Criminal Appeal (SJ) No.4 of 1997 [Appeal against the judgment and order dated 30th November, 1996 passed by the 1st Additional District & Sessions Judge, Jehanabad in Sessions Trial No.105 of 1994/ 63 of 1996] Kishan Kumar Agrawal, son of Sri Bashirath Agrawal, resident of village Rajapur Rai Tola, Kalyanpur, Police Station East Champaran, presently residing at Raghunathpur Tola, Citkohra Bazar, Police Station Gardanibagh, District Patna …………………….. Appellant Versus The State of Bihar ………….. Respondent For the Appellant : Mr. Pankaj Kr. Das, Advocate For the Respondent : Mr. J.K. Singh, Addl. P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellant has been convicted u/s.376 I.P.C. and sentenced to R.I. for ten years by a judgment dated 30th November, 1996 passed by the 1st Additional District & Sessions Judge, Jehanabad in Sessions Trial No.105 of 1994/ 63 of 1996. 2. The case of the prosecution according to one Durga Prasad given on 20.9.1991 is that his daughter Baby Kumari aged about 11 years had not returned from school, of which she was student of Class VII on 13.9.1991. On enquiry it was learnt that one Roshan, daughter of Imamuddin, had in fact enticed away his daughter for immoral purposes. During investigation of the case six months later i.e. on 16.5.1992 the said Baby Kumari was 2 recovered from the house of the appellant along with Roshan. The statement was recorded and thereafter charge sheet was submitted u/s.376 I.P.C. and the appellant was put on trial. He had been charged u/s.366A as well as 376 I.P.C. for having committed rape on Baby and Roshan. During trial the said Roshan was examined as P.W.5 but she did not support the factum of occurrence. It was also noted that in fact the appellant was facing a separate trial for having kidnapped and raped the said Roshan and, therefore, the charge of kidnapping and raping Roshan was redundant. 3. During trial the prosecution on its behalf has examined six witnesses. Out of whom, P.W.2 is the doctor, who examined the two alleged victims P.W.4 and P.W.5. P.W.1 is the informant and the father of Baby Kumari, whereas P.W.3 is the Judicial Magistrate, who had recorded the statement u/s.164 Cr.P.C. of the two victims. P.W.4 is Baby Kumari, whereas P.W.5 is Roshan and P.W.6 is the Investigating Officer. 4. On going through the evidence of the Investigating Officer, I find that the said Baby Kumari was recovered from the house of the appellant on 16.5.1992, which fact was also supported by both Baby Kumari and Roshan. Baby Kumari in her statement categorically stated that she had landed in the house of the appellant, when an old lady had brought her to his house as also in the period 3 she remained in his house the appellant had sexually assaulted her. The doctor (P.W.2) also found that the victim was used to sexual intercourse and her hymen was torn. 5. Considering such cogent material appeared against the appellant, I am not inclined to interfere with the conviction of the appellant. However, since the appellant has remained in custody for about 5 years, the period already undergone by him during trial shall be sufficient punishment in the interest of justice. 6. In the result, the appeal is dismissed with the aforesaid modification in sentence. Patna High Court Dated, 12th July, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )