Criminal Appeal (SJ) No.103 of 2006 Against the judgment of conviction and order of sentence dated 16.12.2005 passed by Additional District & Sessions Judge, Fast Track Court No.II, Sheohar(Sitamarhi) in Sessions Trial No.183 of 1998/52 of 2005. MAHENDRA KUNWAR----------------------Appellant Versus STATE OF BIHAR---------------------Respondent ---- For the appellant:- Sri Prasoon Sinha, Advocate For the State:- Sri Ajay Mishra, A.P.P. P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J The present appeal is directed against judgment dated 16.12.2005 passed by the learned Presiding Officer of Fast Track Court No.II, Seohar at Sitamarhi in Sessions Trial No.183 of 1998/52 of 2005 by which the solitary appellant was found guilty of committing offence under Section 376 IPC and by the order of sentence passed on the same day, was directed to suffer rigorous imprisonment for seven years as also to pay a fine of Rs.2,000/-, else to suffer imprisonment for three months. 2. The prosecution case as contained in the FIR lodged by the informant Vijay Kumar Shahi(P.W.4) was that when he had reached his house from Sitamarhi court at 8.30 P.M. he found that his daughter aged about six years had been 2 taken by this appellant to the Darwaja of one of his full brothers Jai Kishore Shahi, and had put her on the ground. When he flashed his torch light he found that the appellant had gagged the child and was attempting to commit rape upon her. No longer had the informant put his bicycle on its stand than the appellant had run away. 3. It was stated by P.W.4 that on enquiry from her the victim (P.W. 3) pointed out that the appellant after having put her down was attempting to ravish her. 4. On the basis of Ext-1, the case was investigated into, during which course the victim child was produced before P.W.5 Dr. Madhu Singh who medically examined her. She found that victim was aged somewhere between six and seven years and there was no injury either on her private part or on her person. There was no mark of stain either of blood or of semen also on any part of the body of P.W.3. 5. However, the police had seized a red colour short which was found stained by some liquid material and that was sent for chemical analysis to F.S.L. and that report has been marked as Ext-3. The chemical analysis report also did not indicate that the stain which was 3 appearing on the red colour kachchia could be bearing semen. In spite of all these circumstances and evidence, the solitary appellant was sent up for trial and was sentenced as indicated earlier. 6. During the course of the trial, the appellant set up a plea and that appears not denied that there was dispute between the appellant and the informant about a thoroughfare in between their houses and on that account there were some litigations pending between them in Civil Courts, Sitamarhi and in that background the informant had chosen to falsely implicate the appellant. However, that plea of defence was rejected by the learned trial Judge as may appear from the discussion of it in paragraph-15 of the judgment and the appellant was held guilty. 7. I have heard Sri Prasoon Sinha, learned counsel appearing for the appellant and I have also heard Sri Ajay Mishra, learned A.P.P. for the State. 8. The victim’s evidence has been discussed in paragraph-9 of the judgment and the learned trial Judge has placed reliance upon her evidence as per which a case of sexual 4 intercourse was made out. But on consideration of the evidence of P.W.5 as also the unimpeachable evidence in the form of F.S.L. report Ext-3, it was evidently clear that the victim was not bearing either any external or internal injury. There were no internal damages to her private part nor was there any evidence of at least penetration. In fact, the learned trial Judge has missed to read these circumstances which could have been important in the light of evidence of P.W.5 Dr. Madhu Singh. She was not finding any stain either of blood or of any other material any-where on the person of P.W.3 and that was being confirmed by the examination of her underwear by the F.S.L. Thus, the prosecution case that the victim was ravished, in my opinion, was not established to the hilt as the evidence of P.W.3 may be true on some aspect, but the possibility may not be ruled out that she might have been tutored to state certain serious facts. In view of my instant opinion on appreciation of the evidence of both P.W.3 and P.W.5 the doctor who examined her, I find that the conviction of the appellant under Section 376 IPC was not sustainable. 9. But when I consider the evidence of 5 P.W.3 and other witnesses and the evidence of police regarding the seizure of under garment and the finding of no stain, the case of a serious attempt to ravish the six years old victim so as to raping her in which he could not succeed on account of timely arrival of P.W.4 at the scene of occurrence as a result of which the appellant ran away from there appears impossible. After taking stock of the evidence available on the record, what I find is that it was a case in which the appellant ought to have been convicted under Section 376 IPC read with Section 511 IPC and accordingly he is convicted of that offence. 10. After having found the appellant guilty of attempting to commit rape upon the victim, the question is as to what sentence could be inflicted upon the appellant? It was contended by Sri Ajay Mishra, the learned Addl. P.P. that the appellant remained in custody for about six years and that the ends of justice shall be served if the period undergone is treated as sentence inflicted upon him. 11. Considering the age of the appellant and his act serious sentence is required to be passed and in that view the 6 period of about six years that the appellant has spent in prison is inflicted upon him as sentence. No sentence of fine is required to be imposed upon him. In view of the sentence which I have just inflicted upon the appellant and which he had already undergone, I direct the release of the appellant, if not wanted in any other case. The appeal is dismissed with modification in conviction and sentence as indicated above. Patna High Court, Dated, the 22nd day of June, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)