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Criminal Appeal (SJ) No.306 of 1997
[Appeal against the judgment and order dated
23/24.9.1997 passed by the Special Judge, Nawada in
Special (H) case No.157 of 1995]
Mantoo Kumar Singh @ Mantoo Singh alias Mithilesh Kumar,
son of Late Jageshwar Singh, resident of village Jogachak, P.S.
Kauakol, district Nawada
.......................... Appellant
Versus
The State of Bihar .............. Respondent
For the Appellant : Mr. Ashutosh Kumar, Advocate
Mr. Chandra Mohan Jha, Advocate
For the Respondent : Mr. C. Jawahar, Addl. P.P.
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PRESENT
THE HON’BLE JUSTICE SMT. ANJANA PRAKASH
Anjana The appellant has been convicted u/s.376 I.P.C.
Prakash, J:
and sentenced to R.I. for seven years by a judgment dated
23/24.9.1997 passed by the Special Judge, Nawada in
Special (H) case No.157 of 1995.
2. The case of the prosecution according to
prosecutrix Kiran Kumari (P.W.5) is that on 25.12.1995
when she along with her brother had gone to the floor mill
of the appellant to get her paddy crushed, the appellant
allegedly asked her brother to go home on some pretext
and in the mean while committed rape upon her. In the
mean another lady came also for getting her rice crushed
but the appellant asked her to come after sometime, then
he asked the prosecutrix to come and he again raped her.
Then she allegedly started crying, at which P.W.4 came
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there.
3. During trial the prosecution has examined
thirteen witnesses. Out of whom, P.W.2 and P.W.3 are the
parents of the victim, whereas P.W.5 is the victim herself
and P.W.7 is her brother. P.W.8 and P.W.10 are seizure
witnesses and P.W.4 is an alleged eye witness. P.W.9,
P.W.11, P.W.12 and P.W.13 are the four Investigating
Officers, whereas P.W.1 and P.W.6 are the two doctors.
During trial the victim P.W.5 stated as to how her brother
was sent home on some pretext and then the appellant
committed rape upon her. She further stated that after the
first act was over, the appellant asked his customers to
come after sometime and once again committed rape on
the victim, at which she crying and then P.W.4 came there.
P.W.4 Morwa Devi has stated that when she went to the
flour mill of the appellant, she found the door closed and
when she got it opened she saw the prosecutrix weeping on
the Chowki, whereas the appellant had mounted her body.
Seeing the said witness appellant got up hurriedly and
dressed himself. She then told her that she went to the
mother of P.W.5 and paddy has been scattered but she did
not tell about the occurrence. The mother P.W.2 was
informed about the occurrence by the victim herself. P.W.2,
P.W.3 and P.W.7, who are the parents and the brother
respectively of the victim, have deposed as hearsay
witnesses. P.W.6 Dr. Arun Bhati stated that she had
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examined the victim on 26.12.1995 but found the hymen
intact as also no injury on the private parts. She sent the
vaginal swab for pathological examination to P.W.1, who
testified that he did not find any spermatozoa in the said
swab. He also proved the report of the Medical Board,
which in his opinion found the victim of 9-10 years of age.
4. It has been submitted on behalf of the appellant
that the prosecution story appears to be highly improbable
since it did not stand to reason that the victim would make
herself available to the appellant for commission of rape the
second time. The natural conduct of a person would be to
run away as soon as there was an opportunity to do so. The
further submission is that the doctor’s opinion belies the
prosecution case that in fact rape had been committed. It
has also brought to the notice of the court that an argument
had been advanced on behalf of the appellant that he was
merely 14 years 9 months on the date of occurrence and,
therefore, the incident should be viewed keeping the young
age of the appellant in mind.
5. There is no doubt that the doctors have not
supported the factum of rape, but it appears that the victim
had been medically examined a day later and, therefore,
non-finding of any injury on the person of the victim or the
sperms in the vaginal swab is easily explained. But the fact
that the hymen was intact is relevant in the facts of the
case. The prosecution story that the victim had been raped
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the second time appears to be improbable, but for this
reason alone the prosecution case can not be discarded.
Since P.W.5 was merely a girl of 9-10 years of age and she
may have given an exaggerated version of the occurrence.
6. Considering the entire conspectus of the case in
mind and the fact that the Doctor had found the hymen
intact, I am inclined to acquit the appellant for the offence
u/s.376 I.P.C., but he is convicted for the offence
punishable u/s.376/511 I.P.C. Keeping in view the age of
the Appellant at the time of occurrence, the sentence is
reduced to the period already undergone by him during trial.
7. In the result, the appeal is dismissed with the
aforesaid modification.
Patna High Court ( Anjana Prakash, J. ) Dated, 12th July, 2011. NAFR/ Narendra/