JUDGMENT S.C. Das, J.:-- 1. This criminal appeal under Section 374 of Cr.P.C. is directed against the judgment and order of conviction and sentence dated 26.07.2010 passed by the learned Sessions Judge, North Tripura, Kailashahar in Sessions Trial Case No. S.T. 16(NT/K) of 2010, whereunder the learned Sessions Judge found the accused-appellant, Md. Riaz Ullah, guilty of committing offence punishable under Section 376(1) and Section 448 of IPC and sentenced him to suffer R.I. for seven years and to pay a fine of Rs. 10,000/-, in default of payment of fine to suffer S.I. for one year under Section 376(1) of IPC and further sentenced him to pay a fine of Rs. 1,000/-, in default of payment of fine to suffer S.I. for two months under Section 448 of IPC. 2. Heard learned counsel, Mr. P. Majumder, for the appellant and learned Additional Public Prosecutor, Mr. R.C. Debnath, for the State-respondent. 3. Prosecution case, in short, is that on 01.02.2009 at about 1300 hours (noon time) the accused Riaz Ullah trespassed in the house of victim prosecutrix (name kept concealed) and forcefully committed rape on her. Hearing her cry, her brother, the informant Sri Dhaniram Reang, rushed to the room where she was raped and caught the accused red handed. He detained the accused and also called his brother and other neighbours, but the accused scuffled with him and fled away leaving his Musalmani hat and amulet in the hand of Dhaniram Reang. Immediately after the occurrence, Dhaniram (P.W.1) and his bother Muktaram Reang (P.W.2) reported the incident to the village Chairman (P.W.8) and other villagers. They advised them to inform the police and accordingly, on 02.02.2009 the informant Dhaniram (P.W.1) lodged a written FIR before the Officer-in-charge of Kailashahar P.S. and accordingly, Kailashahar P.S. Case No. 25/2009 under Section 448/376 of IPC was registered and investigation was taken up. 4. In course of investigation, I/O examined the material witnesses including the victim prosecutrix and arranged her medical examination at Rajib Gandhi Memorial Hospital, Kailashahar, arrested the accused and also arranged his medical examination, seized the wearing apparels of the victim prosecutrix and the Musalmani hat and amulet left by the accused by preparing seizure list and thereafter on completion of investigation submitted charge sheet against the accused under Section 376(1) and 448 of IPC. 4.1. 4.1. Cognizance was taken on the basis of police report and thereafter the case was committed to the Court of Sessions for trial. Learned Sessions Judge on 23.04.2010 framed charges against the accused under Section 448/376(1) of IPC and the accused pleaded not guilty to the charges. 4.2. In the course of trial, the prosecution examined 15 witnesses, namely, Sri Dhaniram Reang (P.W.1), Sri Muktaram Reang (P.W.2), Smti. Shalkanti Reang (P.W.3), Sri Chandra Rai Reang (P.W.4), Sri Ajit Talukdar (P.W.5), Sri Sanjit Deb (P.W.6), Smti. Runimala Reang (P.W.7), Smti. Lalrimpuii Darlong (P.W.8), Smti. Dingliani Darlng (P.W.9), Sri Keshab Debbarma (P.W.10), Smti. Chandrika Debbarma (P.W.11), Md. Salikur Rahaman (P.W.12), Dr. Kajal Das (P.W.13), Dr. Keshab Sen Laskar (P.W.14) and Sri Nayanmani Namasudra (P.W.15). 4.3. Out of the aforesaid witnesses, P.W.7 is the victim prosecutrix. P.Ws. 1, 2 and 4 are all bothers of the victim prosecutrix and out of them, P.W.1 is an eyewitness of the occurrence and is the maker of the FIR. P.W.2 also has seen the accused detained by P.W.1 in the house of the victim prosecutrix. P.W.3 is the mother of the victim. P.W.8 is the Chairman of the village Panchayat and P.Ws 9 and 10 are the co-villagers to whom P.Ws 1 and 2 reported the incident immediately after the occurrence. P.W.6 is a witness to the seizure of hat and amulet of the accused. P.W.12 is the scribe of the FIR. P.Ws. 13 and 14 are the Medical Officers of R.G.M. Hospital and out of them, P.W.13 examined the victim prosecutrix and submitted the report and P.W.14 examined the accused and submitted the report. P.W.15 is the I/O of the case. P.Ws 5 and 11 are the Constables of police and their evidence are not so important. 4.4. The prosecution also proved the FIR, Medical Examination Reports of the victim and the accused, hand sketch map of the place of occurrence, seizure list of Exbt. M.O. 1 series, i.e., hat and amulet, alleged to have belonged to the accused, etc. in support of their case. 4.5. After closure of the prosecution evidence, accused was examined under Section 313 of Cr.P.C. and in his turn, accused declined to adduce any defence evidence. The defence case is nothing but a bare denial of the prosecution case. 4.6. M.O. 1 series, i.e., hat and amulet, alleged to have belonged to the accused, etc. in support of their case. 4.5. After closure of the prosecution evidence, accused was examined under Section 313 of Cr.P.C. and in his turn, accused declined to adduce any defence evidence. The defence case is nothing but a bare denial of the prosecution case. 4.6. At the conclusion of the trial, learned Sessions Judge found the accused guilty of both the charges framed against him and sentenced him as stated herein before. 4.7. Hence, this appeal. 5. Learned counsel, Mr. Majumder, has submitted that the evidence of the victim prosecutrix does not inspire confidence to arrive at a conclusion that she was raped by the accused. Her statement and statements of her brothers including P.W.1 that the accused committed rape on the victim prosecutrix cannot be believed since the medical officer found no sign of recent intercourse and also found no physical injury on the person of the victim prosecutrix. It is also submitted by Mr. Majumder that the victim prosecutrix is a married woman having two grown up children and she was aged about 32 years at the time of occurrence. Since she was a married woman having two children, naturally her hymen was found not intact and the doctor has opined that her vaginal examination exposing evidence of penetration, but there was no evidence of recent sexual intercourse since nothing was found in the vaginal swab examination by the State Forensic Science Laboratory. It is also submitted by Mr. Majumder, learned counsel that all the prosecution witnesses stated that the victim prosecutrix was mad and so her evidence cannot be relied in the absence of a certificate that she was capable of giving evidence. 6. Countering the submission of learned counsel, Mr. Majumder, learned Additional P.P., Mr. Debnath has submitted that the victim prosecutrix, her brothers and other witnesses are all illiterate tribals of interior village and they are all very simple and candid people, who are not naturally acquainted with the complex aspects of criminal proceeding and they made natural statements in their own way. It was the duty of the learned counsel of both side as well as the trial Court to get the evidence recorded in a clear and unambiguous manner. It was the duty of the learned counsel of both side as well as the trial Court to get the evidence recorded in a clear and unambiguous manner. The victim prosecutrix, no doubt, was suffering from some sort of mental illness, but the facts and circumstances and the evidence on record do not speak that she was totally unsound and incapable of making any statement. The medical officer in his evidence clearly has observed that she can give rational answer to the question put to her. Her evidence, therefore, should be examined in the light of other evidences on record including the evidence of P.W.1, who is the eyewitness of the occurrence. There are some inconsistencies and discrepancies here and there in the evidences on record, which are not at all material and no importance can be attached on those inconsistencies. The accused since was caught by P.W.1, scuffled with him to escape from the place of occurrence and at the time of scuffling he left behind his hat and amulet in the hand of P.W.1, which had been proved and P.W.1 made clear statement that he found the accused lying over the victim prosecutrix, which is enough evidence that the accused committed rape or at least committed attempt to rape the victim prosecutrix. The evidence of the prosecution witnesses has not been shaken in any manner in the cross-examination and there is no defence story at all to disbelieve the evidence adduced by the prosecution. Learned Additional P.P., therefore, prayed for dismissal of the appeal. 7. According to the prosecution, P.Ws. 1, 2, 3 and victim prosecutrix (P.W.7) used to reside in the same house. The children of P.W.7 used to reside with her. P.W.1 made a categorical statement that on 01.02.2009 at about 01-00 pm he was sleeping in his room and at that time the victim prosecutrix was in her kitchen and hearing the cry of the victim prosecutrix he went there. He found that the accused was lying over his sister and was committing rape. He caught the accused and called his brothers and others, but the accused scuffled with him and fled away leaving behind his hat and amulet. He also stated that his sister was mad for few years and was not in a position to speak clearly. He found that the accused was lying over his sister and was committing rape. He caught the accused and called his brothers and others, but the accused scuffled with him and fled away leaving behind his hat and amulet. He also stated that his sister was mad for few years and was not in a position to speak clearly. On the following day he lodged the FIR and Darogababu seized the wearing apparels of his sister and hat and amulet left by accused by preparing a seizure list. This statement of the P.W.1 has not been shaken in the cross-examination in any manner. 8. P.W.2, another brother of the informant and victim prosecutrix, stated that on 01.02.2009 at about 01-00 pm when he came home, his brother told him that accused Riaz Ullah committed rape on their sister and he found the accused was caught by his brother and when he arrived at the spot the accused escaped and fled away. The victim also told him that the accused committed rape on her. This part of the evidence of the P.W.2 also has not been shaken in the cross-examination in any manner. 9. P.W.7, the victim prosecutrix, stated that the accused committed sexual intercourse with her outside the house. Learned Sessions Judge has recorded an observation that the witness appeared to be mentally ill. The statement to the extent made by P.W.7 that she was raped by accused has not been shaken in cross-examination. From the oral statements of P.ws. 1, 2, 3, 4 and 7, i.e., the victim prosecutrix, it appears that the victim prosecutrix was suffering from some sort of mental ailment, but she was not totally mad and was not incapable in making statement. The medical officer, P.W.13, made a clear statement in his cross-examination that the prosecutrix could give rational answer and so, I have no hesitation to arrive at a conclusion that the victim prosecutrix was not a mentally ill woman, but was not totally incapable in making statement so as to what had happened with her. While P.W.1 is an eyewitness of the occurrence, who found the accused lying over the victim prosecutrix and caught him red handed, I find nothing to disbelieve the prosecution case as a whole. While P.W.1 is an eyewitness of the occurrence, who found the accused lying over the victim prosecutrix and caught him red handed, I find nothing to disbelieve the prosecution case as a whole. The cap and amulet of the accused, which had been seized by the I/O, proves it with material certainty that the accused was caught red handed by P.W.1 while he was committing or trying to commit rape on the victim prosecutrix. P.Ws. 4, 8, 9 and 10 all came to know about the incident immediately after the occurrence. They have supported the prosecution case. P.W.8, is the Chairman of the Village Panchayat and as per his advice the informant lodged the FIR. I find no reason at all that the victim prosecutrix and her brothers for any other reason lodged a false FIR against the accused. 10. The victim prosecutrix stated that she was raped. P.W.1 stated that he found the accused lying over his sister in the house, but whether the accused could penetrate his penis in the vagina of the victim prosecutrix or not it is only the victim prosecutrix could say. She stated that she was raped which means the accused penetrate his penis, but the medical evidence is not in support. She is a married woman having two children and her statement shows that her husband died. So, had there was penetration at the time of incident on 01.02.2009 at noon time, since she was examined on the following day itself, in case of forceful penetration there might be evidence of such penetration in the vaginal orifice. Doctor found no signs of physical violence and no sign of injury to perineum, vulva, vagina. Doctor has opined that there was evidence of penetration of vagina by an adult erected penis or penis like object, but whether it was recent or not could be detected only after examination of vaginal swab. The vaginal swab was examined in the State Forensic Science Laboratory and the report was negative. Though the report has not been exhibited, but it is lying in the lower court record and the I/O in his cross-examination clearly stated that SFSL report was negative. 11. The vaginal swab was examined in the State Forensic Science Laboratory and the report was negative. Though the report has not been exhibited, but it is lying in the lower court record and the I/O in his cross-examination clearly stated that SFSL report was negative. 11. The circumstance of the occurrence is that the victim was working in her kitchen and at that time the accused entered, caught hold her, lied her on the ground and made attempt to commit rape and hearing her cry, her brother, P.W.1, arrived there and caught hold the accused. It might happen that the accused just lied the victim down on the ground and lied on her to commit rape, but could not succeed in the attempt. The victim prosecutrix being an illiterate tribal woman, who cannot speak properly, stated that she was raped, but actually the accused lied over her and made attempt to commit rape for which I think it will not be appropriate to arrive at a conclusion that rape was committed. The evidence on record clearly established that the accused committed criminal house trespass and made attempt to commit rape on the victim prosecutrix and so, he is punishable under Section 448 of IPC and Section 376 read with Section 511 of IPC. Accordingly, he is convicted under Section 376 read with Section 511 of IPC in lieu of punishment under Section 376(1) of IPC. 12. Apart from the custody during investigation, accused is suffering sentence from the date of judgment i.e., 26.07.2010. The learned Sessions Judge sentenced the accused to suffer R.I. for seven years. The accused, in the meantime, suffered four years of imprisonment. So, while the sentence of fine under Section 448 of IPC is maintained, the conviction and sentence passed by the learned Sessions Judge under Section 376(1) of IPC is set aside. For attempt to commit rape, under Section 376 read with Section 511 of IPC the accused-appellant is sentenced to suffer R.I. for the period already suffered by him in the meantime and also to pay a fine of Rs. 5,000/-, in default of payment of fine to suffer S.I. for one month. Fine money, if realised, be given to the victim prosecutrix as compensation. 13. The appeal is accordingly partly allowed and disposed of. 14. Send back the lower court records along with a copy of this judgment.