JUDGMENT Girish Chandra Gupta J. – This appeal is directed against a judgement dated 30th August, 2008 by which the learned Additional Sessions Judge, Fast Track 3rd Court, Jalpaiguri in Sessions Case No. 153 of 2004 corresponding to Sessions Trial No. 1 of 2005 arising out of Rajganj P.S Case No. 56 of 2004 dated 18th June, 2004 convicted the appellant of an offence punishable under Sections 376 and 448 of the Indian Penal Code. Rest of the accused persons were acquitted. By an order dated 1st September, 2008 the convict was sentenced to rigorous imprisonment for 8 years and was also sentenced to pay a fine of Rs. 5,000/- in default to suffer further rigorous imprisonment for a period of 2 years for the offence punishable under Section 376 of the Indian Penal Code. He was further sentenced to simple imprisonment for 6 months for the offence punishable under Section 448 of the Indian Penal Code. 2. The facts and circumstances of the case briefly stated are as follows : – On 1st May, 2004 when the prosecutrix was alone at home and was cleaning her western room, the accused Kabul suddenly came from behind, overpowered her and raped her. In order to prevent her from shouting she was gagged. While the act was still in progress the father of the prosecutrix entered the room. The appellant left the victim and hid himself underneath the chowki. The father of the prosecutrix caught hold of him and kept him tied. By that time the brother of the victim had also arrived. The father of the appellant Kabul called at the house of the prosecutrix and insisted upon release of the appellant to which the father of the prosecutrix was not agreeable. While they were engaged in the aforesaid conversation, Abul and Jainal rescued the appellant from inside the place of occurrence by breaking open the fencing of the room. Hearing the sound the father of the prosecutrix rushed to the place of occurrence and found Kabul escaping. On 1st May itself the police was informed about the incident. The prosecutrix it appears was also sent to Rajgang Rural Hospital but she was not examined and was referred to the Sadar Hospital, Jalpaiguri. Hearing the sound the father of the prosecutrix rushed to the place of occurrence and found Kabul escaping. On 1st May itself the police was informed about the incident. The prosecutrix it appears was also sent to Rajgang Rural Hospital but she was not examined and was referred to the Sadar Hospital, Jalpaiguri. In the same evening a Salish was held in which it was decided that on 13th Jaistha, 0.50 decimal land shall be conveyed to the victim by the father of the appellant Kabul and on 17th Jaistha marriage between the victim and the accused shall be solemnized. Based on the aforesaid promise the matter was not further proceeded with. Ultimately neither the land was conveyed nor was the marriage solemnized. In that view of the matter the aforesaid Rajganj case was started on 8th June, 2004 on the basis of the written complaint dated 1st May, 2004. Statements of the victim and her father were recorded under Section 164 of the Code of Criminal Procedure. The victim was medically examined. The accused was also medically examined. 3. 18 witnesses were examined. P.W.1 is the victim herself. P.W.2 is her father. P.W.3 is her mother. P.W.4 is a neighbour and also a relation of the victim. P.W.5 is a neighbour and also a relation of the victim. P.W.7 is an uncle of the victim. P.W.6 is a Panchayat member who was present at the salish. P.W.8 was also present at the salish. P.W.14 is also a member of the gram panchayat and he was present at the salish. P.W.10 is both a member of the panchayat and the scribe of the written complaint. He turned hostile. P.W.9 is a medical officer of the Sadar hospital. He examined the victim on 21st June, 2004. P.W. 13 held ossification test of the victim. P.W.15 is an official of the Forensic Science Laboratory. P.W.18 is a Doctor attached to the Rajgang Rural Hospital. P.W.12 recorded the statement under Section 164 of the Cr.P.C.. Rest of them are all official witnesses. 4. Mr. Bhagat, learned Advocate advanced the following submissions : – (a) P.W. 13 deposed that on 25th, June 2004 when the victim was examined, her age was between 15 and 16 ½ years. P.W.12 recorded the statement under Section 164 of the Cr.P.C.. Rest of them are all official witnesses. 4. Mr. Bhagat, learned Advocate advanced the following submissions : – (a) P.W. 13 deposed that on 25th, June 2004 when the victim was examined, her age was between 15 and 16 ½ years. He contended that if a margin of 2 years is added even to the age of 15 as deposed by the P.W.13 it cannot be said that the victim was below 16 years on the date of the incident. (b) Referring to the evidence of the P.W.9 he submitted that there is no definite opinion as to whether the victim was raped or not. (c) P.W.10 did not support the case of the prosecution. (d) He suggested that the victim may be a consenting party and in support of his submission he relied on four judgments. The first judgment cited by him is in the case of Pratap Misra and Others v. State of Orissa reported in 1977 (3) SCC 41 . 5. The second judgment cited by him is in the case of Lalta Prasad v. State of M.P. reported in 1979 (4) SCC 193 . 6. The third judgment cited by him is in the case of Dilip and another v. State of M.P reported in 2001 (9) SCC 452 . 7. The fourth and the last judgement cited by him is in the case of State of Karnataka v. Mapilla P.P.Soopi reported in 2003 (8) SCC 202 . (e) Lastly it was contended by Mr. Bhagat that the witnesses No. 1 to 17 were initially examined and the trial culminated in an order of acquittal dated 17th July, 2007. Thereafter, the acquittal was challenged in a revision and the matter was referred back. The 18th witness was thereafter examined. The matter was reheard and the judgment and order under challenge were passed. He submitted that there is no significant evidence adduced by the P.W.18. According to him the evidence of the P.W.18 rather casts doubt upon the veracity of the case of prosecution and, therefore, the appellant deserves an outright acquittal. 9. Mr. Chakrabarty, learned Advocate appearing for the state disputed the submissions of Mr. Bhagat. He submitted that there is no significant evidence adduced by the P.W.18. According to him the evidence of the P.W.18 rather casts doubt upon the veracity of the case of prosecution and, therefore, the appellant deserves an outright acquittal. 9. Mr. Chakrabarty, learned Advocate appearing for the state disputed the submissions of Mr. Bhagat. He took us through the evidence both oral and documentary and submitted that for the ends of Justice this Court should refrain from interfering with the judgment and order under challenge. 10. The first submission of Mr. Bhagat according to us is correct in law. The second, third and fourth submissions of Mr. Bhagat noted above relate to the principal question as to whether the victim was sexually violated against her will. From Ext. 10 dated 1st May, 2004 it is firmly established that the victim had appeared before Dr. Anup Deb Sinha of the Rajgang Rural Hospital for medical check up to ascertain whether she had been sexually violated. Dr. Sinha referred the victim to Sadar Hospital without performing any test. P.W.9 examined the victim on 21st June, 2004, that is to say on the 52nd day from the date of incident. He opined that there may have been sexual intercourse. He was however unable to form any opinion as to whether she was raped or not. It is indicated in his report (Ext.2 series) that she was not habituated to sexual intercourse which he reiterated in his evidence from the witness box. 11. The prosecutrix made a statement under Section 164 Cr.P.C. which is ext. 3 series giving detailed narration of the act. She from the witness box supported her case well. Usually an eyewitness besides the victim is not available in this type of a case. But in the present case the father of the victim is an eyewitness because he reached the place of occurrence and caught the accused red handed. Therefore as regards the sexual intercourse the evidence is overwhelming. Only thing which requires serious consideration is whether such sexual intercourse was against the will of the victim? 12. The victim deposed that she was caught unawares by the accused from behind. She was over powered and raped. She was also gagged. A significant fact is that the accused was a classmate of the elder brother of the victim. He had on that account access to the house of the victim. 12. The victim deposed that she was caught unawares by the accused from behind. She was over powered and raped. She was also gagged. A significant fact is that the accused was a classmate of the elder brother of the victim. He had on that account access to the house of the victim. The victim deposed in that regard as follows : – “All the accused reside in same locality with us. Kabul and Tarikul were class mate. Kabul since that time uses to visit our house but not frequently.” 13. There is no denial of this fact nor was it suggested to the prosecutrix that this part of her evidence was untrue or incorrect. 14. The fact that the appellant was caught and confined at the place of occurrence and was ultimately rescued by his father and other near relations has been firmly established from the evidence of P.W.1 and 2. There are many witnesses who deposed that they had ascertained from the victim and her father as to the offending act. P.W.5 as a matter of fact saw Kabul escaping from the place of occurrence. 15. The fencing of the room where the incident took place was broken in order to rescue the appellant. The same was seized by the police and was marked material ext.1. 16. The salish held on 1st May, 2004 in the night has been firmly established by the evidence of P.W.6 a panchayat member, P.W.8 was present at the salish. P.W.14 another member of gram panchayat was also present. During the salish the father of the appellant not only admitted the guilt of his son but he also proposed to solemnize their marriage and to gift a 50 decimal of land to the victim. 17. The fact that P.W.10 turned hostile does not in our opinion demolish the case of the prosecution. He scribed the written complaint. He did not deny the fact that the victim was there when he wrote out the written complaint. On 1st May, 2004 the matter was promptly brought to the notice of the police. The police had immediately taken steps to send the victim to the Rajgang rural hospital for medical check up with a detailed questionnaire. The victim duly appeared at the Rajganj rural hospital on 1st May, 2004 but the examination was not conducted. She was referred to the Sadar Hospital. The police had immediately taken steps to send the victim to the Rajgang rural hospital for medical check up with a detailed questionnaire. The victim duly appeared at the Rajganj rural hospital on 1st May, 2004 but the examination was not conducted. She was referred to the Sadar Hospital. Before the victim could be taken to the Sadar Hospital the aforesaid settlement was arrived at. The victim’s father (P.W.2) is a porter. A poor villager’s mentality has to be kept at the back of the mind. Considering the well being of his child he must have thought that the matter could be decently brought to an end without dragging the same to the law. He cannot be blamed for that. He had no reason on 1st May, 2004 to disbelieve the proposal made by the father of the appellant. Moreover the proposal was made at a salish before the elected members of the panchayat who were examined and they supported the case of the prosecution. 13th Jaistha 1411 corresponding to 27th May 2004 was the scheduled date for conveyance of the land and 17th Jaistha 1411 corresponding to 31st May 2004 was the scheduled date for solemnization the marriage. When neither of these things materialized, naturally steps were taken by the Police on the basis of the written complaint dated 1st May, 2004. 18. The judgments cited by Mr. Bhagat do not really help the appellant. In the case of Pratap Misra and Others v. State of Orissa reported in 1977 (3) SCC 41 the apex court in that case was of the view that the evidence of the prosecutrix was not true and she had deliberately suppressed the truth. Even the evidence of her husband (P.W.2) in that case gave an impression that he was a conniving party. 19. The second judgment cited by him is the case of Lalta Prasad v. State of M.P. reported in 1979 (4) SCC 193 . The apex Court set aside the order of the conviction because the evidence of the prosecutrix did not inspire confidence. As a matter of fact, her evidence was held to be untrustworthy. The medical evidence was contradictory and on the top of that the prosecutrix in that case was immensely in love with the appellant. She as a matter of fact was betrothed to him and had almost accepted him as her husband. As a matter of fact, her evidence was held to be untrustworthy. The medical evidence was contradictory and on the top of that the prosecutrix in that case was immensely in love with the appellant. She as a matter of fact was betrothed to him and had almost accepted him as her husband. She was also freely mixing with the appellant with the consent of her mother. It is, therefore, not necessary to undertake any detailed reasoning to show why the judgment has no manner of application to the facts and circumstances of the case in hand. 20. In the case of Dilip and another v. State of M.P reported in 2001 (9) SCC 452 the testimony of the prosecutrix was contradicted by the medical evidence. The medical evidence was that the prosecutrix was used to sexual intercourse. The evidence of the aunt of the prosecutrix did not corroborate the evidence of the prosecutrix. Therefore, this judgment is also distinguishable on facts. The judgment in the Case of State of Karnataka v. Mapilla P.P.Soopi reported in 2003 (8) SCC 202 was in an appeal against an order of acquittal passed by the High Court. There was no dependable medical evidence in that case. The resistance offered by the prosecutrix was also open to serious doubt and, therefore, the Supreme Court did not interfere with the judgment of the High Court by which the accused was acquitted. Therefore, this case has no manner of application either. 21. The 5th and the last point advanced by Mr. Bhagat is of no substance. The finding of acquittal recorded by the same learned Trial Judge on 17th July, 2007 was set aside by this Court and the matter was remanded. The learned Trial Court at that stage took a serious view against the case of the prosecution for the following shortcomings : – “The above evidence of P.W.1 proves that a written complaint was lodged at the police station by P.W.1 but police did not initiate any case on the basis of the said complaint and I am fully agree with the contention of Ld. Advocate for defence that the subsequent FIR on the basis of which the present case has been initiated is bad in law. It also appears from the evidence on record that a salishi was held at the P.S compound over the alleged issue. Advocate for defence that the subsequent FIR on the basis of which the present case has been initiated is bad in law. It also appears from the evidence on record that a salishi was held at the P.S compound over the alleged issue. As such, I am of the views, the police was well aware of the alleged incident but did not care to start a case. It also appears from the evidence of P.W.1, V.G Tarina Khatoon that at first she had gone to Rajgang Gramin Hospital where she was examined by doctor but the prosecution neither produced the said medical examination report nor examined the doctor.” 22. The written complaint is admittedly dated 1st May, 2004. Ext.10 containing the endorsement dated 1st May, 2004 made by Dr. Anup Deb Sinha leaves no manner of doubt that the victim had gone to the Rajgang Rural Hospital for examination which was not on the record before the matter was retried. The ext.10 also eliminates the chance of the original F.I.R. having been substituted as was earlier apprehended by the learned trial Court. 23. We are, therefore of the view that the conviction recorded by the learned Trial Court does not suffer from any infirmity necessitating any interference. 24. In the result this appeal fails and is dismissed the appellant is directed to surrender forthwith to serve out the sentence awarded by the learned Trial Court. 25. The appellant is directed to surrender forthwith to serve out the sentence. In case he does not do so within 4 weeks from date the learned Trial Court shall take coercive measure to secure his presence. 26. Lower Court Records with a copy of this judgment be sent down to the learned Trial Court forthwith for information and necessary action. Urgent Xerox certified copy of this judgment, be delivered to the learned Advocates for the parties, if applied for, upon compliance for all formalities. Banerjee J. : I agree.