Judgment : VIKRAMADITYA PRASAD, J. ( 1 ) THIS appeal is directed against the conviction and sentence passed in S. T. No. 33/97, whereby the learned Sessions Judge convicted the appellant for an offence under Section 376 IPC and sentenced him to undergo R. I. for 10 years. ( 2 ) THE prosecution case shortly stated as per the Fardbeyan, Ext. 1, of Guddi kumari aged about ten years recorded at the government hospital had gone for grazing the cattle as usual near Pandadariya ghurghutti where Blrhjan Sao and Bhagwati devi were also present with their cattle. At noon Bhagwait Devi returned to home for lunch as also for bringing lunch for the victim. Later, on, after taking meals, she separated from Bhagwati for grazing the cattle and at this moment, Birjhan Sao forcefully raped her in a Rahar field and fled away. Blood oozed. Thereafter she was returning home, when she met Bhagwati Devi to whom she narrated the incident when she advised her to go home. The victim narrated the incident to the parents and the persons present there. Thereafter she was taken to the hospital for treatment. After investigation, chargesheet was submitted against the accused. ( 3 ) THE defence version of the case is that the victim girl fell on the twig of Rahar and got herself Injured and this is a case of false implication due to enmity. ( 4 ) BEFORE I proceed to examine the evidence of other witnesses, I wish to refer to the findings of the Doctor. P. W. 7, which are as follows (Ext. 1):" (I) Clothes of Guddi Kumari were full of blood and sent to Bhawnathpur P. S. (ii) Mark of violence there was scratch mark on left thigh and left breast. There was slight development of breast. (iii) There was blood all over body and private parts such as thigh, abdomen, vagina, vulva, both the legs. There was severe bleeding from vagina and big pieces of dotted blood was removed from the vagina. There is laceration of vagina valve and hymen as well as posterior commissure and fourchett and tear was repaired of posterior commissure and fourchett. As per vaginal examination, it was admitting 1 finger and very tender. Vaginal wall was inflamed and very much tender. Specimen of vaginal swab taken from Guddi Kumari and examined on high power of microscope which shows spermatozoa present. As per vaginal examination, it was admitting 1 finger and very tender. Vaginal wall was inflamed and very much tender. Specimen of vaginal swab taken from Guddi Kumari and examined on high power of microscope which shows spermatozoa present. (iv) X-ray of wrist joint ape and lateral view done which shows no speciflcal union at the wrist (v) Teeth examined total 24. (vi) Mark of identification One mole under upper right and one mole on the right forearm. (vii) Age of injury within 12 hours. (viii) From the above finding age of the victim was assessed to 12 to 14 years. (5) Opinion In my opinion, she was raped mercilessly. "this Doctor also proved the Pathologists report on vaginal swab Ext. 1/2. There is clearcut finding of the Doctor that the victim girl was raped mercilessly though the doctor also said that hymen may be found ruptured due to other reasons, yet the reason which has been shown does not exclude the rape itself because spermatozoa was also found in vaginal swab and no Rahar plant contains spermatozoa so as to provide credence to the defence case. Thus, the medical evidence is in total support of the case of rape. ( 5 ) NOW the question is whether the appellant is the person who raped the victim girl of about 12 years (as per medical report) i take up the evidence of Guddi Kumari, p. W. 4, the victim, first. In examination in chief, she said that it was Birjhan who had asked her to go and eat Bair, when she refused, he had carried her and thereafter gasping her mouth by a Gamchi, he committed rape upon her. In paragraph 4 she says that she narrated this fact to her parents when her mother brought her to house. She also said that she was treated thereafter. In paragraph 14 she said that it was her parents who had got the case recorded before the police and they had got the name of birjhan included therein. In paragraph 15, she said that she has deposed as she has been asked to depose by her parents. The evidence of one witness, P. W. 6, requires to be examined in this context to ascertain whether the prosecutrix was tutored or she was giving a true account. In paragraph 15, she said that she has deposed as she has been asked to depose by her parents. The evidence of one witness, P. W. 6, requires to be examined in this context to ascertain whether the prosecutrix was tutored or she was giving a true account. The witness, P. W. 6 says that she is aged about 50 years and she, Birjhan, the appellant and Guddi, all had gone to graze their cattle, this, on their claim that prosecutrix, Birjhan had gone to graze cattle is corroborated by her. All of them had taken their cattle near the river, but when she had come back in the evening, the found the cattle grazing and when she raised Hulla, then Birjhan and Guddi were seen. Later Guddi, said to her that "birjhan baba Ganda Ganda Kam Hamare Saath kiye", then she asked her to got back home and thereafter the parents went to hospital. She had admitted that she had not seen anything from her eyes. P. W. 4, the prosecutrix, has also stated in paragraph 1 that she had gone to graze cattle early in the morning along with the mother of Usha. But she did not say whether this Bhagmati devi is the mother of Usha. In the Fardbeyan (Ext. 1) the name of Bhagwati (P. W. 6) has been stated by the prosecutrix. In paragraph 2, she further said that the mother of Usha had gone back to home and again come back in the evening. This lady appears to be the first one to know about the occurrence. When the prosecutrix is referring to mother of Usha, she is actually meaning this bhagwati. Therefore, this lady came to know for the first time of the occurrence in such a circumstance, even if the prosecutrix says that whatever her father and mother had said her to tell, she told, it cannot be said that she was a tutored one. Had not this witness (P. W. 6) appeared and admitted what was said to her by prosecutrix, then it would have been said that prosecutrix is tutored. Had not this witness (P. W. 6) appeared and admitted what was said to her by prosecutrix, then it would have been said that prosecutrix is tutored. P. W. 5 said that when he came back to house, he found his sister, Guddi Kumari, smeared with blood and she had told that when she had gone to graze cattle, rape had been committed to her and Bhagwati Devi was there and Bhagwati Devi had gone back to take her meals and when she came back, Guddi narrated the offence to her, thereafter Bhagwati Devi sent her back to her house. Thus, whatever Bhagwati devi is saying, that is corroborated by p. W. 5. The learned counsel for the appellant argued that if the victim girl had become senseless, then how she had told this fact to Bhagwati Devi. The mother, P. W. 3, in paragraph 3 says that girl came back home and told that Birjhan had committed the crime. Thus, from her evidence, it does not appear that it was she who went to the p. O. and brought her unconscious, rather it corroborates the statement of Bhagmati devi that she had told her to go back home, even if for sometime she became unconscious at the P. O. then, also her coming alone to the house after meeting Bhagmati devi on way and narrating the occurrence for the first time to her is not belied from this statements. PW. 2 is a villager. He saw the victim much later. Therefore, his evidence does not speak more than this that the victim was in Injured condition and she has been raped. PW 1 is the father. He is also not an eye witness. He simply says that after hearing Hulla, he did not go the P. O. in order to save the life of his daughter, but he also admits the presence of Bhagmati devi. In paragraph 3 he said that Bhagmati devi after taking meal came back to graze the cattle. Though a plea of enmity had been tried to be set up between the accused and the appellant, but in paragraph 19, this witness has categorically said that the appellant is not of his village and he is of Buxipur and he denied the allegation that there was some dispute between him and the accused with regard to grazing of cattle. ( 6 ) FROM the side of the defence, one witness has been examined. This witness, D. W. 1, has been examined on the point of enmity. He has said that earlier the accused had taken two bullocks of the Informant on 10-11-1996, due to which there was scuffle and subsequently there was also a garmauzuria land in between the land of the Informant and the appellant and for that also, dispute was going on for the last 5 years. In his cross-examination, he has said that he could not say the Khata, plot numbers etc. of the disputed land and he also said that no receipt was being issued in respect of the land in the name of the appellant. So far as pounding is concerned, he said that the receipt of pound would be with birjhan. Thus, this man does not known any details of the disputed land. As no document has come to show pounding of the cattle and even if it is said that enmity is there, then the enmity cuts both the ways. Some discrepancy in the evidence of the prosecutrix is not contradictory in nature belying the whole allegation. Though she has given some discrepant evidence, but I have tested her evidence against the evidence of PW 4 and 6 to exclude tutoring and found that it is not the case of tutoring. ( 7 ) CONSIDERING all these, I do not find any merit in this appeal and the manner of rape, the nature of injury sustained by the prosecutrix do not warrant any interference with the sentence also. This appeal is accordingly dismissed. Send back the lower Court records forthwith. Appeal dismissed. --- *** --- .