Criminal Appeal (SJ) No. 263 of 1996 Against the judgment and order dated 20.08.1996 and 21.08.1996 respectively, passed by Shri Laxman Oraon, Sessions Judge, Sitamarhi in Sessions Trial No. 206 / 94. Ram Prit Ram, Son of Deo Sharan Ram, resident of village – Sundargama, Police Station – Parsauni, District – Sitamarhi. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. For the Appellant : Mr. Prasoon Sinha, Advocate. For the Respondent : Mr. Sujit Kumar Sinha, A. P. P. P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard. 2. The appellant has been convicted for the offence under Section 376/511 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for the alleged attempt to commit rape and has been sentenced to undergo rigorous imprisonment for a term of five years. 3. Learned counsel for the appellant, however, contended that there is allegation of rape with the dumb girl. However, no sign of rape was found by the doctor and even he found that though the FIR was lodged for the offence under Section 376 of the Indian Penal Code but the offence under Section 376 of the Indian Penal Code was not proved and hence the case is only made out under Section 354 of the Indian Penal Code and the occurrence is of the year 1994 and hence a lenient view may be taken to consider the sentence. 4. However, the FIR was lodged by the mother of the victim who is the dumb girl. The informant P. W. 1 has stated that the age of the victim is 17-18 years and hence contended that there may be possibility of consent. 5. However, the allegation is with regard to the rape with a dumb girl aged 17- 18 as stated by the mother. However, no person would jeopardize prestige of his/her family by making a false allegation of rape. 6. However, there is allegation of rape but the evidence of the doctor ruled out the said allegation as the victim has been examined. It is evident that vagina of the victim was not ruptured. There were no spermatozoa found in her vagina. The hymen was found intact. Her vagina was admitting tip of little finger with pain and difficulty and the age of the victim has been assessed as 17-18 years and hence in that view of the matter the accused has been absolved from the charge of 376 but convicted under Section 376/511 of the Indian Penal Code. 7. Hence, having regard to the fact that since the offence under Section 376 of the Indian Penal Code having been established and the conviction has been recorded under Section 376/511 of the Indian Penal Code and quite well infer that the charge under Section 354 of the Indian Penal Code has been made. However, the appellant during the trial was in jail since 10.06.1994 to 17.10.1996 and the age of the appellant at the time of the judgment was 48 years in the year 1996. Hence, in that view of the matter the ends of justice will meet by sentencing the appellant for the period already undergone and hence with this modification in the judgment the appeal is dismissed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, 1st July, 2011. NAFR/Kundan.