshaken evidence is that the accused inserted his penis forcibly into her vagina, she felt pain and cried out. 10. Far from this, her unshaken evidence is that the accused inserted his penis forcibly into her vagina, she felt pain and cried out. 10. Coupled with the above, the evidence of P.W. 5, who is a neighbour of the informant and also of the accused, is that on the day of the occurrence, on hearing hullah, he went to the house of P.W. 3 and found M at the Courtyard and at that time, M was crying and there were some blood stains on her frock, whereupon he (P.W. 5), on the request of P.W. 3, took M to Bangapara PHC, where the doctor examined her and asked him (P.W. 3) to take her to the police station. 11. Though P.W. 5 was declared hostile by the prosecution and cross-examined, the fact remains that merely because of the fact that the P.W. 5 was declared hostile, his evidence will not stand washed out; his undisputed evidence is that on hearing hue and cry raised from the house of the informant, when he arrived there, he found M crying, he noticed blood stains on her frock and he (P.W. 5) is the one, who had taken M to the PHC. The defence, it may be noted, declined to cross-examined P.W. 5. The evidence of P.W. 5, therefore, as discussed above, has gone unchallenged and undisputed. His evidence, thus, lends substantial credence to the evidence of P.Ws. 1 and 3 that following the hue and cry raised at the house of P.W. 3, when P.W. 5 came to the house of the P.W. 3, he found P.W. 1 crying, he noticed blood stains on her frock and he, then, on the request of P.W. 3, took P.W. 1 to the PHC, where the doctor examined her. 12. Coupled with the above, the evidence of the doctor (P.W. 4), who examined P.W. 1 is as follows: On Physical examination: No signs of violence detected on the body. Breasts: Small size, not fully developed. Auxiliary Hairs: Very Scanty. Pubic Hairs: Very Scanty. Vulva: Not well developed. There is tear of hymen at 9'O-Clock position, which extended to the point of attachment of hymen to the edge of vagina. The tear is red, painful and bleeds on touch. Microscopic Examination: Microscopic examination of vaginal swab shows presence of dead spermatozoa. 13. Auxiliary Hairs: Very Scanty. Pubic Hairs: Very Scanty. Vulva: Not well developed. There is tear of hymen at 9'O-Clock position, which extended to the point of attachment of hymen to the edge of vagina. The tear is red, painful and bleeds on touch. Microscopic Examination: Microscopic examination of vaginal swab shows presence of dead spermatozoa. 13. The above findings of the doctor (P.W. 4) were not disputed and his evidence clearly reveals that the hymen of P.W. 1 was found torn and the tear was red, painful and bled on touch and, on the microscopic examination of the vaginal swab, spermatozoa were seen. These findings are commensurate with the evidence of P.W. 1 that she was subjected to forcible sexual intercourse. For a moment, even if one were to assume that the sexual intercourse, which P.W. 1 was subjected to, was with her consent, yet the fact remains that even such sexual intercourse would amount to the offence of rape, for the age of P.W. 1 was, according to the evidence on record, not even 13 years. 14. At the time of hearing of this appeal, .it has been pointed out that according to the evidence of P.W. 1, when the accused came to their house, Runjun was present and she was sent away by the accused by asking her to bring tobacco, whereas Runjun (P.W. 6) has deposed that on the day of the occurrence, M (P.W. 1) came to her house, took P.W. 6 to the house of P.W. 1 and while she (P.W. 6) was sitting at the courtyard of P.W. 1, Deepika, younger sister of P.W. 6, came there and she (P.W. 6) went with her said sister to her home. The evidence given by P.W. 6, it is pointed out, belies the assertion of P.W. 1 that when the accused came, P.W. 6 was present at the house of P.W. 1. 15. While considering the evidence of P.W. 6, what is of paramount importance to note is that the accused is, admittedly elder brother of the husband of P.W. 6. It is, therefore, not entirely unreasonable to infer that P.W. 6 might not have been truthful in giving the evidence. What, however, clearly emerges from the evidence of even P.W. 6 is that she did come to the house of the P.W. 1 and was present there shortly before the occurrence. It is, therefore, not entirely unreasonable to infer that P.W. 6 might not have been truthful in giving the evidence. What, however, clearly emerges from the evidence of even P.W. 6 is that she did come to the house of the P.W. 1 and was present there shortly before the occurrence. In the face of these admitted facts, the evidence of P.W. 6 cannot be treated to have washed away the evidence of P.W. 1 and also the other evidence on record, which lend support to the evidence of P.W. 1. 16. Because of what have been discussed and pointed out above, I am firmly of the view that the evidence given by P.W. 1 to the effect that accused had sexual intercourse with her inside her house is true and proved beyond all reasonable doubt. In the face of the convincing and believable evidence on record that the accused entered into the house of P.Ws. 1 and 3 with intent to commit the offence of rape and did, inside the said house, commit the offence of rape the conviction of the accused-appellant under Section 448 and 376 IPC cannot said to be unfounded and/or without justifiable reasons. 17. For what have been discussed and pointed out above, I find absolutely no merit in this appeal and no reason to interfere with the conviction or sentences passed against him. 18. In the result and for the reasons discussed above, this appeal fails and the same shall accordingly stand dismissed. 19. Send back the LCR. 20. Fees of Amicus Curie is hereby fixed at Rs. 2,500/-. Appeal dismissed