Criminal Appeal (SJ) No.410 of 1998 ****** Against the judgment of conviction and order of sentence dated 13.11.1998 and 17.11.1998 respectively passed by Sri Manohar Prasad, learned 2nd Additional District & Sessions Judge, Gopalganj in Sessions Trial No. 39/1997/12/1997. ****** Rameshwar Bhagat, Son of Shri Bhoj Bhagat, resident of village – Pandit Harpur, P.S. – Thawe, District – Gopalganj. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. ****** For the Appellant : Mr. Manan Kumar Mishra, Sr. Advocate. Mr. Sanjay Kumar Pandey, Advocate. 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. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted under Section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years. 3. The prosecution case as alleged in the fardbeyan of the informant Neeti Kumari is that one day prior (18.03.1996) on Monday she went to Gopalganj from her Naihar Ramchandrapur to visit her father in Gopalganj Jail. She was returning at about 7:00 P.M. along with his brother Mukesh Bhagat and when she reached in between the 2 Harakhuan and Paithanpatti, a neighbourer Rameshwar Bhagat of village Harpur caught hold of her arm and took her to East of a pond through Rahari field and committed rape in Masuri field. After rape he left her with threatening that if she will disclose the fact then she would be killed and thereafter he fled away. The further case of the prosecution is that she returned back to Gopalganj and disclosed her father and thereafter her father told to take legal action. 4. On the fardbeyan of the informant, First Information Report was lodged. After investigation charge-sheet was submitted, cognizance was taken and the case was committed to the court of Sessions. After commitment, charge was framed, trial proceeded and during trial fourteen witnesses were examined by the prosecution. The trial court took into consideration the evidence of the prosecutrix that she has supported the prosecution case about rape as alleged in fardbeyan and taking other evidence, contradiction and discrepancy pointed out which are liable to occur in such cases where victim is subjected to physical invasion shattering her physically and emotionally and the brother is bewildered child, convicted and sentenced holding prosecution proved the case beyond reasonable doubt. 5. Learned counsel for the appellant, however, contended that the evidence of the victim suffer from contradiction that after the 3 occurrence she went to meet her father in Gopalganj jail. Her father advised her to file a case then she went to police station alone seems highly improbable. It is further contended that there is contradiction in the evidence of prosecutrix P.W. 2 and her brother Mukesh Bhagat P.W. 3. The victim has stated that after the occurrence she filed a case on the next day. She went to file a case alone to the Police Station at Thawe. She did not disclose the matter to any one either to her uncle or anybody else. It has further been contended that the evidence of P.W. 2 is contradicted by P.W. 3 regarding the fact that P.W. 3 states that he did not cry when the accused person took the victim whereas P.W. 2 has stated that he remained crying on the said road which is a busy road for half an hour. P.W. 2 prosecutrix stated that she went to the police station at 7:00 A.M. whereas P.W. 3 has stated that he came along with prosecutrix at jail on the next day at 10:00 A.M. and hence these contradictions are sufficient to disbelieve the case of the prosecution and the evidence of victim is not liable to be believed. 6. Learned counsel for the State, however, contended that the discrepancies and contradictions pointed out are not material regarding the rape but regarding the fact whether she went to the father to report the matter or whether she went to the place of occurrence to lodge the First Information Report and these contradictions are not material when the witnesses are natural then some contradiction may occur and the 4 prosecution story regarding the rape cannot be disbelieved when the victim has supported the prosecution case and evidence of P.W. 3 that at site of occurrence victim was taken by the accused. 7. However, taking into consideration the evidence, fact and circumstance the victim has supported the prosecution case about rape. However, the contradictions pointed out about the crying of brother and remaining on road is of little importance. However, human nature is to err and some discrepancies here and there are natural which do not shake the prosecution case. However, the discrepancies pointed out do not go to the root of prosecution case to shake the substratum of prosecution case. 8. P.W. 2 the victim supported the prosecution case that while she was returning from jail she was caught hold of by the appellant and was taken in Masuri field and was raped there. 9. P. W. 3 is the brother of the victim supported the prosecution case that the appellant took her and gave a slap. However, the contradiction that he wept or not wept on assault and they went alone to Gopalganj police station is matter of minute details and the witnesses are of tender age and there is bound to some contradiction here and there minor contradiction is bound to occur when informant and person of tender age under and stream of the examination and cross- examination even in case of trained and educated person memory play 5 false and this is more in rustic of tender age and the physical and mental restraints. The prosecutions of evidence in such case are on broad probabilities. The evidence of witnesses are not to be thrown because of few discrepancies and minor contradiction which does touch the case of prosecution case if the story is probable since coming in natural flow then the prosecution case be accepted. The discrepancy pointed out does not go to the root of prosecution case to shake the substratum of prosecution case. 10. However, it is pertinent to mention that it is a matter of common experience that in traditional society a girl of a tender age extremely reluctant to report rape and even are reluctant to report the incidence which touches her chastity as the victim and the family is conscious of the danger looked down by the society including their own near and dear and even they lost the scope of getting a proper match for her and hence when the face of these impediments when a crime is brought to the book there is assurance that the occurrence is occurred. However, it has been repeatedly held by the Apex Court that in such type of crimes to ask for corroboration is adding injury to the insult. However, the discrepancies pointed out are not with regard to the rape but with regard to the fact that whether she went to the father or whether she went to the police station and hence taking into consideration the discrepancies and the contradiction pointed out does not go to the root of the 6 prosecution case with regard to the rape and to shake the basic stratum of the prosecution case and hence taking into consideration the facts and circumstances I find and hold that the prosecution has been able to proved the charges and hence I do not find any discrepancies in the order of conviction recorded by the lower court. 11. However, taking into consideration the fact that the occurrence is of the year 1996 and fifteen years have already elapsed of the occurrence and the appellant has remained in jail from the year 1996, May to December, 1998 and hence the interest of justice shall meet by sentencing the appellant for the period already undergone and hence under the facts and circumstances of the case, the appeal is dismissed with modification in sentence. (Gopal Prasad, J.) Patna High Court, Patna. Dated, 16th August, 2011. N.A.F.R./Kundan.