CRIMINAL APPEAL No.120 (DB) OF 2004 ----- Against the judgment of conviction dated 16.04.2003 and order of sentence dated 17.04.2003 passed by Sri Abdur Rahman, Additional Sessions Judge, Fast Track Court No.II, Aurangabad in Sessions Trial No. 36 of 2001/262 of 2002. ----- LAKHAN BIND SON OF RAMPRIT BIND RESIDENT OF VILLAGE LOHDI,P.S. GOH,DISTRICT AURANGABAD --- APPELLANT VERSUS THE STATE OF BIHAR --- RESPONDENT ----- For the appellant:Mr.Veena Kumari Jaiswal,Advocate (Amicus Curiae) For the State : Mr.Ashwini Kumar Sinha,Addl.P.P. ----- P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD ----- S.K.Sharma & Gopal Prasad,JJ. The sole appellant has preferred this appeal against the judgment of conviction dated 16.04.2003 and order of sentence dated 17.04.2003 passed by Additional Sessions Judge, Fast Track Court No.II, Aurangabad in Sessions Trial No. 36 of 2001/262 of 2002 by which he has been convicted under Section 376 of the Indian Penal Code and has been sentenced thereunder to undergo rigorous imprisonment for life. 2. A written application was given by P.W.8 Basant Bind in presence of P.W.3 Dharmendra Bind and P.W.1 Naresh Bind on 2 13.06.1999 addressed to the Officer-in- Charge, Goh police station in which he alleged that his daughter Poonam Kumari aged 4 years was taken away by Lakhan Bind at 8.00 P.M. on 06.06.1999 from his house after giving her biscuits. She was carried near a Mahua tree towards Khalihan where appellant raped her. She cried. Thereafter the informant P.W.8 and Dharmendra Kumar Bind P.W.3 rushed there and saw the appellant running away carried Punam Kumari in his lap. On hulla, the informant’s daughter was let off and he escaped. Thereafter, the villagers namely, Shivdhani Prajapati (not examined), Naresh Bind ( P.W.1) and others reached there. The girl became unconscious and blood was oozing from her private part. She was treated by private doctor. She regained her consciousness and told that Lakhan Dada namely, the appellant, had given her biscuits and thereafter taken away and raped her. The informant and others started searching the accused. They went to his wife’s village where the appellant was caught and brought to the village where in presence 3 of villagers he confessed that he has committed wrong. The informant and others went to police station along with the accused where written report was given to police and thereafter a case under Section 376 of the Indian Penal Code was registered. The police investigated the matter and after completion of investigation submitted chargesheet. Cognizance was taken and thereafter the case was committed to the court of sessions where charge was framed and explained to the accused who pleaded innocence and preferred to face the trial. 3. The prosecution in order to prove its case has examined ten witnesses. They are: P.W.1 Naresh Bind, P.W.2 Ram Jeevan Bind, P.W.3 Dharmendra Bind, P.W.4 Lalita Bind, P.W.5 Poonam Kumari, the victim, P.W.6 Dr. Lalsa Sinha, P.W.7 Dr. Vikas Kumar Sinha, P.W.8 Basant Bind, the informant, P.W.9 Dr.Nirmala Kumari and P.W.10 Dr.Binrendra Kumar. 4. The Prosecution has exhibited the written report as Ext.1, signatures of P.W.1 and P.W.2 on the written report as Exts. 1/1 4 and 1/2 respectively, Pathological report of the victim as Ext.2, age determination report of the victim as Ext. 2/1, report of the Board as Ext.2/2. Another written fardbeyan as Ext.1/3, signature of the informant on the examination report as Ext.2/3, other signatures of the witnesses as Exts 2/4 to 2/5 and injury report as Ext.3. 5. The defence has examined two witnesses in support of its case. D.W.1 is Sudarshan Chaudhary and D.W.2 is Ghurbigan Bind. The defence of the accused was of false implication due to enmity because the witnesses were putting pressure upon him on account of property dispute. 6. The trial court after considering the entire evidences and other materials on record, found the appellant guilty and sentenced him, as stated above. 7. This court has to see whether the prosecution was able to prove the charge against the appellant beyond the shadow of all reasonable doubts or not. 8. Firstly the evidence of the victim is being taken up who is examined as P.W.5. 5 Her evidence was recorded on 7.2.2002. On that date she has given her age 7 years and the court has also assessed her age to be 7 years. She has stated that at about 7.00 P.M. in the evening of Sunday about two and half years earlier, she was in her house where the appellant came and gave her biscuits and he also promised to give more biscuits, so she went with the accused. She was taken away beneath a Mahua tree. Thereafter, the accused raped her after opening her pantie against her will. She started crying and thereafter she became unconscious. She further stated that after arrival of her father, accused escaped. She was treated by village doctor P.W.10. She has received injury on her private part and blood was coming out. She was sent to Aurangabad Sadar Hospital for further treatment. There she was examined. Her statement was also recorded by the police. The accused was caught by her father and another relative and he was brought to police station and thereafter the case was lodged. After lodging the case, the police came to her village and her statement was 6 taken by the police. She identified the accused in dock. She has denied that there was any litigation between the accused and her father from before. She has been cross- examined at length but her evidence has remained intact to the extent that the accused had given her biscuits and on the pretext of giving more biscuits she was taken away and raped by him beneath a Mahua tree after opening her pantie, as a result, she lost her consciousness. Thereafter she was treated by doctor P.W.10. 9. P.W.10 is Dr.Birendra Kumar. He is a private medical practioner who has treated P.W.5 according to prosecution case. He has stated that on 6.6.1999 he treated Poonam Kumari. She was with bleeding on private part and after washing her private part, bandaged it. Some medicines were given to her. It appears that P.W.10 is not a professional medical practitioner but he is a quack and the practice of quacks in the ruler area is prevalent. So the evidence of victim that she was treated by P.W.10 appears to be natural and hence it can be relied upon. 7 10. P.W.8 is the in the informant who is father of the victim. He has stated in his evidence that on 06.06.1999 his daughter Poona Kumari was taken away by the accused towards Khalihan and beneath a Mahua tree, he raped her. On her cry, this witness and his brother Dharmendra rushed there and saw that the accused was escaping and at that time he was carrying the victim in his lap. This witness further stated that he and his brother also ran towards him and thereafter he left the girl. The girl was unconscious, so she was brought to the village where other villagers came. Blood was oozing from the private part of the victim. She was treated by P.W.10 and when she regained her consciousness, she told that Lakhan Dada has raped her. The accused was searched and caught and thereafter brought to the village where he accepted that he is guilty of the offence. Thereafter he was brought to the police station where written report was given to police by the informant. At that time, the victim was of four years. This witness has been cross-examined at length. Suggestions 8 were given but the witness remained consistent in his evidence that on 06.06.1999 at about 8.00 P.M. his daughter Poonam Kumari was carried towards a lonely place and there the appellant has raped her. 11. Other witnesses namely,P.Ws.1,2,3 and 4 have also supported the evidence of P.W.8. 12. P.W.6 is Dr.Lalsa Sinha who was posted at Sadar Hospital, Aurangabad on 14.06.1999. She has examined Poonam Kumari P.W.5. She has opined that she might have been exposed to sexual acts in the recent past and that might have been acted upon within 10 days. The occurrence is of 06.06.1999 and the victim has been examined by this witness on 14.06.1999. The evidence of the doctor that the victim might have been exposed to sexual acts within ten days appears conformity with the prosecution evidence. 13. P.W.7 is Dr.Vikash Kr.Sinha who was posted as Medical Officer, Civil Surgeon Office at Aurangabad. This witness has stated that a Medical Board was constituted 9 consisting of some doctors to determine the age of the victim girl. The Board on the basis of physical examination, dentition and radiological examination opined the age of the victim girl in between 6-7 years. 14. P.W.9 is Dr.Nirmal Kumari who has treated the victim Poonam Kumari on 6.6.1999 and found that she might have been exposed to sexual act in the recent past. The opinion of this witness tallies with the opinion of the Medical Board. Though on two different occasions, this witness had come to the court to depose and on both the dates the accused was present in dock but this witness was not cross-examined and her evidence has remained intact. 15. Both the defence witnesses have stated that the accused was living at his sasural. One defence witness has stated that the informant is issueless and another defence witness has stated about the age of informant’s daughter. There is vital contradiction in the evidence of defence witnesses. The fact is in contrast. Therefore, the defence witnesses cannot in 10 any way are helpful to the accused. 16. After going through the entire evidences it is clear that the victim was aged about 5 years at the time of commission of occurrence. Two doctors i.e. P.Ws. 6 and 9 have stated that the victim was exposed to sexual act. This has been verified from P.W.9 who has stated that that “exposed to sexual act” means rape. It means she was raped. The victim P.W.5 has accounted the manner in which she was taken by the accused to provide biscuits. It is natural that in order to take gift, a child cannot hesitate in going with anybody to any place. A child cannot imagine that by promising to give some gift, somebody was taking him/her for other illegal purposes. The version of the victim has been fully corroborated by the doctors. 17. After analyzing the entire evidence and other materials on record, we are of the view that the prosecution has been able to prove the charge beyond the shadow of all reasonable doubt that in the evening of 06.06.1999 the appellant has raped a minor girl. So the conviction of the 11 appellant under Section 376 of the Indian Penal Code requires no interference by this Court. Accordingly, the conviction the conviction of the appellant is upheld. 18. However, on the question of sentence, learned Amicus Curiae appearing on behalf of the appellant submits that the appellant is poor which is evident from the fact that he is not in a position to even give statutory court fee and he has sent a petition from jail which has been treated as appeal. It has also been submitted that there is no previous conviction against the appellant. So the appellant deserves leniency. 19. After perusing the records it is clear that the case was lodged on 13.06.1999 and on that date, the appellant was handed over to police. There is nothing on the record from which it can infer that he ever came out from the jail from that date, meaning thereby that he is consistently in custody since 13.06.1999. Considering the allegation and facts of the case, it is evident that the appellant is man of such 12 character who cannot be shown any sympathy but considering the period of his detention, we are of the view that the sentence needs to be modified. It is accordingly modified to the extent that the period undergone by the convict shall be sufficient for the ends of justice. 20. In the result, this appeal is dismissed with modification in sentence. 21. Since the appellant is in custody, he is directed to be released forthwith if not wanted in any other case. 22. As this is a jail appeal, Mrs.Veena Kumari Jaiswal, Advocate was appointed as Amicus Curiae to assist the court on behalf of the appellant and she has argued. The Secretary, High Court Legal Services Committee, Patna shall ensure payment of fee to Mrs. Veena Kumari Jaiswal, Advocate for assisting this Court as Amicus Curiae. 23. Let a copy of this order be given to Mr.Veena Kumari Jaiswal, Advocate for needful. ( Shyam Kishore Sharma, J. ) ( Gopal Prasad, J.) Patna High Court,Patna The 6th April, 2010/Tahir(NAFR). 13