Judgment : TAPAS KUMAR GIRI, J. (1.) THIS criminal appeal has been filed under Section 374 Cr. P. C. against the judgment dated 28. 06. 1985 passed by the Learned Assistant District and Sessions judge Alipore whereby the Learned Trial Court convicted both the accused appellants under Section 376 of the Indian Penal Code and sentenced each of them to suffer rigorous imprisonment for 10 (ten) years in connection with Sessions Trial no. 8 (1) of 1985. The brief facts of this case are that on 22. 02. 1982 in the evening one Kumari kabita (name changed) with her sister Sikha and friends Dola Ganguly, Gita Paul and Gouranga Paul, elder brother of Gita were coming from "annapurna Mandir" at madhyamgram after offering puja on the occasion of "sivaratri. " suddenly Bimal Seal (accused No. 1) gagged the mouth of Kabita on the point of a knife and she was taken to a mango grove of Sripur at 7. 30 P. M. and after reaching there, Kabita saw Satya Dev of Sripur and he was caught by Bhola Malakar (accused No. 2), a friend of Bimal. In the said garden, Bimal tore open her wearing sari and injured her with a knife and committed rape on her and thereafter accused bimal called Bhola and then he also committed rape on her. It was the further case of the prosecution that during that time Satya jumped on them to rescue Kabita but the accused attacked Satya. Hearing about the incident from the sister of Kabita, another boy went to the said garden and called for the accused Bimal by name and thereafter the accused left and ran away. (2.) THE written complaint was lodged to Madhyamgram I. C. and it was forwarded to Barasat P. S and the said P. S. started Barasat P. S. Case No. 73 dated 23. 02. 1982 under Section 376 I. P. C. against the accused. Charge against the appellants was framed for the aforesaid offence to which they did not plead guilty. The case of the accused in defence was of total denial of the alleged occurrence. 02. 1982 under Section 376 I. P. C. against the accused. Charge against the appellants was framed for the aforesaid offence to which they did not plead guilty. The case of the accused in defence was of total denial of the alleged occurrence. At the trial, altogether fifteen witnesses were examined by the prosecution including the complainant i.e. , Sikha Acharjee (P. W. 1), Gonga Rani Acharjee (P. W. 2), Kabita (P. W. 3), Santosh Acharjee (P.W.- 4), Birendra Banerjee (P. W. 5), gouranga Chandra Paul (P. W. 6), Geeta Pal (P. W. 7), Satyajit Dev (P. W. 8), Dr. S. N. Banerjee (P. W. 9), Dr. S. N. Biswas (P. W. 10), Sri H. P. Ghosh (P. W. 11), Dr. S. R. Chakraborty (P. W. 12), Subhendu Halder (P. W. 13), P. R. Biswas (P. W. 14) and P. K. Banerjee (P. W. 15). Out of the above fifteen prosecution witnesses, P. W. 3 was the victim as well as the defacto complainant of this case. P. w. 1, sister of P. W. 3 was the witness to the occurrence. P. W. 2, the mother of P. W. 3, was the hearsay witness. P. W. 4, the father of P. W. 3, was also the hearsay witness. P. W. 5 being the local man was the hearsay witness. P. W. 6 being the brother of P. W. 7 accompanied P. W. 3, P. W. 1 and P. W. 7 and he was the witness to the occurrence. P. W. 8 was the witness to the occurrence. P. W. 9 being the Radiologist opined the age of P. W. 3. P. W. 10, the doctor of Barasat hospital opined the capability of intercourse of accused Bimal and Bhola. P. W. 11, s. I. of police drew up the F. I. R. P. W. 12 being a doctor of the hospital examined kabita (P.W. 3). P. W. 13 was the witness to the occurrence. P. W. 14 was the part I. O. of this case. P. W. 15 submitted the charge sheet after investigation. Formal F. I. R. and written complaint were exhibited in connection of this case at the time of trial. P. W. 13 was the witness to the occurrence. P. W. 14 was the part I. O. of this case. P. W. 15 submitted the charge sheet after investigation. Formal F. I. R. and written complaint were exhibited in connection of this case at the time of trial. (3.) AFTER discussing the evidence of the prosecution witnesses, the Trial Court found the appellants guilty for the offence under Section 376 of the I. P. C. and the trial Court sentenced both the accused to suffer rigorous imprisonment for 10 (ten) years each. The appellants have challenged the impugned order of conviction on the following grounds;- 1. that the complaint was filed after two months and the prosecution did not explain the delay satisfactorily. 2. That the evidence of P. W. 1, P. W. 8, P. W. 13 who were the eye witnesses to the occurrence did not support the prosecutions case of alleged rape upon P. W. 3. 3. That except the informant (P. W. 3), rest of witnesses did not offer any support to the complainant inasmuch as the evidence of all the remaining witness was hearsay on the point of the alleged occurrence i. e. , rape. 4. That the evidence of the doctor (P. W. 12) was not sufficient to prove the alleged rape upon P. W. 3. Mr. R. K. Ghosal Learned Advocate for the appellant contended that the impugned judgment of conviction was bad both on the points of law as well as on the facts for the main reason that the Trial Court had not appreciated the evidence on record in proper perspective. Learned Advocate explained that the Trial Court had erred in showing the delay of lodging F. I. R. Referring in this context to the complaint (Ext. 1) as well as the evidence of P. W. 3 there was serious departure. Learned Advocate also contended that there was no eye witness to the alleged rape upon P. W. 3 except the evidence of P. W. 3. Learned Advocate added further that the evidence of P. W. 1, P. W. 8, P. W. 13 did not indicate any allegation of rape upon p. W. 3 by the accused. Learned Advocate also contended that there was no eye witness to the alleged rape upon P. W. 3 except the evidence of P. W. 3. Learned Advocate added further that the evidence of P. W. 1, P. W. 8, P. W. 13 did not indicate any allegation of rape upon p. W. 3 by the accused. Learned Advocate also added that the evidence of the doctor (P. W. 12) was not sufficient to show that P. W. 3 was raped by both the accused and as such the allegation of rape upon P. W. 3 by both the accused was not proved beyond reasonable doubt. (4.) MR. Ghosal contended that the judgment of the Learned Trial Judge was not based on proper appreciation of evidence and in such a case the order of conviction recorded against them should be set aside. Mr. R. B. Mahato Learned Advocate for the State, on the other hand, argued that from the evidence of the prosecutrix (P. W. 3), it was clear that accused Bimal seal gagged the mouth of Kabita (P. W. 3) on the point of knife and she was taken to mango grove of Sripur at 7. 30 p. m. and Satya (P. W. 8) was caught by Bhola Malakar and in the said garden Bimal tore open her wearing sari and injured her with a knife and committed rape on her and thereafter Bimal called Bhola and then he committed rape on her. Learned Advocate also argued that in the evidence of P. W. 3 it was clear that Satya jumped on them to rescue Kabita but the accused attacked Satya and hearing the incident from the sister of Kabita, Subhendu Halder (P. W. 13) went to that garden and called for accused Bimal by name and thereafter the accused ran away and the allegation was lodged to the nearest P. S. Learned Advocate contended that there was no delay for lodging the F. I. R. and the evidence of the above witnesses as well as the evidence of P. W. 3 was sufficient to prove the allegation of rape upon p. W. 3 by the accused. Learned Advocate also contended that the evidence of the doctor (P. W. 12) was sufficient to prove the sign of rape upon the prosecutrix and the evidence of the doctor (P. W. 10) was sufficient to prove the capability of sexual intercourse of accused Bimal and Bhola. (5.) LEARNED Advocate argued that the victim of sexual assault was not treated as accomplice and as such her evidence did not require corroboration from any other evidence including the evidence of a doctor. In support of the contention Learned advocate cited a case law reported in 2006 (9) Supreme Court Cases 787 (Om prakash V. State of U. P.). Mr. Mahato, therefore, contended that there was no merit in the present appeal and the same should be dismissed. We have carefully considered arguments of both Mr. Ghosal and Mr. Mahato in the backdrop of prosecution evidence both oral and documentary. The F. I. R. (Ext. 1) was lodged by the victim (P. W. 3) on 23. 02. 1982 at 12.15 hours though the occurrence took place on 22. 02. 1982 at 7.30 p.m. The delay was about 17 hours. Let us now consider whether that delay may be ignored or not. P. W. 4, the father of the prosecutrix stated in his evidence that he had become perplexed on hearing the incident and he had sought help from some people and he had gone to the P. S. on the same night and the police had advised him to come in the next day with his daughter and he along with his wife and his daughter (P. W. 3) had gone to the P. S. on the next morning and had lodged the complaint. It is quite natural that a man (P. W. 4) being the father of the prosecutrix became perplexed to hear such incident and the delay of lodging F. I. R. was properly stated in the evidence. There was no specific cross-examination by the defence either upon P. W. 3 or P. W. 4 for delay of lodging the F. I. R. Such delay does not strike the entire story of the prosecutions case. (6.) IN case under Section 376 I. P. C. the age of the victim is most important. If the victim has not crossed the age of 16 years, her consent is of no avail. (6.) IN case under Section 376 I. P. C. the age of the victim is most important. If the victim has not crossed the age of 16 years, her consent is of no avail. If the age of the victim is above 16 years, she is capable of giving her consent to the act of sexual intercourse. P. W. 9, who was the radiologist, examined P. W. 3 and opined that the age of victim girl on the day of her examination on 03. 10. 1983 was above 19 years. The onus lies upon the prosecution to prove prosecution case beyond reasonable doubt. P. W. 3, the victim girl stated on oath that both Bimal and Bhola had committed rape upon her. They were identified by P. W. 3 in Court. P. W. 1, the younger sister of p. W. 3 corroborated the evidence of P. W. 3 at the time of taking P. W. 3 away by force by accused Bimal by covering her elder sisters face with handkerchief. No evidence came from the defence by way of cross-examination to disbelieve the evidence of p. W. 1. P. W. 2, the mother of P. W. 3 though a hearsay witness, stated that P. W. 3 had told her regarding occurrence as well as rape by the accused. The evidence of P. W. 2 is corroborated with the evidence of P. W. 3. P. W. 4, the father of P. W. 3 stated that his wife had reported to him about the occurrence. The defence failed to bring sufficient evidence from P. W. 4 by way of cross-examination to disbelieve the allegation of the prosecution case except mere denial. (7.) P. W. 5 was the hearsay witness and he heard it from P. W. 4 about the allegation of rape and he advised P. W. 4 to go to the P. S. Except the suggestion to P. W. 5 as political rivalry nothing had come from the evidence of P. W. 5 to disbelieve the prosecution case. (7.) P. W. 5 was the hearsay witness and he heard it from P. W. 4 about the allegation of rape and he advised P. W. 4 to go to the P. S. Except the suggestion to P. W. 5 as political rivalry nothing had come from the evidence of P. W. 5 to disbelieve the prosecution case. P. W. 6 who accompanied the witnesses i.e. , P. W. 1, P. W. 3 and P. W. 7 stated in his evidence that suddenly it had come to their notice that Kabita (P. W. 3) had been found missing and also stated that Bhola suddenly had appeared on the road and had called Satya Deb and had forced Satya to a jungle at the point of knife. They narrated the incident to one Subhendu Halder and he (P. W. 6) heard from the parents of P. W. 3 that both accused had committed rape upon Kabita. It has come to the mind that if P. W. 6 accompanied P. W. 3 along with P. W. 1 and P. W. 7, why P. W. 6 did not take any notice that Bimal forcibly took away P. W. 3 by placing handkerchief on the mouth of P. W. 3. It was seen in the evidence of P. W. 3 that the strap of one of her "hawai Chappal" was out of order and when she was adjusting the same, she lagged behind them. At that time Bimal dragged her to a nearby "bagan" forcibly after holding her mouth with a cloth. In such a case, P. W. 3 could not shout and as such p. W. 6 did not notice about the missing of P. W. 3. However, there was no such specific evidence in the cross-examination of P. W. 6 to disbelieve the alleged incident. P. W. 7 who also accompanied P. W. 3 stated that she saw Kabita being taken away by Bimal with force and also stated that Bhola had called Satya and both had gone towards "bagan". She heard from P. W. 3 that both accused had raped her. P. W. 8 stated in his evidence that Kabita lagged behind at the time of returning from "annapurna Mandir". He was called by Bhola at the point of knife and he was taken to "bagan" while Bimal took away Kabita. She heard from P. W. 3 that both accused had raped her. P. W. 8 stated in his evidence that Kabita lagged behind at the time of returning from "annapurna Mandir". He was called by Bhola at the point of knife and he was taken to "bagan" while Bimal took away Kabita. He also stated that after the arrival of Bimal to him Bhola went to Kabita and at that time Subhendu Haldar (P.W. 13) appeared before him and rescued Kabita and P. W. 8. Except mere denial nothing came from the evidence of P. W. 8 by way of cross-examination to disbelieve the prosecution case. (8.) IN the present case, there are some discrepancies in evidence of P. W. 1, P. W. 3, p. W. 5, P. W. 6 and P. W. 8 recorded by the I. O. under Section 161 Cr. P. C. Such omissions do not strike the root of the prosecution case. The statement of some witnesses under Section 161 Cr. P. C. was recorded a few months after the date of occurrence. But such delay in recording statement of the witnesses by the I. O. is not per se fatal. Truthful witness can be believed. In the present case the prosecution was able to bring the said truthful witnesses to establish the allegation of rape against the accused. P. W. 12 who examined P. W. 3 categorically stated the fact about penetration and the incident of rape was recent which was within 72 hours from the time when he had examined the victim girl. In case of rape some evidence of resistance is required. P. W. 3 and other witnesses stated that P. W. 3 was taken at the point of knife and P. W. 3 stated that she resisted by her left hand middle finger which caused injury. The I. O. did not seize any wearing torn cloth of P. W. 3. But P. W. 3 stated in the evidence that the wearing apparels were deposited at Madhyamgram P. S. No explanation came from the prosecution why these were not produced before the Court at the time of trial. There is no hard and fast rule that such marks must always appear. There are cases when rape may be committed without leaving any sign or mark of injury on the person of the victim. There is no hard and fast rule that such marks must always appear. There are cases when rape may be committed without leaving any sign or mark of injury on the person of the victim. In the present case the prosecution failed to bring such evidence on record that P. W. 3 received any injury on left hand finger. Such defects as well as the latches for non-production of the apparels do not demolish the entire prosecution allegation. P. W. 10, being a doctor examined both accused and found the accused persons to be sexually potent for performing sexual intercourse. (9.) IN the present case the I. O. did not take any steps for chemical analysis report and forensic report about the presence of spermatozoa on the cutting of wearing apparels of P. W. 3. Both accused remained silent at the time of their examination under Section 313 Cr. P. C. regarding the question of rape upon P. W. 3. In the case Om Prakash (supra) the Apex Court has observed "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 view of the foregoing discussion, this Court is of the firm view that the accused persons had sexual intercourse with Kabita without her consent and there was penetration in the private parts of the victim girl caused by those accused persons. Therefore, we have no hesitation to hold that the prosecution has been able to prove the charge against both the accused/appellants without any shadow of doubt. The Learned Assistant Sessions Judge, Alipore was perfectly justified in holding the accused persons/appellants guilty of the charge and convicting them accordingly. Thus we find no merit in the present appeal and the same is dismissed. The order of conviction and sentence passed against the appellants is hereby confirmed. (10.) APPELLANTS are on bail. We cancel their bail bond with immediate effect. They are directed to surrender before the Trial Court within 15 days from this order failing which the Trial Court shall take necessary steps for their apprehension and for sending them to prison to suffer the imprisonment. (10.) APPELLANTS are on bail. We cancel their bail bond with immediate effect. They are directed to surrender before the Trial Court within 15 days from this order failing which the Trial Court shall take necessary steps for their apprehension and for sending them to prison to suffer the imprisonment. Send L. C. R. along with the copy of the judgment to the Trial Court for information and for taking appropriate action in the light of direction contained in this judgment. Urgent xerox certified copy of this judgment and order be supplied to the advocate on record for the appellants on making application at the earliest after complying with all necessary legal formalities.