CRIMINAL APPEAL (SJ) NO.260 OF 2007 Against the judgment of conviction and order of sentence dated 09.01.2007 passed by Additional District & Sessions Judge, Fast Track Court No.IV, Buxar in Sessions Trial No.260 of 2005 VIJAY KUMAR SHRIVASTAVA.... APPELLANT VERSUS STATE OF BIHAR.... .... RESPONDENT For the Appellant : Smt. Vimala Kumari, Amicus Curiae For the Respondent : Sri S.N.Prasad, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J After being indicted of committing the offence under Section 376 IPC, the solitary appellant was put on trial in Sessions Trial No.260 of 2005 by the learned Presiding Officer of Fast Track Court No.IV, Buxar. The appellant was convicted of committing the offence and was directed to suffer rigorous imprisonment for ten years as also to pay a fine of Rs.1,000/-. The learned trial Judge did not indicate as to what would befall the appellant if he was not paying the fine which was the part of the sentence. The appellant appeals against the judgment of conviction and order of sentence dated 09.01.2007 passed in the above noted Sessions Trial. 2. Mother of the victim Subhanti Kumari, a 2 child of three years, is the informant. It was stated by P.W.1 that the victim and her two sons P.Ws.3 and 4 had gone to play and the victim came back bleeding from her private parts to point out that it was this appellant who had raped her after closing the doors of the room of his house. It was stated that the appellant was a bachelor and his parents were dead. He had driven away P.Ws.3 and 4 and committed the act with the little child. 3. The evidence of P.W.9 Dr. Manju Sahay could indicate that the hymen of the victim was torn and was bleeding on touch. There was redness around the vaginal orifice. Fourchet and perineum were also torn with ½” long tear. Blood was oozing out of the torn edge of the vagina which was admitting one finger easily. The doctor stated that the above injuries were indicative of sexual assault on the victim Subhanti Kumar(P.W.11). 4. P.Ws.3 and 4 who were accompanying the little child while playing, have stated that they were driven away by the present appellant when they were playing near his house and the appellant picked the little child and took her into his room, closed the doors and when the little child came out she was found bleeding from her private part. The mother of the victim, i.e., the informant, examined as P.W.1 3 was also stating the same facts. Other witnesses, like, P.W.5 Jawahar Pal, P.W.6 Heeraman Pal, P.W.7 Sriram Pal were also giving same statement that they found the victim crying at the house of P.W.1 and on reaching there learnt that the appellant had committed rape upon P.W.11 in the manner as stated by P.Ws.1, 2, 3 and 4. 5. As regards the evidence of the victim Subhanti Kumari(P.W.11), this Court had some reservations. P.W.1 has stated in her cross- examination, in paragraph-7, that the victim child had not developed the speech faculty and as such was not in a position to make her statement as a result of which and after being pointed out by signs as to what the appellant had done to her the mother was making the statement. While being examined as P.W.11, the victim was making statement with signs as well that it was this appellant who had committed the act with her and had caused her to bleed. Thus, even if there could be a chance of the little child of four years as P.W.11 was on the day she was examined in the trial court of being tutored; this court accepts her evidence through signs as regards the act which the appellant had committed with her. The evidence of P.W.9 Dr. Manju Sahay appears clinching when she was stating to the injuries found 4 on the private part of the child. The injuries were simply serious and indicative of the brutality to which the little child had been subjected to. The evidence of the investigating officer P.W.10 indicates that after committing the rape in his room the appellant had washed out the floors of the house so as to erasing the evidence of the offence. 6. Thus, what I find from the consideration of the evidence which was produced on record of the trial court is that the conviction of the appellant under the charge was properly recorded and he was rightly convicted for that offence. However, considering the age of the victim and that of the present appellant, in my considered view, the learned trial Judge who was passing the order of sentence was approaching his sentencing jurisdiction with too much leniency as to be approved by this Court. The appellant was in his late twenties and he was committing the act with a little child of four years. The evidence of P.W.9 Dr. Manju Sahay indicates as to what brutality had been heaped by the appellant a person of ripe age. It was a fit case which required infliction of the sentence of life imprisonment upon the appellant. But considering that no notice has been issued on enhancement of the sentence and further considering 5 that the regular counsel who had filed the appeal on behalf of the appellant has not appeared forcing the court to appoint an Amicus Curiae, I drop the idea. The appeal is dismissed. Patna High Court, Dated, the 8th day of September, 2011, Brajesh Kumar/NAFR. ( Dharnidhar Jha,J.)