CRIMINAL APPEAL No.21 OF 1986 (S.J.) [Appeal against the judgment and order dated 20th December, 1985 passed in Sessions Trial No.72 of 1982 by Sri Hirdya Narain, 4th Asstt. Sessions Judge, Muzaffarpur] ******** 1. NAND LAL SAHANI SON OF SRI RAJEDNRA SAHANI 2. RAMPATIA DEVI WIFE OF RAJENDRA SAHANI, BOTH RESIDENT OF VILLAGE ARARA, P.S. KANTI, DISTRICT MZUAFFARPUR -----------Appellants Versus THE STATE OF BIHAR ---------------------------Respondent For the Appellants : Mr. S.B.K. Manglam, Advocate Mr. Arun Kumar Tripathi, Advocate Amicus Curiae For the State : Mr. Jharkhandi Upadhyaya, A.P.P. ******** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellant no.1 has been convicted for the offence under Section 376 of the I.P.C and sentenced to rigorous imprisonment for ten years and the appellant no.2 has been convicted for the offence under Section 376/201 of the I.P.C. and sentenced to rigorous imprisonment for three years by judgment dated 20.12.1985 passed by 4th Assistant Sessions Judge, Muzaffarpur in Sessions Trial No.72 of 1982. The case of the prosecution, in short, is that on 26.7.1981 at 2 P.M. P.W.5 Mahadevi while returning home saw the appellant Nandlal Sahni committing rape upon minor daughter of Mewa Sahni i.e. Raj Kumari. On close 2 inspection it was found that she was bleeding profusely from her private part which evidently corroborated the factum of rape upon her. However Rampatiya Devi, one of the appellants, also came there and she washed away under- clothes of the victim girl with a view to destroy the evidence of rape. Upon this, an investigation ensued and charge sheet was submitted against five accused persons, who were put on trial after having been charged for the offence under Sections 376, 376/201 and 341 of the I.P.C. However Nandlal Sahni, Chandeshwar Sahni and Bindeshwari Sahni were acquitted by the court below. During trial, the prosecution has examined ten witnesses in all. Out of whom, P.W.10 is Dr. Radha Gupta, who has examined the victim girl. P.W.9 Umakant Sharma is the Investigating Officer. P.W.7 Raj Kumari Devi is the victim girl. P.W.6 Shankar Sahni is a co-villager. P.W.8 Rampati Devi is the mother of the victim girl. P.W.1 Suraj Thakur is the Choukidar and P.W.5 Mahadevi is the informant herself. P.W.2 Kapildeo Sahni, P.W.3 Dahaur Devi and P.W.4 Bhakhu Sahni have been declared hostile. The prosecution has mainly relied upon the evidence of the witnesses P.W.5 Mahadevi, P.W.7 Raj Kumari Devi, the victim, P.W.8 Rampati Devi, the mother of the victim and P.W.6 Shankar Sahni, the independent witness. On going through the evidence of these witnesses, 3 the same is extremely explicit and P.W.7 Raj Kumari Devi has fully supported that when she had gone for grazing the buffalo in the orchard, appellant Nandlal Sahni caught hold of her from the back and threw on the ground and committed rape upon her. On her crying, the independent witness P.W.6 Shankar Sahni reached there who also corroborated the factum of reaching the place of occurrence on the cries of P.W.7. P.W.8 Rampati Devi, the mother of the victim also reached there and nursed her injuries. From her evidence, there is absolutely no contradiction and the factum of rape cannot under any circumstance be disbelieved. Moreover P.W.6 has in his evidence has also stated that when he was passing from the place of occurrence he happened to see P.W.7 crying after having been raped and saw her bleeding profusely from her private parts. So far as the case of rape is concerned, the specific law as laid down by Hon’ble the Supreme Court which is consistently followed by all the courts is that the solitary evidence of the prosecutrix is enough to convict an accused person for the charge of rape and there is no need for any further corroboration of the same through any other independent agency including even the medical evidence. However, in this case P.W.10 is Dr. Radha Gupta, who has stated that on 28.7.1981 at 11.30 P.M. she examined the prosecutrix and found the following injuries on 4 examination on her private part: “Hymen was ruptured. Laceration of vaginal mucesa and forchetta. Fresh bleeding present. On vaginal swab and mear no spermatozoa was found. In the opinion of doctor the age of the girl was about 11 to 12 years. Injury may be caused by hard and blunt substance and also by male organ. She said that in her opinion, it was a case of attempt to rape because no spermatozoa was found in vaginal canal. The injury report which is in her pen is marked Ext. 3.” In view of the Medical Report of the Doctor that it was a case of attempt to rape and considering the tender age of the prosecutrix to whom the finer distinction of rape and attempt to rape would not be comprehensible, it would be in the fitness of things that the conviction is altered to one under Section 376/511 I.P.C. Under the circumstances, the factum of a sexual assault upon P.W.7 cannot be ruled out. In my opinion, the prosecution has proved its case beyond all reasonable doubts where appellant no.1 Nandlal Sahni is concerned. However there is no evidence against appellant no.2 Rampatiya Devi that she had committed the act of clearning the clothes of the prosecutrix for reason of causing disappearance of evidence and therefore she is acquitted of the charges. From the records of the present appeal, I find that by an order dated 16.1.1986 report about the age of the 5 appellant no.1 had been called for from the Civil Surgeon. The said report was received by this court wherein the Civil Surgeon reported that the appellant was aged between 16 to 17 years at the time of occurrence and was 20 years on the date of his examination. Under the circumstances, even though this court convicts the appellant no.1 for the offence under Section 376/511 I.P.C. but in fitness of things this court in view of Section 7A (2) of the Juvenile Justice (Care and Protection of Children) Act, 2000 forwards the records of the case to the Juvenile Justice Board, Muzaffarpur for passing the sentence provided in the Juvenile Justice (Care and Protection of Children) Act, 2000. In the result, the appeal of appellant no.2 is allowed and she is discharged from the liabilities of her bail bonds and appellant no.1 is dismissed with modification in conviction as well as sentence. The records be sent to the Juvenile Justice Board, Muzaffarpur as expeditiously as possible. Patna High Court Dated, 3rd of November, 2009. NAFR/ Narendra/ ( Anjana Prakash, J. )