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5. After submission of the charge-sheet cognizance was taken and the case was committed to the Court of Sessions. After commitment Patna High Court CR. APP (SJ) No.764 of 2012 dt.12-09-2014 4 of the case, charges were framed under Sections 363, 366 and 376 of the Indian Penal Code. During trial, eight witnesses were examined by the prosecution and three witnesses were examined on behalf of the defence and taking into consideration the oral and documentary evidence the trial court found that the victim having supported the prosecution case about kidnapping and taking her by force by the appellant to his house where she was kept in confinement after tieing her hand and mouth and was raped and further taking into consideration the evidence of the Investigating Officer that the victim was recovered from the house of the appellant and the victim was examined by the Doctor and further the statement of the victim under Section 164 Cr.P.C. was recorded after her recovery in custody of the police and she has supported the prosecution case regarding kidnapping and rape, the learned trial court also took into consideration the fact that the age of the victim was 15 years as assessed by the doctor on radiological examination and also the age of the victim assessed by the Magistrate as 15 years during her examination under Section 164 Cr.P.C. and further the fact that the Court during the evidence of the victim assessed her age as 16 years after deposition in the Court after one year of the occurrence and hence, convicted and sentenced the appellant as mentioned above.

6. Learned counsel for the appellant has challenged the judgment of conviction and order of sentence recorded by the trial court. It has been submitted that there is delay in lodging the First Information Patna High Court CR. APP (SJ) No.764 of 2012 dt.12-09-2014 5 Report for which no explanation has been given. There is no eye-witness to the occurrence. No independent witness has come forward to support the prosecution case about kidnapping. It has further been submitted that though there are several members in family of victim but except father and mother no other family member of the informant has come to depose. It has further been contended that the evidence of the victim is fluctuating and her evidence does not inspire confidence. The age of the victim though assessed by the doctor as 15 years on the basis of radiological examination but the victim stated her age as 16 years in her examination. It is further stated that there is fluctuation of three year plus minus in age assessed by radiological examination and if three years are taken as fluctuation then the age of the victim was 18 years on the date of occurrence and was a major and if the victim was major then as per her evidence she was raped during the captivity there and during the period she did not make any Hulla and the prosecution case is that victim was taken during the captivity here and there which indicates the element of consent to hold that the victim was a consenting party. It has further been contended that the victim in her cross-examination has stated that she was taken by force by catching hold of her hairs and dragging and there are several houses in between the place from where she was kidnapped and the house in which she was kept in captivity but none has come to support the prosecution case regarding the kidnapping. The occurrence is alleged to have taken place in the evening but none Patna High Court CR. APP (SJ) No.764 of 2012 dt.12-09-2014 6 came to support from the village and there is no eye-witness to the occurrence, hence it casts a doubt on prosecution case and probabilizes the case of the defence that the victim was a consenting party and she went to the house of the appellant on her own sweet will.

7. Learned counsel for the State, however, contended that the victim has supported the prosecution case about kidnapping and keeping her in captivity in the house of the appellant for four days. The father of the victim P.W. 5, the informant, has also supported the prosecution case that the victim was kidnapped when he was not in the village on 20.08.2008 and after he reached the village on 21.08.2008, he made an inquiry and then lodged a First Information Report about the kidnapping of the victim and she was recovered from the house of the appellant and this fact has not been challenged and further the statement of the victim under Section 164 Cr.P.C. supports the prosecution case and hence, the judgment of conviction and order of sentence is sustainable.

Patna High Court CR. APP (SJ) No.764 of 2012 dt.12-09-2014 10

15. It is worth mentioning that in a case of kidnapping and rape the conviction of the appellant can be recorded on the sole testimony of the victim if the evidence of the victim is found to be reliable and trustworthy and worthy of confidence and the evidence is corroborated in material particular then on such evidence judgment of conviction can be recorded. However, the corroboration is not rule of law but rule of prudence and so far the corroboration is concerned, the victim was recovered from the house of the appellant and report of doctor does not rule out the rape and the statement of victim recorded on her recovery the very next day of her recovery, the victim in her statement has supported the prosecution case regarding her kidnapping and kept in confinement in the house and appellant having committed rape on her person. However, evidence of the victim having been supported by the recovery of the victim from the house of appellant by the investigating officer and the victim was examined by doctor who found the physical feature of victim her age 15 years and vagina admits one finger easily and the victim having supported the prosecution case in her statement on the very next day under Section 164 of the Cr.P.C. which corroborates her evidence about kidnapping and rape and the said statement under Section 164 Cr.P.C. has been proved by P.W. 7 the S.D.J.M. who recorded her statement as Ext. 5.