1 IN THE HIGH COURT OF JUDICATURE AT PATNA - - - - Criminal Appeal (SJ) No.577 of 2008 Against judgment of conviction and order of sentence dated 15.3.2008 and 19.3.2008, respectively, passed by Ist Additional Sessions Judge, Gopalganj, in Sessions Trial No. 643 of 1985/ 85 of 2006. ===================================================== Ranjan Kumar Ram @ Ranjan Ram, son of Sakaldeep Ram, resident of Village Mauja Brindaban, P.S. Uchakagaon, District Gopalganj .... .... Appellant Versus The State of Bihar .... .... Respondent ===================================================== Appearance : For the Appellant : Shri Uma Kant Shukla, Advocate Shri Tatnakar Pandey, Advocate For the Respondent : Shri S.N.Prasad, A.P.P. ===================================================== CORAM: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA ORAL JUDGMENT (Per: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA) - - - - The solitary appellant Ranjan Kumar Ram alias Ranjan Ram was put on trial by learned Ist Additional Sessions Judge, Gopalganj, by framing charge under Section 376 of the Indian Penal Code in Sessions Trial No. 643 of 2006/ 85 of 2006. By judgment dated 15.3.2008 the appellant was held guilty of committing the offence and by order dated 19.3.2008 was sentenced to undergo rigorous imprisonment for seven years as also to pay a fine of Rs. 4,000/-, else, to suffer rigorous imprisonment for a further period of one year. The appellant appeals against the judgment of conviction and order of sentence passed upon him. 2. The prosecution case is contained in the fardbeyan of P.W. 2, the informant, in which she stated that her two children, namely, her daughter (P.W. 3) aged about six and half years and her son Alok Kumar aged about two years were playing at her Darbaja. The present appellant was also there. The informant stated that she went inside her house with her 2 son leaving her daughter, the victim( P.W. 3) and the present appellant at her Darbaja and when she again came back after lulling her son to sleep, she found the present appellant and the victim not present there. She became restless and started searching for the girl when she picked up the screams of the girl coming from the palani part of the Darbaja and on reaching there found that this appellant was committing rape upon her. As soon as the informant went near the appellant, he left the victim and ran away from there. 3. On the basis of the fardbeyan of P.W. 2, the F.I.R. was drawn up and investigation was taken up by P.W. 5 Sarvesh Kumar Singh who was on that date the Officer-in-charge of Uchkagaon Police Station. He stated that he inspected the place of occurrence and recorded the statements of the witnesses and after completing the investigation, submitted charge sheet for the trial of the present appellant. 4. The defence of the appellant was that he was not present on 14.5.2006 at Village Brindaban where the occurrence had taken place, rather, was in Jammu where he was working on account of being employed in B.R.Engineering Works and Supplier Company. 5. In support of the charge, the prosecution produced five witnesses. P.W. 1 was the grand father of the victim and father-in-law of the informant(P.W.2) Gayatri Devi and he stated that he found the victim weeping and wanted to know the reason for it from her mother, when he was informed that this appellant had committed rape upon the victim. P.W. 1 has stated that he found the victim girl completely soaked in blood and, accordingly, he took her to the hospital along with her mother. In cross-examination by the defence, P.W. 1 stated that he went near his 3 daughter-in-law after hearing the cries and came to know about the occurrence. He has further stated in his cross-examination that he took the victim to Gopalganj Hospital for treatment. P.W. 2, Gayatri Devi, the informant, has reiterated the same facts as were narrated by her in her fardbeyan and during her cross-examination she stated that her husband was residing out side India on the date of occurrence and on her hulla her father-in-law and others reached near her and the injured child was taken to hospital by one of the relatives of the lady( P.W.16). The child was accompanied by P.W. 1, her father-in-law. She further stated that the victim was treated in the hospital and her statement was recorded in the hospital. P.W. 3, the victim has also supported the occurrence. 6. As regards the evidence of P.W. 4 Dr. Smt. Mitilesh Sharma, she stated that on examination of the private part of P.W. 3 who was found aged about six years, the labia mazora was found swollen and was stained with blood. Left labia minora was also found swollen and right labia minora was found lacerated. Vaginal swab was taken for being sent for pathological examination. However hymen was red and congested. On the basis of the above finding P.W. 4 was of the opinion that there was evidence of sexual assault upon the victim. In her cross-examination P.W. 4 was asked to clarify as to whether sexual assault was constituting rape and she stated in paragraph 15 that sexual assault was a kind of rape. So far as the hymen was concerned, it was stated by P.W. 4 in paragraph 9 that hymen was undeveloped and as such it was not ruptured. Thus, what appears from the evidence of P.W. 4 is that there was sufficient evidence indicative of penetration as may further appear from the initial opinion of P.W. 4 when she was stating that the victim was complaining of pain over 4 her lower abdomen and her private part. 7. There was no argument except that the appellant has remained in custody throughout from the date of his remand in the case and has been inflicted an imprisonment for seven years. Shri Uma Kant Shukla, learned counsel for the appellant submitted that the appellant has served over five years of sentence and the Court may reduce the sentence inflicted upon him to the period already undergone. 8. I have discussed the evidence of the witnesses and on consideration of the same what appears is that there is direct evidence coming from P.W. 2, the informant, who happens to be the mother of the victim that the appellant was found lying over the little child of six and half years and the little child was screaming on account of the act which was perpetrated by the appellant upon her. That screaming was heard by P.W. 2 and she rushed to the scene of occurrence when this appellant fled away from there. The screaming of the child and hulla raised by P.W. 2 attracted P.W. 1 and on making enquiry by P.W.1 he was informed about the incident which had been perpetrated by the present appellant. That the appellant had committed rape upon P.W. 3, appears clearly stated by the little child and the same is supported by the evidence of P.W. 4 the Doctor Smt. Mithilesh Sharma. The medical opinion was that a girl of six years had her hymen undeveloped and as such there could not be any question of any rupture of the hymen. However, the description of labia mazora and labia minora on either sides of the private part of P.W. 3 by P.W. 4 clearly indicated that the little child had been subjected to sexual assault or sexual intercourse. 5 9. It is true that the defence attempted to inject some story of dispute for a land, but the evidence of P.W. 1 in paragraph 26 clearly indicates that the litigation which was of the civil nature and was pending, was not between the family of the appellant and P.W.1 rather the same was pending between the grand father of the witness and one Kapildeo. The defence was not putting any question either to P.W. 1 or P.W. 2 to bring on record the document regarding the litigation between them. The appellant also set up a plea of alibi. No document of the proprietor of the concern in which the appellant claimed being employed and further claimed working on the day of occurrence was brought on record as any substantial satisfactory evidence so as to indicating almost conclusively that the appellant was present in Jamu on the date and at the time of occurrence and he was not present at the village. The above rigor appears not discharged by the three defence witnesses. 10. On an analysis of the evidence discussed above, there could not be any room to doubt that the little girl ( P.W. 3) was subjected to sexual intercourse as injuries were indicative of it as was recorded by P.W. 4, the Doctor. She was found bleeding from her private part and her labia mazora and labia minora were found swollen and sustained with blood. The discharge slip has been brought by the defence which has been marked Ext. A and that also supports the findings which have been stated by P.W. 4 regarding presence of injuries in the private part of the victim and considering that, there is no legal or factual basis to hold that the conviction could be bad in law and on facts. 6 11. The appeal appears meritless and the same is hereby dismissed without entering into the order of sentence which already appears minimal under the facts of the case. ( Dharnidhar Jha, J.) Patna High Court The 9th November, 2011 Kanth/N.A.F.R.