Criminal Appeal (SJ) No.268 of 1997 ****** Against the judgment of conviction and order of sentence dated 30.08.1997 and 01.09.1997 respectively passed by Shri Krishnakant Sahay, learned Additional Sessions Judge - III, Nawadah in Sessions Trial No. 03/97/176/96. ****** 1. Maheshwar Yadav, Son of Lalo Yadav. 2. Kundan Kumar alias Pappu Yadav, Son of Balgovind Yadav. 3. Ashok Kumar, Son of Late Rupchand Yadav. All residents of village Supaul, Police Station – Akbarpur, District – Nawadah. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. ****** For the Appellants : Mr. Arun Kumar Tripathi, Amicus Curiae. For the Respondent : Mr. Sujit Kumar Singh, A.P.P. ****** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Nobody appears on behalf of the appellants. Mr. Arun Kumar Tripathi, Advocate is appointed as amicus curiae to assist this Court. 2. Heard learned amicus curiae and learned counsel for the State. 3. The appellants have been convicted under Section 376/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. 4. The prosecution case as alleged in the fardbeyan of the informant is that on 04.05.1996 at about 7:00 P.M. when she went to attend the call of nature and there Kundan Kumar @ Papu, Ashok Kumar and 2 Maheshwar Yadav suddenly came near her and Ashok Kumar asked whether her father and mother were in the house or not. She replied that mother was not in the house but father was there and he could meet him there. In the mean time, Papu Yadav gagged her mouth with towel and Maheshwar Yadav took her in his lap. All the three accused- persons took her on the bank of Khuri River in lonely place and all the three raped her one by one and then she came and gave the information to her parents and family members. In the night she was at her house. Villagers tried to settle the matter and also tried Panchayati but the family of the victim did not agree. In the morning she was to proceed to the Police Station when police came and recorded her statement. 5. On the fardbeyan of the informant, the FIR was lodged and after investigation the charge-sheet was submitted, cognizance was taken and the case was committed to the Court of Sessions and during the trial seven witnesses were examined on behalf of the prosecution. The witnesses examined as P.W. 1 Mishri Vishwakarma, P.W. 2 Doctor Mrs. Arun Dhati, P.W. 3 Babita Kumari, P.W. 4 Parmanand Goswami, P.W. 5 Lal Bishun Ram, P.W. 6 Doctor Madhu Sinha and P.W. 7 Doctor Indu Jyoti. 6. The defence of the accused is that they have falsely implicated and the injury not as such to suggest a gang rape and the injury may be possible by Khuti of the field. 3 7. The documentary evidence proved are Ext. 1 signature on the fardbeyan of Mishri Vishkarma, Ext. 2 injury report, Ext. 1/1 signature on the injury report, Ext. 1/II signature on the injury report, Ext. 3 requisition, Ext. 4 pathologist report, Ext. 1/III signature on the fardbeyan of Babita Kumari, Ext. 5 fardbeyan, Ext. 6 endorsement, Ext. 7 formal FIR. On considering the oral and documentary evidence the order of conviction and sentenced passed. 8. Learned counsel for the State submits that the allegation of rape is not substantiated by the victim and further the victim cannot walk for a long distance from the period after the occurrence and hence the prosecution case is not reliable and worthy of confidence. 9. P.W. 3 is the victim aged about 12 years and the court has assessed her age as 14 years supported the prosecution case about her rape. These three appellants came, took her from the place where she was attending the call of nature and took her to the bank of river and they committed rape one by one. There is nothing in her cross- examination to disbelieve her. 10. P.W. 2 the doctor has stated that the age of the victim found to be 12 – 13 years. However, she has stated that there is no evidence of inter-course. It appears that she has been harassed sexually and proved the injury report in her pen and signature. However, in cross- examination it is stated that if a rape is committed by person having 4 robust personality the prosecutrix cannot walk after gang rape and the victim will admits two fingers on examination after gang rape whereas the evidence of P.W. 2 in her examination that there is abrasion over the right side of the labia mamora. Hymen absent admitting one finger tender. The victim was examined on 06.05.1996. In cross-examination he has stated that if rape committed by person having robust personality. The prosecutrix cannot walk after gang rape. Victim will admit two fingers. 11. P.W. 6 is another doctor Mrs. Madhu Sinha, who was also amongst the team who examined the victim. She has also proved the injury reports. However, in cross-examination she has stated that it is not necessary for male person having injury during coitur with virgin girl aged about 12-13 years. 12. P.W. 7 Dr. Inder Jyoti has also stated that the injury is not possible by gang rape and may possible by hard object. Hence, the evidence of doctor ruled out the gang rape on the victim. 13. P.W. 1 is the father of the victim. The victim has supported the prosecution case though the medical evidence suggests that she has been sexually harassed but possibility of the gang rape has been ruled out. 14. However, from the evidence of the doctor it is apparent that the allegation of gang rape is not substantiated as the penetration has not 5 been established though there is injury at the private part. However, having regard to the allegation and the nature of the injury it can well be inferred that the prosecution has been able to establish the attempt of rape as no penetration as per the evidence of the doctors. It appears that there is no penetration though the injury on the private part and hence it can well be inferred that an attempt was made for rape and hence the order of conviction and sentence recorded under Section 376 of the Indian Penal Code is hereby substituted to Sections 376/34 and 511 of the Indian Penal Code and further having regard to the facts and circumstances the order of conviction of the appellants are reduced and however, having regard to the fact that the appellants have remained in jail since 1996 to 1999 and hence the ends of justice shall meet by sentencing the appellants for the period already undergone and hence the appeal is allowed in part with this modification in sentence. 15. Mr. Arun Kumar Tripathi, shall be supplied a copy of this judgment and he shall be entitled for the fee of hearing payable by High Court Legal Services Committee, Patna. (Gopal Prasad, J.) Patna High Court, The 28th July, 2011. N.A.F.R./Kundan.