JUDGMENT
D.P.S. Choudhary, J.
1. The sole appellant has preferred this appeal against the judgment and order passed by Ist Additional Sessions Judge, Gaya, in Sessions Trial No. 616 of 1993/2 of 1994 dated 25-9-95 convicting him under Section 376 of the Indian Penal Code and sentenced him to undergo R.I. for 7 years and also to pay a fine of Rs. 1,000/- and in default of payment of fine, to further undergo R.I. for 6 months.
2. The prosecution case, in brief, is that the informant, Nand Lal Manjhi (P.W. 3) in his FIR (Ext. 2) alleged that on 31-10-1991 he was working as labourer of one Naresh Prasad at village Dumarsa. His son Pravesh Manjhi (P.W. 2) came there and told that at about 2.30 P.M. his sister Tara Kumari (P.W. 4) came home and weapingly told that accused Dauna Paswan has lifted her in his lap and took her towards south in the Rahal field of Kishore Lal and committed rape on her. The informant rushed to his house and saw blood stains in the pant of his daughter Tara Kumari. His wife Raj Kumari Devi was also present there who has stated that at about 2-30 p.m. she came home and started weaping and told her that accused Dhauna Paswan had forcibly lifted her to the Rahal field and committed rape on her. His daughter Tara Kumari also told him about the occurrence and stated that she was having pain in her urinary track. The informant narrated this occurrence to some of the villagers who had assembled there. He went to the police station along with his daughter Tara Kumari and produced the blood stained pant of his daughter. On the basis of his statement First Information Report was recorded at about 4 p.m. The girl was sent to the Medical Officer (P.W. 1) who examined her and gave the report (Ext. 1) after completion of investigation charge-sheet was submitted and cognizance taken and the trial Court proceeded in the trial.
3. The case of the defence is that accused and father of the victim girl (P.W. 3) had some differences over payment of wages and hence he has been falsely implicated.
4. The prosecution in support of its case examined six witnesses. P.W. 1, Dr. Manju Bala, examined the victim girl on 31-10-91 at 9-30 a.m. and found as follows :-
P/V-No pubic hair, Mons venesis clear. Latsia Magora and Memema were found but stained blood cliton Infantine but not injured. Perinam – 2nd degree tear (fresh) “Hymen ruphered” (fresh uretaral opening was normal. Sprgoga-not seen, the B.C. Swelling WBC-X-ray Repalsore not sumlable.
Conclusion :- There are injuries of perevisum and hymen but it is very difficult to say that sexual intercourse has been committed or not because there is no other findings except above findings. Hence expert opinion should be needed. Age could not be ascertained because x-ray report is not available.
She has proved her injury report (Ext. 1) and in her opinion the girl was below 5 years of age since X-ray report was not available she could not give the correct age of the girl.
5. P.W. 2, Pravesh Manjhi, is the brother of the victim girl who stated that on the date of the occurrence at about 1 p.m. his sister Tara Kumari narrated to him that accused had forcibly committed rape on her in the Rahal field. He found his sister bleeding from her private parts and her under garment was full of bloodstained. His mother was also present there when she narrated about the occurrence. He rushed to his father and narrated about the occurrence. He was examined by the I.O. before whom also he supported about the occurrence of rape as narrated by his sister. P.W. 3, Nand Lal Manjhi, is the father of the victim girl and informant. He stated that his son P.W. 2 informed him about the occurrence. He rushed the house and found his daughter weeping and her under-garment was full of blood and she was crying due to pain. He went to the police station where his fard beyan was recorded over which he gave L.T.I. The I.O. referred his daughter to the police station for medical examination and treatment. He stated that his daughter was 3 years at the time. She identified the accused in the dock, who was aged about 25 years.
6. P.W. 4, Tara Kumari, is the victim girl. She was examined in the Court on 13-7-93 and the Court has estimated her age as 5 years. She gave her age 3 years. The Court has tested her intelligence and capability to depose and was satisfied that she was able to understand and capable to reply. She was examined in question-answer form and the substance of her evidence is that accused appellant lifted her in his lap and took her in Rahal field and forcibly committed rape on her. She also stated that she had bleeding injury on her private part.
7. P.W. 5, Madan Ram, is an A.S.I. and formal witness who submitted charge-sheet but did not make any investigation in this case as the investigation was completed by his predecessor in his office. P.W. 6, Daroga Rai, is the retired S.I. who made the investigation in this case. He has proved the FIR (Ext. 2) which was recorded on the statement of informant. He visited the place of occurrence and sent the victim girl, Tara Kumari, for her medical examination. He found blood coming out from the private part of the victim girl and prepared the injury report. He also prepared the seizure list of the blood stained clothes produced before him by the informant (Ext. 3). He stated that in the Hospital due to non-availability of X-ray plate the victim girl would not be X-rayed. In cross-examination he stated that in her statement victim girl, Tara Kumari, stated that accused had committed rape on her.
8. On the basis of the evidences, the trial Court has come to the conclusion that prosecution has been able to prove the charges levelled against the accused appellant beyond all reasonable doubt and convicted them accordingly.
9. The learned appellant’s lawyer submitted that no independent witness has been examined and it has come in the evidence of the informant that he has narrated about the occurrence to the villagers who had assembled there. Non-examination of independent witness is a lacuna of the prosecution case. In reply the learned A.P.P. submitted that it is not the case of the prosecution that any villager or any family member of the victim girl had seen the occurrence of rape committed by the accused. Other witnesses were only hearsay witnesses. Hence, their examination was not material in this case. However, the evidence of brother and father of the victim girl fully support the case of the prosecution.
10. In my view the examination of any . villager was not material in this case because alleged occurrence took place in the Rahal field. There is no eye-witness except the vicim girl of the alleged occurrence. The prosecution case is fully supported by evidence of P.Ws. 2 and 4 as discussed above.
11. It was further submitted on behalf of the appellant that medical evidence does not conclusively support the prosecution case and in its absence the alleged offence of rape has not been proved beyond all reasonable doubt.
12. I have carefully scrutinised the evidence of lady Doctor and found that the lady Doctor could not give any definite opinion about the alleged offence of rape because there was no expert opinion on this point she was herself competent to give this finding and no experts opinion was needed to assist her to come to the conclusion whether the victim girl was raped or not. However, the other finding given by the lady Doctor as mentioned above, leads to only one conclusion that the victim girl was (physically, assaulted. The girl was aged only 3 to 4 years and at this stage unless some physical assault was done on her private part it was not possible to bleed profusely. The lady Doctor has opined that there was no tear of fresh hymen and there was fresh Hymen raptured (fresh) ureteral. This finding suggests that she was physically assaulted and was raped.
13. From the evidence of the Doctor I come to the finding that she has corroborated the evidence of victim girl on the point of rape comitted on her. The evidence of the victim girl further finds corroboration by evidence of the I.O. as referred to above who has found blood coming out from the private part of the victim girl when she was brought to the police station. The blood stained pants were produced before him although it was not produced in the Court when he was examined as witness but it was only lapse on the part of the prosecution and does not affect the case in any manner.
14. I do not find any substance in this contention of the learned lawyer that accused has been falsely implicated in this case because he had some dispute for the payment of wages with the informant. This is only a suggestion given to the witnesses in the cross-examination, but has not been substantiated by any other evidence. It is not such a motive which can lead to the conclusion that a person will stake the honour of his minor daughter and implicate the accused after making false allegation that his daughter has been raped. In normal course, people try to conceal such offences considering the prestige of their family.
15. In the result, I come to the conclusion that the trial Court has rightly convicted the accused for the offence under Section 376, of the IPC.
16. The learned appellant’s lawyer submitted that the accused has already spent a period of 7 years in jail custody because he was not enlarged on bail either by the Court below or by the Hon’ble Court. Therefore the jail authority is directed to release the accused appellant forthwith, if not released as yet, or not required in any other case.
17. I do not find any merit in this appeal which is accordingly dismissed.
18. Mr. Manoj Kumar’ Singh assisted the Court as amicus curiae with his all sincerity. The Legal Aid Committee of the Patna High Court is directed to pay his fee in accordance with law. A copy of the judgment be made over to him.