B.N.P. Singh, J.
1. Though prosecution was launched also against Abdul Rauf along with the appellants but due to his absconsion from the proceeding, trial commenced only against Md. Mubarak Ali, Md. Sirajul, Haji Bhonu and Manzoor Hajam. All of them stood charged under Section 366A of the Indian Penal Code and Mubarak Aii also stood charged under Section 376 of the Indian Penal Code. The trial Court on appreciation of evidences placed on the record while acquitted Haji Bhonu and Manzoor Hajam, rendered verdict of guilt against Md. Mubarak Ali and Sirajul under Section 366A of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for five years. Md. Mubarak Ali also suffered conviction under Section 376 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for seven years with direction that sentences passed against the appellant Md. Mubarak Ali shall run concurrently.
2. The accusation appearing from the written report of Fakirchand Chaudhary was that after he found Anju Kumari missing from the house, made hectic searches for her when he was informed by Ganaur Sah (P.W. 1) about he having noticed Anju Kumari in the company of Md. Mubarak Ali, Abdul Rauf and Sirajul at Samastipur Railway Station on 21st November, 1988 and with these assertions a police case was instituted at Pupri Police Station, on strength of which First Information Report was drawn up and investigation commenced and pursuant to the commencement of the investigation, the police officer recorded statement of witnesses under Section 161, Cr.P.C., visited place of occurrence depute a police officer to Assam to effect recovery of missing girl where she was reported to have been taken, and on restoration of victim girl from Assam, she was clinically examined by the doctor and eventually chargesheet was laid before the Court. In the eventual trial, that commenced pursuant to commitment of the case to the Court of Session, the prosecution examined altogether nine witnesses who include father and brother of the victim girl, doctor and host of other witnesses.
3. Now adverting to the evidences placed on the record, one would find Fakirchand Chaudhary P.W. 5 who set the police in motion, reiterating his early version about Ganaur Sah P.W. 1 stating him about having noticed Anju Kumari in the company of the appellants and others at Samastipur Railway Station. The witnesses would state that the appellant Mubarak Ali was teaching Anju and other girls of his family, and on the material day of incident when all three girls had gone for study, while Pushpa and Ragani came, he was informed by them that Anju was detained by Mubarak Ali who took her in his company. Though hectic searches were made to locate Anju but yet she was found missing. The witnesses would state that he went to Bogar Gaun, a place in State of Assam in the company of police officer where, from the house of Abdul Rauf, Md. Mubarak Ali and Anju Kumari were recovered. Sabji Devi P.W. 4 mother of the victim girl would also state in similar terms as that of her husband about Anju's missing from her house, pursuant to which hectic searches were made by them to locate the girl. She would state that Ganaur Sah had stated about Anju, at her house, she would state that after eventual recovery from Assam, Anju disclosed her woes to her, Ganaur Sah P.W. 1 stated to have informed the father of Anju about he having noticed Anju in the company of appellants at Samastipur Railway Station. Similar assertions were made by P.W. 2 about Ganaur Sah disclosing complicity of the appellants and others who were seen in the company of Anju at Samastipur Railway Station. Though attention of this witness was drawn by the defence to impeach his testimony about he having stated before the police to have been informed by Ganaur Sah about the. appellants being seen in the company of Anju at Samastipur Railway Station the police officer stated about such assertion having been made before him by the witness. Dinesh Prasad Chaudhary happens to be the brother of the victim girl and he too stated to have been informed by Ganaur Sah about he having noticed Anju in the company of appellants and others at Samastipur Railway Station.
4. Anju Kumari P.W. 6 who happens to be the victim girl would state that she had gone to Appellant No. 1 for study along with Ragani and Pushpa and while Ragani and Pushpa were asked to complete their task, she was detained by appellant Mubarak Ali who asked her to accompany him to Muzaffarpur and it is how that she was taken by the appellant in his company. She would state that the Appellant No. 1 took her to his house where other appellants joined him and she was eventually taken to Bajpatti Railway Station where Manzoor Hajam left their company. She stated that after she was taken to Samastipur Railway Station, she was ravished by Mubarak Ali and there Sirajul left their company, pursuant to which Mubarak Ali and others took her to Assam where she was confined in the house of Abdul Rauf and there too Mubarak Ali violated her person on false pretext of marrying her. Her signature was also secured by the appellants putting her in fear of death on some plain piece of paper and it was after 7 or 8 days that she was recovered by the police from the house of Abdul Rauf. Mubarak Ali and Abdul Rauf were also nabbed by the police.
5. Satrughan Prasad Singh P.W. 7 stated to have visited the place of occurrence and deputed Uma Kant Singh P.W. 8 to Assam under orders of superior police officer for recovery of Anju Kumari. He stated to have recorded statement of witnesses, got the victim girl medically examined by the doctor and eventually laid chargesheet before the Court. Uma Kant Singh P.W. 8 stated to have gone to Assam in the company of other Police officer where Anju Kumari was recovered from the house of Abdul Rauf, and Mubarak Ali and his father were also nabbed.
6. Dr. lla Mishra P.W. 9 stated to have medically examined the victim girl who was found to be of age between 12 to 14 years. Hymen of the vagina was found not intact. There were old linear scratches on the left breast, below the nipple. There were old scratches on the medial side of the thigh and lower abdomen. The vagina was found two fingers dilated and in estimation of doctor, the victim had symptom of intercourse within a week for more than one time though she was not found habituated of such intercourse. The doctor stated that no swab was collected for chemical examination and also that there was no sign of fresh intercourse. This is all the evidences that has been adduced on behalf of the State and the trial Court on appreciation of evidences placed on the record while negativing contentions raised on behalf of the appellants about their innocence rendered verdict of guilt and sentenced the appellants acquitting rest two, namely Manzoor Hajam and Haji Bhonu.
7. The finding recorded by the trial Court was sought to be assailed by the earned Counsel appearing for the appellants on premises that even though the police station was not at significant distance from the place of occurrence the prosecution was not launched by the father of Anju Kumari before efflux of three days and for belated prosecution no satisfactory explanation had ever been assigned by the father. Contentions were raised that even the brother and mother of the victim girl were very much available in the house they too did not take recourse to public authority to launch prosecution against the appellants. It is sought to be urged that though family members of the victim girl were stating about having learnt from Ganaur Sah for witnessing Anju Kumari in the company of the appellants it was quite unusual for Ganaur Sah not to make any enquiry from the victim girl about her company with the appellants. The next limb of argument canvassed on behalf of the appellants was that even two sisters of Anju Kumari who were suggested to us in the company of Anju were not examined at trial though they could have been material witness to say about elopement of Anju Kumari and the last argument canvassed at bar was that while appellant No. 1 was in custody for near about three years Appellant No. 2 also happened to be in custody for about 11 months. About Appellant No. 2 it is urged that taking the assertion made by the victim girl Sirajul too returned from Samastipur Railway Station and he was not among them who took the victim to Assam, contentions are raised that finding of guilt was recorded against Sirajul only on premises that he too was found to have helped Md. Mubarak Ali in commission of the offence. Earned Counsel appearing for the State resisted contentions raised at bar and it is urged that the prosecution version has been corroborated by a number of witnesses including that of the victim girl and the doctor.
8. Though complicity of the appellants at early stage had been suggested from the information rendered by Ganaur Sah P.W.1 who claimed to have noticed Anju Kumari in the company of the appellants at Samastipur Railway Station a number of police officers led by Uma Kant Singh visited Assam where Anju Kumari was reported to have been confined and as the evidences placed on the record do suggest, recovery of Anju Kumari and also Mubarak Ali was made from the house of Abdul Rauf. Apart from the evidence of other witnesses which appear to be coherent and also in tune with the prosecution version, testimony of Anju Kumari at trial unfolds all the mysteries about she having been taken from the lawful guardianship of her parents and having been ravished at Samastipur Railway station by Appellant No. 1 she would allege that at Assam also Appellant No. 1 violated her person and to crown all her woes receives ample corroboration from the finding recorded by the doctor who noticed evidence of violation on her person and also that of sexual assault. Anju Kumari was a minor girl. The evidence of father was that she was aged about 12 years and even in estimation of the doctor she was between age of 12 to 14 years and even if it is presumed for the sake of argument as is urged at bar that she voluntarily gave her company to the appellants, the argument loses all its significance once she was found minor, as she was not competent to exercise her discretion. The finding recorded by the trial Court was based on meticulous appreciation of evidences placed on the record and the finding of guilt recorded against Appellant No. 1 Md. Mubarak Ali and sentence imposed on him, even though he remained in custody for about three years does not call for interference and the finding of trial Court on this score, to (sic) upheld (sic) it is stated at bar that he was an old and he was not suggested to be among those who took the victim girl to Assam where too she was ravished and also that the finding of guilt was recorded by the trial Court against him, as he was found to have helped Md. Mubarak Ali in the commission of offence. Hence while upholding the conviction of Appellant No. 2 he is sentenced to the period already undergone by him.
9. With the above modification, the appeal is dismissed.