JUDGMENT & ORDER (CAV) Heard Ms. Bijita Sarma, learned Amicus Curiae as well as Mr. N. K. Kalita, learned Addl. Public Prosecutor, Assam, for the Respondent State. 2. This appeal from jail has been preferred by the appellant against the judgment and order dated 2.3.2012 rendered by the learned Addl. Sessions Judge, (FTC) No.2, Tinsukia in Sessions Case No. 220 (M) 2008 convicting the appellant U/S 376 IPC and sentencing him to undergo rigorous imprisonment for (seven) years and to pay fine of Rs.20,000/- only and in default payment of fine to undergo rigorous imprisonment for another six months. 3. On 12.9.2008 Sri Kubir Limboo being the husband of Smti Gauri Maya Limboo of village Toklong Gaon lodged an ejahar to the officer-in-charge of Lekhapani Police Station alleging inter alia that on 11.9.2008 his wife went to Ledo garden market alongwith Sukra Limboo and Rudra Bahadur Limboo and while she was alone after marketing on the way back home in the evening time near line No.9 the accused Gujuru Boraik, son of Boraik of Beesa Gaon met her alone there and forcibly taken her in a shed of line no.9 of the tea garden and committed rape on her, and also attempted to kill her fearing disclosure of the fact to others. Fortunately one Auto driver on way back home from Beesa Gaon arrived there and then the accused Gujuru fled away leaving his long pant and cycle near the wife of the informant. The Auto Driver took his wife to their village. 4. On getting said information from his wife and after discussion with other people the informant had taken his wife along with cycle and pant to his house and filed the FIR and prayed for necessary legal action against the accused and the said FIR was registered as Margherita P.S.Case No.117/2008 U/S 376/506 IPC and after conclusion of investigation charge-sheet was submitted against the accused appellant. The learned trial Court framed the charge U/S 376 IPC and the accused pleaded not guilty to the charge. 5. In order to bring home the charge the prosecution examined as many as 10 witnesses and defence examined none. The plea of defence is total denial. The accused appellant faced the trial from behind the bars and at the conclusion the trial the accused appellant was convicted as foresaid. Hence the appeal. 6. 5. In order to bring home the charge the prosecution examined as many as 10 witnesses and defence examined none. The plea of defence is total denial. The accused appellant faced the trial from behind the bars and at the conclusion the trial the accused appellant was convicted as foresaid. Hence the appeal. 6. The learned Amicus Curiae Ms B. Sarma, has vehemently contended that the conviction of the accused appellant only on the basis of victim woman is not at all safe and proper as there is no supporting evidence to her evidence. It has also been pointed out that the witnesses who happen to accompany the victim woman at the time of occurrence and the auto driver who happens to arrive at the place of occurrence did not lend support to the allegation so made by the victim woman. That apart, it has been contended that the medial evidence also did not support, any such incident of sexual conduct upon the petitioner as has been alleged. On the other hand, the learned Addl. P.P. has advanced his argument that conviction on the sole testimony of the prosecutrix can be maintained as her evidence is beyond doubt and convincing and merely because the medical report does not support the oral testimony of the prosecutrix, the case of the prosecution cannot be discarded as other facts and circumstances has clearly supported the case of the prosecutrix. Accordingly it has been submitted that the learned trial Court has rightly convicted the accused appellant who has committed the offence upon a married woman. 7. I have given due consideration to the rival argument of both the parties and also gone through the evidence and other matters on record. On examination of the evidence of the informant/PW 1, Kubir Limboo, who is the husband of the victim woman it is found that on the day of occurrence on the way to a shop he was informed by one Dilip Gogoi that the accused has restrained his wife on the way for bad purpose. Then he went there and found that his wife/PW2 was returning on the road by weeping and upon asking she told that the accused has committed rape upon her. Thereafter he filed the FIR. No any effective cross-examination is there to discredit his evidence. 8. Then he went there and found that his wife/PW2 was returning on the road by weeping and upon asking she told that the accused has committed rape upon her. Thereafter he filed the FIR. No any effective cross-examination is there to discredit his evidence. 8. In her evidence the victim woman as PW 2 has deposed that she is mother of four children. On the day of occurrence in the afternoon she went to market for shopping and on return home, the accused meet her on the road and accompany her who is a neighbouring person but suddenly the accused caught hold her from backside and she fell down on the ground thereafter he committed sexual intercourse with her forcefully by pressing her mouth with his hands. Subsequently, she raised cry and on arrival of an autorickshaw and driven the accused fled away. Thereafter she reported the matter to her husband. 9. In her cross-examination she has stated that she had shopping articles with her and accused was carrying the same on his bicycle. Further, she stated that one person namely Sukra Limboo and another person (name forgotten) accompany her to the market but she returned alone. By the time the autorickshaw driver arrived and the accused fled away leaving his long pant which was handed over to police when the bicycle was seized police. 10. The PW 4, Rudrabahadur limbo and PW 5, Sukra Bahadur Limboo both of them have stated that on the next day morning of the occurrence the victim/PW 2 reported them that the accused committed sexual intercourse with her, though they did not see the occurrence. The victim is a married woman having four children. PW 5 further stated that on the day of occurrence he saw the accused on the Natun Line of Lidu Tea Estate at about 6 PM. 11. The evidence of PW 6 is not relevant as he has no knowledge about the occurrence, however the evidence of PW 7, Md. Ainul Hoque Ansary is relevant as he is the autorickshaw driver, who arrived at the place of occurrence, who has stated that on the day of occurrence while he was driving the autorickshaw at No.10 Line of Ledo Tea Estate then he found one woman who boarded in his autorickshaw and as asked for he drove the woman at Bicha gaon. Although his evidence is silent about the occurrence but he found the woman i.e. the prosecutrix at the place of occurrence at the evening hours. 12. The relevant portion of evidence of M.O./ PW-3 Dr. Putul Chetia who examined the victim is mentioned below: “Vagina : No signs of any injury seen or any foreign body. There was no any discharge of vagina. Uterus: Uterus was antemeted, normal size. Injuries on the body other than genitals: There was no injury. On radiological examination: The victim is above 20 years. On vaginal swab examination: No spermatozoa was detected in the vaginal swab. Impression: (1) Recent sexual intercourse prior to examination could not be ascertain. (2) No violent marks seen in her private parts or body. (3) She is above 20 years of age. “ 13. The investigating officers PW 8 and PW 9 have testified about the receipt of FIR as well as investigation and seizure of one long pant through Ext.4. Further one court witness was examined to prove the Ext.5 & 6 i.e. the statement recorded U/S 164 CrPC given by Ainul Hoque Ansari and the victim woman. 14. Learned Amicus Curiae has referred the medical evidence and has urged that the said medical evidence belies the allegation or the prosecution case that she was forcibly rapped by the appellant inasmuch as no injury was found on her person including her private parts. The victim’s case is that she was forcibly rapped. If it is to be believed that she was forcibly raped she must have resisted the appellant and in the process of resistant, she must have received some injuries, may be, simple or some severe on her body but nothing in this sort has been found in the medical examination on her person. 15. On careful examination of evidence on record obviously it is found to be case of no eye witness and secondly in such type of occurrence there cannot be hardly any eye witness. Basically the prosecution case rest upon the evidence of prosecutrix. The conduct and demeanour of such woman is very much relevant to assess the authenticity of the allegation. On careful examination of evidence on record obviously it is found to be case of no eye witness and secondly in such type of occurrence there cannot be hardly any eye witness. Basically the prosecution case rest upon the evidence of prosecutrix. The conduct and demeanour of such woman is very much relevant to assess the authenticity of the allegation. In the instant case the PW 2/the prosecutrix is a married woman having four children and the accused person is her neighbour and nothing emerges that she and her husband or the witnesses have any sort of hostile relation/enmity with the accused appellant so as to implicate him falsely. The evidence of said PW 2 reveals that she immediately reported the matter to her husband while she was returning home weeping and in turn her husband/PW 1 has reported the matter to the police soon after the occurrence immediately on the next day morning, as it was late evening in the meantime. The PW 4 and PW 5 was also reported by PW 2 about the rape committed by the accused appellant upon her. Such a conduct on the part of PW 2 is relevant U/S 6 of the Evidence Act. In (1996) 6 SCC 241 the Hon’ble Apex Court explained the principle of law embodied in Section 6 of the Evidence Act as is expressed as resgestae which is held to be an exception to the general rule that a hearsay evidence is not admissible. The rationale of making certain statements or facts admissible under Section 6 of the Evidence Act, it was pointed out was on account of spontaneity and immediately of such statement of fact in relation to the fact in issue and thereafter such fact or statement are treated as a part of same transaction. In other words to be relevant U/S 6 of the Evidence Act, such statement must have been made contemporaneously to the facts in issue or at least immediately thereupon and in conjunction therewith. If there is an interval between the fact in issue and the fact sought to be proved then such statement cannot be discarded as foreign in resgestae concept. 16. If there is an interval between the fact in issue and the fact sought to be proved then such statement cannot be discarded as foreign in resgestae concept. 16. The rule that in a criminal trial hearsay evidence is admissible if it forms part of the res gestae is based on the propositions that the human utterance is both a fact and a means of communication and that human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words and the dissociation of the words from the action would impede the discovery of the truth. It is essential that the words sought to be proved by hearsay should be, if not absolutely contemporaneous with the action or event, at least so clearly associated with it that they are part of the thing being done, and so an item or part of the real evidence and not merely a reported statement. 17. In the instant case, the prosecutrix immediately reported the matter to her husband and then to other witnesses PW 4 and PW5 and her statement can be regarded as res gestae. Her statement is found quite natural and inspire confidence and merits acceptances etc. In traditional non-permissive bounds of society of India, no girl or woman of self respect and dignity would depose falsely implicating somebody of ravishing her chastity by sacrificing and jeopardising her future. Such as a evidence of a victim woman, cannot be discarded to be a fanciful version at the risk of her own family life, while she is a married woman having four children and husband. As there was no any sort of hostile relation prior to the occurrence between the accused appellant and the prosecutrix, there appears no occasion for false implication of the accused. The married woman has a very sensitive role in the family as well as the society and any such event is enough to destroy a family. 18. In the given circumstances having no eye witness to the occurrence found to be natural and the same way non reporting of the occurrence to the Autodriver / PW 6 who was a stranger to the PW 2 is found to be not doubtful. 18. In the given circumstances having no eye witness to the occurrence found to be natural and the same way non reporting of the occurrence to the Autodriver / PW 6 who was a stranger to the PW 2 is found to be not doubtful. The said PW 2 who met her husband on the way immediately informed the matter to him and also gave her statement before police U/S 161 CrPC and before Magistrate U/S 164 CrPC implicating the accused person to the offence alleged. That apart, the most vital aspect of a case which inspire the confidence of the Court upon the evidence of PW 2 is that if the victim was a consenting party to the aforesaid affair then certainly she could have suppress the matter silently, without reporting the same to anybody, as purportedly there was no witness to the occurrence. The defence side (appellant herein) failed to demolish the evidence of the prosecutrix in any manner so as to shake the credibility of her witness. Some minor omission here and there in the evidence of informant is not vial to discard the prosecution case which is otherwise found to be convincing. The law is well settled that a conviction can be sustained only on the basis of testimony of prosecutor if it is inspiring and convincing. 19. The challenge made to the medical evidence is also of no consequence as the finding of M.O. cannot any way demolish the oral testimony of a victim which is otherwise found to be corroborating and convincing as indicated above. The medical evidence is nothing but a opinion and it cannot prescribe anything about legal definition of rape but it can give only a finding on the body of prosecutrix. 20. In the given case the victim woman was a married woman and the accused was known to her being neighbour and he suddenly committed the offence in the late evening hour taking advantage of loneliness of the victim woman to her utter surprise and thereafter hurriedly left the place and in the process having no mark of injury on the person of the victim is not a ground to disbelieve the testimony of such woman. 21. 21. In the premises aforesaid, it can be held that the trial Court has rightly held the accused guilty U/S 376 IPC and convicted him to the statutory punishment and accordingly the conviction and sentence is hereby upheld. 22. The appeal is devoid of merit and dismissed. Return the LCR with a copy of the judgment to the learned Court below forthwith. 23. I do hereby appreciate the assistance rendered by the learned Amicus Curie, Ms. B. Sarma, while conducting the Appeal an amount of Rs.7500/- be paid to her by the Legal Services Authority.