1 Criminal Appeal (SJ) No.306 of 1997 [Appeal against the judgment and order dated 23/24.9.1997 passed by the Special Judge, Nawada in Special (H) case No.157 of 1995] Mantoo Kumar Singh @ Mantoo Singh alias Mithilesh Kumar, son of Late Jageshwar Singh, resident of village Jogachak, P.S. Kauakol, district Nawada …………………….. Appellant Versus The State of Bihar ………….. Respondent For the Appellant : Mr. Ashutosh Kumar, Advocate Mr. Chandra Mohan Jha, Advocate For the Respondent : Mr. C. Jawahar, Addl. P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellant has been convicted u/s.376 I.P.C. and sentenced to R.I. for seven years by a judgment dated 23/24.9.1997 passed by the Special Judge, Nawada in Special (H) case No.157 of 1995. 2. The case of the prosecution according to prosecutrix Kiran Kumari (P.W.5) is that on 25.12.1995 when she along with her brother had gone to the floor mill of the appellant to get her paddy crushed, the appellant allegedly asked her brother to go home on some pretext and in the mean while committed rape upon her. In the mean another lady came also for getting her rice crushed but the appellant asked her to come after sometime, then he asked the prosecutrix to come and he again raped her. Then she allegedly started crying, at which P.W.4 came 2 there. 3. During trial the prosecution has examined thirteen witnesses. Out of whom, P.W.2 and P.W.3 are the parents of the victim, whereas P.W.5 is the victim herself and P.W.7 is her brother. P.W.8 and P.W.10 are seizure witnesses and P.W.4 is an alleged eye witness. P.W.9, P.W.11, P.W.12 and P.W.13 are the four Investigating Officers, whereas P.W.1 and P.W.6 are the two doctors. During trial the victim P.W.5 stated as to how her brother was sent home on some pretext and then the appellant committed rape upon her. She further stated that after the first act was over, the appellant asked his customers to come after sometime and once again committed rape on the victim, at which she crying and then P.W.4 came there. P.W.4 Morwa Devi has stated that when she went to the flour mill of the appellant, she found the door closed and when she got it opened she saw the prosecutrix weeping on the Chowki, whereas the appellant had mounted her body. Seeing the said witness appellant got up hurriedly and dressed himself. She then told her that she went to the mother of P.W.5 and paddy has been scattered but she did not tell about the occurrence. The mother P.W.2 was informed about the occurrence by the victim herself. P.W.2, P.W.3 and P.W.7, who are the parents and the brother respectively of the victim, have deposed as hearsay witnesses. P.W.6 Dr. Arun Bhati stated that she had 3 examined the victim on 26.12.1995 but found the hymen intact as also no injury on the private parts. She sent the vaginal swab for pathological examination to P.W.1, who testified that he did not find any spermatozoa in the said swab. He also proved the report of the Medical Board, which in his opinion found the victim of 9-10 years of age. 4. It has been submitted on behalf of the appellant that the prosecution story appears to be highly improbable since it did not stand to reason that the victim would make herself available to the appellant for commission of rape the second time. The natural conduct of a person would be to run away as soon as there was an opportunity to do so. The further submission is that the doctor’s opinion belies the prosecution case that in fact rape had been committed. It has also brought to the notice of the court that an argument had been advanced on behalf of the appellant that he was merely 14 years 9 months on the date of occurrence and, therefore, the incident should be viewed keeping the young age of the appellant in mind. 5. There is no doubt that the doctors have not supported the factum of rape, but it appears that the victim had been medically examined a day later and, therefore, non-finding of any injury on the person of the victim or the sperms in the vaginal swab is easily explained. But the fact that the hymen was intact is relevant in the facts of the case. The prosecution story that the victim had been raped 4 the second time appears to be improbable, but for this reason alone the prosecution case can not be discarded. Since P.W.5 was merely a girl of 9-10 years of age and she may have given an exaggerated version of the occurrence. 6. Considering the entire conspectus of the case in mind and the fact that the Doctor had found the hymen intact, I am inclined to acquit the appellant for the offence u/s.376 I.P.C., but he is convicted for the offence punishable u/s.376/511 I.P.C. Keeping in view the age of the Appellant at the time of occurrence, the sentence is reduced to the period already undergone by him during trial. 7. In the result, the appeal is dismissed with the aforesaid modification. Patna High Court Dated, 12th July, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )