Patna High Court
Mani Kant Singh vs State Of Bihar on 14 March, 2014
Author: Rajendra Kumar Mishra
Bench: Rajendra Kumar Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.479 of 2010
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(Against the Judgment/Order dated 22.4.2010/30.4.2010 passed by the 1st
Additional Sessions Judge, Banka, in Sessions Trial No.730 of 1998).
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Mani Kant Singh, son of Suresh Prasad Singh, resident of Rampur, Police
Station-Rajaun, District-Banka.
.... .... Appellant.
Versus
The State of Bihar
.... .... Respondent.
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with
Criminal Appeal (SJ) No. 507 of 2010
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Mitranjan Panjiyara @ Tunna, son of Narayan Panjiyara, resident of
Gangapur Garhail, P.S. Amarpur, District-Banka.
.... .... Appellant.
Versus
The State of Bihar
.... .... Respondent.
===========================================================
with
Criminal Appeal (SJ) No. 536 of 2010
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Anil Singh @ Anil Prasad Singh, son of Shiv Shankar Singh, resident of
village-Rampur, Police Station-Rajoun, District-Banka.
.... .... Appellant.
Versus
The State of Bihar
.... .... Respondent.
===========================================================
with
Criminal Appeal (SJ) No. 588 of 2010
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Ravi Shanker Jha, son of Late Keshav Lal, resident of village-Rampur, P.S.
Rajoun, District-Banka.
.... .... Appellant.
Versus
The State of Bihar
.... .... Respondent.
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Appearance :
{In CR. APP (SJ) No. 479 of 2010}:
For the Appellant : M/s. Rana Pratap Singh, Senior Advocate, Krishna
Mohan and Praveen Kumar, Advocates.
For the State : Mr. Ajay Mishra, A.P.P.
{In CR. APP (SJ) No. 507 of 2010}:
For the Appellant : Mr. Praveen Kumar, Amicus Curiae
For the State : Mr. S.N. Prasad, A.P.P.
{In CR. APP (SJ) No. 536 of 2010}:
Patna High Court CR. APP (SJ) No.479 of 2010 dt.14-03-2014
2/18
For the Appellant : Mr. Praveen Kumar, Amicus Curiae.
For the State : Mr. Sujit Kumar Singh, A.P.P.
{In CR. APP (SJ) No. 588 of 2010}:
For the Appellant : M/s. Rana Pratap Singh, Senior Advocate, Krishna
Mohan and Praveen Kumar, Advocates.
For the State : Mr. S.A. Ahamad, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA
CAV JUDGMENT
Date: 14 -03-2014:
..................
These four appeals are directed against the Judgment/Order
dated 22.4.2010/30.4.2010 passed by the 1st Additional Sessions Judge,
Banka, in Sessions Trial No.730 of 1998, whereunder all the above named
appellants have been convicted under Sections 366 and 376/34 of the
Indian Penal Code with direction to suffer rigorous imprisonment for ten
years under Section 366 of the Indian Penal Code with fine Rs.5000/- and
in default of payment of fine further imprisonment for six months. The
appellants have also been directed to suffer rigorous imprisonment for ten
years under Section 376 of the Indian Penal Code with fine Rs.5000/- and
in default of payment of fine to undergo further sentence of six months.
Sentences have, however, been directed to run concurrently.
2. The prosecution case, as set out in the written report of the
informant, Maheshwari Prasad Singh (P.W.4) addressed to the
Superintendent of Police, Banka, is that on 18.3.1998 at about 7.30 P.M.,
his daughter, Nutan Kumari (P.W.5), aged about 12 years went to orchard,
situated in front of his house, to attend the call of nature. When his
daughter did not return, he went to the Orchard but he did not find his
daughter there. The informant made query in village and also in relation
Patna High Court CR. APP (SJ) No.479 of 2010 dt.14-03-2014
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but he could not find any trace of his daughter. On 21.3.1998, when the
informant returned to his house, then came to know in the village on
rumour that the appellants, Ravi Shanker Jha and Anil Singh with the help
of others have kidnapped his daughter with bad intention. When the
informant made enquiry in this regard in the village then Chakradhar
Prasad Singh (P.W.2), Sanjay Singh (P.W.11) and others informed him that
his daughter was seen moving with the appellant, Ravi Shanker Jha and
others in the night of the occurrence. The informant has further stated that
he got suspicion and belief that Mani Kant Singh, Mitranjan Panjiyara alias
Tunna (appellants) and Saryug Ram are involved in the kidnapping of his
daughter because they used to say that they at any cost would perform the
marriage of his daughter with the appellant, Ravi Shanker Jha while the
informant and his daughter were not ready for the same and due to that
reason, the aforesaid persons kidnapped his daughter. The informant has
further stated that on 4.4.1998, he came to know that his daughter is at the
house of the relative of the appellant, Ravi Shanker Jha in village-
Bhagwanpur, P.S. Rajoun, District-Banka. He has also given an
application in Rajoun Police Station and made request for the recovery of
his daughter but recovery of his daughter was not made.
3. On the basis of the aforesaid written report of the informant,
Maheshwari Prasad Singh (P.W.4), Rajoun P.S. Case No.26 of 1998 was
instituted under Section 366(A) of the Indian Penal Code against the
appellants and one Saryug Ram. In course of investigation, I.O. Ram
Bhajan Choudhary (C.W.1), recovered the victim, Nutan Kumari (P.W.5),
Patna High Court CR. APP (SJ) No.479 of 2010 dt.14-03-2014
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from the house of Sikander Singh and after investigation submitted the
chargesheet under Sections 366(A) and 376 of the Indian Penal Code
against the F.I.R. named accused and two others, namely, Sikander Singh
and Brahamdeo Jha. After submission of the chargesheet by the police, the
cognizance of the offences was taken and the case was committed to the
court of sessions for trial, where charges under Sections 366 and 376/34 of
the Indian Penal Code were framed against the accused including the
appellants.
4. During the trial, the prosecution has examined altogether 11
witnesses, who are P.W.1, Shyam Prasad Singh, P.W.2, Chakradhar Prasad
Singh, P.W.3, Satya Narain Singh, P.W.4, Maheshwari Prasad Singh, the
informant of the case, P.W.5, Nutan Devi (victim), P.W.6, Munni Lal Das
alias Munni Lal Harijan, P.W.7, Jaldhar Das, P.W.8, Gopal Prasad Singh,
P.W.9, Gulab Singh, P.W.10, Dr. Poonam Mishra and P.W.11, Sanjay
Singh. Ram Bhajan Choudhary, the Investigating Officer of the case, has
been examined as a Court Witness No.1.
On the other hand, the defence has also examined one
witness, who is D.W.1, Ashok Kumar Singh.
5. The trial court considering the materials and the evidence
available on the record found the appellants, above named, guilty for the
offence under Sections 366 and 376/34 of the Indian Penal Code and
sentenced them as stated above and at the same time, accused Brahamdeo
Jha, Sikander Singh and Saryug Ram were not found guilty and acquitted
of the charges.
Patna High Court CR. APP (SJ) No.479 of 2010 dt.14-03-2014
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6. Learned counsel for the appellants submitted that the
occurrence is said to have taken place on 18.3.1998 in the evening but the
information to the police was given on 5.4.1998. The delay of more than
15 days has not been explained and on this account alone the prosecution
evidence should have been disbelieved. Learned counsel for the appellants
further assailed the Judgment of conviction and Order of sentence on the
ground that the story as disclosed by the prosecution clearly shows that the
victim girl (P.W.5) accompanied the accused-appellants to different places
out of her free will and without any coercion as the victim did not raise any
alarm while she was being taken to Delhi and during the period of her
travel and stay with the appellants. This facts show that the victim was in
love with the appellant, Ravi Shanker Jha. Learned counsel has further
submitted that the doctor (P.W.10) did not find any sign of rape on the
victim girl, therefore, the Judgment of conviction is fit to be set aside and
appellants are entitled to be acquitted.
7. On the other hand, learned A.P.P. for the State submitted
that the victim (P.W.5) was minor on the date of occurrence. The Doctor
(P.W.10) also found the victim (P.W.5) minor and she has fully supported
the case of her kidnapping and rape. As such, the trial court has rightly
come to the conclusion of the guilt of the appellants.
8. Now, I proceed to consider the evidence of the prosecution
witnesses in order to appreciate submission of the rival parties.
9. P.W.6, Munni Lal Das alias Munni Lal Harijan, P.W.7,
Jaldhar Das, P.W.8, Gopal Prasad Singh, P.W.9, Gulab Singh and P.W.11,
Patna High Court CR. APP (SJ) No.479 of 2010 dt.14-03-2014
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Sanjay Singh, have not supported the prosecution case and they have been
declared hostile.
10. P.W.1, Shyam Prasad Singh has stated in his evidence that
on 18.3.1998, he had gone to Patna in his relation and when returned to the
house, he came to know from the villagers that Nutan Kumari, daughter of
Maheshwari Singh, has been kidnapped. He came to know from
Chakradhar Singh (P.W.2) and Gulab Singh (P.W.9), that Mani Kant Singh,
Ravi Shanker Jha, Anil Singh and Mitranjan Panjiyara (appellants) and
Saryug Ram, have kidnapped Nutan. The villagers put pressure on
Brahamdeo Jha, the brother of the appellant, Ravi Shanker Jha, then,
Brahamdeo Jha told to trace out Nutan. Brahamdeo Jha alongwith Sikander
Singh went to Delhi and when returned told that the girl has been traced
out. After some days, police recovered the girl from the house of Sikander
Singh and girl was sent to the court. This witness has further stated in his
cross examination at paragraph-7 that no occurrence had taken place in his
presence. This witness has also denied the suggestion of the defence in
paragraph-9 that there was love affair in between Nutan and Ravi Shanker
Jha. From the evidence of this witness, it is apparent that he came to know
from villagers about kidnapping of Nutan Kumari (P.W.5), the daughter of
Maheshwari Prasad Singh (P.W.4), and she was recovered from the house
of Sikander Singh.
11. P.W.2, Chakradhar Prasad Singh, has stated in his
evidence that the occurrence took place in the evening at about 7.30 on
18.3.1998. He was returning from Singhnan Hatia to his village. He saw Patna High Court CR. APP (SJ) No.479 of 2010 dt.14-03-2014 7/18 Ravi Shanker Jha, Mani Kant Singh and Anil Singh near Pakar tree. At that time, he thought that they had gone to Delhi 2-3 days earlier and why they have returned. On reaching at house, he slept after taking dinner. On the next morning, he came to know that daughter of Maheshwari Singh has been kidnapped by Ravi Shanker Jha, Mani Kant Singh, Anil Singh. Mitranjan Panjiyara (appellants) and the accused, Saryug Ram. The villagers put pressure on Brahamdeo Jha, the brother of Ravi Shanker Jha, then he assured to trace out the girl. Brahamdeo Jha and Sikander went to trace out the girl and on being returned Brahamdeo Jha told that the girl has been traced out and will be recovered. The police recovered the girl from Korhli Mohanpur, from the house of Sikander Singh. This witness has further stated in paragraph-4 of his cross examination that the girl was not kidnapped in his presence but she was recovered in his presence in village- Korhli Mohanpur, which is situated at the distance of one kilometer from his village. This witness has further stated in paragraph-9 of his cross examination that he has stated before the police that on the date of occurrence Anil, Ravi Shanker Jha and Mani Kant Singh, were seen in suspicious condition but he had not stated before the police that they had kidnapped the girl by making planning in a dramatic manner. This witness has further stated in paragraph-11 of his cross examination that it is not true that he is maternal uncle of the informant in relation and due to that reason he has given a false statement. It is also not true that the girl was not recovered in his presence and he has given a false evidence only to take undue advantage from the accused. This witness has also stated in Patna High Court CR. APP (SJ) No.479 of 2010 dt.14-03-2014 8/18 pagraph-22 of his cross examination that it is not true that regarding the illicit relationship of Ravi Shanker Jha and Nutan Kumari, Panchayati was arranged in Village Government School thrice in which coloured photograph was also produced and father of the girl was instructed to restrain her so that she could not meet to Ravi Shanker. From the evidence of P.W.2 it is clear that in the evening of the date of occurrence when he was returning to his house, he saw appellants, Ravi Shanker Jha, Mani Kant Singh and Anil Singh, near Pakar tree and on the next day he came to know abut the kidnapping of Nutan Kumari (P.W.5) by them. The police recovered the P.W.5 from the house of Sikander Singh of village-Kothali Mohanpur.
12. P.W.3, Satya Narain Singh, has stated in his evidence that the occurrence of kidnapping of Nutan Kumari took place on 18.3.1998 in the evening at about 7.30 P.M. On that day, he was returning from Singhnan Ghat to his village, then he saw to Ravi Shanker Jha, Mani Kant Singh, Mitranjan Panjiyara and Anil Singh near the Pakar tree in suspicious condition. On reaching at house, he slept and on the next morning heard about the kidnapping of Nutan, daughter of Maheshwari Singh and then went to the house of Maheshwari Singh, who also told about the kidnapping of his daughter, Nutan, to him. He alongwith others told to Brahamdeo Jha, the brother of Ravi Shanker Jha, regarding the kidnapping, then Brahamdeo Jha told to search out the girl on going to Delhi. Later on, the girl was recovered from the house of Sikander Singh in his presence. At that time, Maheshwari Singh, Shyam Singh and others were also Patna High Court CR. APP (SJ) No.479 of 2010 dt.14-03-2014 9/18 present. The girl was recovered by Darogaji, where paper regarding the recovery was prepared in his presence and he put his signature on the paper and proved his signature on the search-cum-seizure list as Ext.1. This witness in paragraphs-8 and 9 of his cross examination has stated that it is not true that in his village there are two parties, one party is of Suresh Prasad Singh, father of Mani Kant Singh and other is of Arjun Prasad Singh. He has denied the suggestion of the defence that in between them, there was proceeding under Section 107 of the Code of Criminal Procedure, in which he was in the party of Arjun Singh. This witness has denied the suggestion of the defence in paragraph-11 of his cross examination that he and Maheshwari Singh, father of the girl, had knowledge that Nutan and Ravi Shanker Jha wanted to perform the marriage but Nutan was minor. This witness has also denied the suggestion of the defence to the effect that Nutan was not kidnapped but she had gone with Ravi Shanker Jha at her own sweet will and he has given the false evidence in the court on the instruction of Arjun Singh. From the evidence of this witness, it is apparent that he saw the appellants near Pakar tree in village in suspicious condition when he was returning to his house from Singhnan Ghat. On the next morning, he came to know about the kidnapping of Nutan Kumari (P.W.5). He alongwith others told Brahamdeo Jha, brother of the appellant, Ravi Shanker Jha, to trace the victim then he told to search out the girl. Later on, girl (P.W.5) was recovered from the house of Sikander Singh in his presence.
13. P.W.4, Maheshwari Prasad Singh, is the informant of the Patna High Court CR. APP (SJ) No.479 of 2010 dt.14-03-2014 10/18 case and the father of the victim, Nutan Kumari (P.W.5). He has stated in his evidence that the occurrence took place in the evening at about 7.30 P.M. on 18.3.1998. His daughter, Nutan Kumari (P.W.5) had gone to attend the call of nature in an orchard situated near his house. When his daughter delayed in returning back, then he went there and he did not find his daughter. He started to search his daughter but she could not be traced. He also searched his daughter in his relation till 21/22.3.1998. He came to know from Chakradhar Prasad Singh (P.W.2) that his daughter has been kidnapped by Ravi Shankar Jha, Anil Singh, Mani Kant Singh, Mitranjan Panjiyara (appellants) and the accused, Saryug Ram (acquitted). He gave the information to the police and his statement there. He had given the typed written application at the police station on which he had put his signature. This witness has proved his signature on the written report as Ext.1 (later on corrected as Ext.2 vide order dated 9.4.2010). This witness has further stated in paragraph-3 of his cross examination that Brahamdeo Jha and Ravi Shanker Jha is the resident of his Tola and there was no visiting term in between him and them but there is no enmity with them prior to the occurrence. This witness has further stated that the witness, Chakradhar Singh (P.W.2) is of his village. He met Chakradhar Singh on the next day of the occurrence but he did not talk to him. He has further stated that on the next day of the occurrence, he had given the information to the local police but the police did not come and told him to trace out the girl. After giving the information, police came at the house on 5.4.1998 in the day at about 12 O'clock at his door and recorded his statement. This Patna High Court CR. APP (SJ) No.479 of 2010 dt.14-03-2014 11/18 witness has further stated in the same paragraph of his cross examination that he had not seen his daughter fleeing away. This witness has further stated in paragraph-4 of his cross examination that Satya Narain Singn (P.W.3), Chakradhar Prasad Singh (P.W.2), Bal Govind Singh (not examined) and Shyam Singh (P.W.1) had told him that the accused had committed the occurrence, thereafter he lodged the case. This witness has further stated that he had given the information to the police by handing over the typed written application on which he had not given the date. This witness has also denied the suggestion of the defence to the effect that the occurrence had not been taken place as he has stated rather he has lodged the false case due to old enmity only to harass. This witness has further denied the suggestion of the defence in paragraph-5 of his cross examination that there was love affair in between his daughter and the accused, Ravi Shanker Jha before the occurrence and Ravi Shanker Jha had asked to perform the marriage with his daughter. This witness has also denied the suggestion of the defence in paragraph-7 of his cross examination that in between Ravi Shanker Jha and his daughter there was love affair and due to that reason on the instruction of Arjun Singh and Bal Govind Singh he has lodged the false case by tutoring his daughter. From the evidence of P.W.4, it is apparent that he is not the witness of kidnapping of his daughter (P.W.5) but when his daughter did not return, he searched his daughter but he did not find any trace and came to know from P.W.2 about kidnapping of his daughter by the appellants. He gave the written report to the police, the F.I.R. was lodged and police recorded his Patna High Court CR. APP (SJ) No.479 of 2010 dt.14-03-2014 12/18 statement
14. P.W.5, Nutan Devi, is the victim and the daughter of the informant, Maheshwari Prasad Singh (P.W.4). She has stated in her evidence that the occurrence took place in the evening on 18.3.1998 at about 7.30 P.M. She had gone to attend the call of nature in the orchard situated near her house, where Ravi Shanker Jha, Anil, Mitranjan and Mani Kant (appellants) were present. They carried her by keeping the cloth on her mouth at the Basa of Mani Kant, where they committed rape by unfolding her cloth. At about 12 O'clock in the night, she was taken to Jamalpur and from there she was taken to Delhi by train and was kept in a separate house (Dera) but she did not know the place where the house was situated. She was kept at Delhi for about four days. Brahamdeo Jha, the brother of Shankar Jha, and Sikander Singh went there and took her from Delhi and she was kept at the house of Sikander Singh. She asked them to send her at the house of her father but they did not send her. Police and her father came and she was taken to the house. She has further stated that at Delhi, she was kept in the house of Shanker Jha, where Anil Singh and Mitranjan Panjiyara used to come, all committed rape upon her. She has also stated that she had given her statement before the Magistrate about the occurrence of committing rape on her and she has also given the similar statement in the court. This witness in paragraph-2 of her cross examination has stated that Ravi Shanker Jha and Brahamdeo Jha are full brothers. Sikander Singh is not the resident of her village rather his house is situated at the distance of one mile from her house. She has further stated Patna High Court CR. APP (SJ) No.479 of 2010 dt.14-03-2014 13/18 she did not know that in between her father and Anil Singh and Shiv Shanker Singh, there was any dispute. She has further stated that for the first time, her statement was recorded by the police at the house of Sikander Singh at village-Mohanpur. She lived at the house of Sikander Singh for about 7-8 days then police recorded her statement and in between that period she did not meet with any known villager. She has further stated in paragraph-3 of her cross examination that she was taken to Jamalpur by a vehicle but the model and type of the vehicle is not in her memory. Before carrying her there, her both eyes were bandaged and bandage was opened at Jamalpur. She neither met with any known person of her village at Jamalpur station nor in train. She reached at Delhi in the morning but she could not say how much time she passed in the train. She remained at Delhi 2-3 days and during that period she did not meet to known person. She has denied the suggestion of the defence to the effect that there was land dispute in between her family and the accused and due to that reason, her father has lodged this case by putting her in front. From the evidence of this witness, it is clear that she has supported the case of her kidnapping and committing rape by the appellants and also her recovery by the police from the house of Sikander Singh.
15. P.W.10, Dr. Poonam Mishra, examined the victim, Nutan Kumari (P.W.5), on 6.4.1998 and found the following injuries on her person:-
(i). Number of Teeth-14 (Upper Jaw)
-14 (Lower Jaw) Auxiliary hair absent.
Pubic hair-sparse.
Patna High Court CR. APP (SJ) No.479 of 2010 dt.14-03-2014 14/18 Breast-Developing.
Examination of body parts:
Bruise 2" X 1" over the right arm obliquely. Bruise 3" X 1/2" on the right side of back bellows scapula obliquely situated.
(ii).Examination of Private Part:-
No sign of violence present on pubic area and area around it.
(iii). No foreign hair present in pubic area and area around it.
(iv). Hymen is slightly torn.
No injury mark present in pubic area and in area around it. Uterus-retroverted and mobile.
Pathological report of vaginal swab shows absence of spermatozoa.
Opinion based on above finding:
Age of the victim is 14 to 15 years.
This witness proved the Medical Report as Ext.3. In cross examination, P.W.10 has stated that she found no sign of rape on examination of the victim.
16. C.W.1, Ram Bhajan Choudhary, is the Investigating Officer of the case. He has stated in his evidence that on 19.3.1998, he was posted as A.S.I. at Police Station-Rajoun. On 5.4.1998, he was handed over the charge of the investigation of the case by the then Officer Incharge. He recorded the restatement of the informant (P.W.4) and other witnesses and also inspected the place of occurrence. He has further stated that he recovered the kidnapped girl, Nutan Kumari (P.W.5), from the house of Sikander Singh and prepared the search-cum seizure list and put his signature and proved his signature as Ext.X. This witness has further stated that he recorded the statement of the kidnapped girl (P.W.5) and, thereafter, arrested Sikander Singh and then recorded the statement of the Patna High Court CR. APP (SJ) No.479 of 2010 dt.14-03-2014 15/18 witnesses of the seizure list. Thereafter, he carried the victim girl and Sikander Singh at police station and, thereafter, he carried the girl for medical examination and recording her statement under Section 164 of the Code of Criminal Procedure at Banka. Thereafter, on completion of investigation, he submitted the chargesheet against the accused. This witness has further stated in his cross examination that the written report of the informant (P.W.4) was received at the police station through the Superintendent of Police, which is the basis of the F.I.R. of the case. This witness has further stated in paragraph-10 of his cross examination that he did not know that on which date the informant (P.W.4) had given the written report to Superintendent of Police, Banka, nor he made any investigation on this point. The written report was received at police station on 5.4.1998 and before that no information regarding the occurrence was given at the police station. This witness has also stated in paragraph-34 of his cross examination that he neither visited at Jamalpur nor at Delhi for investigation of the case.
17. Learned counsel for the appellants argued that the prosecution evidence should be disbelieved on the ground of delay in lodging the F.I.R. The occurrence took place in rural area, where kidnapping of girl carries many stigmas and generally the father of girl in case of elopement and kidnapping make search at his own level and when the father could not search at his own level then the father informs the police and in such a case mere delay of fortnight does not impair or make the prosecution evidence dis-believable unless the prosecution evidence are Patna High Court CR. APP (SJ) No.479 of 2010 dt.14-03-2014 16/18 contradictory. In the present case, the written statement of P.W.4, the father of the victim disclosed the truth about the occurrence and he only raised strong suspicion and believes on the basis of information gathered from his co-villager, Chakradhar Prasad Singh (P.W.2) that appellant, Ravi Shanker Jha, and others were seen with the victim. P.W.4 did not claim himself to be the eye witness of the occurrence. P.W.3, Satya Narain Singh, disclosed that appellants were seen in village in the evening on the date of occurrence. On the information given by the informant (P.W.4), the police made search and recovered the victim (P.W.5) from the house of Sikander Singh. The victim herself disclosed the manner of kidnapping by the appellants and she also disclosed that she was taken to different places and the appellants committed rape with her. In the evidence of the victim (P.W.5), I did not find any contradiction. Therefore, on the ground of delay the prosecution evidence is not fit to be disbelieved.
Learned counsel for the appellants has further argued that the victim (P.W.5) has disclosed in her evidence that she was moved one place to others but the victim (P.W.5) did not raise alarm although she traveled to different places and met many persons during the course of movement, which indicates that victim moved out of her free consent hence, her evidence could not be relied upon in convicting the appellants. The informant (P.W.4) disclosed that his daughter (P.W.5) was minor and was aged about 12 years at the time of occurrence, i.e., 18.3.1998. The victim (P.W.5) was examined on 25.8.2004 and disclosed her age as 18 years. The doctor (P.W.10) also assessed the age of the victim (P.W.5) in between 14- Patna High Court CR. APP (SJ) No.479 of 2010 dt.14-03-2014 17/18 15 years on 6.4.1998. The victim (P.W.5) herself disclosed that appellants tied her mouth and on threat took her to Jamalpur and from there to Delhi. The victim being a minor was not able to give her consent. Therefore, I do not find any substance in the contention on behalf of the appellants that the victim was consenting party. Learned counsel for the appellants has also submitted that the doctor (P.W.10) did not find any sign of rape on examination of the victim (P.W.5) on 6.4.1998, hence, the conviction of the appellant under Section 376 of the Indian Penal Code is without any evidence. On the point of rape, the victim (P.W.5) is the most important witness. She disclosed in her evidence that the appellants kidnapped her and took her to Delhi via Jamalpur by train. The victim (P.W.5) disclosed that all the appellants committed rape with her at the 'Basa' (outhouse) of the appellant, Mani Kant Singh and she further disclosed that she was raped at the house of Ravi Shanker Jha at Delhi. The victim (P.W.5) was brought from Delhi to the house of Sikander Singh and she was kept there for seven days from where the police recovered her. Admittedly, as is evident from the evidence of P.W.5 that she was examined by doctor (P.W.10) after seven days of being raped. Thus, it is quite natural that the doctor did not find any sign of rape on the person of the victim, although, I find from the evidence of P.W.10 that there was sparse pubic hair and breast was developing. These two findings also show that the victim was aged about 14-15 years on the date of her examination. The doctor (P.W.10) also found the hymen of victim was partly torn. This finding, in my view, lends support to the statement of the victim about her being raped about a week Patna High Court CR. APP (SJ) No.479 of 2010 dt.14-03-2014 18/18 ago from the date of her examination. The victim has also supported the case of her kidnapping and rape. There is no any such material to disbelieve her testimony.
18. Having considered the evidence and discussions, made above, I do not find any reason to interfere with the Judgment of conviction of the appellants.
19. Learned counsel for the appellants lastly submitted that the appellants have remained in jail custody for about four years, hence, the sentence may be modified. I am not at all find that the case is fit to take any lenient view as minor girl was kidnapped and raped by the appellants, hence, the sentence is also reasonable and does not require any modification.
20. In the result, these four appeals are dismissed.
(Rajendra Kumar Mishra, J) P.S./-N.A.F.R.