Criminal Appeal (SJ) No. 743 OF 2006 Appeal against the judgment and order dated 13.04.2006 passed by Kiran Shankar, Additional Sessions Judge, F.T.C.-II, Rohtas at Sasaram in S.Tr. No. 202/04. ************ CHALAUNWA URANW ……(Appellant) Versus THE STATE OF BIHAR-------(Respondent) ************* For the Appellant : Mr. Arun Kumar Tripathy, Adv (appeared as Amicus Curiae). For the State : Mr. Sanjay Kumar, APP. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. The appellant has been convicted under Section 376 IPC and sentenced to RI for ten years by a judgment dated 13.04.2006 by the Additional Sessions Judge, F.T.C.-II, Rohtas at Sasaram in S.Tr. No. 202/04.. 2. The prosecution case is that on 26.01.2004 the four year daughter of the informant was taken away by the appellant for feeding her biscuits and she was left at her door later when it was discovered that she had sustained serious injuries on her private parts. 3. During trial the prosecution in all examined nine witnesses out of whom P.W. 1, P.W. 2, P.W. 3, P.W. 5, P.W. 6 and P.W. 7 are hostile witnesses whereas P.W. 8 is the Doctor who examined the injured. P.W. 9 is the Investigating Officer and P.W. 4 is the informant of the case. 4. From the evidence of P.W. 4, I find that the prosecution case is based on the circumstance that the appellant had allegedly taken away her daughter and 2 thereafter left at the door. There is no one eye witness of the actual occurrence. During trial P.W. 4 has merely stated that at some point of time the appellant had left the child at the door but how long she had remained unattended at her door and when the injuries were discovered after the appellant left her at the door has not been clarified. Even the Doctor’s evidence does not conclusively prove that in fact rape had been committed on the victim even though there is a mention of injuries on the private parts of the victim. 5. Under the circumstances, it is difficult to sustain the conviction of the appellant u/s 376 IPC therefore he is instead convicted under Section 325 IPC and sentenced to the period already undergone by him during trial. In the result, the appeal is dismissed with the aforesaid modifications in conviction and sentence. 6. Let the judgment be handed over to Mr. Arun Kumar Tripathy who appeared as amicus curiae for the appellant. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 27th June, 2011. NAFR/Vikash/-