Criminal Appeal (SJ) No. 359 OF 1994 In the matter of an appeal under Section 374 (2) of the Code of Criminal Procedure. ************ 1. Sukhu Dusadh, S/o Late Hari Charan Paswan. 2. Manjhi Dusadh, S/o Late Ram Dahin Dusadh. R/o Village-Kurmi Chak, P.S.-Sahar, District-Bhojpur. ……………..(Appellants) Versus THE STATE OF BIHAR------(Respondent) ************ For the Appellants : Mr. Barmeshwar Tiwary, Adv. For the State : Mr. Choubey Jawahar, 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 323 IPC and sentenced to one year RI respectively by the 2nd Additional Sessions Judge, Bhojpur in S.Tr. No. 323 of 1992 by a judgment dated 07.09.1994. The case of the prosecution according to the P.W. 3 is that the appellants entered into her hut and forcibly committed rape upon her. During trial five witnesses have been examined out of whom P.W. 1 is the son of the victim and P.W. 2 is her husband. Both have not supported the case of the prosecution and have been declared hostile. P.W. 3 is the prosecutrix itself whereas P.W. 4 is the Doctor and P.W. 5 is formal in nature. On going through the evidence on record of P.W. 3, I find that she had stated that P.W. 1 and P.W. 2 had been threatened by the accused persons. Therefore the fact that close family members did not support the prosecutrix is very well explained. On going through the evidence of P.W. 3, I do 2 not find any discrepancy in her statement and even though the accused repeatedly suggested to her about her character or that she was earlier married to another person it would not discredit her testimony on this Court. P.W. 4 who is the Doctor has given an ambiguous statement as is usual of a Doctor in such cases. In view of the evidence of P.W. 3 that the appellants had committed rape upon her, I am not inclined to interfere in the judgment of conviction. However since it will not be in the interest of justice to send the appellants behind the bars who were aged fifty years on the date of occurrence and now would be around seventy after a lapse of twenty years, the appeal is dismissed with modification in sentence to a period already undergone. They, if alive, are further directed to pay a sum of Rs. 2,500/- each to the victim/her family within a period of eight weeks from the date of receipt of notice from the Trial Court and in case they fail to do so they shall be imprisoned for six months R.I. In the result, the appeal is dismissed with modifications. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 4th April, 2011. NAFR/Vikash/-