Criminal Appeal (SJ) No. 17 OF 1995 ******** Against the judgment and order of conviction dated 28/29.11.1994 passed in Sessions Trial No. 89 of 1993/21 of 1994 by the learned 4th Additional Sessions Judge, Madhubani. ****** BECHAN MIAN S/O VAKIL MIAN, R/O VILLAGE- KARUNA, P.S.- HARLAKHI DISTRICT- MADHUBANI ……..….. Appellant Versus THE STATE OF BIHAR …..………. Respondent ************ For the Appellant : Mr. Vishwanath Pd. Singh Sr.Adv. : Mr. Prabhash Ranjan Thakur Adv. For the State : L.K. Bihari APP. P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH ********* Anjana Prakash, J. The appellant has been convicted under Section 376 and 448 I.P.C. and sentenced to rigorous imprisonment for 7 years under the first count but no separate sentence has been awarded under Section 448 I.P.C. by the 4th Additional Sessions Judge, Madhubani in Sessions Trial No. 89 of 1993/21 of 1994 by the judgment dated 28/29. 11.1994. 2. The case of the prosecution is that on the night of 20.9.1990 while she was sleeping with her mother-in-law and daughter aged about 4 years the appellant entered into her room who was identified in the light of the ‘Debiya’ and inspite of her protest the appellant committed rape upon her and fled away. 3. During trial the prosecution examined 7 witnesses out of whom P.W.1, 2, 4 and 7 are the close relatives of the informant, P.W. 3 is on the point of having seen the appellant fleeing away from the place of occurrence, P.W. 6 is the doctor who examined the informant whereas P.W.5 is the Investigating Officer. 4. Even though it has been stated that the mother-in-law was sleeping in the same courtyard of the house but she has not been examined which is vital lacuna in the prosecution case. 5. Further, the fact that P.W.4 did not wake up in the course of the physical relationship having forcibly been established by the appellant and in course of protest by the informant her presence appears doubtful. 6. Further, the evidence of P.W.1, 2 and 7 that they had seen the appellant fleeing away from the place of occurrence also does not seem to be probable since admittedly it was dark night and the chances of the appellant having been identified is doubtful. However, since the prosecutrix herself has given vivid description of the act committed by the appellant, I am inclined to accept her version as true. 7. In the result, the appeal is dismissed but with modification in sentence to the period already undergone by him during trial. Patna High Court, ( Anjana Prakash, J. ) Patna Dated the 18th April, 2011 NAFR/ Fahad.