JUDGMENT AND ORDER : 1. This is an appeal against the judgment and order, dated 11.12.2013, passed by the learned Additional Sessions Judge No. IV, Kamrup at Guwahati convicting the accused- appellant under Section 376(2)(f)/511 IPC and sentencing him to undergo Rigorous Imprisonment for 5 (five) years and also to pay a fine of Rs. 5,000/- in default to undergo further Rigorous Imprisonment for 1 (one) month in Sessions Case No. 341(K)/2011. 2. Heard Mr. D. Talukdar, learned counsel for the appellant. Also heard Mr. B.J. Dutta, learned Additional Public Prosecutor, appearing for the State of Assam/respondent No. 1 as well as Mr. H. Bhuyan, learned counsel appearing for the respondent No. 2. 3. The prosecution case is that, on 25.11.2011, at about 1 p.m. the accused/appellant was playing ludo with the victim, while her mother, PW-2, was sleeping at that time. The accused-appellant attempted to commit rape on the victim, who was a 9 year old girl at that time, and to implement his such criminal intention, he made the victim lie on the floor. The victim raised alarm following which her mother came out and the accused-appellant fled away from the place of occurrence. On the basis of such facts, the FIR (Exhibit-4) was lodged by the mother of the victim/PW-2. 4. On receipt of the FIR, Boko Police Station registered a case being Boko P.S. Case No. 297/2011. The case was investigated, evidence was collected and after exhausting all the procedural formalities, finally, charge-sheet was filed against the accused-appellant under Sections 448/376/511 IPC. 5. The charge against the accused-appellant was framed under Section 376/511 IPC, to which, the accused-appellant pleaded innocence. Therefore the trial proceeded. After completion of the trial, he accused-appellant was convicted as indicated above. 6. The issue before this Court are for deciding as to whether the accused-appellant attempted to commit rape on the victim and whether the accused-appellant trespassed into the house of the informant with a view to commit an offence there. 7. In respect of the 2nd part, i.e. commission of house trespass, the accused-appellant appears to have committed no offence in view of the admitted position in the FIR itself that the victim and the accused-appellant were playing ludo at the relevant point of time in the house of the victim. 7. In respect of the 2nd part, i.e. commission of house trespass, the accused-appellant appears to have committed no offence in view of the admitted position in the FIR itself that the victim and the accused-appellant were playing ludo at the relevant point of time in the house of the victim. One of the elements of the offence under Section 448 IPC is to trespass into the house with the intention of committing the offence. It has not come out from the evidence on record that he trespassed into the house of the informant with a view to commit an offence rather he was there playing ludo with the minor girl with the knowledge and approval of the informant and he used to come to the house of the informant earlier also for playing ludo. 8. Now let us scan the evidence to arrive at a decision as to the alleged offence committed by the accused-appellant under Sections 376/511 IPC. 9. The victim, examined as PW-1, implicated the accused-appellant, who took her to another room of their house, grabbed her, and thereafter, penetrated his penis repeatedly in her vagina. At this point of time, her mother appeared and the accused-appellant fled from the scene of occurrence. In her statement recorded under Section 164 Cr.PC also, she appears to be consistent with the evidence she has led in her examination-in-chief as PW-1. 10. The informant/mother of the victim, examined as PW-2 is found to have deposed in her evidence that the accused/appellant visited her house for playing ludo with the victim on the date of occurrence and he was playing ludo with her daughter/victim. At the relevant time of the occurrence, this witness was sleeping and after hearing the alarm raised by her daughter/victim, she came out only to witness that the victim was laid down on the floor with the gamocha wearing at that time by the accused-appellant removed and then attempting to have penetrating sexual inter-course with the victim. He failed to have penetrating sexual intercourse, in view of the tender the age of the victim. This evidence of the PW-2 appears to have not been dislodged by the defense during the cross-examination, and rather, in her cross-examination, she is found to have assertive of her statement she made in the examination-in-chief. 11. PW-3 is the doctor, who examined the victim, on requisition from the Investigating Police Officer. This evidence of the PW-2 appears to have not been dislodged by the defense during the cross-examination, and rather, in her cross-examination, she is found to have assertive of her statement she made in the examination-in-chief. 11. PW-3 is the doctor, who examined the victim, on requisition from the Investigating Police Officer. She has exhibited the report of medical examination, vide Ext.2. In her such examination, she did not see any mark of violence, laceration or any symptoms of rape on the victim/PW-1. 12. PW-4 is the elder brother of the victim and son of the informant, who is found to have stated in his evidence that from the place he was erecting fencing, he heard hue and cry at his house and he rushed to his house and found the victim lying on the floor and the accused/appellant leaving the place of occurrence quickly. 13. PW-5 is the Investigating Police Officer, who is found to have stated about the routine stages of the investigation of the case, including recording of statement of the witnesses and also causing of recording of statement of the victim under Section 164 Cr.PC by the learned Magistrate. 14. The defense subjected the PW-2 and PW-4 to cross-examination, to elicit the contradiction with their previous statements. Although in vain, as defense could not bring out such contradiction, which would have cracked the prosecution case. 15. Now let us scan the evidence of the 2 defense witnesses to substantiate the plea taken in their cross-examination that the accusation against the accused-appellant is nothing but a lie and that the accused-appellant has been falsely implicated. 16. The evidence of DW-1 appears to have staged a case for the accused-appellant by leading evidence to the effect that it is because of the quarrel between the accused-appellant’s side with the father of the victim, following the rebuke by the father of the victim under the influence of liquor. He also threatened the accused-appellant that he would be subjected to harassment by filing false case against him and even he demanded an amount of Rs. 20,000/- from him in the evening so as to prevent him from filing a false case against him (accused-appellant). 17. The DW-2 appears to have led evidence in corroborating the evidence of the DW-1, meaning thereby, that she subscribed to the evidence led by the DW-1. 18. 20,000/- from him in the evening so as to prevent him from filing a false case against him (accused-appellant). 17. The DW-2 appears to have led evidence in corroborating the evidence of the DW-1, meaning thereby, that she subscribed to the evidence led by the DW-1. 18. But, the fact remains that the victim was aged about 9 years. Unless she fails to inspire confidence of this Court on her evidence, there can be no reason to disbelieve her. The statement of the victim, as PW-1, in the Court as well as her statement recorded under Section 164 Cr.PC are so consistent that she leaves no scope for this Court to disbelieve her and her such evidence is corroborated by the informant/PW-2, except the minor discrepancies as regard the sequence as to how she could arrive at the place of occurrence, there is no other discrepancies. The discrepancy is that while the victim said that the informant/PW-1 appeared in the place of occurrence and saw the occurrence. The informant deposed in her evidence that she appeared in the scene of occurrence after hearing the alarm raised by the victim, which remains undisputed. 19. Let us see whether such discrepancy is such that it touches the root of the case. In the considered view of this Court, such discrepancy does not touch the root of the case, as in respect of material particulars, the evidence is consistent and corroborative. That apart, minor discrepancies of such nature rather guarantee the truth. 20. Whatever it may be, the prosecution, in view of the above evidence on record, has been able to bring home the guilt of the accused-appellant for commission of an offence under Sections 376/511 IPC by attempting to commit rape on the person of the victim and the defense fails to discard the case of the prosecution inspite of adducing evidence of two witnesses. 21. Having found the prosecution version true, the finding of the guilt accused/appellant by the learned Trial Court, does not require interference by this Court. So far, the substantive sentence is concerned, this Court is of the view that the accused-appellant has already undergone sentence for a period of 3 years and 9 months and the remaining 1 year and 3 months of the substantive sentence is yet to be undergone. So far, the substantive sentence is concerned, this Court is of the view that the accused-appellant has already undergone sentence for a period of 3 years and 9 months and the remaining 1 year and 3 months of the substantive sentence is yet to be undergone. So far the fine, as a part of the sentence is concerned, and default clause thereof, this Court is of the opinion that no interference is required. 22. However, in view of the above discussions, considering the facts and circumstances of the case, and the age of the accused-appellant, i.e. 27 years, the RI for 3 years and 9 months, already undergone appears to be appropriate. Therefore, the accused-appellant is convicted and sentenced to the period already undergone, subject to payment of fine as imposed by the learned Trial Court with the default clause retained as it is. 23. Send a copy of this order to the Central Jail, Guwahati for release of the accused- appellant immediately with a final release order. 24. Send down the LCR with a copy of the judgment.