Criminal Appeal (SJ) No.424 of 1998 **** Against the judgment, dated 17.11.1998, passed by Sri Surendra Kumar Singh, Sessions Judge, Bhojpur at Arrah, in S. Tr. No. 185 of 1995 **** Ram Prakash Verma, son of Satya Narayan Verma, R/O villae Chella, P.S. Sandesh, district Bhojpur (Arrah) .. Appellant Versus The State of Bihar .. Respondent **** For the Appellant .. M/S Rajesh Kumar Singh and Rana Pratap Singh II, Advs. For the Respondent .. Mr. Permeshwar Mehta, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and the State. 2. The appellant has been convicted under Section 376 of the Penal Code and sentenced to undergo rigorous imprisonment for ten years. 3. The prosecution case, as alleged by the victim, Pinki Kumari, aged ten years, P.W. 1 that she had gone to take milk from the house of Durbasa Mahto and when she was returning along with milk at 07.30 p.m. then Ram Prakash Verma gagged her mouth and took her into a room threw her on the ground and raped her and after the 2 occurrence he threatened her to kill her if she disclosed about the occurrence. She went to her house, did not disclose about the occurrence. She felt pain in back and in the uterus then she disclosed her parents, the first information report lodged on her statement and during the investigation she was examined by the doctor and subsequently the charge sheet was submitted. 4. At the trial nine witnesses were examined. P.W. 1 is the victim, Pinki Kumari, supported the prosecution case that she was returning from the house of Durbasa Mahto after taking milk on 24.03.1995, Ram Prakash Verma lifted her and took her to the house of Fudena and raped her and when she raised alarm then he gauged her mouth and threatened to kill. She returned to her house, but, she did not disclose the fact to her mother in the night. She had pain in the private part and her cloth was besmeared with blood. The mother learnt on next day. She was taken to the Police Station and she disclosed about the occurrence to the police and she was treated in hospital. P.W. 2, the mother of the victim, has also supported the prosecution case. She has stated that she saw the blood oozing and the panty was also besmeared with blood. In the morning she asked victim. Then the victim disclosed about the rape by Ram Prakash Verma. P.W. 3 is the sister and P.W. 4 is the father of the victim also supported that the victim disclosed about the rape. However, P.W. 5, Manorma Devi, a co- villager, P.W. 7, Vijay Kumar, and P.W. 8, Vijay Shanker upadhaya, were the seizure list witnesses have turned hostile and not supported the prosecution case about the seizure of the panty. P.W. 6 is the doctor, 3 who examined the victim on 25.03.1995 at about 03.15 p.m. He has reported about complain of pain in abdomen and back of the victim. The doctor did not find any external or internal injury on the person of the victim. The doctor has, further, stated that the hymen was not present and the vagina was one finger tender no bruise, swelling, laceration or oozing of the blood was found at valve or toytus with regard to microscopic examination of vaginal swab, no spermatozoa alive or dead was found. The age of the victim assessed as ten years as per the statement and the age has been assessed without any radiological examination. 5. The trial Court, however, taking into consideration the evidence of the victim and her parents and, further, taking into consideration the fact that the investigating officer was not examined and the panty and frock have not been materially exhibited in the case, convicted the appellant and sentenced, as stated above. 6. The learned counsel for the appellant, however, submits that the medical evidence does not support, at all, the prosecution case rather it rules out the rape. He has also pointed out contradictions in the evidence of the witness that the victim stated that she did not disclose to mother about rape in the night whereas the mother stated that she learnt in the night. It is, further, submitted that P.W. 5, in her cross examination, stated that Durbasa Mahto does not sell milk and, hence, contended that the evidence of the victim that she went to bring milk from Durbasa Mahto stands contradicted, hence, prosecution story is required to be rejected. 4 7. The learned counsel for the State, however, submitted that when the evidence of the victim inspires confidence and there is nothing in the evidence to disbelieve her and if there is competition between medical and oral evidence, the oral evidence required to be relied, hence, the order of conviction and sentence is sustained. 8. However, the victim in her evidence supported the prosecution case that while she had been to take milk she was lifted by the appellant and raped at the house of Fudera. The victim came to her house did not disclose about occurrence and slept. The mother in her evidence stated that she found the victim restless in the night and learnt about the blood stained panty and injuries on private part. The victim narrated about the occurrence in the morning. P.W. 4 disclosed that she learnt from victim. P.W. 3 states that she learnt from victim in the night itself. However, there are some minor contradiction in the evidence of the witness that the victim disclosed in the night or in the morning and the mother learnt in night or in the morning, but, the contradiction and deficiency on the point is not as such to disbelieve the prosecution case that no occurrence at all occurred. The evidence of P.W. 5 that Durbasa does not sell milk does not inspire confidence to disbelieve the prosecution case on that count. The prosecutrix has supported prosecution case that she went to take the milk and in way she was apprehended and raped by Ram Prakash Verma was disclosed about the fact then the case was lodged. The mother and father of the victim have also supported the prosecution case. However, the contradiction, pointed out, is of a minor nature, which is bound to occur in case it is of 5 the natural witnesses and the prosecution case and evidence may be judged on probabilities and the prosecution witnesses may not be rejected on the ground of minor contradictions. 9. However, taking into consideration, the evidence of the victim having supported the prosecution case that she was lifted and taken in the house of Fudan and raped. However, it is unimaginable that a girl of ten years will invent a story about rape to falsely implicate the appellant with whom there is relationship of teacher and student. There is no motive for false implication neither it has been brought in evidence nor it has been suggested. However, it has repeatedly been held in Indian context that a girl will hardly admit a rape due to the social stigma attached to it and the chastity is most valuable thing and loosing of it not only affect the victim of her future prospect, but, also affect the reputation of the entire family. In the prevailing mores and values of Indian society it is unimaginable and unconceivable that the girl of ten years age would invent her own a false story of sexual rape and it is also unimaginable that the parents will tutor the victim to invent the story of sexual misbehaviour on the part of the appellant merely to falsely implicate and the appellant must be supposed to have the knowledge that this will ruin the status of the family and split the reputation in the society as well as the turmeric effect of the victim and her marriage in future and this will endure more that whatever gain they may have by alleging the police case and this view has been expressed in decision reported in A.I.R. 1983 S.C., 753 (Bharwada Bhoginbhai Hirjibhai Vrs. The State of Gujrat). 6 10. However, taking into consideration, the view and applying the principles in the facts and circumstances of the case it can well be inferred that the statement made by the prosecutrix is reliable and acceptable. 11. However, to the contrary the evidence of the doctor does not support the prosecution case about rape. It is also required to notice that the age of the girl is ten years. It is stated that she was raped and ravished. 12. However, the prosecutrix and her parents supported the prosecution case about rape and the presentation of panty and frock besmeared with blood, but, the evidence of the doctor is contrary to rape. The prosecutrix was examined by the doctor within twenty four hours of the occurrence. The prosecutrix is ten years old is not in dispute as the age assessed on disclosure of the mother as per evidence of the doctor. The doctor did not find any injury on the person of victim and hymen was not present and vagina was one finger tender, no bruise, swelling laceration or oozing of blood found and no spermatozoa found, hence, the evidence of the doctor is quite contrary to story of rape. The investigating officer has not been examined. The blood stained panty and frock not brought in evidence though it is stated that the same was handed over to the investigating officer. This is strong circumstance creates doubt about actual rape. The victim is ten years old and alleged to have been ravished and it is stated that after rape she traveled from the place of occurrence on her own leg and, hence, having regard to the facts and circumstances it creates a doubt 7 about actual rape. Hence, under the facts and the circumstances of the case it is apparent that there is exaggeration in the prosecution case and the only irresistible conclusion be drawn that it is a case of molestation of the victim to outrage the modesty of the victim and, hence, his conviction under Section 376 of the Pena Code is set aside and substituted by his conviction under Section 354 of the Penal Code. Since, the appellant has remained in jail for more than three years, hence, satisfied the sentence. 13. The appeal is allowed in part. ( Gopal Prasad, J. ) The Patna High Court, The 27th day of September, 2011, N.A.F.R., S.A.