JUDGMENT:- (1). THIS appeal is directed against a judgment dated 30th August, 1993 delivered in Sessions Trial No.1 of February, 1993 arising out of Sessions Case No. 29/91 convicting the accused Biswa Kumar bepari under section 376 of the Indian Penal Code and an order sentencing the convict to suffer rigorous imprisonment for 10 years as also to pay a fine of Rs. 2,000/-, in default to suffer further rigorous imprisonment for two months. (2). BRIEFLY stated the facts and circumstances of this case are as follows: on 25th February, 1987 at about 4 p.m. the prosecutrix aged about 16 years and 7 months went to fetch drinking water from the village water tap. She was intercepted by the accused; dragged in the nearby paddy field, gagged, overpowered, overawed at a sickle point and ravished. She was threatened of dire consequences in case she resorted to divulging the fact. She was further directed by the accused to go home with the pitcher full of water in order to project a picture that nothing had happened. She went to the tap weeping. While she was at the tap another woman of the village namely Chanchala sarkar the P.W. 4 came there. The accused also went to the tap, washed himself and went away. Seeing her weeping Chanchala had asked the reason. The victim told what had befallen her. By that time the accused had left. Around 5.00 p.m. the victim reached home. She asked her sister Kanan (P.W. 3) as to why did she not respond to her calls. Kanan replied that she did not hear. By that time the mother of the victim came out of her room and asked the prosecutrix as to what had happened. The victim reiterated the incident. The mother (P. W.2) accompanied by another sister of the victim namely Shova proceeded to the house of the accused. She enquired about the mother of the accused but she was not at home. P. W. 2 returned home. Shortly thereafter her father-in-law reached home. She narrated the incident to him. Around 8 p.m. the father of the victim came. He was told about the incident. Around 9 p.m. the father (P.W. 1) of the victim went to the house of the Pradhan Shri naliniranjan Mondal. The house of the Pradhan was situate at a distance of about two kilometers. She narrated the incident to him. Around 8 p.m. the father of the victim came. He was told about the incident. Around 9 p.m. the father (P.W. 1) of the victim went to the house of the Pradhan Shri naliniranjan Mondal. The house of the Pradhan was situate at a distance of about two kilometers. The Pradhan sent the Sarpanch Shri Hiramoni Roy to the house of the victim for preliminary enquiry. Hiramoni Roy (P.W. 10) heard the entire incident from the mouth of the prosecutrix and left telling her father to again meet the Pradhan in the morning at 7 a.m. On the following day at 7 a. m. the father and the daughter went to house of the Pradhan. The Pradhan was also told about the incident who after hearing the matter advised the father of the victim to report the matter to the police. Around 8 a. m. on 26th October, 1987 they set out for the police station accompanied by the Sarpanch Hiramoni roy. They reached the police station at 9.30 a.m. The officers were not there. Around 11 a. m. the Daroga (P.W. 20) came. After hearing the incident her statement was recorded, read over and signed which formed the basis of the formal FIR appearing to have been lodged at 11. 30 a.m. (3). MR. Adhikary, learned Additional Advocate General appearing in support of the appeal advanced the following submissions: A)i) The prosecutrix chose to take an unusual route from her house for the purpose of going to the tap. She appears to have gone through the paddy fields, rather than the village road, which is a suspicious circumstance. ii) The prosecutrix from the place of occurrence is alleged to have gone to the tap where Chanchala Sarkar the P.W. 4 and her husband were also there. In their presence the accused appeared at the tap. But the prosecutrix did not open her mouth until the accused had left. iii) According to the prosecutrix she was ravished in the paddy field. The standing crop was of man height. "yet she did not suffer any injury either on her person or om her private parts. Based on the aforesaid circumstances Mr. Adhikary contended that only inference possible, in the facts of the case, is that she was a consenting party. iii) According to the prosecutrix she was ravished in the paddy field. The standing crop was of man height. "yet she did not suffer any injury either on her person or om her private parts. Based on the aforesaid circumstances Mr. Adhikary contended that only inference possible, in the facts of the case, is that she was a consenting party. B) Secondly he submitted that the case of the prosecutrix is that her easy wear was pushed down. Mr. Adhikary emphatically submitted that in such circumstance rape could not have been committed. C) Thirdly he submitted that the FIR was recorded in Hindi whereas the language of the victim is Bengali. P. W. 20 the 1. 0. in his cross-examination admitted that he had dictated the statement. Therefore, possibility of concoction and fabrication cannot be ruled out regard being had to the fact that the family of the prosecutrix and that of the accused belonged to rival political parties. D) Lastly he submitted that the charges framed against the accused does not disclose the time of occurrence of the incident. Therefore, the entire thing, according to him, is vitiated. (4). MR. Joy Sengupta, appearing for the Andaman and Nikobar administration submitted that the circumstances highlighted by Mr. Adhikary for the purpose of establishing the alleged consent on the part of the prosecutrix are factually incorrect and misleading. On the top of that the case of consent was never put to the prosecutrix. He submitted that the prosecutrix was subjected to searching cross-examination and she has given a vivid description as to how was the rape committed on her. The submission of Mr. Adhikary that the rape in the facts of the case was impossible is incorrect and should be rejected. (5). AS regards the third submission of Mr. Adhikary he submitted that the prosecutrix was not examined on this point. The P.W. 20 was suggested that the prosecutrix did not know Hindi. P.W. 20 denied that suggestion. According to him there is no basis to hold that the FIR is a product of concoction or fabrication inspired by sordid motive arising out of political rivalry. He added that no one will take the stigma of rape for any such purpose suggested by Mr. Adhikary. (6). LASTLY he submitted that the omission to state the time of incident has not caused any prejudice to the accused. He added that no one will take the stigma of rape for any such purpose suggested by Mr. Adhikary. (6). LASTLY he submitted that the omission to state the time of incident has not caused any prejudice to the accused. The accused, as a matter of fact, was fully aware about the case of the prosecution and has availed himself of the fullest opportunity of cross-examining the twenty witnesses examined in this case. (7). WE proceed to consider the circumstances highlighted by Mr. Adhikary for the purpose of establishing alleged consent on the part of the prosecutrix. (8). HIS first submission, that an unusual route was chosen by the prosecutrix in order to reach the water tap, does not appear to be well founded. It is true that the prosecutrix in her evidence has deposed that "being out of my house I crossed our land and then the land of Janardhan Baroi and when I was near the land of Ganesh Bepari, the accused suddenly appeared". But there is no indication nor any evidence on record to suggest that there was any convenient alternative route. Mr. Adhikary drew our attention to the deposition of P.W.1 the father of the prosecutrix who deposed as follows: "the Rangat Mayabunder road would be at a distance of about half a km. from my house. From my house a village road connects the Mayabunder-Rangat Road. The village road passes at a distance of about 300 cubits from my house. From Mayabunder Road the village road goes by the side of my house further towards the mountain base and mix with Hari Nagar Road". He also drew our attention to the deposition of the P.W. 7 Krishna Mazumdar: "the P.O. was on the left side of the village pathway when we were going to the P.O. from the village pathway. The distance of 300 mtrs, From the village pathway to the spot is all covered by paddy plants, but the particular spot which we visited was quite adjacent to the alii of that particular land. " (9). P.W.7 deposed that the place of occurrence is at a distance of 300 meters from the village pathway. The P.W.1 deposed that the village road is at a distance of 300 cubits from his house. In other woids, the village road is at a distance of 3 furlongs from the house of the prosecutrix. " (9). P.W.7 deposed that the place of occurrence is at a distance of 300 meters from the village pathway. The P.W.1 deposed that the village road is at a distance of 300 cubits from his house. In other woids, the village road is at a distance of 3 furlongs from the house of the prosecutrix. There is therefore no evidence to show that there was any convenient alternative route. The prosecutrix went to fetch water which must have been a regular affair with her. If the water tap can be accessed conveniently by crossing the fields, a resident of the locality may not take the trouble of traversing the distance through the main road. We are in the circumstances unable to see that the prosecutrix deliberately chose a lonely way for the purpose of reaching the water tap. Moreover this question was not put to the prosecutrix in her cross-examination who could have given proper explanation, obviously because the defence was aware that there was no alternative convenient access from the house of the prosecutrix to the water tap, (10). THE next circumstance highlighted by Mr. Adhikary as regards silence of the prosecutrix does not appear to be convincing either. In support of his submission he relied on the following passage from the deposition of the P.W.4: "on 25.10.87, at about 4.30 p.m. myself and my husband came to the pipeline side for taking bath. At that time I noticed Niva standing against a lamp post. She was weeping. I asked her to take the bath first if she, so liked but she did not and asked us to complete our bath first, then, my husband took the bath and went away. It was then only Niva told me that when she was coming to fetch the water the accused forcibly took her inside the paddy land and committed forcible rape on her. Hearing this I took my bath and left for my home. Then Niva started taking bath. Niva named the accused bisha Bepari. I know the accused. He is in dock identified. When my husband left the pipeline side after taking bath, and I was getting ready to take my bath, I saw the accused to come from his paddy land side towards the pipeline. Then Niva started taking bath. Niva named the accused bisha Bepari. I know the accused. He is in dock identified. When my husband left the pipeline side after taking bath, and I was getting ready to take my bath, I saw the accused to come from his paddy land side towards the pipeline. Thinking that he will take bath, I gave him side (to allow him to take bath first) and then the accused took bath and went away. Niva was still standing near that lamp post weeping and after I asked her as to why she was weeping, she narrated the occurrence to me. By then the accused left the place. "It would appear from the passage quoted above that the accused had appeared at the water tap for washing only after the husband of the P.W. 4 had left the place. Therefore Mr. Adhikary is not correct when he submitted that the accused appeared at the tap in the presence of all the three persons. The evidence of the prosecutrix in this regard has to be looked into which is as follows: "after the rape was over leaving the pitcher there I started going homewards, but the accused threatened me not to go home without filling the pitcher with water. So out of fear of the accused I went towards the pipeline and I waited near the lamppost as Chanchala Sarkar and Probash Sarkar at that time arrived at the pipeline and Probash Sarkar was taking bath from the water of the pipeline. When after taking bath Probash Sarkar went towards his house, I saw this accused to come to the pipeline side and his wearing lungi was then wet. He came to take bath with the water of that pipeline. I still stood there and he left that place after taking the bath, when Chanchala sarkar was still there waiting for taking bath asked me seeing my condition as to what had happened to me. My wearing apparels were then smeared with mud. There was also mud on the back side of my head and I was then weeping. Being so asked by Chanchala Sarkar I narrated the occurrence to her. Hearing from me Chanchala asked me to go home. My wearing apparels were then smeared with mud. There was also mud on the back side of my head and I was then weeping. Being so asked by Chanchala Sarkar I narrated the occurrence to her. Hearing from me Chanchala asked me to go home. After Chanchala Sarkar also left the place, I somehow reconciled myself and washed my wearing apparels as far as I could by sprinkling waters on them even when I was wearing them, and after filling the pitcher with water of the pipeline I proceeded homewards. After coming up to little distance there from I saw prabash Sarkar to go to the market by the same road and following him I reached my home. " (11). THE fact that the prosecutrix followed Probash Sarkar, husband of the p. W. 4 to reach home is a pointer to show her mental condition. She was overawed. She felt insecure while returning home alone. Presence of Probash was reassuring to her. She followed him to reach home. This goes to show the mental condition of the prosecutrix at the relevant point of time. She already deposed earlier that at a sickle point she was raped. Her mental condition is further demonstrated by the fact that she could not dare to ignore the direction of the accused to go home with the pitcher full of water. If she was in such a traumatic condition was it possible for her to divulge the fact to the P. W. 4 chanchala Sarkar when the accused appeared at the water tap? This situation rather lends assurance to the Court that not only the prosecutrix was overpowered but she was also overawed. This situation could have further been clarified by the prosecutrix if she were cross-examined on this aspect of the matter. But the defence deliberately refrained from doing so. (12). AS regards the third submission of Mr. Adhikary we are of the view that it is well settled that presence or absence of injury is not decisive in the matter of rape. If any authority is needed reference can be made to the judgment in the case of Rafiq vs. State of U. P. , reported in 1980 (4) SCC 262 . (13). THE doctor P.W. 19 who had examined the prosecutrix on 26th October, 1987 deposed that the victim had been subjected to sexual intercourse. If any authority is needed reference can be made to the judgment in the case of Rafiq vs. State of U. P. , reported in 1980 (4) SCC 262 . (13). THE doctor P.W. 19 who had examined the prosecutrix on 26th October, 1987 deposed that the victim had been subjected to sexual intercourse. There was evidence of recent rupture of hymen (red inflamed blood on touch are present), duration of rupture 24-48 hrs. There was inflammation or redness due to recent intercourse. (14). WE are of the view in the circumstances that it is not correct to say that there was no injury on her private parts. (15). ALL the circumstances highlighted by Mr. Adhikary have thus been dealt with. We are unable to see that all or any of the circumstances highlighted by mr. Adhikary is well founded nor can it be said that the prosecutrix was a consenting party regard being had to the evidence on the record. (16). THE second point urged by Mr. Adhikary, noticed above, that rape in the facts of this case was impossible has not impressed us. The sexual intercourse, as a matter of fact, has been well established both by the evidence of the victim and the doctor. That the sexual intercourse was against her will is amply proved by her evidence. Reference in this regard can be made to the following portion of her evidence in her cross-examination: "the accused pulled me by my left hand. The accused threw me down on the ground by forcibly pushing me and immediately he climbed on my body. When I fell down being so pushed by the accused my right hand was under my body and by the left hand I was trying to resist the accused, but he, by his right hand kept my left hand under his clutches. (The witness angrily demonstrates.)I then tried to throw him off by my legs. But he kept my thighs pressed by his knees. The accused pressed my breasts by his chest and in that process, (the witness volunteers): the accused forcibly penetrated his penis into my vagina and raped me forcibly for quite some time until some hot liquid things being discharged from his penis fell into my vagina. (The witness starts weeping). But he kept my thighs pressed by his knees. The accused pressed my breasts by his chest and in that process, (the witness volunteers): the accused forcibly penetrated his penis into my vagina and raped me forcibly for quite some time until some hot liquid things being discharged from his penis fell into my vagina. (The witness starts weeping). The accused in the haste to unthread my easy-wear forcibly pulled it as a result whereof the front portion on its top got torn and then the accused pushed down the easy-wear not wholly, but partially so as to facilitate the penetration. I was not pushed down on the wholly muddy ground, but that the ground was somewhat wet and there were paddy plants. The time from when I was pushed down till I got up being released by the accused would be about 15/16 minutes. He raped me for quite sometime. (Volunteers): When the accused was committing rape upon me he pushed my breasts with his chest so heavily that it became difficult for me to breathe and I felt exhausted. After the accused released me I somehow stood up and started moving homewards. But the accused threatened me not to go home without taking the water. I moved about 15/20 cubits when he so threatened me. " (17). THE third point advanced by Mr. Adhikary as regards the concoction and fabrication of a case in the FIR since the statement of the victim recorded in hindi was dictated by the I.O. the P.W. 20 was never put to the prosecutrix. She, as a matter of fact, was not asked even one question nor was anything shown to us by Mr. Adhikary to show that the prosecutrix did not know Hindi. Not one question was put to her suggestion that the case made out in the FIR is a product of fabrication by the P. W. 20. It is true that a contradiction was obtained during her cross-examination to the effect that in her statement under section 154 she did not tell the police that the accused took bath in the water tap where she was standing, we are in the circumstances unable to see any possibility of concoction or fabrication. It is true that a contradiction was obtained during her cross-examination to the effect that in her statement under section 154 she did not tell the police that the accused took bath in the water tap where she was standing, we are in the circumstances unable to see any possibility of concoction or fabrication. The evidence produced in this case is of such a reassuring nature that it is not possible to hold that there may have been any concoction or fabrication or that due to any political rivalry the accused might have been falsely implicated. The fact that a rape has taken place cannot be disputed. The only other question is whether it is the accused who committed the rape. An answer in the affirmative to this question is firmly established from the evidence of the prosecutrix. The circumstances lending assurance to the Court are the facts that broken pieces of churi of the victim were recovered from the place of occurrence. The broken pieces of churi of the victim were matched with the churi which the victim was wearing. The clothes of the accused seized by the police were identified by the victim. The accused immediately after the incident came to wash himself at the water tap. Obviously his clothes were spoiled. According to the P.W. 4 she "saw the accused to come from his paddy land side towards the pipeline". The paddy land side is the place of occurrence. There is therefore enough evidence on the record to lend assurance to the Court that there was no scope for any concoction or fabrication. (18). THE fourth and the last point urged by Mr. Adhikary as regards omission of time in the charge framed against the accused, we are of the view that, in the absence of any material to show that there has been a failure of justice due to the omission to indicate the time of the incident, the omission is not fatal. Reference in this regard can be made to section 464 of the Cr. PC. Mr. Adhikary did not show that there has been any failure of justice because of the alleged omission in the charge. We are in the circumstances not inclined to entertain this submission. (19). ALL the points urged by Mr. Adhikary have thus been disposed of. Reference in this regard can be made to section 464 of the Cr. PC. Mr. Adhikary did not show that there has been any failure of justice because of the alleged omission in the charge. We are in the circumstances not inclined to entertain this submission. (19). ALL the points urged by Mr. Adhikary have thus been disposed of. We have not been impressed nor do we think that any interference is called for. We are, therefore, satisfied that the prosecution has successfully proved its case against the appellant. We, therefore, concur with the view of the Court below and affirm the conviction and the sentence of the appellant. For the reasons indicated above the appeal fails and is dismissed. The accused appears to have been granted bail by an order dated 17th November, 1993 which is cancelled. The appellant is directed to surrender forthwith before the learned Sessions judge, Andaman and Nikobar Islands, to serve out the rest of the sentence. (20). LOWER Court Records with a copy of this judgment be transmitted forthwith to the learned Trial Court for information and necessary action. Appeal dismissed.