ADITYA KUMAR TRIVEDI, J.:–Appellant Ajay Sadai has preferred instant appeal against the judgment dated 16.04.2012 whereby he has been found guilty for an offence punishable under Section 376 of the I.P.C. and sentence dated 18.04.2012 directing to undergo rigorous imprisonment for ten years as well as also fined of Rs. Ten thousand in default thereof, to undergo simple imprisonment for six months additionally by the 1st Additional Sessions Judge, Darbhanga in Sessions Trial No.521 of 2010/1266 of 2010.

2. PW-9 Shibo Devi gave her fard-bayan on 11.07.2010 at about 1.00 p.m. at her house disclosing therein that her husband Naresh Sadai had gone to Tamil Nadu to earn his livelihood. She resides along with her son Manish Kumar aged about 4 years and a daughter Sanju Kumari aged about 2 years. She used to go for daily wages after giving meal to her children. Her children are being cared by Renu Kumari aged about 8 years, daughter of her sister. Today, at about 9.00 a.m. while she along with others had gone to Ghorghatta Bahiyar for planting paddy seedlings, her cousin Dewar Shambhu Sadai came at 12.00 noon and disclosed that Ajay Sadai, her co-villager took away her daughter to his house and committed rape. Blood was coming out from her vagina. She immediately rushed and after reaching at her house has seen Sanju Kumari aged about 2 years was crying in pain as well as blood was coming out from her private part. The persons so present there have disclosed that Ajay Sadai aged about 50 years took away her daughter from her Aangan and then after closing the door of his house was committing rape. After hearing cry of her daughter, the female members present nearabout raised alarm and on account thereof, Ajay Sadai came out from his house along with her daughter in his lap. At that very time, the girl was crying. Sheela Devi, her Nanad took custody of her daughter and then all of them seen blood coming out from the private part of her daughter. They have also seen blood spot at the shirt of Ajay Sadai. Thereafter, villagers have taken away her daughter to Dr. Babu Mishra for treatment as well as had also informed her through her Dewar.

3. On the basis of the aforesaid fard-bayan, Darbhanga (Sadar) P. S. Case no.260 of 2010 was registered followed with investigation and after submission of charge sheet, the appellant faced with the ultimate conclusion by way of conviction and sentence, the subject matter of instant appeal.

4. It has been submitted on behalf of appellant that the learned trial Court while recording conviction and sentence has not considered the evidence of the PWs in its right prospective. It has further been submitted that as per prosecution version, the victim happens to be Sanju Kumari aged about two and half years and on account thereof, rightly she has not been examined. Therefore, the settled principle of law guiding mode of appreciation of evidence of victim is not at all applicable in the facts and circumstances of the case.

5. It has also been submitted that none of the PWs have claimed to be an eye witness to occurrence and on account thereof, they, by their own conduct, failed to corroborate the event of rape having been committed by the appellant over Sanju Kumari. It has further been submitted that during course of trial, it is evident that prosecution halfheartedly proceeded with the trial and that happens to be reason behind that having 13 witnesses examined on behalf of prosecution, PW-2, PW-3, PW-4, PW-5, PW-6, PW-7 and PW-10 have not supported the case of the prosecution and so they all were declared hostile by the prosecution. It has further been submitted that excluding evidence of above referred witnesses, now the prosecution rest upon the evidence of PW-1, PW-8 and PW-9. When the cross-examination of all these three witnesses are gone through, it is evident that they have also not supported the prosecution version.

6. It has further been submitted that right from the fard-bayan, it is evident th