Criminal Appeal (SJ) No.95 OF 2006 -------- Against the judgment and order of conviction and sentence dated 28.12.2005 and 7.1.2006 passed by Shri Sanjay Priya, Additional Sessions Judge, Supaul in S.T. No. 91 of 2005. ------ Dilip Kumar Paswan, son of Sri Nago Paswan, resident of Mohalla – Chakla Nirmali, Ward no. 6, P.S. and District – Supaul …………. Appellant Versus The State of Bihar ……… Respondent --------- For the Appellant : Sarvashri Arun, Sanjay Kumar @ S.K. Advocates For the State : Shri Ajay Mishra, A.P.P. ---------- P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA ---------- Dharnidhar Jha, J. The solitary appellant was tried by the learned Additional Sessions Judge, Supaul by being charged under section 376 IPC in S.T. No. 91 of 2005 and by judgment dated 28.12.2005, was found guilty of committing that offence. After hearing the appellant on sentence on 7.1.2006, the learned trial judge directed the appellant to suffer rigorous imprisonment for ten years as also to pay a fine of rupees five thousand else, to suffer another term of rigorous imprisonment for six months. The appellant appeals against the judgment of conviction and order of sentence passed upon him. 2 2. The informant Duro Devi (P.W. 9) is the mother of the victim P.W. 10 Shri Kumari. She stated in her fardbeyan (Ext. 2) that she was to go out to scrap grass and, as such, she put her one year old son into the lap of the victim Shri Kumari asking her to take care of him so long as she was away to scrap the grass. While she was scrapping grass, she heard the cries of her child and rushed back to her house to find that her son was in the lap of the present appellant and Shri Kumari was lying inside the house of the present appellant and was also bleeding from her private parts. The informant asked the appellant as to what he had done to the little girl upon which, the appellant attempted to run away. He was caught by the informant, who was also raising a halla, which attracted the other ladies of the neighbourhood. Subsequently, the little child Shri Kumari (P.W. 10), who was unconscious, was brought to Sadar hospital, Supaul and was admitted there for treatment and the child also stated to her mother, the informant, that the act was perpetrated upon her by the present appellant. 3. On the above facts, the FIR (Ext.3) of the case was registered by P.W. 12 who also took up the investigation of the case and on close of the same, sent up the present appellant for trial. 4. It appears from the records of the Magistrate that the appellant had raised a plea of juvenility after being remanded in the instant case, i.e., Supaul P.S. Case no. 182 of 2004 and, as 3 such, a full-fledged order was drawn up on 14.3.2005 by the magistrate to initiate an enquiry on the plea of juvenility of the appellant. For, the appellant was not producing any evidence in support of his plea, the Magistrate directed the constitution of a board of doctors for assessing the age of the appellant and, accordingly, the Civil Surgeon-cum-Chief Medical Officer, Supaul was forwarding the report of the medical board vide his memo no. 60 dated 28.4.2005, which was received by the learned magistrate on 29.4.2005 and by order of the same date, the Magistrate found that the appellant was aged about twenty years and as such his plea of being a juvenile could not be entertained or accepted and the same was rejected. This may be of some relevance to point out that order dated 29.4.2005 rejecting the plea of the appellant about his juvenility attained finality on account of not being assailed before any appropriate forum. I have noted down these facts for the reason, which shall appear a little later. 5. As regards defence plea of the appellant, P.W. 9 was suggested that nothing had happened as was alleged by her or was stated by her in evidence and on account of some agnatic bad relationship, a false case has been foisted upon the appellant. 6. The prosecution examined 12 witnesses, out of whom, P.W. 1 Jugeshwar Paswan, P.W. 4 Umda Devi, P.W. 5 Raj Kumar Paswan and P.W. 8 Babita Devi were declared hostile on account of having not supported the occurrence. P.W. 2 Shivni 4 Devi, P.W. 3 Bechan Paswan were respectively the grand mother and grand father of the victim and they stated that they had learnt about the incident that the appellant had committed rape upon their five-year old grand daughter. P.W. 7 Kamal Paswan, father of the victim, was not present in his house and he claimed having come to know about the incident from his wife P.W. 9 when he had returned home and thereafter took the victim to hospital where she was treated. It has already been pointed out that P.W. 9 and P.W. 10 are the mother of the victim and the victim of the case respectively. P.W. 11 Dr. Nutan Verma had examined P.W. 10 Shri Kumari while she was posted in the Sub Divisional Hospital, Supaul on 17.10.2004 and had issued the medical report (Ext. 1). 7. As per the report of P.W. 11, there was a tear of lower (posterior) vaginal wall and blood was oozing. Repair was done by P.W. 11 by giving three fine stitches. The tear was measuring ¼” approximately. There was no other injury found by P.W. 11 who stated that rape cannot be ruled out on account of the injuries recorded by her. It appears that P.W. 11 was put certain searching questions as she had found the hymen intact and in reply to those questions she has stated that presence of hymen could be the sign of virginity and rape did not mean only the sexual intercourse by a male with a female rather, mere penetration was enough to constitute the offence of rape. This is what the doctor was telling the trial court and if one could 5 consider the definition of rape under section 375 IPC, there could not be anything less than what had been stated by the doctor. 8. In gist, I have pointed out the evidence of witnesses other than P.Ws 9 and 10. As regards the evidence of P.W. 9, she has reiterated her whole story, which is contained in FIR but with some variations, like, in FIR she was stating that she heard the cries of Shri Kumari and then she came to her house whereas in her evidence in court, she was stating that she heard the cries of her son and on coming to her house, she neither found Shri Kumari nor her one-year-old-son, rather when she went out of her house in search of the two, she was confronted with the appellant who was coming with the one-year-old-son of the informant and pointed out that the where-about of Shri Kumari was not known to him. The lady stated that she, thereafter, entered inside the house of the appellant to find Shri kumari lying under a chowki, unconscious and bleeding from her private part. The fact that Shri Kumari was lying under a chowki, was not stated in her fardbeyan. This fact was also not stated that she entered inside the house of the appellant. But, the fact remains that minor discrepancies are bound to occur due to the human frailties in observing the facts, retaining them and then reproducing them at the time of deposing in court. Moreover, if the facts are not stated in fardbeyan, which were stated in the evidence, it may not raise an inference that they were sufficient enough to demolish the 6 prosecution charges. It is true that there was a suggestion given to P.W. 9 that on account of agnatic differences a false case had been foisted upon the appellant but, there is no basic material brought on record as to what could be the animus between the two sides, which could impel a lady, like, P.W. 9 to present her five year old little daughter as a sample of an offence of such brutal proportions as could be found by considering the evidence of P.W. 11. Yet another truth may be that P.W. 10 Shri Kumari was pointing out to the learned trial judge that from five days prior to her deposition being recorded in court, she was being tutored by her mother to depose facts, which she had deposed in trial, but that is not going to diminish the importance of the evidence of P.W. 10, because the little child did not have any animus or any score to settle with the present appellant. In her evidence, she was addressing the appellant as ‘Chacha’ and the ‘Chacha’ who was heaping the trauma upon her, was not less than about twenty years on the date of occurrence. Every second of the instant act and on that account the trauma which the child had to undergo, must have left an indelible imprint upon the memory of the child as to how it was committed and by whom it was perpetrated. These are the reasons that inspire of the lines of evidence tutored, this court finds not sufficient ground to reject her testimony. This is the gist of the material and on this summed up substance, the conviction of the appellant could not be said to be outside the evidence. The 7 conviction appears the only result which could have been delivered on the basis of materials. 9. As regards the plea of juvenility, which was agitated with all vigor and stress by Shri Arun, learned counsel for the appellant, it has to be answered and that was the reason that at the very outset, I had extracted some records made by the magistrate originally at the pre trial stage when the appellant was raising a similar plea before him. Shri Arun was agitating before me that as per provision of section 7A of the Juvenile Justice (Care and protection of children) Act, 2000, the plea could be raised at any stage including the present stage and that has to be considered. 10. It is true that there is no bar in raising the plea at any stage and the reason is that it is a beneficial legislation, who targets a very important segment of our population, who are the future foundation stones of our country. A mere act which might have been defined as an offence, if committed in the immaturity of a juvenile, is sought to be condoned so much so that it could not have an indelible effect on the future life of a person who could be found committing that particular act. As such, the application of the provision of the aforesaid Act was made applicable to all fora, even after the judgment had reached its finality on account of being confirmed or affirmed by the Supreme Court of India that it could be agitated and considered in the light of section 64 of the said Act. But, the question is as to whether the plea could be 8 allowed to be agitated if once it has been agitated and an order on that has been obtained. I have already pointed out the history of the plea and the ultimate out come of that plea on account of the enquiry held by the Magistrate at that particular stage in the form of an order dated 29.4.2005 passed in Supaul P.S. Case no. 182 of 2004 (G.R. No. 979 of 2004) which is the basic police case giving rise to S.T. No. 91 of 2005 on account of committal order passed by the magistrate on 29.4.2005 itself. 11. The appellant was conscious of his plea because he was raising that plea and it was expected of him that he ought to have produced all material evidence before the court. The magistrate was recording in his order dated 14.3.2005 that in spite of raising the plea, the appellant was not producing any material in favour of the plea. I have already noted that the plea was rejected and that order attained finality on account of not being challenged before any revisional/appellate forum. The appellant could not be allowed in the above light to agitate that plea again. 12. I have already delivered my judgment on the merit of the present appeal by noting that no other result could have come out of the material facts and, as such, the appellant was rightly convicted though the court below appears a bit lenient on passing the sentence upon the appellant because the victim was a five- year-old-child. She was not only unknown to the worldly affairs but was supposed to be immune from this act, specially when it 9 was coming from a person who was an uncle in relationship to that child. However, the state has not come up in appeal for enhancement of sentence nor this court has issued any notice. As such, the appellant shall have to undergo the sentences passed by the trial court upon him. 13. The appeal is dismissed. (Dharnidhar Jha, J.) Patna High Court, The 25th April, 2011, NAFR/Anil/