IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) NO.843 OF 2007 Against the judgment of conviction dated 25.07.2007 and order of sentence dated 28.07.2007 passed by Additional Sessions Judge, Fast Track Court-III, Samastipur in Sessions Trial No.586 of 2003. SUNIL SADA, Son of Balo Sada, Resident of village-Chakshekhu, P.S.Dalsingsarai, District-Samastipur.... .... Appellant Versus State Of Bihar.... .... Respondent For the Appellant: Sri Kumar Praveen, Advocate For the Respondent: Sri S.N.Prasad, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J The solitary appellant was charged of committing rape upon a child of two and half years in the evening of 24th day of July, 2003 and was tried by the learned Presiding Officer of Fast Track Court-III, Samastipur in Sessions Trial No.586 of 2003. By judgment dated 25.07.2007, the appellant was held guilty of committing the offence and was directed to suffer rigorous imprisonment for ten years as also to pay a fine of Rs.2,000/-, else to suffer simple imprisonment for six months. The appellant has appealed to this Court against the judgment of conviction. 2. On the basis of the fardbeyan given by P.W.9, the father of the victim to the above effect, the police drew up the FIR and proceeded to investigate the case. 2 During investigation, it was revealed that it was the present appellant who had picked up the child by giving her some snacks while she was playing and had taken her into the wildly grown grass. There is no further material to indicate as to what happened thereafter, but subsequently, it appears from the evidence, the child was found weeping and as such people were attracted to her when they picked her up. It came during investigation that the appellant was alleged having been seen by a few persons picking the child and taking her away into the wildly grown grass. 3. As regards the state of the child, she was examined by two doctors, P.Ws.6 and 7, and it appears consistently stated by them that her hymen was ruptured and vaginal swab showed presence of spermatozoa and further that the child was aged two and half years. 4. Witnesses, like, P.Ws.2 and 3 stated that they had themselves seen the appellant picking up the child and being carried her away into the wildly grown grass by putting her on his shoulder and thereafter the victim was found weeping. This evidence had been supported by P.W.4 who is the mother of the victim who also stated that P.W.3 Tuntun Sada stated to her that it was this appellant who picked up the child and had put her on his shoulder to take her into wildly grown grass and when the child was traced she was found bearing 3 injuries and was further found bleeding from her private part. Similar is the evidence of P.W.9, the father of the victim also. P.Ws.1 and 2 though supported that the child was raped but were declared hostile as was the case with P.Ws.5 and 8. P.W.10 Mukesh Sada also supported that he had seen the appellant taking the victim away towards the wildly grown grass. 5. The contention was that there is no further evidence as to what happened to the child when she was taken allegedly by the appellant into the wildly grown grass. Contention further was that there was no evidence that it was this appellant who had raped her. 6. What I find from the perusal of the evidence of P.Ws.2, 3, 4, 8 and 10 is that the evidence is consistent that those witnesses saw the appellant picking up the child who was playing at the chawk to be carried on his shoulder towards the wildly grown grass. There is indeed a complete absence of evidence as to what happened thereafter, but when the child was found weeping and crying she was also found bleeding from her private part and the evidence of the doctors who examined her clearly indicated that she has been sexually assaulted so much so that her hymen was ruptured and the injuries were the result of the act of rape committed with her. There was presence of spermatozoa in the vaginal swab also. This appellant was in the custody of the child as was seen by 4 witnesses. He carried the child into the wildly grown grass for whatever purpose and that purpose is particularly indicated by the evidence of the doctor that the appellant had committed sexual assault upon her. When the fact that the appellant had the custody of the child is established, then it could be the natural presumption flowing from that proof of the fact that it was the appellant who had committed rape upon her. In that view of the matter, I find no illegality or incorrectness in recording the guilt of the appellant by the learned trial Judge and as such the appeal is dismissed. Patna High Court, Dated, the 17th day of October, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)