JUDGMENT I.A. Ansari, J. 1. This appeal is directed against the judgment and order, dated 04.08.2009, passed by the learned Additional Sessions Judge (FTC), Kamrup, in Sessions Case No. 342(H)/2008, convicting the accused-appellant under Sections 376, IPC and 323, IPC and sentencing him to suffer, for his conviction under Section 376, IPC, rigorous imprisonment for a period of 7 years and pay fine of Rs. 10,000/- and, in default, suffer rigorous imprisonment for one month with further direction that the amount of fine shall, if realized from the convicted person, be paid to the victim girl as compensation, and also sentencing the accused-appellant, for his conviction under Section 323, IPC, to suffer rigorous imprisonment for a period of one month. The case of the prosecution, as unfolded at the trial, may, in brief, be described thus: (i) S.P. (PW 5) is daughter of PW 1 and PW 2, the accused being their neighbour. On 12.09.2004, PW 1 and PW 2 had gone to a local fare organized by their local club, which is run under the name and style of Luit Nagar Club, where a lottery was also to be held. On that very day, i.e., 12.09.2004, at about 4-00 p.m., the accused, taking advantage of the fact that PW 5 was alone at her house, entered into the house, closed the door from inside and forcibly had sexual intercourse with her. On being asked by her husband to go home in order to light the lamps, because evening had started setting in and PW 5 was alone at the house, when PW 2 was proceeding towards her house, she saw the accused coming out of the house, followed by her daughter (PW 5), who was crying, and, on being asked by PW 2, PW 5 reported to her (PW 2) that the accused forcibly had sexual intercourse with her. On being reported about what the accused had done to their daughter, when PW 1 was returning home, he happened to meet the accused on the way and when he enquired from the accused about the incident, the accused pelted stone, which fell on the wrist of PW 1 and he sustained injury. On the same day, i.e., 12.09.2004, a written information was lodged by PW 1 and treating the same as First Information Report, a case was registered against the accused under Sections 376/ 323/ 506, IPC. On the same day, i.e., 12.09.2004, a written information was lodged by PW 1 and treating the same as First Information Report, a case was registered against the accused under Sections 376/ 323/ 506, IPC. (ii) During the course of investigation, PW 5 was subjected to medical examination. The medical examination, conducted by PW 8, revealed that she had been subjected to sexual intercourse and the doctor's finding indicated that PW 5's hymen was found torn and, on being touched, there was bleeding. The examination of vaginal smears also revealed presence of sparmatozoa. The doctor (PW 8) further opined that PW 5 was aged above 14 years, but below 16 years and that there was sign of recent sexual intercourse on her person. The chemical examination, conducted by the Forensic Science Laboratory, on the torn panty of the PW 5, revealed stains of semen. Another doctor (PW 6) found lacerated wound on the dorsal aspect of the right wrist of PW 1, the injury being fresh, simple and caused by blunt weapon. On completion of investigation, police laid charge-sheet against the accused, under Sections 376/ 323/ 506, IPC, showing the accused as an absconder. 2. During trial, charges, under Section 376 and 323, IPC, were framed against the accused. To the charges, so framed, the accused pleaded not guilty. 3. In support of their case, prosecution examined altogether 8 witnesses. The accused was, then, examined under Section 313, Cr PC, wherein he denied to have committed the offences, which were alleged to have been committed by him, the case of the defence being that of total denial. The defence, too, adduced evidence by examining two witnesses. Having, however, found the 'accused guilty of the offences charged with, the learned trial Court has convicted him accordingly and passed sentences against him as mentioned above. Hence, this appeal by the convicted person. 4. I have heard Mr. P. Kataki, learned counsel for the accused- appellant, and Mr. D. Das, learned Additional Public Prosecutor, Assam. 5. While considering the present appeal, it may be borne in mind that PW 1 is the father of PW 5 and PW 2 is her (PW 5's) mother. PW 3 and PW 4 are neighbours of the informant. PW 6 and PW 8 are doctors, who examined PW 1 and PW 5 respectively. PW 7 is the Investigating Officer. 6. While considering the present appeal, it may be borne in mind that PW 1 is the father of PW 5 and PW 2 is her (PW 5's) mother. PW 3 and PW 4 are neighbours of the informant. PW 6 and PW 8 are doctors, who examined PW 1 and PW 5 respectively. PW 7 is the Investigating Officer. 6. Let me, first, deal with the evidence of PW 5. According to her evidence, accused stays near her house, a lottery was held at Luit Nagar, her parents and brother had gone to see the fair, she was alone in the house so that she could fasten the cows and goats. 7. Describing the occurrence, PW 5 has deposed that while she was working in her house, the accused entered into her house, closed the doors, threw her on the bed. PW 5 has also deposed that at that time, she was wearing frock and panty, the accused removed her panty, put off his half pant, climbed on her and committed sexual intercourse with her and he (the accused) discharged white sticky substance on her stomach and, on completion of the sexual act, the accused went away in his scooty, but her mother (PW 2) saw the accused going. PW 5 has further deposed, that she disclosed the incident to her mother as soon as her mother (PW 2) arrived. 8. It is in the evidence of PW 5 that her mother chased the accused and while her father (PW 1) chased the accused, the accused, on noticing her father, pelted stone on him. It is also in the evidence of PW 5 that on lodging FIR at the police station, police came and seized her panty and frock and, on the following day, she was examined by a doctor. 9. In her cross-examination, PW 5 has deposed that the accused removed her panty and not the frock and there was no white discharge, on the frock, but the white discharge from the accused was on the panty alone and when she was about to raise hue and cry, the accused pressed her mouth. 10. 9. In her cross-examination, PW 5 has deposed that the accused removed her panty and not the frock and there was no white discharge, on the frock, but the white discharge from the accused was on the panty alone and when she was about to raise hue and cry, the accused pressed her mouth. 10. What is of utmost importance to note, in the evidence of PW 5, is that the house of Maya Chandra Patowari is near the house of the victim, where Maya Chandra Patowari stays with his children, but at the time of occurrence, they were not at their house. 11. Though PW 5 has been put to cross-examination by the defence, nothing could be elicited by the defence to show that the material aspects of her evidence, that the accused had sexual intercourse with her, is untrue or false. 12. Close on the heels of the evidence of PW 5 is the evidence of PW 8, the doctor, who was then serving as Professor and Head of the Department of Forensic Medicine, GMC, and has physically examined PW 5 on 13-09-2004. The evidence of PW 8 reads as under: Physical examination : Height-156 cm, Chest girth-79 cm, Abdomen girth-68 cm. 28 numbers permanent teeth of person. Scalp hair black in colour and 45 cm long. Auxiliary hair 1-2 cm long sparse & black in colour. Breast-developed, nipple-developed, no discharge. Genital examination : Genital organs are healthy. Vulva- on lithotomy position posteiosly slightly separated. Hymen-recent tears at 3, 9 and 12 O' Clock position, which bleeds on touch. Vaginal smears taken on slides for laboratory investigation. Two slides taken from post fornix. Result of laboratory investigation : Vaginal smears taken from the posterior fornix and vaginal channel shows spermatozoa but not gonococci. Radiological Investigation : X-ray reports: Skiagram No. 329 dated 15-09-04 reported by Dr. D Bhuyan on 15-09-05. 13. On the basis of the physical examination, radiological and laboratory investigation of the victim girl, the doctor was of the opinion that the girl, i.e., PW 5, was above 14 years, but below 16 years old and that there was sign of recent sexual intercourse present on her person. 14. D Bhuyan on 15-09-05. 13. On the basis of the physical examination, radiological and laboratory investigation of the victim girl, the doctor was of the opinion that the girl, i.e., PW 5, was above 14 years, but below 16 years old and that there was sign of recent sexual intercourse present on her person. 14. What is curious to note is that in the cross-examination of PW 8, the doctor's finding, as regards the fact that the vaginal smears reveals spermatozoa and the doctor's opinion that there was sign of recent sexual intercourse on the person of PW 5, went wholly unchallenged by defence. Even the doctor's evidence that there was recent tears on the hymen of PW 5 and that, on being touched, there was bleeding remained intact. 15. Though by making a miscellaneous application, which gave rise to Crl. Misc. Case No. 725 of 2009 and which has been disposed of today, the appellant sought to adduce further evidence by examining headmaster of the school, where PW 5 is claimed to have studied, to show her age, the most important and relevant aspect of this case is not the age of PW 5, but the question whether she had or had not been subjected to sexual intercourse by the accused and if so, whether the sexual intercourse was forcible or otherwise. In this regard, it has been submitted, on behalf of the appellant, that even if there was sexual intercourse by the accused-appellant with PW 5, the sexual intercourse was with the 'consent' of PW 5. 16. From the unshaken evidence of PW 5 coupled with the medical evidence on record, there can be no escape from the conclusion that PW 5 was, indeed, subjected to sexual intercourse by the accused. Bearing this aspect in mind, let me turn to Section 114-A of the Evidence Act, which raises presumption as to absence of 'consent' in certain prosecutions for rape. Bearing this aspect in mind, let me turn to Section 114-A of the Evidence Act, which raises presumption as to absence of 'consent' in certain prosecutions for rape. Section 114A states that in a prosecution for rape, under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of Section 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the 'consent' of the woman alleged to have been raped and she states, in her evidence before the Court, that she did not 'consent', the Court shall presume that she did not 'consent'. 17. Since the evidence of PW 5 coupled with the medical evidence on record proves that the accused had sexual intercourse with PW 5 and when PW 5 claims that the sexual intercourse, which the accused had with her, was without her 'consent', it becomes bounded duty of the accused appellant to discharge the presumption, as envisaged by Section 114A, by showing that the sexual intercourse, which he had with PW 5, was with her 'consent'. This could have been done by the defence either by cross-examining the prosecution witnesses, more particularly, PW 5 or by adducing evidence. The accused-appellant has miserably failed to show existence of 'consent' on the part of PW 5, to the sexual intercourse, which PW 5 had been subjected to. 18. In the circumstances indicated above, when the evidence on record, as discussed above, clearly shows that PW 5 was subjected to sexual intercourse by the accused and when she claims that the sexual intercourse was without her 'consent' and when the accused-appellant has miserably failed to prove that 'consent' existed, one has really no option but to conclude, and I conclude, that the sexual intercourse, which the accused-appellant, in the light of the evidence of PW 5, read with the medical evidence on record, had with PW 5, was without her 'consent' and such sexual intercourse, as the evidence on record proves, amounted to commission of the offence of rape by the accused appellant. Considered in this light, it is wholly immaterial if PW 5 was or was not major at the relevant point of time. 19. Considered in this light, it is wholly immaterial if PW 5 was or was not major at the relevant point of time. 19. Coupled with the above, what may also be noticed is that PW 2, mother of PW 5, has deposed that on the day of the occurrence, a fair had been organized in the nearby club, where she had gone along with other members of her family, but PW 5 was left alone in the home and when she (PW 2) came in order to light the lamp, she saw the accused coming out of her house followed by her daughter. It is in the evidence of PW 2 that on being reported by her daughter that the accused had sexual intercourse with PW 5, she chased the accused, brought him back and, in the meanwhile, her husband came and she (PW 2) told her husband everything. It is also in the evidence of PW 2 that thereafter, the accused pelted stone at her husband, her husband received injury, which caused bleeding. 20. Broadly in tune with the evidence of PW 2, PW 1 (father of PW 5) has deposed that he and his wife (PW 2) had gone to Luit Nagar club at about 4 O' clock, where a fair had been organized, leaving behind their daughter (PW 5) at home and after some time, he sent his wife to his house, but his wife came back running and reported that the accused had committed rape on PW 5, whereupon he (PW 1) rushed to the house and found the accused, but the accused felted stone and caused him (PW 1) injury. PW 1 has also deposed that on reaching home, when he asked his daughter, she reported that the accused had sexual intercourse with her inside the house and he (PW 1), then, went to the club, got an ejahar written by the President of the Club and lodged the same at Noonmati Police Station. 21. In his cross-examination, PW 1 has clarified that the distance between the house of PW 1 and the club is around 100 meters and at that time, about 100/120 persons were present in the said club. 21. In his cross-examination, PW 1 has clarified that the distance between the house of PW 1 and the club is around 100 meters and at that time, about 100/120 persons were present in the said club. PW 1 has also clarified that if there was hue and cry, raised from his house, the same would not be audible in the club and near his house is the house of Pre Lal Kurmi and by the side of Pre Lal Kurmi's house is the house of the accused. In his cross-examination, PW 1 has further clarified that he did not know whether the occupant of the neighbouring houses were or were not present in their houses at the time of the occurrence. 22. The material aspect of the evidence of PW 1 and PW 2 have remained unshaken in the cross-examination by the defence and this Court sees no reason to disbelieve the evidence given by PW 1 and PW 2 to the effect that their daughter (PW 5) had reported to them that the accused had sexual intercourse with her forcibly. In this regard, one cannot ignore the fact that PW 6 has deposed that on 12-09-2004, i.e., the day of the occurrence, he had examined PW 1 at 7.30 pm and found lacerated wound on his wrist join, the size of the injury being 1" x 1/4" X 1/2" and that the injury was fresh and caused by blunt weapon. In his cross-examination, PW 6 has clarified that the injury, being fresh, meant that it had been caused within 24 hours. 23. Though PW 6 has admitted that the injury, which had been found on PW 1, can be caused by fall or be self-inflicted, what is important to note is that while cross-examining PW 1, it was not suggested to him (PW 1) by the defence that the injury, on his hand, was caused by fall. 23. Though PW 6 has admitted that the injury, which had been found on PW 1, can be caused by fall or be self-inflicted, what is important to note is that while cross-examining PW 1, it was not suggested to him (PW 1) by the defence that the injury, on his hand, was caused by fall. Thus, the fact that the medical examination, promptly conducted on PW 1, revealed that the injury, on his wrist, had been caused and the same, according to the consistent evidence of the prosecution witnesses, was caused by the accused-appellant, the evidence, so given, by PWs 1, 2, 5 and 6 lends further credence and reassures the conclusion already reached by this Court, as already indicated hereinabove, that PW 5 had been subjected to sexual intercourse by the accused, the sexual intercourse was without her 'consent' and the accused- appellant was, therefore, guilty of the offence of commission of rape and also of voluntarily causing simple hurt to PW 1. 24. Because of what have been discussed and pointed out above, this Court does not find that the findings of guilt, arrived at by the learned trial Court against the accused-appellant, suffer from any infirmity, factual or legal. This appeal is, therefore, wholly without merit and needs to be dismissed. 25. Though Mr. P Kataki, learned counsel, appearing on behalf of the accused-appellant, has passionately submitted that the sentence, passed against the accused-appellant in respect of commission of offence of rape, may be reduced, because of the fact that he is the lone earning member of his family and that he has two year old child, this Court, having considered the submissions made on behalf of the accused-appellant, as regards reduction of his sentence, is of the view that in the facts and attending circumstances of the present case, reduction of sentence may send wrong signal inasmuch as it would mean that a married person with a child will, if commits rape, receive lesser punishment than an unmarried person, who commits the same offence. 26. In the result and for the foregoing reasons, this appeal fails and the same shall accordingly stand dismissed. Send back the LCR. Appeal dismissed