Criminal Appeal (SJ) No. 400 OF 1994 In the matter of an appeal under Section 374(2) of the Code of Criminal Procedure. ************ 1. Naresh Mandal @ Narva, S/o Bamdeo Mandal. 2. Radhey Shyam Sharma @ Manganiya, S/o Ram Kishun Sharma. Both of Lalapur, P.S.-Antichak, District- Bhagalpur. ……(Appellants) Versus THE STATE OF BIHAR-------(Respondent) ************* For the Appellants : Mr. Ansul, Adv. For the State : Mr. R. B. Roy “Raman”, APP. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. The appellants have been convicted under Sections 376 and 366 IPC and sentenced to RI for ten years and five years respectively by a judgment dated 25.11.1994 passed by the 5th Additional Sessions Judge, Bhagalpur in S.Tr. No. 504 of 1992. The case of the prosecution is that on the night of 21.07.1991 the appellants entered into the house of P.W. 5, Dhanpatia Devi where the informant was sleeping and forcibly took her away and committed rape upon her. During trial the prosecution examined nine witnesses out of whom P.W. 1 and P.W. 3 are seizure witnesses whereas P.W. 5 has been declared hostile. P. W. 7 is the Doctor who proved the injury on the prosecutrix and P.W. 8 is the Investigating Officer whereas P.W. 9 is formal. P.W. 2 and P.W. 4 are material witnesses who have supported the fact of the appellants taking away the informant P.W. 6 whereas P.W. 6 is the prosecutrix herself. 2 On behalf of the defence three witnesses were examined mainly on the ground that in fact the husband of the prosecutrix had committed a theft of radio for which a panchayati was held and the appellants have been falsely implicated on account of such panchayati. However, the document brought on record by the defence falsified their defence since it was noted that it was the appellant No. 1 who had committed theft of the radio as per the said document. P.W. 6 who is the prosecutrix has fully supported the fact that the appellants had taken her away and committed rape in the fields adjacent to her house. This fact has been further supported by the two material witnesses P.W. 2 and P.W. 4. There are no major discrepancies which would falsifying the case of the prosecution to the extent of rejecting the prosecution case. The Doctor also found some injuries on the prosecution which suggested that she was forced upon. Considering the evidence of the witnesses, I am not inclined to interfere with the conviction of the appellants. However, since they have remained in custody for about three years their sentence is modified to the period already undergone during trial. The appeal is dismissed with the modification as noted above. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 18th April, 2011. NAFR/Vikash/-