IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Appeal No. 45 of 1996 Against the judgment and order dated 31.01.1996 passed by Sri Ibrar Hassan, 2nd Additional Sessions Judge, Gaya in Session Trial No. 42/94/35/94. Sanjay Kumar @ Dhirendar Prasad, Son of Bajrangi Mahto, resident of village – Manpur Pahari, Police Station – Buniadganj, District – Gaya. ………. Appellant. Versus The State of Bihar ……….. Respondent. ----------- For the Appellant :- Sri Rakesh Kumar Sinha, Advocate. Sri Anuj Prakash, Advocate. For the Informant :- Sri Mithilesh Kumar Pathak, Advocate. For the Respondent :- Sri Parmeshwar Mehta, Advocate. ------------- P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD. Gopal Prasad, J. Heard learned counsel for the appellant, informant as well as the State. 2. The appellant has been convicted under Section 376 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for eight years. 2 3. The prosecution case as alleged in the fardbeyan of the informant is that while she was alone at her house situated at Manpur Pehanikoeri Tola, appellant knocked the door to open and then asked for a glass of water, then the informant victim went to bring water, then he closed the door and when the informant tried to make a Halla then her mouth was shut and was threatened to dire consequence to kill and threw her on the ground of Agan and committed rape. When the appellant went away, she went to Kumhartoli at the mill where father, mother, brother and brother-in-law of victim were there and disclosed about the occurrence. The father and brother of the victim went to the place of occurrence and they also caught hold of Sanjay Kumar and brought her at the mill and in the mean time the police came and recorded her statement. 4. On the fardbeyan of the informant the FIR was lodged and charge- sheet was submitted after investigation. However, during the investigation her statement was recorded under Section 164 of the Cr.P.C. However, during the trial seven witnesses were examined. However, one witness was examined as a court witness and gave his evidence also adduced oral and documentary evidence and two witnesses were examined on behalf of the defence who are D.Ws. 1 and 2. D.W. 1 is Sanjay Kumar, the brother of the appellant and D.W. 2 is Prem Narayan Prasad. After the trial the trial court convicted and sentenced the appellant in the manner as stated above. 3 5. The learned counsel for the appellant, however, challenged the order of conviction in appeal. It has been submitted that the appellant has falsely been implicated. 6. Learned counsel for the appellant, however, contended that the prosecution has not been able to prove the charges beyond reasonable doubt. There is inherent contradiction in the evidence of P.W. 1 and the other witnesses and the defence of the accused appellant is that he is not Sanjay Kumar and his name is Dhirendra Prasad and the brother of this appellant named Sanjay Kumar. The further defence is that Sanjay Kumar the brother of the appellant while going to his office saw the victim with Ram Saran in a compromising position in his room and then the said Sanjay Kumar, the alleged brother of the appellant made a Halla and then the villagers collected but to save the skin of Ram Saran the brother-in-law of the victim the accused persons have falsely been implicated the appellant. It has further been contended that the victim was having illicit relation with Ram Saran, the brother-in-law of the victim girl who always used to visit Sasural and further no objective evidence like the blood or remains of the clothes was ever found at the place of occurrence where it has been alleged that the rape was committed and blood alleged to have oozed out and even the semen of the victim segregated. It has further been contended that neither the said Ram Saran Mahto though a charge-sheet witness, nor 100 of person who collected at the time of occurrence were examined and further the doctor who examined the victim did not find the spermatozoa in the victim during the examination of the victim and 4 the doctor did not find the appellant having committed the rape and did not find any sign of committing rape and the spermatozoa has also not been found in the medical examination of the victim and hence submitted that the prosecution has not been able to prove the charges. 7. Learned counsel for the State, however, contended that the victim in her evidence has fully supported the prosecution about the rape and P.W. 2 and 6 have also supported and corroborated the evidence of the prosecutrix and further the evidence of the doctor also suggest a sign of resent sexual intercourse with the victim. However, non finding of the semen or injury on the victim itself is no ground to disbelieve the prosecution case when the recent sexual intercourse has been suggested by the medical evidence. 8. Hence, having regard to the respective submissions the prosecution case as alleged in the fardbeyan specifically mentioned that when the victim girl was at her house the appellant came and knocked the door and demanded water and when she turned he shut the door and committed rape causing injury and the blood was oozing and semen discharged and then she got up, opened the door and her father mother and brother just after the occurrence proceeded to the police and caught hold of the appellant. The occurrence is alleged to be at 12:00 noon. The matter was reported to the police at 4:00 P.M., the same day. The statement of the victim was recorded under Section 164 of the Cr.P.C during the investigation and the witnesses P.W. 2 the sister and the informant supported the 5 evidence of the prosecution as the victim made and disclosed about the occurrence and thereafter the FIR was lodged. 9. P.W. 4 Dasrath Mahto is the father of the informant. 10. Learned counsel for the appellant though has pointed out some contradiction in the evidence of P.W. 1 that she stated that she did not know victim from before but subsequently she has stated that the appellant used to read along with the brother and his brother had disclosed the name. However, the contradictions pointed out are minor in nature and does not appear sufficient to discredit the prosecution case. 11. However, the medical evidence also supported the prosecution case as it has been stated that there is sign of recent sexual intercourse. However, it has been asserted that the appellant is not Sanjay Kumar but brother of Sanjay Kumar. However, the victim girl has identified the appellant in court in paragraph 10 of her evidence and hence the identification of the appellant is not doubtful. The victim has identified the appellant in court as the person who has committed rape on her person and hence there is no merit in submission that the appellant is not the person who committed rape. 12. The contention of the appellant that the evidence has been set up to support the false case instituted for the reason that the brother of this appellant while going to his office peeped through window and saw the victim in compromising position with his brother-in-law and then he made a Halla, then the people collected and the appellant was falsely implicated. However, the defence 6 taken itself appears to be improbable that one will peep through window of another person and then made halla. However, except suggestion no reliable evidence adduced to this effect. 13. However, having regard to the fact that the victim is 11 years old and one can hardly make a false allegation about the rape jeopardizing his reputation and chastity which is very rare and hence the submission of the false implication of the appellant does not stand to reason, hence taking into consideration the evidence I do not find any merit in the appeal to interfere into the order of conviction and sentence recorded by the learned lower court. However, it has been contended that the appellant has remained in jail for two and half years during the investigation and after conviction till bail was granted. However, the occurrence is with regard to a serious offence like a rape and the minimum sentence provided is seven years for offence under Section 376 of the Indian Penal Code and there is no reason to reduce the sentence and hence taking into consideration of the entire facts and circumstances I do not find any merit in the appeal to interfere with the order of conviction and sentence and hence I do not find any merit in this appeal and hence the appeal is dismissed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 7th July, 2011. N.A.F.R./Kundan.