JUDGMENT Ashim Kumar Banerjee, J. Prosecution Case: Vimla (the name changed) was physically handicapped. Both of her legs were crippled. She was staying with her family in south Andaman, Police Station Ograbraj. On January 27, 2011, she was doing her household works. She was in the house along with her baby. Her husband and mother both were out to join their place of work. Her brother went to his college. There was no one else in the house. While she was feeding her child, Padam, her next door neighbour, came and violated her. Vimala immediately informed Amit Khan, local Surpanch, who asked her to wait till her family members came. After sometime, her mother came and she narrated the occurrence when her mother took her to medical. The police examined and she narrated the occurrence to the police. The police took down her version and read over and explained it to her. She signed the same. She was medically examined. Her maxi and petticoat were seized by the police. She also signed on the seizure memo prepared by the police. The police arrested Padam. Padam pleaded not guilty of the offence and faced the trial. Statement of Vimala before the police is quoted below: “I am residing in my mother’s house with my mother, husband and children and doing domestic works. As both my legs are handicapped, I am not doing any other work except household works. Today on 27/1/11 in the morning at about 0600 hours my mother and my husband, both went to do their job from the house and my elder brother went to the college. I was with my child in the house. When in the morning at about 0830 hours, I was feeding my 6 months child inside the house. That time Padam, who is residing next to my house, entered my house suddenly and snatched and kept aside my child who was drinking milk and then he just hold me and took me up. I shouted, as such he closed my mouth and took me to the kitchen and raped me. I was shouting he grasped my neck and told if you shout, I may kill you by grasping your neck. He was wearing only towel. He raped me and then wore his towel and ran towards the jungle from the backside of my house. I was shouting he grasped my neck and told if you shout, I may kill you by grasping your neck. He was wearing only towel. He raped me and then wore his towel and ran towards the jungle from the backside of my house. I cried and went to the house of our village Sarpanch, Amit Khan and told all the matter to Amit Khan. For that, he said, “You can’t walk properly, let your mother come then we will go to police station and medical.” As such, I came back to the house. At about 1.30 PM in the evening, my mother returned back to house from her duty. I told all the matter for which my mother took me to PHC Tushnabad. At the time of rape for my safety I scratched several places on the body of Padam with my nails, even though he did not leave me. During this incident, my maxi was torn.” EVIDENCE The prosecution examined ten witnesses including the victim. PW 1 Vimla, was consistent at the trial. According to her, she was feeding her baby in the house when none else except her baby was present. Padam threw away the child, lifted her and took her to the kitchen where he committed ‘balatkar’ on her. She raised hue and cry. Padam caught hold of her by her neck and threatened her with dire consequence. She tried to save herself by scratching the body of Padam with nails. Padam thereafter fled away. She informed Amit Khan and then to her mother who took her to the hospital. Police interrogated her. She was medically examined. She signed her statement as well as the seizure memo of her wearing apparel. During cross-examination she stated, her mother came back from work at 1.30 PM. They reached hospital at 2 PM. They went to Monglutan hospital at 4 PM. On that day doctor did not examine her in Tusnabad hospital. Her maxi was seized at 7 PM that she wore between 1.30 to 7 PM. At 5 PM she was taken to Tusnabad hospital. She remained admitted for one day. She came back on the next morning at 7 AM. The accused was living with his family including his wife. She did not inform his family about the occurrence. She was unable to give estimation of the total time consumed by the accused to do the mischief. She remained admitted for one day. She came back on the next morning at 7 AM. The accused was living with his family including his wife. She did not inform his family about the occurrence. She was unable to give estimation of the total time consumed by the accused to do the mischief. She denied the suggestion that the accused did not violate her. She rather volunteered to say, she was the mother of two children, at the same time a wife, she would not tell lie. PW.2, the Doctor examined the accused on the request of the police. He proved his medical report. He found three scratch marks on the back of the left shoulder and two scratch marks on the lower back left side. He, however, did not mention, the injuries were fresh. He did not find any pubic hair in genital region, as told by him during cross-examination. PW 3 another Doctor, examined Vimala. According to her, she could not see any hymen. Vimala was not subjected to forcible sexual intercourse, as found by her. She collected vaginal swab and sent it for chemical examination through police. She did not find any stray hair and pubic hair. No mark of violence was found around genital region. The victim lady stated, she scratched the accused. Hence she took nail clippings and handed over the same to the police for examination. She admitted, accused was not produced before her. PW.5, the Surpanch, corroborated the evidence of Vimala. PW.8 was the mother of the victim. She also corroborated what had been stated by her daughter Vimala. She went for selling milk and came back at about 1.30 PM. She found her daughter weeping. She came to know from her, Padam violated her. She took her daughter to Tusnabad medical. The police came and took her statement. Vimala was taken to Monglutan Health Centre where the lady doctor medically examined her. Her wearing apparels were seized. She identified the signature as well as the wearing apparels. In cross-examination, she admitted, two of her daughters would reside adjacent to her house. She denied the suggestion that there had been a land dispute with the accused and the complaint had been a fall out. PW 9, the Investigating Officer during his cross-examination admitted, the CFSL report did not contain any reference of stretch(scratch) mark relating to the nails collected by the Investigating Officer. She denied the suggestion that there had been a land dispute with the accused and the complaint had been a fall out. PW 9, the Investigating Officer during his cross-examination admitted, the CFSL report did not contain any reference of stretch(scratch) mark relating to the nails collected by the Investigating Officer. As per the report, nothing was detected from the exhibits. Medical report did not suggest any forcible sexual intercourse. EXAMINATION OF THE ACCUSED UNDER SECTION 313 OF THE CODE OF CRIMINAL PROCEDURE: The accused read upto Class-VIII. He understood the charge. He stated as follows: “I have been falsely implicated in this case. Smti……..resides on encroached land and revenue people asked her to leave possession of that land but she thinks that revenue people asked her to do so on our complaint and over that matter she also quarreled with me earlier and then she implicated me in this case falsely.” JUDGEMENT AND ORDER OF CONVICTION DATED JULY 04, 2012: The learned Additional Sessions Judge considered the evidence. The learned Judge while examining the evidence, erred in observing, the victim talked about the penetration that was conspicuously absent both in her statement before the police and the Magistrate as well her evidence before the Judge. The learned Judge proceeded on the basis, there was penetration that was, in fact, not the case of the prosecution. The learned Judge also placed reliance on the scratch marks, as told by the victim to the doctor and the police. The statement made by the victim was recorded by the police under section 161. The learned Magistrate also recorded her statement under section 164. The learned Judge placed reliance on the fact, the accused did not produce any evidence in support of his defence. Hence, the prosecution was able to prove the charges that would lead to conviction. The learned Judge imposed punishment of seven years rigorous imprisonment coupled with fine of Rs.500/- and in default, further simple imprisonment for two months. The learned Judge also directed payment of compensation of Rs.7000/- to the victim by the accused. Hence, this appeal by the accused. CONTENTIONS: Mr. Krishna Rao, learned counsel appearing for the accused referred to the evidence of PW 1, 3, 4, 5, and 8 to show discrepancy and/or contradictions. The learned Judge also directed payment of compensation of Rs.7000/- to the victim by the accused. Hence, this appeal by the accused. CONTENTIONS: Mr. Krishna Rao, learned counsel appearing for the accused referred to the evidence of PW 1, 3, 4, 5, and 8 to show discrepancy and/or contradictions. According to him, even if the charges were proved that would not lead to an offence said to have been committed under section 376 of the Indian Penal Code. Mr.Rao also contended, the incident occurred at about 8.30 to 9 AM whereas her mother came back at 1.30 PM. The victim reported the incident to the Sarpanch whose house was intervened by the houses of her own sisters adjacent to her house. They were not informed. Hence, the statement was doubtful. He also referred to the medical report to show, there was no sign of forcible intercourse, as would be appearing at the medical reports of the victim and the accused. He relied on the following three decisions of the Apex Court and one of the Madhya Pradesh High Court, Indore Bench, which are as follows: (i). (2004) 4 Supreme Court Cases 379 (Aman Kumar and another Versus State of Haryana); (ii). (2004) 6 Supreme Court Cases 518 (Sakshi Versus Union of India and others); (iii). (2006) 8 Supreme Court Cases 560(Tarkeshwar Sahu Versus State of Bihar(Now Jharkhand); and (iv). 2003 Criminal Law Journal 268 (Narayan Versus State of Madhya Pradesh) Per contra, Mr.N.A.Khan, learned counsel appearing for the prosecution contended, the victim being a physically handicapped lady having two children could not resist such heinous crime committed upon her. She could only scratch the body of the accused that was found present by the doctor who examined the accused. On the forcible intercourse, Mr.Khan contended, the victim was alone in the house along with her baby. She was under duress, as would be apparent from the evidence hence, she could not offer any physical resistance. Hence, using of force could not be proved. Mr.Khan also contended, the alleged story of land dispute or false implication could not be proved in absence of any evidence being led there for. Mr.Khan referred to column 3 of the medical report of the accused to say, that would prove the factum of rape. Hence, using of force could not be proved. Mr.Khan also contended, the alleged story of land dispute or false implication could not be proved in absence of any evidence being led there for. Mr.Khan referred to column 3 of the medical report of the accused to say, that would prove the factum of rape. OUR VIEW In the case of like nature, the victim’s evidence is always taken as sacrosanct unless there was sufficient proof to disbelieve such statement. Even a statement contrary to medical report is accepted if it would inspire confidence of the Court. On analysis of the evidence, it is found, according to the doctor, there was no sign of rape or forcible intercourse. Two scratch marks both found on the back portion would suggest otherwise. If the accused would violate the victim, she would definitely resist from the frontal side to remove the accused away from her. The scratch on the backside was rather unusual. In any event, even if we take everything as sacrosanct, in absence of actual penetration it would be very difficult to sign an order of conviction under section 376 of the Indian Penal Code. Mr. Khan relied on the medical evidence of the accused particularly column 3, that was quoted below: “3. Whether stegma is present on the corno glans of his penis: No” We fail to appreciate how that could lead to any conclusion as to committing of the offence of rape by the accused. Even if we ignore the minor contradictions or unusual circumstance, as suggested by the accused, we would find, the accusation of false implication could not be proved by the accused. No attempt was made on that score. The Surpanch being an independent witness corroborated the incident. It was not unusual for the victim being a married lady to wait till her husband or the mother to come before she would inform her other relations. The Surpanch being the leader of the locality was thus informed and the others were not. If we take her statement as ‘gospel truth’ that would at best lead us to the conclusion, there was an attempt to rape her and thus the accused committed the offence of outraging modesty of the victim that would implicate him and make him liable for conviction under section 354 of the Indian Penal Code. If we take her statement as ‘gospel truth’ that would at best lead us to the conclusion, there was an attempt to rape her and thus the accused committed the offence of outraging modesty of the victim that would implicate him and make him liable for conviction under section 354 of the Indian Penal Code. In the case of Shakshi (supra) the Apex Court observed, significantly the sexual penetration of a female is a necessary element of the crime of rape, but the slightest penetration of the body of the female by the sexual organ of the male is sufficient. Rather the assault or the criminal force to a woman with intent to outrage her modesty would lead to an offence under section 354. In the case of Tarkeshwar Sahu (supra) the victim girl was forcibly taken to a solitary place. The accused tried to commit the offence of rape. The victim raised hue and cry. Before he could actually commit the crime, the people of locality came and caught him red handed. Considering such backdrop, the Apex Court observed, “It is abundantly clear that slightest degree of penetration of the penis in the vagina is sufficient to hold the accused guilty for the offence under section 375 of the Indian Penal Code punishable under section 376 of the Indian Penal Code.” In the case of Aman Kumar and another (supra), the Apex court observed, “Merely because he was termed as a hostile witness his entire evidence does not get affected. Significantly, the evidence of the prosecutrix and the doctor does not specifically refer to penetration which is sine qua non for the offence of rape.” In the Single Bench decision of the Madhya Pradesh High Court in the case of Narayan (supra), in a case of the like nature, the punishment for the offence under section 376 was modified by the punishment under section 354. In all of the three cases referred to above, the Apex Court modified the punishment from section 376 of the Indian Penal Code to section 354 of the Indian Penal Code. We would have signed the judgment and order of acquittal in case the accused could produce some evidence with regard to the previous rivalry on the alleged land dispute. In absence of such evidence, we would have to accept the statement of the victim. We would have signed the judgment and order of acquittal in case the accused could produce some evidence with regard to the previous rivalry on the alleged land dispute. In absence of such evidence, we would have to accept the statement of the victim. Judging the statement of the victim with the yardstick of the medical evidence, in absence of sign of penetration, the conviction under section 376 would not be proper. The appeal thus succeeds in part and is allowed. The conviction and sentence under section 376 of the Indian Penal Code is set aside. The accused is found guilty of committing offence under section 354 of the Indian Penal Code and be sentenced for rigorous imprisonment for a period of two years coupled with fine of Rs.500/-and in default further simple imprisonment of two months. The direction for payment of compensation to the victim, would however, remain. We are told, the accused already suffered punishment for more than two years. The Authority at the Correctional Home would verify the same and would release him at once in case he had already undergone the punishment inflicted upon him by the foregoing judgment. The appeal is disposed of. Send a copy of the judgment to the accused free of cost at the Correctional Home. Send down the lower court records forthwith.