Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 1275 (GAU)

Nani Gopal Sarkar v. State of Tripura

2012-11-19

S.C.DAS

body2012
JUDGMENT S.C. Das, J. 1. This criminal appeal under Section 374 of CrPC is directed against the judgment and order of conviction and sentence dated 30.06.2006, passed by learned Assistant Sessions Judge(Court No. 1), West Tripura, Agartala, in Sessions Trial No. 59 (WT/A) of 2005. Learned trial Judge found the accused appellant, Nani Gopal Sarkar guilty of committing offence punishable under Section 376(2)(f) of IPC and sentenced him to suffer RI for eight years. Being aggrieved with the judgment and order of conviction and sentence, the appellant preferred the present appeal, on different grounds. This is an exceptional case of sexual molestation of a destitute minor girl, aged about 7/8 years, who lost her father in her early childhood and also deserted by her mother. She subjected to rape by a full grown man, aged about 40, a constable of police by profession, whom the minor girl used to call as grandfather. 1.1 Facts, leading to the criminal trial and consequent punishment of the accused appellant, in short, are that the minor girl "Archana" (actual name kept withheld) was residing with her paternal uncle (elder brother of her father), Rasaraj Acharjee (PW 1) along with her grandmother (father's mother) and aunt (father's sister). Her father died in her early childhood and mother deserted her. At the relevant time, she was aged about 7/8 years. On 20.08.2004, a Friday, at about 3.00 pm, she went to the nearby tilla land, adjacent to the house of her uncle for grazing a goat and, at that time, the accused Nani Gopal Sarkar, a constable of police, whom she used to address as grandfather, with an allurement of giving her 'chanachur' (dalmut), took her in the near by jungle, laid her on a napkin, and thereafter made her naked and the accused also became naked and he committed rape on her. She felt pain in her private parts but could not raise cries as the accused gagged her mouth. The accused after commission of rape threatened her not to disclose the incident to anybody else. Though she was feeling pain and uneasy, she did not disclose the fact immediately thereafter. On 23.08.2004, her grandmother (mother's mother) (PW 4), Sova Rani Acharjee, who used to visit the house of informant occasionally to see the prosecutrix, came and at that time the prosecutrix disclosed the incident to her. Though she was feeling pain and uneasy, she did not disclose the fact immediately thereafter. On 23.08.2004, her grandmother (mother's mother) (PW 4), Sova Rani Acharjee, who used to visit the house of informant occasionally to see the prosecutrix, came and at that time the prosecutrix disclosed the incident to her. Thereafter, Sova Acharjee informed PW 1, the informant, Rasaraj Acharjee about the incident and Rasaraj also asked the prosecutrix about the incident to which she disclosed the fact in details. PW 1, the uncle of the prosecutrix and PW 4, grandmother of the prosecutrix, went to Nakul Sarkar (PW 5), the Member of the Gram Panchayat and reported the incident, who informed the village Pradhan i.e. PW 7 and others including PW 6, Dulal Bhandary. They asked the informant to wait and called the accused to enquire about the incident as alleged by the prosecutrix but the accused did not turn up. The injury suffered by the prosecutrix in her private parts also aggravated and the villagers advised them to report the incident to the police and, so, the informant along with PWs 4 and 6 took the prosecutrix to IGM hospital for treatment, where the prosecutrix was examined by the doctor and, thereafter, PW 1, the uncle of the prosecutrix lodged an FIR with the Officer In-charge of Amtali P.S. on 31.08.2004. The informant narrated the fact in the FIR, which was reduced to writing by SI Manindra Ghosh (PW 14) and, accordingly, Amtali PS Case No. 60/2004 under Section 376(2)(f) of IPC was registered and SI Manindra Ghosh was entrusted with the charge of investigation. 1.2 In course of investigation, IO examined the material witnesses including the victim girl and arranged her medical examination and ossification test to ascertain her age and collected the reports thereof. He also produced the prosecutrix before the Judicial Magistrate, First Class, who recorded her statement under Section 164 of CrPC. On completion of investigation, IO submitted charge sheet against the accused for commission of offence punishable under Section 376(2)(f) of IPC. 1.3 Cognizance was taken on the basis of the police report and, in due course, the case was committed to the Court of Sessions for trial. On completion of investigation, IO submitted charge sheet against the accused for commission of offence punishable under Section 376(2)(f) of IPC. 1.3 Cognizance was taken on the basis of the police report and, in due course, the case was committed to the Court of Sessions for trial. 1.4 Learned Sessions Judge, on 29.8.2005, framed charge against accused Nani Gopal Sarkar for commission of offence punishable under Section 376(2)(f) of IPC to which the accused pleaded not guilty and claimed to be tried. 1.5 In course of trail, prosecution examined 14 (fourteen) witnesses, namely PW 1, Rasaraj Acharjee, PW 2, Dhirendra Roy, PW 3, Raju Acharjee, PW 4, Sova Rani Acharjee, PW 5, Nakul Sarkar, PW 6, Dulal Bhandary, PW 7, Dinesh Sarkar, PW 8, Mira Rani Sarkar, PW 9, Dr. Shyamal Sarkar, PW 10, Dr. Ashoke Majumder, PW 11, Kumari "Archana" (name kept withheld) (name kept withheld), PW 12, SI Udit Choudhury, PW 13, Dr. Subhankar Nath and PW 14, SI Manindra Ghosh. 1.6 Out of the aforesaid witnesses, PW 11 is the victim girl, the prosecutrix and is the star witness of the prosecution. PW 4 is the maternal grandmother of the prosecutrix to whom the prosecutrix first reported about the incident. PW 1 is the paternal uncle of the prosecutrix with whom she was residing at the relevant point of time. PW 3 is the maternal uncle of the prosecutrix, a resident of Narsingarh, where PW 4 also used to reside. PWs 2, 5, 6 and 7 are the co-villagers of the informant and out of them PW 5 is the Member of the Panchayat, who was reported about the incident by the informant and PW 4 immediately after the incident was disclosed by the prosecutrix. PW 6 accompanied the informant and PW 4 along with the victim to the hospital as well as to the police station. PW 7 is said to be the Pradhan of the village. PW 8 is the tutor of the prosecutrix, who also supported the prosecutrix. PWs 9 and 10 are the medical officers and out of them PW 9 medically examined the prosecutrix and submitted the medical report in final form. He has also examined the accused and submitted report stating that the accused was competent to have sexual intercourse. PW 8 is the tutor of the prosecutrix, who also supported the prosecutrix. PWs 9 and 10 are the medical officers and out of them PW 9 medically examined the prosecutrix and submitted the medical report in final form. He has also examined the accused and submitted report stating that the accused was competent to have sexual intercourse. PW 10 conducted the ossification test to ascertain the age of the prosecutrix and reported that the prosecutrix was aged about 6/7 years at the relevant time. PW 12 is the Judicial Magistrate, First Class, who recorded the statement of the prosecutrix under Section 164 of CrPC. PW 13 is the Scientific Officer of State Forensic Laboratory, who examined the wearing apparels of the victim prosecutrix. PW 14 is the 10 of the case. 1.7 In course of examination of the witnesses, prosecution also proved the seizure lists of wearing apparels of the accused and the victim, medical examination reports of the victim and the accused, statement of the prosecutrix recorded under Section 364 of CrPC and hand-sketch map of P.O. with index, etc. 1.8 After recording of prosecution evidence was over, the accused was examined under Section 313 of CrPC and, thereafter, in his turn, the accused declined to adduce any evidence. Defence case is nothing but denial of the prosecution case. In course of examination of the prosecution witnesses, certain suggestions were put to the prosecution witnesses stating that there was a quarrel between the accused and PW 4, Sova Rani Acharjee on the issue of theft of bamboo from the bamboo clamp of the accused and, therefore, Sova Rani Acharjee arranged a false case through her granddaughter against the accused. It has also been suggested that to arrange an accommodation of the prosecutrix in the destitute home, a false case was manufactured in collusion with Chapala Biswas, a leader of Nari Samiti and the accused has been falsely entangled with the allegation of rape. 1.9 Learned Assistant Sessions Judge, considering the evidence and materials on record, found the accused guilty of the offence charged against him and sentenced him accordingly as aforesaid. 2. Heard learned counsel, Mr. Pranabasish Majumder, who was engaged as amicus curiae for the appellant and learned Addl. P.P., Mr. A. Ghosh for the State respondent. 3. 1.9 Learned Assistant Sessions Judge, considering the evidence and materials on record, found the accused guilty of the offence charged against him and sentenced him accordingly as aforesaid. 2. Heard learned counsel, Mr. Pranabasish Majumder, who was engaged as amicus curiae for the appellant and learned Addl. P.P., Mr. A. Ghosh for the State respondent. 3. In a case of rape, it is a settled law that conviction may be recorded on the sole testimony of the victim prosecutrix if her evidence inspires confidence. In the case of Gurmit Singh Vs. State of Punjab (1996) 2 SCC 384 , the apex Court has held that the testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. The Court has further held that the evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent even more reliable. Such evidence is entitled to great weight, absence of corroboration notwithstanding. Burden lies on the prosecution to prove the case charged against the accused. When the burden is discharged by the prosecution and the accused failed to destroy the basic foundation of the case there is no escape from punishment of an accused of such offence. 4. Indisputably, the prosecutrix was aged about 7/8 years at the time of occurrence. The accused was aged about 40 years and was a married man working as a constable of police. In his examination under Section 313 of CrPC he has stated that he has got his wife and two unmarried daughter depending on him, which makes it clear that he was a married man having two children. His sexual capability was also tested by PW 9 and the medical report has been marked as Exbt. 5, which has not been challenged. In view of the fact that the prosecutrix was aged about 7/8 years at the time of occurrence, there was no point for consideration in respect of her consent to the alleged rape. 5. Learned counsel, Mr. Majumder has emphatically submitted that the prosecutrix is a minor girl, aged about 7/8 years. According to the prosecution, she was raped by the accused, a full grown man, forcefully, causing injury to her private parts. 5. Learned counsel, Mr. Majumder has emphatically submitted that the prosecutrix is a minor girl, aged about 7/8 years. According to the prosecution, she was raped by the accused, a full grown man, forcefully, causing injury to her private parts. If it was so, in ordinary course, the prosecutrix would cry and report the matter to her paternal grandmother and paternal aunt with whom she was residing, but she did not disclose it till the next Sunday, i.e., on 23.08.2004. She first disclosed it to PW 4, her maternal grandmother, who came to see her on that day from Narsingarh. The conduct of the prosecutrix therefore, completely suspicious, which suggests that the prosecutrix was planted to institute a false case against the accused at the instance of PW 4. Per contra, learned Addl. PP, Mr. A. Gosh, has submitted that admittedly Sova Rani Acharjee (PW 4), the grandmother of the prosecutrix used to reside at Narsingarh about 20/25 KMs away from the house of the informant where the prosecutrix was residing. It is the case of the prosecution that the maternal grandmother occasionally used to visit the house of the informant to see the destitute prosecutrix. The maternal grandmother had no animosity with the accused. The mere suggestion that there was a quarrel between the accused and PW 4 Sova Rani Acharjee, in absence of any evidence in support thereof, cannot gain strength to suggest that the prosecutrix was planted by Sova Rani Acharjee to involve the accused with false allegation. The conduct of the prosecutrix in not disclosing the incident immediately after the occurrence cannot be doubted since the prosecutrix was a minor girl. I have considered the submission of learned counsel of both side and meticulously gone through the evidence on record. PW 11, the prosecutrix, in her deposition very categorically stated before the Court that about one year three months ago, at about 3.00 pm, in the afternoon, she went to a tilla land to the west of their house to ride/graze a goat. At that time accused Nani Gopal Sarkar appeared there and asked her whether she was willing to take 'chanachur' (dalmut) and, thereafter, asked her whether she would like to play with him and, thereafter, took her to a nearby jungle and made her naked and compelled her to lie on a napkin. The accused also became naked and committed sexual intercourse with her. The accused also became naked and committed sexual intercourse with her. She tried to raise cry but the accused pressed her mouth with his hands and the accused threatened her not to disclose the matter to any inmate of her house and, if she did so, she would be killed. Though she got pain on her private parts, she did not tell the said incident to anybody after coming home. After two/three days, when her grandmother Sova Rani Acharjee came to their house, she told her the incident and, thereafter, also narrated the incident to her 'Jetha' (paternal uncle, Rasaraj Acharjee). She also narrated the incident to Nakul Member (PW 5). She was produced to IGM Hospital and Magistrate. She told the fact to 'darogababu' and also narrated the incident to the Magistrate, who recorded her statement and she proved the statement. The evidence of the prosecutrix has in no way been shaken and/or destroyed in cross-examination. She made same statement of facts in Exbt. 7 before PW 12, the Judicial Magistrate, First Class, which has been marked as Exbt. 7. It is evident that the incident occurred on 20.08.2004 at about 3.00 pm in the jungle where the victim went to graze her goat. She would disclose the incident immediately thereafter but she did not do so. I find no reason at all to draw an adverse inference for not disclosing the fact immediately after the incident by the prosecutrix. There is no straightjacket formula that every person, being under such circumstances, shall react in a particular direction. The prosecutrix is a minor girl. She was asked by the accused not to disclose the fact to anybody and she might have thought that if she discloses it to her family members for such vile act she would be badly treated. When she was feeling pain in her private parts and there were etching she disclosed it to her maternal grandmother. I find no logic in the submission of learned counsel, Mr. Majumder that the conduct of the prosecutrix was unnatural for not disclosing the fact immediately after the incident. 6. The next argument advanced by learned counsel, Mr. Majumder is the delay in lodging the FIR. I find no logic in the submission of learned counsel, Mr. Majumder that the conduct of the prosecutrix was unnatural for not disclosing the fact immediately after the incident. 6. The next argument advanced by learned counsel, Mr. Majumder is the delay in lodging the FIR. He has emphatically submitted that according to the prosecution the prosecutrix disclosed the incident on 23.08.2004 to PW 4 and, thereafter PW 4 reported the same to PW 1, the informant, and then reported the incident to PW 5, the Member of the Panchayat in presence of PWs 6 and 7 but the FIR was not lodged immediately thereafter. A reasonable suspicious, therefore, arises as to the authenticity of the prosecution case and, hence, an adverse inference should be drawn against the prosecution. Learned Addl. P.P., on the other hand, has submitted that the prosecutrix is a minor girl and the informant is a day labour. PW 4 is a rustic woman. They reported the incident to the Panchayat Pradhan and Member i.e. PWs 5 and 7. Those witnesses i.e. the Panchayat Member and Pradhan made an attempt to enquire about the incident and, accordingly, they called the accused but the accused did not turn up and, in the meantime, the prosecutrix was also suffering badly for the injury sustained by her in her private parts and, thereafter, the FIR was lodged on the advice of the Pradhan, Member, etc. The delay has been explained categorically by the prosecution. In Exbt. 1, the FIR, the informant stated that the incident was reported to the village Member, Pradhan and others for justice but they could not secure the attendance of the accused for a settlement and, therefore, the FIR was lodged subsequently. In his deposition, PW 1 stated that he informed the matter to the Pradhan and Member but they failed to settle up the matter and, thereafter the FIR was lodged after eight days of the occurrence. PW 4 stated that the Member and Pradhan were trying to settle the matter after the incident and, therefore, the delay has been occasioned in filing the complaint before the police. PWs 5 and 7, the Member and Pradhan of the Panchayat, have supported the contention of the informant and PW 4. PW 4 stated that the Member and Pradhan were trying to settle the matter after the incident and, therefore, the delay has been occasioned in filing the complaint before the police. PWs 5 and 7, the Member and Pradhan of the Panchayat, have supported the contention of the informant and PW 4. PW 5 stated that he advised them (informant and PW 4) to wait for some days so that the matter can be settled and, in that process, he informed the matter to Pradhan, Dinesh Sarkar (PW 7) and others. They called the accused, Nam Gopal Sarkar but he (accused) did not appear before them. Thereafter, he asked them (informant and PW 4) after seven/eight days to take legal action against the accused after attending the police station and hospital, etc. PW 7 stated that he was reported about the incident by Nakul Sarkar (PW 5) and the informant and PW 4. On being informed he enquired from Nakul Sarkar (PW 5) whether the accused was called to verify the allegation to which PW 5 told him that he had already asked the accused to appear but the accused did not appear before them and he also in presence of the other members called the accused for ascertaining the truth but the accused did not appear. Thereafter, they advised the grandmother of the victim (Sova Rani Acharjee) and the informant (Rasaraj Acharjee) to approach the hospital and the police station. The above statements of the witnesses are enough to explain the delay in lodging the FIR. 7. The Supreme Court in the case of State of Himachal Pradesh Vs. Gian Chand reported in (2001) 6 SCC 71 : 2001 AIR SCW 1903 has held-- Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case. In the case of Sahebrao & Anr. Vs. State of Maharastra reported in AIR 2006 SC 2002 , the Supreme Court has held-- The settled principle of law of this Court is that delay in filing FIR by itself can not be a ground to doubt the prosecution case and discard it. The delay in lodging FIR would put the court on its guard to search if a plausible explanation has been offered and if offered whether it is satisfactory. In the case of Karnel Singh Vs. State reported in 1995 Crl. LJ. 4173 : (1995) 5 SCC 518 , the Apex Court has held that delay in lodging complaints in such cases in India does not raise inference that complaint was false. Reluctance to go to police is because of society's attitude towards such woman victim. In the case of Dildar Singh Vs. State of Punjab reported in (2006) 10 SCC 531 , the Supreme Court has held that the delay in lodging FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same. In the case of State of Chhattisgarh Vs. Derha reported in (2004) 9 SCC 699 , almost in a similar case of rape, the Supreme Court has held that the factum of delay in lodging FIR in such a case of rape is not material if the delay is found explained. The Court in paragraph 7 of the judgment has held-- 7. We have noticed the fact that there has been some delay in filing the complaint which according to us has been explained by PW 1, the mother. The fact that the father was out of station on the date of occurrence is not disputed. In such circumstances since it is a minor who was violated, the possibility of there being hesitation on the part of the mother to lodge a complaint cannot be overruled. The fact that the father was out of station on the date of occurrence is not disputed. In such circumstances since it is a minor who was violated, the possibility of there being hesitation on the part of the mother to lodge a complaint cannot be overruled. Even otherwise, the mere factum of delay in filing complaint in regard to an offence of this nature by itself would not be fatal so as to vitiate the prosecution case. The fact that the accused did not suffer any injury on his private parts also will not be of much help to him because he was medically examined 4 days after the incident in question. For the reasons stated above, we are satisfied that the High Court was in error in taking a view different from that of the trial court and acquitting the accused. In the case at hand, the incident of rape occurred as alleged on 20.08.2004. The victim disclosed the fact of rape to her grandmother on 23.08.2004. On that very day, the village Member and Pradhan and other respectable persons were informed by the informant, the paternal uncle and PW 4, the grandmother of the victim. They advised them to wait for a few days to enquire about the matter. The victim was examined by all of them to whom she disclosed the facts what was committed by the accused on her. The accused did not turn up to the village Member, Pradhan and others on their call and, therefore, they advised the informant and grandmother of the victim to report the police and to get the victim examined at hospital. Accordingly, on 31.08.2004, the victim was taken to IGM Hospital, which is also known as V.M. Hospital and then the matter was reported to the police. The delay in lodging the FIR, therefore, in the facts and circumstances of the case, stands satisfactorily explained and, I find nothing to appreciate the argument of learned counsel, Mr. Majumder for the appellant. 8. The next point raised by learned Counsel, Mr. Majumder is that the medical officer (PW 9), who examined the victim did not give a definite opinion that the prosecutrix was raped and that the grandmother of the prosecutrix applied some herbal medicine, which might have caused abrasions in the private parts of the victim. Majumder for the appellant. 8. The next point raised by learned Counsel, Mr. Majumder is that the medical officer (PW 9), who examined the victim did not give a definite opinion that the prosecutrix was raped and that the grandmother of the prosecutrix applied some herbal medicine, which might have caused abrasions in the private parts of the victim. Under such circumstances of the evidence, it was wrong for the trial Court to arrive at a conclusion that the prosecutrix was raped by the accused. Learned Addl. P.P., on the other hand, has submitted that the abrasions found in the upper part of vulva and in the perineum were positive sign of rape and, therefore, the trial Court arrived at a correct finding, which does not deserve interference. I have gone through the oral evidence of the prosecutrix and the medical evidence of PW 9. The prosecutrix is a minor girl aged about 7/8 years at the time of occurrence. No sexual character, naturally, developed in her. What vile act, the accused had committed with her, she categorically narrated it in Exbt. 7, i.e., the statement made by her before the Magistrate and in her deposition before the Court. The Court in a single word recorded it as rape committed by the accused. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape as explained in Section 375 of IPC. The victim categorically stated that the accused raped her. The question, which automatically arises, is what amounts to penetration. The earlier outlook in this regard was that the private parts of the accused enter into the person of the victim woman, that is, some part of the virile member of the accused must be within the labia of the pudendum of the woman, no matter how little and even if there was no actual seminal emission. Where there was no actual penetration but merely superficial application of force of the male organ to the private parts of the prosecutrix, the accused would be convicted under Section 376/ 511 for an attempt to commit rape. The modern outlook on the question is different. Mere vulval penetration without any vaginal penetration is sufficient to constitute rape. Where there was no actual penetration but merely superficial application of force of the male organ to the private parts of the prosecutrix, the accused would be convicted under Section 376/ 511 for an attempt to commit rape. The modern outlook on the question is different. Mere vulval penetration without any vaginal penetration is sufficient to constitute rape. Thus where the accused forcibly commits rape, say, in a standing position, and in course of that act the accused discharged semen on the private parts of the woman, it would constitute rape within the meaning of Section 376, no matter whether there was any injury or not on her private parts or her hymen was found to be intact. Thus even an attempt at penetration is quite sufficient to constitute 'penetration' for invoking Section 376. Where the accused made himself naked, taken out is male organ and with a view to penetrate it in the female organ of the victim, pushed it and it touches the vulva, in my considered opinion, it amounts to rape. In the present case, PW 9 has stated that on examination of the victim he found the following : (i) Victim conscious, oriented and vitals and stable. (ii) The public and auxiliary hair were not developed. (iii) Vulva was not well developed. (iv) Healed abrasion mark is seen on the upper part of the vulva measuring 2.5 x 0.5 C.M. size. (v) Healed abrasion is seen on the right side of perineum. (vi) Hymen-not ruptured. (vii) Vaginal orifice admit 1 finger with discomfort. (viii) White discharge present per vagina. No other injury except above found on her body. No foreign particle is found on her private parts. The doctor has opined thus : a) Rape upon the victim could not be ruled out. b) There was no positive finding found on the Genitalia. From the Physical/Dental, and Radiological examination-I found, the age of the victim was ranging from 5 to 8 years. This is my report marked Exbt. 4 and my signature on the report (two in number) are marked Exbt. 4/1 series. Abrasion marks on the private parts of the victim may be the positive sign for sexual intercourse. But it may also happen if the victim touches with sharp nails and for infection also it may so happen. After about 12 days of the incident I examined the victim. 4/1 series. Abrasion marks on the private parts of the victim may be the positive sign for sexual intercourse. But it may also happen if the victim touches with sharp nails and for infection also it may so happen. After about 12 days of the incident I examined the victim. Defence cross-examined the witness and in cross-examination he stated-- It is very difficult to commit sexual intercourse by an adult of 40 years upon a minor girl of 8 years without injury. Here in the instant case the hymen of the victim was found intact but not ruptured. I am not definite in the instant case in view of the above position whether the accused committed rape upon the victim. Generally, out of excitement somebody may enjoy even without penetration. I did not find any injury mark on the penis of the accused. A careful reading of the above evidence of the medical officer shows that there was abrasion in the private parts, which might have occurred because of the penetration alleged to have made by the accused. The prosecutrix has admitted in her cross-examination that here grandmother applied some herbal medicine while her private parts were etching. On some earlier occasions also some herbal medicine was applied. The doctor did not find any infection in the vagina of the prosecutrix. He only found healed abrasion. In cross-examination also nothing reveals that because of any infection, which might have caused before the alleged occurrence of rape, the victim might have suffered abrasion. Under such circumstances, the evidence of the doctor has to be read positively in favour of the version of the prosecutrix and not otherwise. No doubt, medical evidence is very important in a trial for rape, as, without medical examination of the victim no Court will possibly infer that intercourse has taken place in that particular vagina. If the medical officer who has examined the victim fails to do what he is expected to do, the defence may seriously urge rejection of the said medical opinion. If the medical opinion does not support the story of the commission of rape, defence may very well rely on it. If no sign of rape is detected by the doctor, it certainly speaks in volume in favour of the defence plea of not guilty and the task of the prosecution thereby becomes more onerous. If the medical opinion does not support the story of the commission of rape, defence may very well rely on it. If no sign of rape is detected by the doctor, it certainly speaks in volume in favour of the defence plea of not guilty and the task of the prosecution thereby becomes more onerous. But medical opinion cannot be the final say in the matter in either way. Rape is not a medical diagnosis, it is a legal definition. The only statement that can be made by the medical officer is that there is or is no evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion to be drawn by the Court and not by a medical opinion. Even where the opinion of the medical officer is that no rape appears to have been committed, the Court can hold otherwise where the other evidence, especially of the prosecutrix is cogent and trustworthy. The modem outlook in the matter of evaluating the statement of a prosecutrix has also undergone a sea-change. She is no more considered to be an accomplice, rather the evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Seeking corroboration of her statement before relying upon the same amounts to adding insult to injury. The Court, while appreciating the evidence of a prosecutrix, necessarily looks for some assurance of her statement to satisfy its judicial conscience and that is why medical opinion is invariably sought for in every case. In the present case, where the doctor has found some positive signs of rape, which could not be destroyed in cross-examination or otherwise, the trial Court rightly arrived at a conclusion that there was penetration and, therefore, the accused was rightly held guilty of rape. 9. While there is no evidence on record in respect of animosity between the informant and other witnesses and the accused, I find nothing to doubt the prosecution case. There is nothing to draw an inference that the prosecutrix was falsely planted by the witnesses to make a false charge of rape against the accused. It is an undisputed fact that the destitute prosecutrix has now been sheltered in an orphanage where she is prosecuting studies. There is nothing to draw an inference that the prosecutrix was falsely planted by the witnesses to make a false charge of rape against the accused. It is an undisputed fact that the destitute prosecutrix has now been sheltered in an orphanage where she is prosecuting studies. Defence has suggested that to get the prosecutrix admitted in the orphanage, a false case was made out. Such suggestion deserves no consideration at all in the facts and circumstances of the case. 10. In view of the discussions made above, I find no merit in the appeal and the appeal, therefore, stands dismissed. The convict should therefore serve out the sentence. 11. Send back the L.C. records along with a copy of the judgment. I feel it appropriate to appreciate the assistance rendered by learned amicus curiae, Mr. P. Majumder and he should be paid the fees as admissible to a panel lawyer of the High Court. Appeal dismissed.