Judgment Pradeep Kumar, J.- The Cr. Appeal No: 528 of 2007 filed bi Bablu Singh @ Surya Deo Singh and Cr. Appeal No. 486 of 2007 filed by Babloo Singh @ Anand Kumar Singh, which arise out of the same Sessions Trial No. 206 of 2006, by which Judgment both the appellants were found guilty under Sections 376(g)/34 of the Indian Penal Code and sentenced them to undergo R.I. for a period of 10 years and also to pay fine of Rs. 10,000/- each and in default of the same to undergo further R.I. for a period of one year. 2. It is submitted by the learned counsel for the appellant that the prosecution has failed to prove the charges beyond reasonable doubt. There is no explanation for the delay of two days in lodging the first information report when the police station was near. He has further submitted that it will also appear that the informant. stated that she went out of her house for easing at 10.30 P.M. in the night and the appellant caught hold of her when she made no 'Hulla' and even after commission of rape she came to her house and without making any complain slept in the night, which shows the informant was a consenting party and as such the conviction of the appellant under Sections 376(g)/ 34 of the Indian Penal Code is bad in law. Moreover, it is submitted that the second accused of Cr. Appeal No. 486 of 2007, Babloo Singh @ Anand Kumar Singh never participated either in commission of rape or in helping the main accused, Bablu Singh @ Surya Deo Singh and as such his conviction under Sections 376(g)/34 of the Indian Penal Code is wholly unjustified, bad in law and fit to be set aside. 3. On the other hand, learned counsel for the State has opposed the prayer on behalf of the appellants and submitted that the prosecutrix is a minor girl aged about 14 years and when she had gone out of her house for easing at about 10.30 P.M. in the night the accused caught hold of her and dragged her to a nearby field, when she wanted to raise 'Hulla' he closed her mouth and thereafter he committed rape, hence the minor girl became perplexed. Thereafter she could make no complain in the night, but in the morning she was weeping and told everything about the occurrence to her mother and as such it cannot be said that the informant was a consenting party, rather it is a case of rape on a minor girl. The second appellant, Babloo Singh @ Anand Kumar Singh has also supported the first accused, 8ablu Singh @ Surya Deo Singh as it is alleged that he was making watch in the lane, so that during the occurrence of rape, nobody came as he will give warning and as such he helped the main accused, Bablu Singh @ Surya Deo Singh in committing the offence of rape and he is fully responsible for this act. Accordingly, the appeal is only fit to be dismissed. 4. After hearing both the parties and going through the record, I find that the prosecution case was started on the basis of a first information report given. by the informant, Komal Kumari aged about 14 years daughter of Gopal Sao on 17.3.2006 at 18.30 hours at Village-Rehla at the door of her house to the S.I., Manoj Kumar, sfating therein that in the last night i.e. on 16.3.2006 at about 10.30 P.M. she had gone out of her house for easing to the north of her house' near the boundary wall of Mahabir Sao and after easing when she was coming back then near the lane Babloo Singh. @ Anand Kumar Singh son of Umesh Singh of Belchampa suddenly came in front of her and Bablu Singh @ Surya Deo Singh of Rehla closed her m'outh and started dragging her to the north dark side of the boundary wall of Mahabir Sao and gave threat that he will commit her murder and thereafter committed rape upon her. She was weeping and begging him not to do such an action upon her, but he refused to listen anything and threw her on ground and committed rape, causing injury on her right hand and back. During the occurrence of tape by Bablu Singh @ Surya Deo Singh of Rehlaand Babloo Singh @ Anand Kumar Singh of Belchampa was standing in the lane itself. After committing the rape both of them ran away. During the occurrence of tape by Bablu Singh @ Surya Deo Singh of Rehlaand Babloo Singh @ Anand Kumar Singh of Belchampa was standing in the lane itself. After committing the rape both of them ran away. Then, she came to her house and out of fear said nothing to anybody, but in the morning when the pain in her private part .became unvariable. Then, she told about the occurrence to her mother. Thereafter the case was lodged. 5. On the basis of the said F.I.R. the police registered a case under Sections 376(g)/34 of the Indian Penal Code against both the accused persons. 6. Since, the case was exclusively triable by a court of sessions, the same was committed to the court of sessions where charges under Sections 376(g)/34 of the Indian Penal Code was registered and the appellants were tried and convicted as aforesaid. 7. It appears that in order to prove the charges the prosecution has examined the following 7 witnesses. P.W. 1 is informant, Komal Kumari. P.W. 2, Manju Devi-mother of the victim girl. P.W. 3 is Lalan Prasad @ Lalan Shah. P.W. 4, Shankar Sao. P.W. 5, Gopal Sao is father of the victim girl. P.W. 6 is Dr. Poonam Sinha. who medically examined the victim girl and P.W. 7 is Manoj Kumar-Investigating Officer of the case. 8. It appears that the informant, Kamal Kumari wholly supported the prosecution case as given in the F.I.R. and stated that in the night of occurrence at 10.30 P.M. when she was coming back after easing then Bablu Singh @ Surya Dec Singh of Rehla caught hold of her and after closing her mouth, so that she cannot make Hulla, dragged her to the field and committed rape upon her. At that time, Babloo Singh @ Anand Kumar Singh of Belchampa was standing in the lane and making guard. After committing rape Bablu Singh @ Surya Deo Singh of Rehla ran away and gave threat that if she will disclose the occurrence then she will be killed. Out of fear she came to her house and without telling to anybody about the occurrence she went to sleep. In the next day she told about the occurrence to her mother. The police came on the next day then she gave her statement, which was recorded and she signed the same. Then the police sent her for medical examination. Out of fear she came to her house and without telling to anybody about the occurrence she went to sleep. In the next day she told about the occurrence to her mother. The police came on the next day then she gave her statement, which was recorded and she signed the same. Then the police sent her for medical examination. Then, she was examined and her statement was also recorded before the Magistrate in Court. She signed the statement under Section 164 Cr.P.C. She identified the accused in Court. In her cross-examination, she stated that near her house there are only four houses that of Mahabir Singh, Ramni Sao and Doman Sao. She further stated that the house of the accused, Bablu Singh @ Surya Deo Singh of Rehla at a distance of 10 deg of her house. She also stated in para 12 of her cross-examination, that when she wanted to make Hulla Bablu Singh @ Surya Deo Singh of Rehla closed her mouth by his hand. She further stated that she is a student of Class-VIIth. In para 33 in her cross-examination, she stated that Village-Belchampa is at a distance after crossing the river of Rojan. She denied in para 38 that there is no litigation in between the accused. Bablu Singh @ Surya Deo Singh of Rehla and his father. P.W. 2, Manju Devi-mother of the prosecutrix also supported the prosecution case and stated that the occurrence took place in the night at 10.30 P.M. when her daughter had gone out of her house for easing, but in the morning when she was weeping with pain then on inquiry she told her about the occurrence and stated that accused, Bablu Singh @ Surya Deo Singh of Rehla committed forceful rape upon her. She also stated that her daughter told that Babloo Singh @ Anand Kumar Singh of Belchampa was standing in the lane and making guard. She also told about the occurrence to her neighbour. In the evening the police came her daughter gave her fardbeyan, which she also signed as a witness. She proved her signature as Ext.-1/1. She identified both the accused in Court. In para 4, in her cross-examination, she stated that in the morning she came to know that Bablu Singh @ Surya Deo Singh of Rehla has committed rape upon her daughter. She proved her signature as Ext.-1/1. She identified both the accused in Court. In para 4, in her cross-examination, she stated that in the morning she came to know that Bablu Singh @ Surya Deo Singh of Rehla has committed rape upon her daughter. Then, she had told about the occurrence to her neighbour and her husband was not present there. Subsequently, she told about the occurrence to her husband also then, the police came in the evening. At para 11, in her cross-examination, she stated that the police recorded her statement. In para 22 also stated that at the place of occurrence paddy is being shown, but at the time of occurrence it was vacant. In para 24 she stated that she knows Bablu Singh @ Surya Deo Singh of Rehla, who stayed near her house. In para 25 she stated that she also knows Bablu Singh @ Surya Deo Singh of Rehla and Babloo Singh @ Anand Kumar Singh of Belchampa. She denied in para 31 of her cross-examination, that at the instance of persons inimical to accused she named Bablu Singh @ Surya Deo Singh of Rehla, in order to falsely implicate them. P.W. 3, is Lalan Prasad @ Lalan Shah has also fully supported the prosecution case and stated that he came to know about the occurrence from the mother of the prosecutrix, Kamal Kumari on the next day of morning of the occurrence that Bablu Singh @ Suiya Deo Singh of Rchla committed forceful rape upon her daughter. At that time, Babloo Singh @ Anand Kumar Singh of Belchampa was standing in the lane. P.W. 4, Shankar Sao has also supported the prosecution case and stated that he came to know about the occurrence in the next day morning. P. W. 5, Gopal Sao is father of the victim girl and stated that on the night of 16.3.2006 the accused Bablu Singh @ Surya Deo Singh of Rehla committed forceful rape upon her daughter. At that time, Babloo Singh @ Anand Kumar Singh of Belchampa was standing in the lane for guarding the accused. In the next' day in the morning her daughter told about the occurrence to her mother. In his cross-examination, he stated that her wife told about the occurrence on 17.3.2006 at 7.30 a.m. in the morning. He immediately informed his nephew, Lalan Sao. In the next' day in the morning her daughter told about the occurrence to her mother. In his cross-examination, he stated that her wife told about the occurrence on 17.3.2006 at 7.30 a.m. in the morning. He immediately informed his nephew, Lalan Sao. Subsequently, the police came in the morning and recorded the statement of his daughter. In para 11, of his cross-examination, he knows Mundrika Singh and Yachuk Singh of Rehla and they are dead and no member of their family had come to the Court and in para 13 he denied that at the instance of the family member, who are against the accused family he has lodged this false case. P.W. 6, is Dr. Poonam Sinha, who examined the victim girl on 18.3.2006 at about 1 f30 a.m. and found her aged about 14-16 years from the date of occurrence. She also found external injury on her right forearm received shoulder and bruise on the back. The doctor also found two abrasions in upper part of back. On examination of the private part of the victim girl she found bruise in right side of labia measuring 2" x 1" red in colour. On internal examination she found that vagina admits one finger with pain hymen ruptured, vaginal smear taken and send for Microsoft examination and the pathological report no 1 0 pathos dated 18.3.2006 spermatozoa not found in vaginal smear. In the opinion of the doctor possibility of rape cannot be excluded. In para 2 she stated that injury on the private part of the victim may be possible by penetration of erected penis. She proved her injury report as Ext.-3. P.W. 7 is Manoj Kumar-Investigating Officer of the case. He stated in Court that on 17.3.2006 he heard rumors that in the Rehla market daughter of Gopal Sao has been raped. Then, he entered the same in the station diary and went to the house of Gopal Sao for verification. At the house of Gopal Sao his daughter, Kamal Kumari aged about 14 years gave her F.I.R. He proved the Fardbeyan as Ext.-4, which was read over to the informant in presence of her mother, which he signed. He proved her signature as Ext.-1 and stated that he took up the investigation and thereafter recorded the further statement of informant. Thereafter he examined her mother, her sister, Kanchan Kumari. He proved her signature as Ext.-1 and stated that he took up the investigation and thereafter recorded the further statement of informant. Thereafter he examined her mother, her sister, Kanchan Kumari. He came to place of occurrence he found that the place of occurrence is behind the boundary wall of Mahabir Sao, which is open field. The place of occurrence which was found stamped by Thana. He proved formal F.I.R. as Ext.-5. He also got the victim girl and obtained the inquiry report and after investigation submitted charge-sheet against the accused persons. In his cross-examination, he stated that he has brought the copy of the station diary the original entry police station. He further stated that house of the victim is at about 300 meter from the police station. At para 25 he stated that after recording the statement of the victim girl he left the victim girl in her mother's house as become dark and asked her to go for medical check-up on next day. In his cross-examination at para 28 he stated that the victim girl was sent for medical examination on the police jeep. He does not remember the number of Jeep. In para 35 of his cross-examination, he stated that he had not taken the clothes of the victim girl since it found that the clothes washed after the occurrence. He stated after the completion of the investigation and supervision by higher authority, submitted charge-sheet. 9. Thus, after going through the entire prosecution case, I find that the evidences of P.Ws. 1, 2, 3, and 5 have fully supported the prosecution case that in the night of occurrence i.e. 16.3.2006 when the victim had gone out of her house for easing and coming back to her house she was caught hold by the accused, Bablu Singh @ Surya Deo Singh of Rehla committed rape upon her by force. P.W.6, doctor has also found that the victim girl was a minor aged about 14 years and there was sign of rape. She had external injury on her hand and back which she had alleged was caused when by force the accused Bablu Singh @ Surya Deo Singh of Rehla threw her on the ground and committed forceful rape then she received injuries on her back and hand. The doctor also found injury on her private part, which was caused by forceful penetration by erected penis. The doctor also found injury on her private part, which was caused by forceful penetration by erected penis. The Investigating Officer has also supported the prosecution case and as such, in my opinion, the learned trial court rightly convicted the appellants, Bablu Singh @ Surya Deo Singh of Rehla. 10. However, as far as the appeal filed by Babloo Singh @ Anand Kumar Singh of Belchampa, P.S. Garhwa is concerned, the informant has only alleged that he was present with the main accused, Bablu Singh @ Surya Deo Singh of Rehla there is no allegation that he also instigated Bablu Singh @ Surya Deo Singh of Rehla to commit rape upon the victim girl, nor he touched her or even attempted to commit any offence against her as per her statement when the main accused Bablu Singh @ Surya. Deo Singh of Rehla after closing her mouth dragged her to the field behind the wall of Mahabir Sao. He did not go behind him rather he stayed in the lane. There is no allegation that even after the occurrence when Bablu Singh @ Surya Deo Singh of Rehla was giving threat to the victim girl, he simply went away. In that view of the matter, there is no allegation of either committing rape or helping the main accused in committing rape only because he was standing in the lane. The victim P.W.-1, Komal Kumari thought that he was guarding the occurrence. 11. However, this thought is not sufficient in absence of positive action by the accused, Bablu Singh @ Anand Kumar Singh of Belchampa and as such in my opinion, benefit of doubt is given to accused, Babloo Singh @ Anand Kumar Singh of Belchampa, P.S.-Garhwa, District-Garhwa and the appeal filed by him i.e. Cr. Appeal No. 486/07 is allowed since he is on bail, he is released from the his bail bond. As far the appellant, Bablu Singh @ Surya Deo Singh of Rehla, P.S.-Aehla, District-Palamau is concerned the prosecution has proved beyond all reasonable doubt that he committed rape upon the victim girl and as such his conviction under Sections 376(g)/34 of the Indian Penal Code is altered to Section 376 of the Indian Penal Code and his sentence of 10 years is reduced to that of 7 years and he is directed to pay a fine of As. 7,000/- and if the amount is paid then 6,000/- will be paid to the father of the victim girl and rest Rs. 1,000/- will be deposited in the Govt. Treasury and in default of payment of the same the said appellant will further undergo R.I. for a period of 6 months. 12. With the aforesaid alteration in the judgment of conviction and sentence the Cr. Appeal No. 528 of 2007 filed by accused, Bablu Singh @ Surya Deo Singh of Rehla is dismissed. It appears that no bail was granted to the appellant and he is in jail custody. The trial court is directed to see that he serves the sentence.