JUDGMENT : Jay Sengupta, J. 1. This appeal is directed against a judgment and order of conviction and sentence dated 17th September 2002 passed by the Learned Additional Sessions Judge, 2nd Court, Murshidabad in Sessions SL. No. 108 of 2002: Sessions Trial No. 1 of May, 2002, thereby convicting the accused/appellant Asraf Mallick for committing an offence under Section 376 (1) of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for 10 years and to a pay a fine of Rs. 10,000/-, in default to suffer rigorous imprisonment for 2 years. 2. On 24th December 2001 at about 9:15 hours, the de facto complainant Md. Saidul Mallick (PW 11) lodged a First Information Report with the Raninagar Police Station that on 23rd December 2001 at about 21:00 hours, alleging that the appellant Asraf Mallick, taking advantage of the absence of the informant and his wife, came to their house, took their 11 years old daughter Nasima by forcibly putting a cloth on her mouth and committed rape on her in the garden behind their house. Thereafter the appellant left the victim girl outside the door on the lane. After the informant returned home at the next dawn, his daughter narrated the incident to him. She was still bleeding profousely and was sent to Godhanpara BPHC for medical treatment. 3. During investigation, several witness were examined and documents were seized. The minor victim girl as well as the appellant were medically examined. The victim’s statement under Section 164 of the Code was recorded on 18th November 2002. A charge sheet was submitted against the appellant. On 19th March 2002, a charge was framed against the appellant under Section 376 of the Penal Code. 4. The prosecution examined as many as 14 witnesses to establish its case. The defence case appears to be the denial of the prosecution case. 5. PW 1 was the minor victim girl. She clearly deposed that at about 21:00 hours on the date of occurrence, the accused entered the house, lifted her after closing her eyes, took her to a garden and sexually assaulted her. She said that she had made a statement before the Learned Magistrate. At this point, she was declared hostile. She deposed that she did not know the appellant. She could not recognize the assailant properly and did not tell his name before the Learned Magistrate. She said that she had made a statement before the Learned Magistrate. At this point, she was declared hostile. She deposed that she did not know the appellant. She could not recognize the assailant properly and did not tell his name before the Learned Magistrate. She stated that she was deposing whatever she was directed to say by the men who took her. 6. PW 2 is a dubious entity who masqueraded as the father of the victim girl and attempted to destroy the prosecution case by turning hostile. He had the impudence of deposing on oath that the victim did not tell him that the appellant had subjected her to sexual assault. This was obviously done to help the appellant get away. The timing also suggests that the immediately preceding witness that is to say, the victim girl also might have been under pressure, which compelled her to turn hostile. These things became clear only after the actual father of the victim girl came to depose as PW 11. It may be pertinent to observe that the Learned Trial Court ought not to have taken such a contemptuous affront lying down and should have directed an inquiry as to how anyone could impersonate a witness and depose falsely in Court on his behalf. 7. PW 3 was a seizure list witness for the seizure of a pant. 8. PW 4 was the doctor who treated the minor victim on 4th January, 2002 at about 11.30 hours. He found a bruise on a nipple, hymen absent and an injury present in the vagina. Examination was painful and there was profuse bleeding. In his opinion, the victim had been raped. According to PW 4, the victim was a minor, probably 11 years old. However, the victim did not give any statement to him. 9. PW 5 was the learned Judicial Magistrate who recorded the victim’s statement under Section 164 of the Code on 7th January, 2002. In the cross, he admitted that he did not write any question relating to voluntariness of the statement of the victim girl, but in fact he asked questions to her. The name of the assailant was not specifically mentioned in the statement. 10. PW 6 was a co-villager and an immediate post-occurrence witness. Hearing a hue and cry, he went and saw the appellant being taken out of a closed room. The name of the assailant was not specifically mentioned in the statement. 10. PW 6 was a co-villager and an immediate post-occurrence witness. Hearing a hue and cry, he went and saw the appellant being taken out of a closed room. The victim girl stated that she was raped by the appellant. PW 6 was also a seizure list witness. In the cross, he admitted that he did not tell the police about the victim’s statement to him. 11. PW 7 was another co-villager and an immediate post-occurrence witness. He found the victim lying unconscious and learnt from others present there that the appellant had ravished her. 12. PW 8 was the mother of the victim girl. She deposed that at about 21.00 hours on the fateful night, she went out to answer nature’s call. When she returned, she did not find her daughter home. She searched for her and finally found her lying unconscious by a side of the house. When she regained her senses the victim told her that the appellant had lifter her, taken her and raped her. Blood was coming out of her private parts. 13. PW 9 was the victim’s aunt. She corroborated the evidence adduced by PW 8. She accompanied PW 8 to answer nature’s call. After returning from the field they searched for the victim girl and finally found her lying on the ground at the back side of their house and saw blood coming out of her pant. When the victim regained her senses, she disclosed that the appellant had lifter her away by closing her mouth with a napkin and committed rape on her. In her cross, she stated that the victim regained her senses two days after the operation. 14. PW 10 was the doctor who examined the appellant on 8th January, 2002. He found him capable of sexual intercourse. He also found an injury on the appellant’s forehead, stitched about 15 days back. 15. PW 11 was the real father of the victim girl and the de-facto complainant in the case. On knowing that someone else had impersonated him and given evidence, he came to Court to depose by filing an affidavit and a Vakalatnama. He supported the First Information Report and identified the appellant in Court. He deposed that the victim told her about the incident when he came back and clearly implicated the appellant. On knowing that someone else had impersonated him and given evidence, he came to Court to depose by filing an affidavit and a Vakalatnama. He supported the First Information Report and identified the appellant in Court. He deposed that the victim told her about the incident when he came back and clearly implicated the appellant. She was left in the courtyard. He saw blood coming out of her private parts when he returned in the morning. 16. PW 12 was the gynaecologist who examined the minor victim on 4th January, 2002. He too had found an injury at the side of a nipple, hymen absent, an injury on the vagina, profuse bleeding and a painful examination. In his opinion too, she was raped. He found the victim to be a minor, approximately 11/12 years old. 17. PW 13 was the doctor who held an ossification test on the victim girl. In his opinion, the girl was above 10-12 years, but below 14 years in age. 18. PW 14 was the Investigating Officer of the case. He added that the appellant had been manhandled after the incident and was admitted at Raninagar PHC. He deposed that the victim girl had clearly taken the name of the appellant as the perpetrator of crime before him. 19. Mr. Ranadeb Sengupta, the learned Amicus appointed by this Court to defend the appellant submits that the impugned judgment and order of conviction and sentence is absolutely bad in law. He contends that there is a discrepancy as regards the place of occurrence. While the First Information Report stated a place outside the door on the lane as the place where the victim was left, PW 8 the victim’s mother mentioned a side of the house as the place where the victim was found. The learned Advocate submits that the statement of the victim first recorded under Section 164 of the Code should not be acted upon as there was no note appended as to who produced her. He submits that most important of all, the minor victim girl turned hostile and could not recognize the appellant. He further submits that considering the nature of allegations, there should have been some external injuries on the victim’s body. The learned Advocate points out that there was no report available from the Godharpara BPHC where the victim girl was taken first. He further submits that considering the nature of allegations, there should have been some external injuries on the victim’s body. The learned Advocate points out that there was no report available from the Godharpara BPHC where the victim girl was taken first. He submits that PW 6, the co-villager who gave out an immediate post occurrence account including that the appellant was brought out from a room and the victim reported about rape, had not been examined by the police. PW 12, the doctor also said that the victim did not name any culprit. The learned Advocate also submits that a few important materials were not placed before the accused in his examination under Section 313 of the Code like the evidence of the seizure list witness PW 3, the evidence adduced by PWs 8 and 9. 20. Mr. Saswata Gopal Mukherjee, the learned Public Prosecutor appearing with Mr. Saryati Dutta, learned Advocate for the State strongly supports the conviction and sentence passed on the appellant. The learned Advocate submits that the 12 years old victim child had categorically taken the name of the appellant before the police and before the learned Magistrate. Before the doctor who examined her after 12 days, she did not take the appellant’s name specifically possibly because she was traumatised and was still bleeding. He submits that during trial, someone else first came in impersonating as the victim’s father and deposed as PW 2 in opposition to the prosecution case, obviously at the instance of the appellant. Such conduct of the appellant was absolutely deplorable and additionally points towards his culpability. PW 11, the victim’s real father clearly implicated the appellant by name. The learned Advocate placed much emphasis on the evidence of PW 6, an independent co villager who saw the appellant being taken out of a closed room and before whom the victim stated immediately after occurrence that the appellant had ravished her. He also submits that the medical evidence clearly supports the prosecution case. The learned Advocate also submits that PW 14, the Investigating Officer of the case told that the victim had taken the name of the appellant as the miscreant and that the appellant was manhandled by the locals after the incident and had to be treated in a hospital. 21. The learned Advocate also submits that PW 14, the Investigating Officer of the case told that the victim had taken the name of the appellant as the miscreant and that the appellant was manhandled by the locals after the incident and had to be treated in a hospital. 21. In the present case, the medical evidence as adduced by PWs 4 and 12 clearly proves that the victim girl was raped. There were some injuries at the side of a nipple and on the vagina. There was profuse bleeding. Even the examination was painful. Both the doctors opined that the victim PW 1 was raped. 22. While the doctors PWs 4 and 12 pegged the age of the victim at 11/12 years, the doctor PW 13 who held an ossification test on her found the victim to be aged more than 10-12 years, but less than 14 years. So, there can be no doubt whatsoever that the victim girl was a minor at the date of occurrence. 23. PW 10, another doctor, found the appellant to be capable of committing sexual intercourse. 24. PW 10 found an injury on the appellant’s forehead, stitched about 15 days back. This supports PW 14’s evidence that the appellant was manhandled after the incident and had to be treated in a primary health centre. Such fact finds indirect corroboration from the evidence of PW 6 that he saw the appellant being taken out of a closed room after the incident. These circumstances of the appellant being confined in a room and being manhandled after the incident and having to receive the medical treatment clearly act as links in the chain of circumstances pointing towards the involvement of the appellant in the crime. 25. As regards the identification of the appellant as the perpetrator of crime, the victim PW 1 had clearly taken his name specifically before the Investigating Officer (PW 14), her mother (PW 8), her aunt (PW 9), her father (PW11), and a covillager (PW 6). There is no reason why the independent covillager (PW 6) and the Investigation Officer (PW 14) would lie against the appellant. That PW 6 was deposing for the first time in Court does not impeach his credibility as a witness in this case. There is no reason why the independent covillager (PW 6) and the Investigation Officer (PW 14) would lie against the appellant. That PW 6 was deposing for the first time in Court does not impeach his credibility as a witness in this case. In fact, a careful reading of the victim’s statement under Section 164 would reveal that the victim stated about the accused committing rape on her although without specifically taking the name of the appellant. But, the appellant was the only accused in the case. It should naturally imply that the victim had named the appellant as the rapist. True, the minor victim turned hostile during trial. But, before that she had deposed that the accused had committed the crime. One can understand the kind of pressure and fear that the victim might have undergone from her reluctance to specifically name the appellant as her violator in Court. But she also made it clear that she was deposing as per the asking of the men who had taken her. The atmosphere of fear and deceipt at that point became clear from the immediately succeeding incident of a rank outsider masquerading as the victim’s father and turning hostile in Court as PW 2. 26. This incident of rape by the appellant is further corroborated by evidence of PWs 6, 8, 9, the immediate post-occurrence witnesses and PW 11, another post-occurrence witness who saw the victim profusely bleeding from her private parts. 27. The purported non putting of the evidence of PW 3, a seizure list written and PW 8 and 9 in the examination under Section 313 of the Code does not vitiate the trial. First, the evidence was recorded in presence of the accused. Secondly, the cross-examination of the witnesses by the defence was done in good measure. From these, it is clear that the appellant was clearly made aware of the case and the purported non putting of certain evidence under Section 313 of the Code did not cause any prejudice to him. 28. The evidence of the prosecutrix and post-occurrence witnesses coupled with the medical evidence unerringly point towards the guilt of the appellant. 29. From these, it is clear that the appellant was clearly made aware of the case and the purported non putting of certain evidence under Section 313 of the Code did not cause any prejudice to him. 28. The evidence of the prosecutrix and post-occurrence witnesses coupled with the medical evidence unerringly point towards the guilt of the appellant. 29. In view of the above discussions, we hold that the prosecution has been able to prove its case beyond all reasonable doubts and hence, the appeal being C.R.A No. 295 of 2003 is dismissed and the impugned judgment and order of conviction and sentence passed by the learned Trial Court against the appellant is affirmed. It may be germane to mention here that from Memo No. 8620/RB dated 18th November 2013 sent by the Superintendant, Berhampur Central Correctional Home it appears that the appellant had deposited the fine amount and was released after serving out the sentence imposed. 30. A copy of this judgment along with the lower Court Records may be sent down to the learned Trial Court forthwith. 31. Urgent photostat copies of the judgment may be delivered to the learned Advocates of the parties, if applied for, upon compliance of all formalities.