IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.272 of 1998 (Against the Judgment and order dated 01.06.1998 and 05.06.1998 passed by the 3rd Additional Sessions Judge, Bhagalpur in Sessions Trial No. 163 of 1989/T.R. No. 20 of 1997) ========================================================== Shankar Jha Son of Sunder Jhar, R/o Madarganj, P.S. Sanokhar (Sanhaula), District-Bhagalpur. .... .... Appellant/s Versus The State of Bihar .... .... Respondent/s ========================================================== Appearance : For the Appellant : Mr. Krishan Mohan. Mr. Neeraj @ Sanidh Mr. Praveen Kumar, Advocates For the Respondent : Mr. Ajay Mishra (A.P.P.) PRESENT HON’BLE MR. JUSTICE MANDHATA SINGH J U D G E M E N T Mandhata Singh,J. Heard learned counsel for the appellant and learned counsel for the State. This appeal is filed against the judgment and order dated 04.06.1998 and 05.06.1998 passed by the 3rd Additional Sessions Judge, Bhagalpur in Sessions Trial No. 163 of 1989/T.R. No. 20 of 1997 whereby and whereunder the appellant has been convicted under Sections 376, 323 and 448 of the I.P.C. and sentenced to undergo R.I. for 7 years for the offence under Section 376 only. Fardbeyan of the informant has been made Patna High Court CR. APP (SJ) No.272 of 1998 dt.12-12-2011 2 basis for F.I.R. which, in short, is that in the night of 9/10.04.1987 while informant was thinking for shelter in another house to save herself from the storm followed by rain, this accused-appellant came and entered her house. It was 2.30 am., he over powered her, flung and after giving threatening committed rape upon her. She was crying but due to storm, none appeared in her rescue. Later the incident was reported to neighbours then to her brothers. In the morning at about 10.00 A.M. matter was reported to the Police. After trial, matter is ended in conviction to the appellant for the offences under Sections 376, 323 and 448 of the I.P.C. but sentence is for offence under Section 376 of the I.P.C. only, otherwise also for the offence under Section 323, there is allegation about receiving of injury but no such injury is found by the Doctor and act of the flinging for committing rape may not be taken as act of assault which only is allegation towards it. In all, 6 witnesses are examined in the case. They are P.W.1, victim of the case, P.W. 2, Mosmt. Sogri, P.W.3, Razan Ansari, P.W.4 Rasool Ansari. All these witnesses are to state about happening or not happening of the incident. P.W.7 is I.O. and P.W.6 is Doctor, who has examined the victim. P.Ws. 2, 3 and 4 are not eye witnesses rather they are to state post-incident fact that Patna High Court CR. APP (SJ) No.272 of 1998 dt.12-12-2011 3 also the narration of the incident told by the victim. After the incident, it is said that the victim went to the house of Mosmt. Sogari and narrated the incident about commitment of rape upon her by the accused. Thereafter, that was narrated to others either by the victim or by Mosmt. Sogari and nothing has appeared in cross-examination to doubt these witnesses on this point. Now, the statement of victim remains to conclude the commitment of rape which has been accepted by the Trial Court is doubted on the ground that medical evidence is not supporting the same, as was not followed by any injury either on private or other part of the victim’s body nor there was any spermatozoa. Remaining of any spermatozoa is possible only before wash and penetration only is sufficient for constituting the offence under Section 376 of the I.P.C. without followed by any discharge of semen. As about injury force if is used that is followed by threat and victim of the case is 60 years old lady. So, there is no possibility of any injury. In this case, no doubt she (victim) is the sole witness to the real incident of rape. She cannot be put at a par with an accomplice that will like a further injury to an injured, otherwise also there is no whisper in cross- Patna High Court CR. APP (SJ) No.272 of 1998 dt.12-12-2011 4 examination about remaining of any circumstance for false implication. So, rightly the Trial Court has convicted the appellant believing the victim about committing of rape. Before ending for caution to Trial Court that some injury was shown by the victim on her shoulder in the Court is believed is not appreciated. Submission on the point of sentence is that incident is of the year 1987 and appellant remained for a period near about three and half years that should be observed sufficient towards sentence. Sentence of seven years awarded to the appellant is the minimum for the offence under Section 376 of the I.P.C. I find no special reason to further minimize it. Accordingly, the appeal is dismissed and the Judgment and order dated 04.06.1998 and 05.06.1998 for conviction and sentence passed by the 3rd Addl. Sessions Judge, Bhagalpur in Sessions Trial No. 163 of 1989/T.R. No. 20 of 1997 is hereby affirmed. Bail bond and sureties furnished on behalf of the appellant is hereby cancelled. He is directed to surrender to serve the rest of the punishment (sentence). Patna High Court, Patna 12th December, 2011, Shailendra Bh. Pd. A.F.R. (Mandhata Singh, J.)