P.K. MUSAHARY, J.

(1.) This appeal is directed against the judgment and order dated 30.11.2009 (signed on 2/12/2009) rendered by the learned Additional District and Sessions Judge, FTC, WZ, Yupia in Sessions Case No. 513/08 convicting the accused-appellant under Section 376(1) IPC and sentencing him to undergo R. I. for 7 years with fine of Rs.10,000.00 only and in default, further R. I. for 6 months.

(2.) The prosecution story, in nutshell, is that on 26/3/2007, one Radha (real name withheld), aged about 20 years of Sangai Gaon village under P. S. Gohpur in the district of Sonitpur, Assam lodged an FIR stating that in the month of February, 2007 she was taken to the official residence of Sri S. C. Adhikari, a police officer as his maid servant. During her stay in the residence of Sri S. C. Adhikari, she was subjected to forcible sexual intercourse against her will and consent several times by him and she was kept in his official quarter by locking the door from outside when he used to go out or to his office. Unable to bear the sexual harassment, she fled away from his quarter. The fact of sexual assault on Radha by Sri Adhikari came to light during investigation of Itanagar P. S. Case No. 73/07 under Section 365 IPC, which was registered on the basis of the written complaint lodged by Sri Adhikari at Itanagar Police Station on 06.03.2007 to the effect that a minor girl who has been staying in his official residence was missing from his quarter on 06.03.2007 and suspected to have been kidnapped by some unknown persons. In the course of investigation, the I. O. came to know that the victim returned to her house at her village on 25.03.2007 and on 26.03.2007, he brought her to Itanagar Police Station for recording her statement. She revealed before the police that she was not kidnapped by anybody but she left the residence of Sri Adhikari, accused-appellant at her own will due to intolerable sexual assault by Sri S. C. Adhikari. She was then forwarded to Judicial Magistrate, First Class for recording her statement under Section 164 Cr. P. C. In her statement, she stated before the Magistrate that during her stay in the residence of the accused-appellant, she had been sexually assaulted by Sri Adhikari as many as 5 (five) times against her will. On her such disclosure statement, a formal written complaint was obtained by the I. O. from Radha and the Itanagar P. S. Case No. 76/07, being the present case, under Sections 342/376 IPC, was registered on 29.03.2007 at 0900 hrs. The I. O. examined Radha and recorded her statement, who stated that while she was staying in the official residence of the accused-appellant as a maid servant for more than a week, one night after dinner, while she was preparing to sleep, the accused-appellant entered in her room and made sexual advance. She resisted and protested and tried to raise alarm by shouting but she was overpowered and raped by him and thereafter, the accused-appellant continued to rape her, sometime in the night and even in the day time also. The accused used to keep her confined in his house by locking the main door from outside when he used to go out for office or elsewhere. Due to this intolerable sexual assault, she fled away on 06.03.2007. On her way, she met a lady constable named Techi Nime, who was waiting for bus after attending her office at PHQ tri-junction. The victim girl requested the lady constable to take her to her house who initially refused but after seeing her crying, she took her to her residence at Dokum Colony, Naharlagun out of pity. In the residence of the said lady constable, Radha narrated the whole incident of sexual assault on her by the accused-appellant. The lady constable then suggested her to lodge an FIR in the police station assuring her to extent all help but Radha preferred to consult her parents first. Accordingly, Radha returned to her house at Sangai Gaon (Assam) on 25.03.2007 and disclosed the incident of sexual harassment to her parents and relatives.

(3.) During the course of investigation, the I. O. arrested the accused-appellant on 29.03.2007. He denied the allegation stating that he was not capable of performing sexual intercourse as he has lost erection power. He was then forwarded to R. K. Mission Hospital, Officer, General Hospital, Naharlagun, constituted a medical board for examination of the accused and the victim girl. They were examined at the R. K. Mission Hospital. As per medical report, the hymen of the victim was not found intact and her age was above 20 years. After completion of the investigation, the I. O. submitted charge sheet against the accused-appellant under Section 376 IPC. The offence under Section 342 IPC was not included in the charge sheet as the I. O, found that the door at the backside of the official residence of the accused-appellant as stated by the victim girl, was kept open through which the cook and other staff could go inside and outside the quarter.

(4.) The offence under Section 376 IPC, being exclusively triable by the Court of sessions, the Judicial Magistrate, 1st class, Yupia committed the same to the Court of Sessions, Yupia for trial and disposal and the Court of Sessions, the Deputy Commissioner vide order dated 21/1/2008 transferred the case to the Court of the learned Additional District and Sessions Judge, FTC, WZ, Yupia, who on receipt of the records, framed the charge against the accused-appellant under Section 376 IPC. The charge being read over and explained to the accused appellant, he pleaded not guilty and claimed to be tried. The prosecution examined in all 10 witnesses and after closure of the prosecution evidence, the accused was examined under Section 313 Cr. P. C, who, expressed his willingness to enter into defence with a prayer to allow himself to be examined as lone defence witness, which was allowed by the learned trial Court.

(5.) I have heard Mr. B.C. Das, learned senior counsel assisted by Mr. S. Dutta and also heard Mr. I. Basar, learned Public Prosecutor appearing on behalf of the State of Arunachal Pradesh.

(6.) Mr. Das, learned senior counsel submits that the evidence of victim girl is full of contradictions and she is found to be unreliable and untrustworthy witness inasmuch as her evidence is not supported or corroborated by any other witness including the medical officer, and on the basis of her evidence only no conviction and sentence can be ordered. Besides, there was no probability of committing rape by the appellant on the victim girl. The learned trial Court, according to him, failed to appreciate the evidence of the victim girl as well as the evidence of witnesses, particularly PW-3, PW-4 and PW-5 in a proper manner and had there been proper appreciation of evidence on record, the appellant would have been acquitted. He places reliance on Ramdas and Ors. Vs. State of Maharashtra, reported in (2007) 2 SCC 170 [LQ/SC/2006/1040] followed by a Division Bench of this Court in Lukba Rime and Ors. Vs. State of Arunachal Pradesh, reported in 2009 (2) GLT 325. [LQ/GauHC/2009/16]

(7.) I have carefully gone through the evidence of the victim girl who was examined as PW-1. She deposed that she does not remember the date on which she was brought to the house of the accused-appellant but she remembers that she stayed in his house for 15 days. During her stay, the accused, police personnel used to undress her and himself and thereafter used to have sexual intercourse with her by gagging her mouth. He used to have sexual intercourse with her at daytime and even during night time also. Such sexual intercourse took place for 5 days and out of fear, she fled away from his house. On way, she met one lady at Naharlagun from where she was picked up by another lady, who took her to a bus stand and sent her home. At home, she told her mother about the incident. Again she was brought back to Naharlagun by one of her relatives and stayed with a lady for 5 days, whom she did not know personally. Thereafter, she came back home and stayed with her maternal uncle. In the cross-examination, she stated that the accused-person picked her up from Sangai Gaon by a vehicle. She had never been to Itanagar earlier but she again said that earlier she was staying in the house of one Byabang Taj from where her uncle Biren (PW-4) took her to the house of the appellant. She admitted in cross-examination that she stayed in the house of Mr. Remik Tagi as maidservant at Itanagar before she stayed in the house of the accused. She further deposed that she lodged the complaint against the accused but she cannot tell the contents of the complaint. She does not know her present age but she said that it may be 30 years. She denied the suggestion that the accused-person was incapable of doing sexual intercourse and he was incapable of erection.

(8.) PW-2, Smt. Techi Nime is a police personnel working in the police housing department. According to her, while she was returning from duty at around 4.00 P.M., she happened to see the victim girl at PHQ Tinali, who was coming from the opposite side. At the meeting point, she was requested by the victim girl to take her along with her. On inquiry, she came to know that she was a maidservant of accused-appellant. She took the victim girl to her home, who divulged that while she was in the house of the accused, he used to do bad things with her. He used to enter her bedroom, kiss, gag by mouth and thereafter, used to have sexual intercourse forcibly by promising her to give gold chain and earrings. The accused-appellant used to have such forcible sexual intercourse with her even in the day time. Having come to know about the incident, she took the victim girl to a pharmacy at Naharlagun for urine test to ascertain if she was pregnant. She got the victim girl examined by paying Rs.100/- but the result was found negative. She advised the victim girl to report the police if she was really subjected to sexual harassment but she wished to go home first and to report the matter to her maternal uncle and maternal aunt for taking a decision. After 4 days, she sent the victim girl to her home by a bus. Then one police S. I., Mr. Loya came to her house enquiring about the victim girl. She further deposed that she used to attend office from Naharlagun and that time she could see the official quarter of the appellant remaining mostly closed with a big lock and no one was seen including his wife and the victim girl except one man with broom. The official quarter of the appellant situated at a distance of 30-35 mtrs. From her office the appellants quarter is visible. She further deposed that before the incident, she had never seen the appellant though she saw his name plate in his official residence. In cross-examination, she deposed that Radha is not a beautiful girl; she is rather blackish. According to her, Radha, the victim girl, somewhat appears to be fool and also impaired of hearing. This witness denied the suggestion that the victim girl did not voluntarily reveal the incident of rape to her. She also denied that Radha did not know about gold. She clarified that she did not tell the appellant about the stay of the victim girl in her house thinking that he might take her back to his house and give her sexual harassment. PW-2 further deposed that she even did not inform the authorities in the police department about the victim girl for the same reason.

(9.) The appellant did not deny that the victim girl was staying and working as maid servant for few days in his house while his wife and other family members were away. He totally denied the possibility of committing rape on the victim girl during her stay in his house as he was by then, old enough attaining the age of 57 plus and he was incapable of sexual intercourse as he had already lost the power of erection besides suffering from diabetes, hypertension etc. He admitted that he used to lock the door of the house from outside but kept the backside door open for use by his cook and the victim girl. In reply to question No. 1, during examination under Section 313 Cr.P.C., he stated that he used to be busy in office and used to return home with tiredness after 7.00 P.M. and there was no chance of indulging in sexual intercourse with the victim girl in such condition. He lost his sexual urge since 2006 as he was suffering from diabetes. The victim girl was in his house from 18.02.2007 to 06.03.2007. In reply to question No. 6, during examination under Section 313 Cr. P. C., the appellant stated that during relevant period of time, once at about 7.45 P.M., two persons visited his quarter for which she got scared and she desired that she should be kept in the quarter locked from outside because she was apprehending that she might be taken away by those persons. Accordingly, as per her desire, he locked the door from outside for 2 days only to create an impression that nobody was staying in his house and this fact was known to his cook and driver also. On careful perusal and scanning of the evidence of the victim girl I could find some minor and insignificant contradictions in her statement only in respect of the fact as to how she happened to come and stay in the house of the appellant as maidservant. She deposed in examination-in-chief that she never came to Itanagar before coming to the house of the appellant. But in cross-examination, she stated that she stayed earlier in the house of one Mr. Remik Tagi as maidservant at Itanagar. This contradiction is not sufficient to disbelieve the whole evidence of the prosecutrix. The main consideration should be made on the statement of material facts how she was raped by the appellant and whether her evidence on record could be believed and taken as true for conviction of the appellant. Before such consideration is made, it must be borne in mind that the victim is an illiterate girl hailing from a poor family and that too from a most disadvantaged community like tea garden labour/ tribes and due to poverty she has been serving as maidservant even before coming to the house of the appellant. To test the veracity of her statement/evidence, it would be proper to reproduce the FIR, (P-Exh-1), which runs as under:-

(10.) She has maintained the aforesaid allegations made in the FIR during trial inasmuch as she deposed before the trial Court that "during my stay with police personnel, the said police personnel used to open my dress and himself too and thereafter used to have sexual intercourse with me by gagging my mouth. He use to sexual intercourse with me at day time and even during night also. The police personnel as such used to have sexual intercourse with me for five days and for which I fled to my house out of fear". In cross-examination, she categorically denied that the "appellant was incapable of doing sexual intercourse and that he was incapable of getting erection". No suggestion was put by the defence to the prosecutrix that she was not raped by force by the appellant. No suggestion was also put to her that she voluntarily consented to sexual intercourse with the appellant because she did not complain or report regarding the rape or sexual harassment while she had telephonic conversation with her maternal uncle and even during his visit to the house of the appellant. The defence did not take any plea that the appellant was indulging in sexual intercourse with the prosecutrix with her consent as she was major in her age. There is nothing wrong in the stand taken by the appellant that he was physically incapable at the relevant period to indulge in sexual intercourse as he lost his capacity and erection due to aging and ailments like diabetes and hypertension but this stand is subject to scrutiny in the light of the medical evidence on records.

(11.) It is an admitted position that the appellant was examined by a medical board and a report was submitted which was marked as Exh. P/7. Para 11 of the said report pertains to physical examination in respect of the appellant, which is quoted hereunder:-

"14. OPINION: Taking into consideration the history of the case, the clinical findings as on the date of the clinical examination and laboratory examination, we are of the opinion that: 1. There is nothing to suggest that the above person is incapable of performing the sexual intercourse in ordinary way."

(12.) The victim girl, on being examined by the Judicial Magistrate, 1st class, Itanagar under Section 164 Cr. P. C., made the following statements: "My name is Miss Radha Gowala. I have been staying at the Residence of Sri S. C. Adhikari since 20 days. Sri S. C. Adhikari came to my village Sagaigaon and brought me at his home for working. There was no one at home except me and Sr. S. C. Adhikari. At night he use to come to the place where I sleep and sexually harassed me for five times. I was not allowed to shout also. So, after 20 days stay, I ran away to Naharlagun to a persons house whose name I dont know and she took me to Sagaigaon, I dont remember the date of my coming there and going out."

(13.) The appellant made an attempt to defend himself by taking a plea that there was a conspiracy hatched against him by some of his colleagues who wanted to prevent him from being nominated to IPS and to materialize the same, PW-2, Smt. Techi Nime, a police personnel, who was working in the police housing department, came to the appellants quarter after the victim was sent home but it must be noted that the appellant did not put any suggestion to PW-2 during her cross-examination. The appellant also stated in this connection that the victim girl herself told him about the visit of PW-2 at his house. But no suggestion was put to her also during cross-examination. No other evidence was led by the appellant in support of the motive behind the conspiracy and setting up a false case against him through the victim girl and therefore, her allegation/defence cannot be taken seriously for the purpose of disturbing the impugned conviction. It is in the evidence of PW-4, Sri Biren Mohanan, the maternal uncle of the prosecutrix, who was responsible for bringing her to appellants house that the appellants wife was residing in Kolkata and he wanted the victim girl to be taken to his wife as maid servant. In his own statement under Section 313 Cr.P.C., the appellant stated that the victim was in his quarter with him from 18/2/2007 to 6/3/2007 i.e. 17 days but he did not send her to Kolkata to serve as maid servant for his wife. No explanation was given by him what prevented him from sending or taking her to Kolkata during all those 17 days. The evidence of PW-4 further reveals that while he visited the house of the appellant before the incident, he wished the victim should to taken to Kolkata as maid servant for his wife because the appellant and the victim only were living in the official quarter. This PW-4 expressed his anxiety and that it is undesirable to keep his niece (victim girl) in the appellants house alone with the appellant in absence of his wife and other family members. Such anxiety of the guardians was quite natural. The conduct of the appellant has shown a betrayal of trust of the guardian of the victim girl and it indicates his bad intention in keeping the girl with him for such a long period of time. The victim girl was also examined by a medical board on 02.04.2007 at 11.30 A.M. i.e. after 25 days she left the house of the appellant on 06.03.2007. As per medical report, P. Ext.-6, the external genitalia was found normal but hymen was not intact. In the opinion of doctors, the victim girl was found above 20 years of age and at the time of examination "there is no longer any evidence of violence in her genitalia or other part of the body. And it is not possible to determine the time of injury of hymen. Also it is difficult to comment on her past sexual habits". This medical report is suggestive to the fact that the prosecutrix in this case received injury to her hymen or genitalia, and the said injury/injuries disappeared or healed due to elapse of time. Evidence of the prosecutrix, in my opinion, in respect of rape, is corroborated by the medical evidence because the present case is not one of total absence of injury on the private parts of the victim girl. On the fact of this medical report/opinion, there is no scope for the appellant to plead innocence. Moreover, the surrounding circumstances like spending 17 days alone with a young girl does not cast any doubt on the probability factors of committing rape on the prosecutrix. It is also to be noted that the Medical Officer did not offer any opinion to the effect that the prosecutrix is habitual to sexual intercourse.

(14.) In a rape case, it is also not material whether the hymen is found intact or ruptured because complete penetration of Penis in the vagina is not necessary, a slight penetration touching the vulva by Penis with or without emission of semen is enough to constitute penetration and offence of rape if the act is done without the consent of the girl or even with consent of the girl below 16 years of age. In this regard, I may refer to the case of Tarkeshwar Sahu Vs. State of Bihar, reported in (2006) 8 SCC 560 [LQ/SC/2006/910] wherein, in para-13, it is held that in order to constitute rape, what Section 375 IPC requires is medical evidence of penetration and this may occur and the hymen remain intact. In view of explanation to Section 375 slight degree of penetration of Penis in the vagina is sufficient to hold the accused guilty for the offence under Section 375 IPC. It is similarly held in State of M. P. Vs. Munna Choubey, reported in (2005) 2 SCC 710 [LQ/SC/2005/89] .

(15.) In the present case, there is no conclusive medical evidence to the effect that the appellant lost the capacity of erection of his Penis and also lost the capacity of intercourse. Admittedly his age was 57 during the time of occurrence. The Medical Boards report does not say that the male organ of the appellant remained flaccid lacking in vigour and he cannot achieve erection of his Penis. There is nothing in the evidence that he has lost the capacity of erection and intercourse permanently and therefore, it cannot be accepted that the appellant could not indulge in sexual intercourse even occasionally. During the period from 18.02.2007 to 06.03.2007, according to the victim girl, the appellant indulged in sexual intercourse on five occasions. On ground of growing age only it can be presumed that he was not at all in a position to indulge in sexual intercourse with her daily but he at least had sex with her occasionally i.e. when there was occasion for erection and gain capacity occasionally after gap of couple of days in-between.

(16.) The relation of the appellant and the prosecutrix is that of master and servant or employer and employee. Being the master, the appellant had an undisputed dominion or control over the victim maidservant. The age of the prosecutrix being found above 20 years, may be, she was capable of giving consent to the act of sexual intercourse and the appellant was in a position to misuse his position as the master to obtain her consent but that cannot be treated as a conscious, free and voluntary one given in full possession of her faculties. It cannot be visualized such a position in respect of a poor illiterate maidservant living in a quarter without any other members with a top police officer in the rank of Senior Superintendent of Police. No reasonable man would think or presume that such a helpless maidservant would give her such consent to sexual intercourse with her master and when she refused to cooperate, the accused would not use force, at least on the first occasion, and if the first sexual intercourse with the victim girl is/was committed by force without her consent it would definitely attract offence of rape under Section 376 IPC. The helpless condition of the poor maidservant could be exploited by the appellant and he could keep on indulging in forcibly sexual intercourse with her unabated, at least on 4 subsequent occasions. The defence attempted to demolish the evidence of the prosecutrix by taking the plea that she had ample opportunity of fleeing from the appellants house, if she so wished because the door in the backside was kept open and therefore, the allegation was as much improbable as false. Yes, the victim girl somehow tolerated the sexual harassment for few days and she did, therefore, flee from her masters house when it came unbearable for her. The prosecutrix, in clear terms gave evidence to the effect that the sexual harassment meted by the appellant became so unbearable for her to stay further in his house and so she had to flee taking help of PW-2. How could one disbelieve her evidence Let me refer to the mandate of Summit Court through Kamalanatha Vs. State of Tamil Nadu, (2005) 5 SCC 194 [LQ/SC/2005/449] , wherein it is held that accused having dominion or control over prosecutrix physically, mentally and spiritually, there is no reason why the prosecutrix should depose falsely against the accused. In para 34, it is held that it is trite law that the prosecutrix is not an accomplice and the evidence of a victim of sexual assault, if inspires confidence, conviction can be founded on her testimony alone unless there are compelling reasons for seeking corroboration. Her evidence is more reliable than that of an injured witness. In a case of sexual assault corroboration as a condition for judicial reliance is not a requirement of law but a guidance of prudence. Further it is held that, as per the established law, minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case.

(17.) The defence taken by the appellant is not found convincing if the probability factors, as discussed above are taken into consideration. Besides, why should an illiterate, poor and helpless maidservant, without there being any allegation of instigation or tutoring by some vested interest, speak against the appellant at the cost of her future life and being condemned and ostracized by her own society unless she was subjected to such sexual harassment. There may be some minor insignificant contradictions in her evidence but they are not material for the purpose of deciding the case. The weightage is to be given to the probability factors and veracity of her evidence. One must not be oblivious of the fact that an illiterate and unsophisticated maidservant from a backward community like the prosecutrix may not be found to be so articulate in tendering her evidence yet it is not found artificial, rather spontaneous, firm and trustworthy, which may be termed as sterling, that has gained the confidence of this Court to affirm the conviction awarded by the learned trial Court on the appellant. Consequently, the impugned conviction is not liable to be interfered with; it should rather stand confirmed. It is, accordingly confirmed. It is stated at the bar that the appellant has already retired from service and he is serving the sentence in ill-health; he being suffering from diabetes, hypertension etc. and his long detention in jail would be fatal to his life. Minimum punishment for committing offence of rape under Section 376 IPC is 7 years and the learned trial Court has sentenced the appellant to undergo 7 years rigorous imprisonment. Whether the Court has power to further reduce the minimum sentence of 7 years. A proviso has been made to Section 376 IPC enabling the Court to the effect that the court may for adequate and special reason to be mentioned in the judgment impose a sentence of imprisonment for a term of less than 7 years. In view of the said proviso, in my considered view, the appellate Court may impose sentence of imprisonment for a term less than 7 years. Now the question arises whether the age and illness may be considered as an adequate and special reason for reducing the minimum sentence under the proviso to Section 376 IPC. The appellant has already suffered the maximum humiliation after being implicated in the rape case. The ends of justice would be met fairly if the minimum sentence of 7 years R. I. is further reduced to R. I. of 4 years. It is ordered accordingly.

(18.) The appellant shall serve the remaining period of sentence. He is given the benefit of set off for the period he was under detention in jail, if any, before his conviction.

(19.) The appeal stands partly allowed with modification in the impugned sentence in the manner as indicated above. Send down the LCR to the Court below forthwith.