Manohar Lal Visa, J.
1. Being aggrieved by the judgment dated 23-12-2002 and order dated 24-12-2002 passed by Sessions Judge, East Champaran at Motihari in Sessions Trial No. 175 of 2000 convicting and sentencing the appellant Rajesh Sah to undergo rigorous imprisonment for a period of ten years under Section 366A of Indian Penal Code (In short 'I P C') and rigorous imprisonment for a period of ten years under Section 376 of IPC but ordering the sentence to run concurrently, the appellant has preferred this appeal.
2. The case of prosecution, as disclosed in the written statement (Exhibit-3) of informant Shivnath Sah (PW 7), in short, is that on 29-7-1999 at about 7 p.m. informant along with his wife Uma Devi (PW 6) and minor daughter Asha Kumari aged about twelve years had gone to the house of his neighbour Nanhu Sah to attend a function. He became busy in the work and in the meantime, appellant enticed away his minor daughter Asha Kumari. Informant started searching for his daughter but he could not get any clue and he went to the house of appellant and found him absconding and on further enquiry, he came to know that Paras Sah, Jailal Sah and Ramanand Sah also had their hands who helped the appellant in the kidnapping of his minor daughter. On the basis of written report of informant, formal first information report (Exhibit-4) was drawn against appellant under Sections 366A, 120B/34 of IPC and the police, after investigation, submitted charge-sheet against the appellant showing first information report named accused Ramanand Sah and non-first information report accused Manju Devi absconder and keeping the investigation pending against other first information report named accused Paras Sah, Jailal Sah and showing non-first information report named accused Subhash Sah and Brij Mohan Sah not sent up for trial. Cognizance of the case was taken and the case was committed to the Court of Session where charges under Sections 366A and 376 of IPC were framed. After trial, appellant was found guilty and was convicted and sentenced, as stated above.
3. No witness on behalf of appellant was examined during trial. The case of defence, as it appears from the trend of cross-examination of prosecution witnesses is that appellant has been falsely implicated in this case due to enmity.
4. Altogether nine witnesses have been examined on behalf of prosecution. Asha Kumari (PW 5) is the victim girl, Uma Devi (PW 6) and Shivnath Sah (PW 7) are her parents, Krishna Sah (PW 1), Rajendra Sah (PW 2), Shoechandra Sah (PW 3) and Jogindra Sah (PW 4) are witnesses. Dr. Manjula Nath (PW 8) is the doctor who had examined the victim and Markande Singh (PW 9) is the Investigating Officer.
5. Dr. Manjula Nath (PW 8) has said that on 3-8-1999 when she was posted at Sadar Hospital, Motihari, she received police requisition for examining Asha Kumari who was jointly examined by her and Dr. Phul Kumar on the same day. She has said that no recent sign of sexual act was found and victim appeared to be habitual in sexual cohabitation and her age was in between 16-17 years. She has proved medical examination report which is marked Exhibit-2. Markande Singh (PW 9) has said that on 2-8-1999, he was posted at Pipra Police Station as JSI and on that day, informant Shivnath Sah came to the Police Station and submitted his written report and a case was registered and he was deputed as Investigating Officer of this case and endorsement to this effect was made on the written report. He has proved this endorsement which is marked Exhibit-3. He has also proved formal first information report (Exhibit-4). He has further said that he went to the place of occurrence and recorded the statement of witnesses. He has also stated that on 3-8-1999, he recovered victim girl from the house of Manju Devi and got the victim medically examined at Sardar Hospital, Motihari and on 4-8-1999, statement of victim was recorded under Section 164 of Criminal Procedure Code. He has further said that after completing the investigation, he submitted charge-sheet.
6. Krishna Sah (PW 1) has said that one day he came to know that victim girl Asha had fled away one day ago with appellant and he then along with informant, his wife Uma Devi, Chethru Sah, Devendra Sah, Nanhu Sah went to the house of Harbansh Sah who is brother-in-law of appellant where he came to know that the victim was there and because tension spread in the village and villagers did not allow the recovery of victim girl, so he came back. Rajendra Sah (PW 2) has said that he had gone to the house of Nanhu Sah to attend a function where informant and his wife had also gone and at that time, appellant enticed away Asha Kumari and in the village, he came to know that appellant had taken Asha Kumari to the house of his sister Manju at village-Bhartari. Sheochandra Sah (PW 3), in his evidence, has said that he had gone to attend the function in the house of Nanhu Sah where informant and his wife had also gone and later on he came to know that appellant had enticed away Asha Kumari. He has further said that he did not see the occurrence. Jogindra Sah (PW 4) is the hearsay witness and he has said that he heard that appellant had enticed away Asha Kumari and kept her in the house of his sister Manju from where the girl was recovered. In cross-examination, he admits that he had no personal knowledge bout the occurrence.
7. Uma Devi (PW 6) is the mother of Asha Kumari and has said that she along with her daughter had gone to the house of Nanhu to attend a function and she remained engaged in the work and her victim daughter left the house to attend the call of nature and at about 11p.m. when she did not return, she and others started searching her and came to know that appellant had kidnapped Asha Kumari and had gone to village-Kharbali and then she and others went to the house of Manju, sister of appellant, at Kharbali but persons assembled there started raising hulla and she and others came back. She has said that later on police recovered the victim girl. Shivnath Sah, (PW 7), informant and father of victim has said that on the day of occurrence, he along with his daughter and wife had gone to the house of Nanhu Sah to attend a function where his daughter left the house for attending the call of nature but she did not come back and on search, she was not found and on next day, he came to know that appellant had taken away his daughter with him to village-Kharbali and, thereafter, he along with Nanhu Sah went to village-Kharbali but villagers became ready for assault and he then lodged the case at Police Station and, thereafter, police recovered his victim daughter.
8. Asha Kumari (PW 5) is the victim girl. She has said that on the day of occurrence at about 8 p.m. she went to attend the call of nature at a place about 20 to 25 steps south to her house where she found appellant and five others already present there and appellant was carrying a knife and when she wanted to raise hulla. the appellant, at the point of knife, closed her mouth after tying a napkin and compelled her to board a jeep and took her to village-Kharbali where he confined her in the house of his sister Manju Devi and he committed rape on her on that night and he continued this act for two to three days and on all the time at the point of knife, he used to terrorise her whenever she made an attempt to raise hulla. She has further said that she was recovered by police and appellant was arrested and she was brought to Pipra Police Station and on the next day she was produced in Court where her statement was recorded by Magistrate. She has also said that she was medically examined. She has denied the suggestion of defence that there is a land dispute between her family and the family of appellant and for this reason she, at the instance of her father, got this case lodged against the appellant.
9. Considering the evidence on record, I, find that parents of victim girl are not eye witnesses but their evidence suggests that Victim along with them had gone to attend a function at the house of Nanhu Sah from where she disappeared. The evidence of victim and Investigating Officer further show that victim was subsequently recovered from the house of Manju Devi of village-Kharbali. Manju Devi is said to be the sister of appellant. The victim, in her evidence, has stated that she was forcibly taken away by appellant at the point of knife and was kept confined in the house of his sister Manju Devi where appellant committed rape on her on a number of days. Dr. Manjula Nath who examined the victim estimated her age between 16-17 years. Victim was examined on 26-7-2001 when she stated her age as fifteen years and the Court examining her estimated her age as sixteen years. So all these facts clearly establish that on the day of occurrence, victim was minor. It is true that Dr. Manjula Nath who had examined the victim girl on 3-8-1999, in her evidence, has said that no recent sign of sexual act was found on the body of victim but at the same breath she has said that whatever was found, the same was noted down in the injury report. The injury report is Exhibit-2 in which nowhere it is stated that no recent sign of sexul act was found on the body of victim and on the findings as to signs of rape, it is simply mentioned that no spermatozoa according to pathological report of swab was found. The concluding portion which is the opinion states that as per finding victim may be habituated to sexual act. The victim was taken away on 29-7-1999 and she was examined on 3-8-1999. Under these circumstances, the medical report that no spermatozoa during pathological examination of swab was found does not completely eliminates the possibility of rape on victim as alleged by her. The evidence of victim is clear and unambiguous that at the point of knife, she was taken away by the appellant and was kept confined in the house of his sister Manju Devi where appellant committed rape on her on a number of times.
10. I, therefore, find that the charges against the appellant stand proved and judgment and order of Court below convicting and sentencing the appellant does not require any interference by this Court.
11. In the result, this appeal is dismissed. The judgment and order of Court below is hereby confirmed.