Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 1359 (GAU)

Premlal Jambekar v. State of Tripura

2012-12-21

SUBHASIS TALAPATRA

body2012
JUDGMENT Subhasis Talapatra, J. 1. This appeal filed under Section 374 of the Criminal Procedure Code is directed against the judgment of conviction and order of sentence dated 06.03.2006 passed by the Asstt. Sessions Judge, West Tripura, Agartala, Court No. 2 in S.T (W.T/A) No. 99 of 2005 convicting the appellant under Section 376(2)(f) of the IPC and sentencing him to suffer R.I. for a period of 10(ten) years along with a fine of Rs.5,000/-, in default of payment of fine he has been directed to suffer further R.I for two years with a direction that if the fine money is realized, rupees four thousand would be given to the victim girl through her father. As it reveals from the records, the prosecution was launched against the appellant on the strength of the complaint filed by Sajal Deb, the father of the victim stating inter alia that his daughter have been traceless from a place near by his fast food shop at Ushabazar on her way to home about 10 O'clock at night. It has been disclosed that the appellant finding her on the way took to his residence by alluring and raped his daughter. On the following day, when his daughter was recovered, the informant came to know about the incident from her. The Airport Police Station, registered a case against the appellant under Section 376 IPC being Airport P.S. Case No. 41 of 2004 and on completion of the investigation the charge sheet was filed against the appellant and accordingly it was committed the offence as alleged was exclusively triable by the Court of Session, to the Sessions Judge, West Tripura, Agartala who transferred the case for trial to the Asstt. Sessions Judge, West Tripura, Agartala, Court No. 2. The trial Judge framed the following charge against the appellant. That you on the night of 20th October, 2004, at any time at your rented house at South Narayanpur under Airport Police Station, committed rape on Kumari Champa Deb, then aged about 10 years, daughter of Sajal Deb and thereby committed an offence punishable under Section 376(2)(f) of the I.P.C. and within the cognizance of the Court of Session. The appellant pleaded not guilty and claimed to be tried. The appellant pleaded not guilty and claimed to be tried. The prosecution to drive the charge at home examined as many as 10 witnesses including the prosecutrix and the parents and also brought on evidence the medical examination report, hands sketch map, seizure list. 2. The informant, Sajal Deb while examined as the PW-1, stated that the victim came to his shop which is situated at Ushabazar during the Durga Puja festival at about 08.30 p.m. and around 9.30 p.m. she left for home. After sometimes his wife namely Basana Deb returned home to ascertain whether the prosecutrix/victim had returned home safely. But having not found the prosecutrix there the PW-1 and his wife started searching for their daughter. On the following morning at about 7 am they could learn that their daughter was found in the house of one Harimohan Sarkar at South Narayanpur. Immediately they rushed to the house. The house owner namely, Harimohan Sarkar informed them, their daughter/prosecutrix was in the room of the appellant, a tenant of his and a CRPF personnel. During that time a police van arrived there and their daughter, the prosecutrix was found in the room. At about 9.30 am police personnel assembled there, the appellant was not found in the room at that time. Harimohan Sarkar and his wife told the PW-1 and his wife that the appellant had left the place. He further stated that the prosecutrix told that the appellant put her on his bed. Thereafter the prosecutrix and her parents were taken to the Airport police station. A written complaint was filed there by the PW-1 which he marked as Ext. 1. Thereafter they accompanied the prosecutrix when the police directed them not to allow the prosecutrix to have a bath etc. The Police took the prosecutrix to the IGM Hospital, where she was admitted for four days as the prosecutrix complained of pain in her private parts. In examination-in-chief, the PW-1 stated that they found the wife of the appellant in the house but he denied all the suggestions indicating that the appellant was falsely implicated or that the prosecutrix was not found in the room of the appellant. 3. In examination-in-chief, the PW-1 stated that they found the wife of the appellant in the house but he denied all the suggestions indicating that the appellant was falsely implicated or that the prosecutrix was not found in the room of the appellant. 3. The PW.2 a child witness namely, Swapan Sarkar after due test of his intelligence and maturity to comprehend was examined when he stated: During Durgapuja, one night, Premlal took me to his house from Ushabajar saying that he would take me to my house. So, I accompanied him. It was night. Reaching his house, he asked me to lie down on a gunny bag. Kutty was also taken to his house from Ushabazar. Premlal asked Kutty to lie down on the bed. In the later part of the night, my parents rescued me. In the examination-in-chief the said child witness stated that he did not sleep in the room and the entire room was visible from where he was sitting. 4. The mother of the PW.2 namely, Smt. Jyostna Sarkar was also examined as the PW.3, who stated that finding their son had not returned home, on their search they could learn from one Sajal Sarkar that their son was taken by the appellant to his house. When they appeared in the rented house of the appellant, the landlord opened the gate. When she called out the appellant, he opened the door and brought Swapan from his room. When she asked the appellant why he detained his son, instead of giving the reply he asked her to shut up. The PW.3 also stated that they found the prosecutrix inside the room, she called her by name. At that moment the landlord wife and 15/20 persons entered into the room and brought the prosecutrix from his room. In the examination-in-chief she deposed that she stated to the police that she found the prosecutrix in the room of the appellant without pant but such statement however was not found in the statement as recorded under 161 Cr.P.C. She denied suggestions as projected by the defence and was not acceded to by the PW 3. 5. The PW 4 namely, Laxmi Rani Das is the wife of the landlord who stated that at about 2 am on Saptami night of Durga Puja, the year before the last she heard some people calling from outside. 5. The PW 4 namely, Laxmi Rani Das is the wife of the landlord who stated that at about 2 am on Saptami night of Durga Puja, the year before the last she heard some people calling from outside. Having been called, the appellant opened the door and she heard cries of a boy inside the room. A lady peeped through the room and she uttered that there had been a girl inside. The PW 4 confirmed that she also saw the girl was inside the room and was naked. When she called the nearby persons the appellant left the room. When she asked the boy as to what happened, the boy stated that he was asked by the appellant to sleep on gunny bag on the floor and the' appellant and the girl were on the cot. The PW 4 stated that she asked the girl to narrate what happened but she was not in a state to speak out. She stated that the girl appeared to her of simple nature but she categorically stated in the examination-in-chief that at the relevant point, the appellant's wife was not there in her house that night. She denied all the suggestions as indicated by the defence to demolish the prosecution case. 6. The prosecutrix was examined after due lest of her maturity, comprehension, prudence and alert as she was at the time of examination was only aged 11 years. The Court observed during the examination that she denied to identify the appellant and she did not state anything in detail only but to say that she was assaulted there. In the cross-examination, she stated that she was not taken by anybody and that she was not afraid. 7. The PW.6 namely, Basana Deb, the mother of the prosecutrix who corroborated the version of the PW-1. She also stated that the prosecutrix was found naked and her frock was not in order and her panty was lying below the cot. Having been asked she (the prosecutrix) stated that the CRPF man inserted his penis through her private part, meant for passing urine. She asserted that she was found bleeding from that place. The appellant was not found there. The appellant's wife having asked his where about could not answer satisfactorily. Having been asked she (the prosecutrix) stated that the CRPF man inserted his penis through her private part, meant for passing urine. She asserted that she was found bleeding from that place. The appellant was not found there. The appellant's wife having asked his where about could not answer satisfactorily. She also stated that police arrived at the place of occurrence when they were there and the police also seized the panty of the prosecutrix and she identified the said panty as Ext. M.O.1. On the following morning she was taken to the BRAM Hospital by the police and therefrom to the IGM Hospital where she got treatment for four days. She was confronted at the cross-examination whether she stated to the police officer that she found the prosecutrix without panty and her frock was not in order. It appears that she answered in the affirmative but no such statement could not be found in the previous statement as recorded under Section 161 Cr.P.C. She denied the suggestions contrary to the prosecution case. She further stated that the prosecutrix is not fully normal so for as her normal activities and conversation are concerned. 8. A neighbour of Harimohan Das namely, Dilip Bhattacharjee was examined as the PW.7 who stated that he was called by Laxmi Rani Das, the PW 4 and he got up at that night and appeared in the house of Harimohan Das. He also found that girl in the room of the appellant who was a tenant of Harimohan Das, but the appellant was not found at that place. However, in the examination-in-chief he stated that he found the girl sitting on the bed wearing frock. 9. Utpal Chakraborty, who was taking tea in a tea stall situated opposite the Airport P.S. was examined as the PW. 8 as he scribed the complaint as dictated by the PW-1. He admitted his writing. 10. The PW.9, the Medical Officer namely, Dr. Shyamal Sarkar examined the prosecutrix on the following day of the occurrence. He stated that in connection with Airport P.S. Case No. 41 of 2004, he examined the prosecutrix and found that hymen was raptured in multiple sites 6, 7 & 8 O'clock position. There was bleeding on touch. Perineum-2nd degree tear and bleeding on touch, severely tender. Vaginal orifice difficult to admit index finger due to injury and bleeding. He stated that in connection with Airport P.S. Case No. 41 of 2004, he examined the prosecutrix and found that hymen was raptured in multiple sites 6, 7 & 8 O'clock position. There was bleeding on touch. Perineum-2nd degree tear and bleeding on touch, severely tender. Vaginal orifice difficult to admit index finger due to injury and bleeding. On breasts, multiple abrasions were found around both nipples caused by finger nails. He categorically opined that prosecutrix was subjected to intercourse. He also examined the appellant, who on examination found capable in performing sexual intercourse. He identified his report and signature as Exts. 3 and 3/1. In the cross-examination he admitted that he did not mention the age of the injuries in the ruptured hymen but from the nature of the injuries he stated that the injuries mentioned in the report, it could be determined that within 72 hours from the day of examination and from the injuries the exact time of incident cannot be determined. The Medical Officer also asserted that the victim complained of severe pains for which the test inserting finger could not be conducted. 11. The Officer-in-Charge of the Airport Police Station at the relevant point of time i.e. on 21.10.2004 was examined as the PW.10 who stated that one Ranjit Koloi received the ejahar and thereafter the Airport P.S. Case No. 41 of 2004 was registered. He identified the signature of Ranjit Koloi. He stated that he took up the investigation and left for the place of occurrence, prepared the site map with separate index. Thereafter he examined and recorded the statement of Laxmi Rani Das and the prosecutrix and arranged the medical examination of the prosecutrix. Thereafter he recorded the statement of the other witnesses. On his request the appellant was produced before the police station and he was taken into custody after observing all formalities. Thereafter on the same day the accused was sent for the potency test He narrated how he conducted the investigation and filed the charge sheet after receiving the injury report He also identified the seizure list as well as the panty, Ext. M.O.1 which he seized during his investigation. A prima facie case having been established on investigation he filed the summary report by the authority and thereafter filed the charge sheet under Sections 342, 506, 376 of the Indian Penal Code against the appellant. M.O.1 which he seized during his investigation. A prima facie case having been established on investigation he filed the summary report by the authority and thereafter filed the charge sheet under Sections 342, 506, 376 of the Indian Penal Code against the appellant. He denied the suggestions as projected by the defence to establish that the appellant was falsely implicated in the case. The appellant was examined under Section 313 of the Cr.P.C. on relevant incriminating questions separately but he denied his involvement. The trial Court on appreciation of the evidence so led passed the impugned judgment and order convicting and sentencing the appellant under Section 376(2)(f) of the IPC. 12. Mr. R. Dutta, learned counsel appearing for the appellant submitted that there is no proof of penetration. Moreover at the time of examination of the prosecutrix, she did not incriminate the appellant and as such all other witnesses being hearsay cannot contribute any evidentiary value for providing the foundation of the finding of the conviction and sentence. At first, he referred to the Modi's' Medical Jurisprudence to high-light the infirmities in the medical examination. Particularly in determining the age of the injuries as stated to have found on the genital parts of the prosecutrix. Apart that he has cited a decision of the Apex Court in Mayur Panabhai Shan Vs. State of Gujarat', reported in (1982) 2 SCC 396 where the observation as excerpted has been made by the Apex Court as regards the expert evidence: ***Even where a doctor has deposed in Court, his evidence has got to be appreciated like the evidence of any other witness and there is no irrebuttable presumption that a doctor is always a witness of truth **** In this context Mr. Datta, learned counsel referring to the said opinion stated that evidence of the examining doctor ought not to have been believed by the trial Court. He also relied another decision of the Apex Court in Ram Deo Chauhan @ Raj Nath Chauhan Vs. State of Assam; reported in AIR 2001 SC 2231 where the Apex Court observed: 43. Datta, learned counsel referring to the said opinion stated that evidence of the examining doctor ought not to have been believed by the trial Court. He also relied another decision of the Apex Court in Ram Deo Chauhan @ Raj Nath Chauhan Vs. State of Assam; reported in AIR 2001 SC 2231 where the Apex Court observed: 43. Relying upon a judgment of this Court in Jaya Mala V. Home Secretary, Government of Jammu and Kashmir, (1982) 2 SCC 538 : AIR 1982 SC 1297 ), the learned defence counsel submitted that the Court can take notice that the marginal error in age ascertained by radiological examination is two years at either side. The aforesaid case is of no help to the accused inasmuch as in that case the Court was dealing with the age of a detenu taken in preventive custody and was not determining the extent of sentence to be awarded upon conviction of an offence. Otherwise also even if the observation made in the aforesaid judgment are taken note of, it does not help the accused in any case. The doctor has opinioned the age of the accused to be admittedly more than 20 years and less than 25 years. The statement of the doctor is no more than an opinion, the Court has to base its conclusions upon all the facts and circumstances disclosed on examining of the physical features of the person whose age is in question, in conjunction with such oral testimony as may be available. An X-ray ossification test may provide a surer basis for determining the age of an individual than the opinion of a medical expert but it can by no means be so infallible and accurate a test as to indicate the exact date of birth of the person concerned. Too much of reliance cannot be placed upon text books, on medical jurisprudence and toxicology while determining the age of an accused. In this vast country with varied latitude, heights environment, vegetation and nutrition, the height and weight cannot be expected to be uniform. In Ram Deo Chauhan (supra) as it is apparent that Apex Court stated that too much of reliance should not be placed upon the text books on medical jurisprudence and toxicology by the expert at the time of examination in any case. 13. In Ram Deo Chauhan (supra) as it is apparent that Apex Court stated that too much of reliance should not be placed upon the text books on medical jurisprudence and toxicology by the expert at the time of examination in any case. 13. Reliance was also placed on the decision of the Apex Court in Ramakant Rai Vs. Madan Rai & Ors.; reported in 2004 CRI. L.J. 36 where the Apex Court has stated that ***where the eyewitnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bantham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eyewitnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the credit of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. In Ramakant Rai (supra) it has been further held as under: 23. A person has, no doubt; a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to 'proof is an exercise particular to each case. Referring to of probability amounts to 'proof is an exercise the inter dependence of evidence and the confirmation of one piece of evidence by another a learned author says: (See "The Mathematics of Proof II": Glanville Williams: Criminal Law Review, 1979, by Sweet and Maxwell, P. 340 (342). The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A junior may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather man innocent people who make confessions and guilty rather man innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other. 24. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. 25. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J. (as His Lordship then was) in State of U.P. V. Krishna Gopal & Anr. ( AIR 1988 SC 2154 ). 26. As was noted by this Court in Gurcharan Singh & Anr. V. State of Punjab ( AIR 1963 SC 340 ) non-examination of the ballistic report does not render direct evidence improbable. 14. In State of Madhya Pradesh Vs. ( AIR 1988 SC 2154 ). 26. As was noted by this Court in Gurcharan Singh & Anr. V. State of Punjab ( AIR 1963 SC 340 ) non-examination of the ballistic report does not render direct evidence improbable. 14. In State of Madhya Pradesh Vs. Dharkole @ Govind Singh & Ors.; reported in 2005 CRI LJ. 108 the Apex Court held as below; 8. Coming to the plea that the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye-witnesses' account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant". 9. It is trite that where the eyewitnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bantham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eyewitnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the credit of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. 15. In Bibhishan Vs. State of Maharashtra; reported in 2008 CRI L.J. 721 the Apex Court held that: Since they did not find in the evidence of the doctor there was no injury on the body of the prosecutrix Anita. There was no sign of semen on the private part of the body. Neither her clothes were torn nor there was any presence of hair of the accused on the private part of the prosecutrix. The doctor after examining the prosecutrix deposed that the girl was habituated to sexual intercourse. There was no sign of semen on the private part of the body. Neither her clothes were torn nor there was any presence of hair of the accused on the private part of the prosecutrix. The doctor after examining the prosecutrix deposed that the girl was habituated to sexual intercourse. In view of that category of the evidence, the Apex Court was of the opinion that the High Court has not correctly appreciated the evidence and has wrongly convicted the accused-appellant and as such interfered with the judgment and order of conviction and sentence. This case has no relevance in the context of the present case in hand. 16. Mr. Dutta, learned counsel also relied on the decision of the Apex Court in Rajoo & Ors. Vs State of M.P. reported in AIR 2009 SC 858 , the Apex Court in a different context held that 9. ***the basic principle that ordinarily the evidence of a prosecutrix should not be suspect and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the Court. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration. Reference has been made in Gurmit Singh's case to the amendments in 1983 to Sections 375 and 376 of the India Penal Code making the penal provisions relating to rape more stringent, and also to Section 114A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113A and 113B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two Sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualized as the presumption under Section 114A is extremely restricted in its applicability. This clearly shows that in so far as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined. 17. Mr. A. Ghosh, learned Addl. P.P. appearing for the State on the other hand referring to the statements of the PW.1, the PW.3, the PW 4, the PW.6 and the PW.9 categorically submitted that the finding of conviction cannot be faulted with. A cumulative reading of these oral testimonies along with the Medical Examination Report (Ext. 3) would make it abundantly clear without any shred of doubt that the appellant has committed penetration and thus committed an offence punishable under Section 376(2)(f) of the IPC. He urged that the finding does not deserve to be examined with any liberal approach, else the society would one day turn into an unsafe place for the women folk. 18. On reference to the decisions, Mr. He urged that the finding does not deserve to be examined with any liberal approach, else the society would one day turn into an unsafe place for the women folk. 18. On reference to the decisions, Mr. R. Dutta, learned counsel appearing for the appellant highlighted vehemently two points: (1) There is vital deviations in the ocular evidence and the Medical Examination Report and as such Medical Examination Report should not be believed at all; and (2) since the prosecutrix did not state anything against the appellant, the other witnesses are to be treated to be as hearsay witnesses and their evidence should not be believed by this Court as the prosecutrix stated nothing to those persons immediately after recovery. Apparently though, some force is there in the submissions of Mr. R. Dutta, learned counsel for the appellant. The age of the prosecutrix at the time of occurrence was not laid in the evidence but from a cumulative reading, particularly the statement of the prosecutrix and the Medical Examination Report it would be apparent that as regards the prosecutrix age at 10 at the time of the occurrence was not confronted by the defence. At such tender age it is highly difficult to come out openly about such traumatic experience. But the PW.3, the PW 4 and the PW.6 are not there hearsay witnesses as those witnesses categorically stated that they found the prosecutrix without her panty and her frock disheveled. Particularly the PW.6 had categorically stated that she found the panty of the prosecutrix lying below the cot. The eye witness (PW-2) was aged only seven years old and what he stated is abrupt but not contrary to what the other witnesses stated. The defence did not confront those witnesses with any direct question regarding the conduct of the appellant with the prosecutrix. The silence cannot take place of the denial. The silence is all the time doubled-edged weapon and it can be interpreted in the context of the other dimensions. In this case, there are other elements. This silence would not absolve the appellant from his conduct as alleged. The prosecution has very strongly established that the prosecutrix was recovered from the tenanted room of the appellant at the wee hour of the night and while the PW.3 intervened in the proceeding and thereafter the appellant had disappeared from the place of occurrence. This silence would not absolve the appellant from his conduct as alleged. The prosecution has very strongly established that the prosecutrix was recovered from the tenanted room of the appellant at the wee hour of the night and while the PW.3 intervened in the proceeding and thereafter the appellant had disappeared from the place of occurrence. Even the PW 4, the wife of the landlord of the appellant categorically stated at the relevant point of time his wife was not in the house. By this evidence it has been categorically established that probability of having found the prosecutrix without her panty add complaining of pain in the private parts and the description how the appellant conducted with her would strongly pointed to the forceful penetration for committing rape. This statement of penetration was not confronted by the defence, however, the defence tried to contradict the prosecutrix being without the panty and her panty having found lying below the cot. Bleeding in the lower private part was noticed. The other witnesses such as the PW-4 was not confronted at all regarding her statement that the girl was sitting inside the room and she was naked. 19. A joint reading of the oral testimonies of the PW.9 and the Ext. 3 it would be established that the prosecutrix was sexually assaulted. What the prosecutrix meant in the Court by sexual assault, it has been established that by availed from the other witnesses that she was forcefully raped. The decision of the Apex Court is completely set up in a different context. In the present case when the Court is dealing with the charge of commission of rape on a person aged below 12 years. No doubt, here and there some deviations are noticed. Nature of the assault had found eloquence in the medical examination report From the oral testimonies of the PW-9 and the report it is noticed that multiple abrasions were found around both the nipples of the breast of the prosecutrix and serious injury and rupture in the hyman with bleeding, when the prosecutrix was examined within 72 hours from the time of occurrence, no doubt unfolded the truth. On cumulative assessment of the evidence as a whole, this Court does not find any infirmity in the finding by the trial Court and as such no interference whatsoever as prayed for is required at all. 20. On cumulative assessment of the evidence as a whole, this Court does not find any infirmity in the finding by the trial Court and as such no interference whatsoever as prayed for is required at all. 20. For the reasons as discussed, this appeal is devoid of merit and accordingly, the same stands dismissed. The LCR be returned forthwith. Appeal dismissed.