Criminal Appeal (SJ) No. 24 of 1997 (Appeal against the Judgment and Order dated 29.11.1996 passed by the 1st Additional Sessions Judge, Sitamarhi, in Sessions Trial No. 236 of 1995/37 of 1995.) ================================================= MOHAMMAD AIZAZ ANSARI @ MOHAMMAD AIZAZ, SON OF MD. MOLAJIM, RESIDENT OF VILLAGE GOPAIYA, P.S. & DISTRICT SHEOHAR, AT PRESENT RESIDERNT OF INSPECTION BUNGLOW, P.S. & DISTRICT SITAMARHI. .... .... APPELLANT Versus THE STATE OF BIHAR .... .... RESPONDENT ================================================= Appearance : For the Appellant : Mr. Prasoon Sinha, Adv. For the State : Mr. C. Jawahar, A.P.P. ================================================= 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 of the Indian Penal Code and sentenced to rigorous imprisonment for seven years as also a fine of Rs. 1,000/- in default of which further rigorous imprisonment for six months by the 1st Additional Sessions Judge, Sitamarhi, in Sessions Trial No. 236 of 1995 by a judgment dated 29.11.1996. 2. The case of the prosecution is that while the S.I. of Outpost was on patrolling duty, in the evening, he heard near the circuit house that some occurrence had taken place. He proceeded there and recorded the statement of the prosecutrix that when she was cleaning utensils, at about 3.00 P.M. on 27.6.1995, the Appellant who was the son of the cook took her to a nearby room and closed it and, thereafter raped her. When the people started raising a cry and knocked the door of the room, the Appellant allegedly opened the door and he was Patna High Court CR. APP (SJ) No.24 of 1997 dt.11-07-2011 2 arrested there and then. The prosecutrix as well as the Appellant were produced before the Doctors for their physical examination and they were examined by PW-2 and PW-3. Both the Doctors who examined the prosecutrix and the Appellant, did not find any sign of sexual intercourse. 3. During trial, the prosecution examined eight witnesses out of whom PW-1 Maina Devi is the mother of the victim. PW-4 is the victim herself whereas PW-5 is the Aunt of the victim and PW-7 is her cousin. PW-6 is a tendered witness whereas PW-8 is the Investigating Officer. 4. PW-4 during trial stated that she was the daughter of the Sweeper of the Inspection Bungalow and on the date of occurrence she had gone to the tube well of the Inspection Bungalow for taking water when she was forcibly taken away by the Appellant to a nearby room whereafter the door was closed and then the Appellant forcibly committed rape upon her. She tried to raise alarm but she was prevented from doing so. In the meanwhile, some persons assembled outside and started knocking at which the Appellant opened the door and was caught by the people who were gathered there and handed him over to the Police who reached soon thereafter. The Doctor found her aged about 13 years and I find it difficult to accept that she did not raise any alarm when she was being forcibly taken to the room. The fact that it is the case of the prosecution that some persons gathered suspecting some foul play also indicates that probably they had a reason for suspicion at which the door was got opened. Here the age of the Appellant/Prosecutrix is relevant. It appears the Appellant was only about 19 years of age and neighbour of the Prosecutrix who was also a girl of tender age. Moreover, the categorical statement of both the Doctors that no sexual relationship had been established between the parties, further belies the prosecution case. 5. In view of such, I am inclined to acquit the Appellant under Patna High Court CR. APP (SJ) No.24 of 1997 dt.11-07-2011 3 Section 376 of the Indian Penal Code. However, in the facts of the case, he is convicted under Section 354 of the Indian Penal Code and his sentence is modified to the period already undergone by him during tiral. 6. In the result, the Appeal is dismissed with the aforesaid modification. (Anjana Prakash, J.) Patna High Court, Patna, Dated, 11th July, 2011. NAFR/S.ALI