Judgment :- P.S DATTA, J. (1) This appeal is directed against the judgment and order of the learned Additional Sessions Judge, Fast Track Court-II at Krishnagore dated 27th October 2006 passed in Sessions Trial No. 9(12)/05 corresponding to Sessions Case No. 25(11)/05 convicting the appellant u/s 376 of the IPC and sentencing him to suffer R.I for a period of 7 years with payment of fine of Rs. 2,000/-in default to suffer R.I for a further period of 6 months subject to set off u/s 428 of the IPC. As it appears from the FIR which was lodged within a few hours of the alleged incident on 2nd September 2005 by the victim herself with the O.C, Nabadwip PS, at about 8.30 a.m. on 2nd September 2005 the appellant, uncle by distant relation of the victim took her to a room in a hotel on the plea that she was required to cleans the hotel room where on the previous night there was a party to celebrate birthday anniversary of the appellants daughter, Tusi. As soon as she entered into the hotel room she was taken to a corner thereof and then the appellant started applying his hand on her breast and other parts of her body. She started crying, then she was undressed and made to lie on a bench and then raped against her will. She immediately rushed to her grandmother who enquired of the reason of her cry and she disclosed to her about the incident. The girl was in class V of the school and under 12 years of age. (2) Nabadwip police station recorded FIR being no. 95/05 u/s 376 of IPC against the appellant and upon enquiry submitted charge sheet against the appellant under that section of law. The learned Trial Court upon recording of evidence of 17 witnesses convicted the appellant u/s 376(1) of the IPC and sentenced him in the manner as aforesaid. (3) The victim is the main speaker of her own case and her evidence which was recorded on 16th January 2006 by the learned Judge when she was about 13 years old is that at 8.30 a.m. of 2nd September 2005 the appellant who is her uncle by relation asked her to cleanse the hall where on the previous night birthday anniversary was celebrated of her cousin sister, Tusi, the daughter of the appellant. As she entered the hall the appellant started molesting her. She instantaneously retorted saying, "uncle what you are doing"? Paying no heed the appellant made her lie on a bench in the hall and then committed intercourse with her by gagging her mouth. She rushed home crying and reported the matter to her grandmother. Her grandmother reported the incident to her uncles and aunts and also her father and again she repeated the incident to them. Then accompanied by her father she came to the police station to lodge the FIR (Ext. 1). She showed the place of occurrence to the police. She made a statement before the Magistrate. She was cross examined at length and she was asked whether she scratched with her nails on the body of the accused or threw her leg against the accused. She was made to say in her cross examination that only a slight portion of the penis of the accused was pushed into her private part with no bleeding. She said that she cannot recollect whether she stated in the complaint that she felt pain along with the burning sensation in her vagina or whether she tried to raise the alarm when the appellant closed her mouth by his hand or whether semen was discharged in her private part of the body. PW 2, Kalipada Saha, the hotel keeper in whose hotel there was a birthday party of the appellants daughter on the previous night says that at about 10 a.m. on 2nd September 2005 he heard a rumour that the appellant had committed rape upon the victim, her niece. Police came and asked him to open the hall and he opened the hall. Police seized the bench from the hall as was shown by the victim. Seizure of the bench was effected by the police in his presence. There was a cross examination by the defence that the hall was not hired by the appellant for any purpose at all and that there was no seizure of the bench. PW 3, Dr. Nripati Roy examined the appellant and found him able of performing sexual intercourse. PW 4 Bikash Kumar Saha, a neighbour of the appellant says that police came in front of the hall of PW 2 and on being pointed out by the victim the police seized the bench under a seizure list. PW 3, Dr. Nripati Roy examined the appellant and found him able of performing sexual intercourse. PW 4 Bikash Kumar Saha, a neighbour of the appellant says that police came in front of the hall of PW 2 and on being pointed out by the victim the police seized the bench under a seizure list. PW 5 Sailen Mahapatra also gives the same evidence as PW 4. PW 6, Dr. Kanchan Kumar Sarkar examined the victim and said that hymen was intact and there was no marks of violence. PW 7 is a constable whose evidence is not of worth consideration. PW 8, Dr. Partha Lodh conducted ossification test of the victim and found the victim to be around 13 years of age with allowable variation. PW 9, Dilip Karmakar who is the another uncle of the victim was declared hostile although he stated in his evidence in chief that the victim and other members of her family told him that the appellant committed offence against her niece. According to the prosecution this witness stated to the IO that the victim had told him that she was raped by the appellant in the hotel hall. PW 10, Dulal Karmakar is also another uncle of the victim who said that the victim and also her grandmother told him that the appellant had committed rape upon the victim. He is a witness to the seizure of wearing apparels of the victim under seizure list. PW 11, Nepal Sarkar is a witness to the seizure of wearing apparels of the victim and the witness further stated that as the victim was weeping she told that the appellant took her to the hall of PW 2 and there at first he embraced her and then he made her lie on a bench and then after undressing her, he committed intercourse with her. PW 12, Dipak Karmakar is the father of the victim who narrated the incident in the following manner : "Accused Tapas Karmakar is my distantly related cousin. His house is adjacent to our house. Tusi is his daughter. Birthday ceremony of Tusi was celebrated on 1st September 2005 at Sima Hotel, Nabadwip. Guests were entertained at Sima Hotel Hall near our house. We were invitees there. Most of my family members attended that ceremony but I did not go there. My mother and myself did not attend the party. Tusi is his daughter. Birthday ceremony of Tusi was celebrated on 1st September 2005 at Sima Hotel, Nabadwip. Guests were entertained at Sima Hotel Hall near our house. We were invitees there. Most of my family members attended that ceremony but I did not go there. My mother and myself did not attend the party. On the next morning I went to a shop. Returning home at about 8.30 .m. I saw that my daughter and my mother were crying. On being asked my mother told me that taking my daughter at Sima Hotel, accused Tapas Karmakar kept her lying on a bench and committed rape upon her. I noticed that my daughter was feeling uneasy. On being asked, she also told me about the incident. Thereafter, I took her to the P.S. Darogababu wrote down my complaint. Thereafter, IO came to our house." (4) PW 13 is a photographer who took photograph of the hotel of PW 2 (Mat. Ext. 3) collectively. PW 14 is ASI Tapan Chandra Das who recorded the formal FIR (Ext. 1/1). PW 16, Malina Karmakar, the grandmother of the victim gives the following evidence : "Tania Karmakar is daughter of my eldest son Dipak Karmakar. Birthday ceremony of the daughter of accused Tapas Karmakar was celebrated on a Thursday and on the next day, the offence took place. At about 8 a.m. Tania Karmakar came to me with tears in her eyes. She told me that after putting off her panty, Tapas Karmakar pushed his penis into her vagina. She also told me that Tapas Karmakar kept her lying on a bed in the lodge of Kalipada Saha and thereafter he committed rape on Tania. PW 17, Ratan Kumar Chakraborty is the IO of the case. (5) Having thus placed the sumtotal of the evidence of the witnesses let us proceed to have a critical appreciation thereof. PW 1 is the victim while PW 12 and PW 16 are respectively her father and grandmother. PW 9, PW 10, PW 11 can be considered to be the witnesses corroborating the evidence of PW 1 and those of PW 12 and PW 15. In appears in clear terms that in the evening of 1st September 2005 birthday anniversary of Tusi, the daughter of the appellant was celebrated in the hall of Kalipada Saha (PW 2) which was taken on hire. Kalipada has testified to it unassailably. In appears in clear terms that in the evening of 1st September 2005 birthday anniversary of Tusi, the daughter of the appellant was celebrated in the hall of Kalipada Saha (PW 2) which was taken on hire. Kalipada has testified to it unassailably. The victim was also a participant in that party in the evening on 1st September 2005. At about 8 or 8.30 a.m. of the next day i.e. 2nd September 2005 the victim was called by the appellant and was asked to cleanse the hall room. The victim went there and the appellant embraced her and the victim immediately retorted to say why her uncle was doing this. Paying no heed the victim was made to lie on a bench where she was undressed and then raped against her will. It goes undisputed and is proved that at the time of the incident the victim was about 12 or 13 years old. It is not a case of the defence that the victim had consented to the sexual intercourse. It is the defence case that the appellant has been falsely implicated on two-fold grounds. The first ground is that the victims mother was allegedly having hobnobbing with the appellant and as the father of the victim rebuked his wife the victims mother committed suicide. Thus according to the defence the victims father tried to convince his daughter that her mother died on account of the appellants conduct and as such he asked his daughter to depose against the accused by filing a false case. The second ground is allegedly a political rivalry between the appellant and the father of the victim. Having considered the evidence of the witnesses neither of the grounds does appear to be tenable. It has not transpired in evidence that the wife of PW 12 committed suicide as a result of allegedly being rebuked by PW 12 following her alleged hobnobbing with the appellant. It is preposterous to believe that a girl of 12 or 13 years old will be set up by PW 12 to lodge a false case against the appellant just to take a revenge against commission of suicide PW 12s wife following rebuking by PW 2 because of her alleged hobnobbing with the appellant. This defence suggestion has not at all been proved and there is not a slightest amount of probability in this. This defence suggestion has not at all been proved and there is not a slightest amount of probability in this. As regards the political rivalry it does not appear that there is any semblance of truth in it. The narration of the incident is as vivid as possible. It has come out in the evidence of the victim and as corroborated by PW 12 and PW 15 that after the victim was taken to the hall she was first molested and then she was made to lie on a bench where she was undressed and raped. PW 16s evidence is more important in this that as she lost her mother she reported to her grandmother PW 16 rushing to the house with tears in her eyes and then the grandmother reported the incident to PW 12 and then PW 12 took his daughter to the police station to lodge FIR. Cross examination of PW 16 did not reveal anything that may go in favour of the defence. The bench of the hall of PW 2 was seized on being pointed out by the victim. The 164 Cr.p.c. statement of the victim which was recorded by the learned Magistrate on 15th September 2005 corroborates her substantive evidence in the court. (6) The learned Defence Counsel Mr. Partha Sarathi Bhattacharya takes me to the evidence of PW 6 in support of his submission that there was in fact no commission of rape. PW 6 stated that hymen was found intact and there was no mark of violence. According to Mr. Bhattacharya, when the doctor who examined the victim on the very day of the incident did not find any mark of violence on the private part of the girl it can only be said that what the victim was telling in the court was embellishment and colouring over the actual incident. It was further submitted that the victim stated in her cross examination that whether the appellant pushed his penis into her private part she felt some discharge of liquid but the chemical examiner who examined the wearing apparels of the appellant did not find any semen in exhibit A, B and C (12). Therefore, it is submitted that at best it could be a case of attempt to commit rape if at all the prosecution case is not totally disbelieved. Mr. Therefore, it is submitted that at best it could be a case of attempt to commit rape if at all the prosecution case is not totally disbelieved. Mr. Joy Sengupta, learned Advocate appearing for the State of West Bengal submitted in reply that the victim was only 12 years old and her statement in cross examination to that effect that when the appellant pushed penis into the private part of the girl she felt some discharge of liquid it was simply an outcome of a leading question and under pressure of cross examination. It is submitted that the law is well-settled that on the basis of the solitary evidence of the prosecutrix conviction u/s 376 of the IPC can be maintainable even when medical evidence does not in clear terms help the prosecution case. Having heard the learned Counsels for the parties it appears to me that there is no reason to disbelieve the evidence of PW 1 which has been corroborated by PW 12 and PW 16. The FIR maker is the victim herself and in the FIR which was lodged only a few hours after the incident the victim stated in clear terms that after she was made to lie on a bench of the hall she was raped forcibly by the appellant and her 164 Cr.p.c. statement and also the FIR have been translated into her evidence. The victim was cross examined at great length but the basic fabric of the prosecution case could not be demolished by any amount of cross examination. The medical evidence is an evidence of opinion, not evidence of fact. It is not possible for a medical practitioner to say whether the victim has been raped or not. The victim was examined at 6 p.m. on 2nd September 2005, while the incident took place at 8 or 8.30 a.m. on that day. There might not have been noticed any mark of violence on the private part of the victim. It has come out from the cross examination of the victim herself that only a slight portion of the penis of the appellant was entered into her private part and at that time no bleeding took place. Law is well-settled, as submitted by Mr. Sengupta that a slightest amount of penetration would constitute offence of rape within the meaning of section 375 of the IPC. Law is well-settled, as submitted by Mr. Sengupta that a slightest amount of penetration would constitute offence of rape within the meaning of section 375 of the IPC. The statement of the appellant in his cross examination u/s 313 Cr.p.c. that at 10 p.m. of 1st September 2005 he made over the key of the hall to PW 2 does not appear to be true at all. PW 2 was cross examined with the question whether he stated to the police that the key of the hall was returned to him on the next day of celebration at 9 a.m. PW 2 stated that he does not recollect whether he had said to the police. It is difficult to believe that the key of the hall was made over to PW 2 on the night of 1st September 2005 itself. The entire evidence of PW 1 clearly shows that the key of the hall was not yet made over to the PW 2. The bench was seized on being pointed out by the victim by the police in presence of the witnesses. The witnesses have also stated that on being asked the victim said to them that she was raped by the appellant after she was made to lie on the bench. It does not appear that it simply is a case of attempt to commit rape. It was argued that PW 1 said in her cross examination that she sustained some burning sensation in her private part while doctor did not find anything. As said above, feeling of pain and burning sensation may not result in marks of violence in the private part of the body. Learned Trial Court has analyzed the evidence of the prosecution witnesses extensively and I do not find any ground to say that such analysis of evidence of the witnesses is contrary to evidence on record. (7) Appeal is meritless and is dismissed. The judgment and order of the learned Trial Court is confirmed. A copy of this judgment shall be sent to the Superintendent of the Correctional Home where the appellant is now lodged for information of the appellant.