Criminal Appeal (SJ) No. 801 of 2006 ------ Against the judgment and order of conviction and sentence dated 11.8.2006 passed by Shri Braj Nandan Prasad, Additional District and Sessions Judge, FTC II, Jehanabad in Sessions Trial No. 160 of 2006. ------ Dineshwar Sharma, son of Late Nagendra Sharma, resident of village – Bhimpura, P.S. – Makhdumpur, P.O. – Majhaush, District – Jehanabad ……………… Appellant V e r s u s The State of Bihar …………….. Respondent ---------- For the Appellant : Sarvshree Baban Sharma, Shailendra Kr. Jha & Ram Swaroop Prasad Advocates. For the State : Shri Ajay Mishra, APP --------- P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA ------------- Dharnidhar Jha, J. The solitary appellant was charged under section 376 IPC by the Additional District & Sessions Judge-cum-Presiding Officer, FTC- II, Jehanabad and was tried in S.T. No. 160 of 2006 / 32 of 2006. By judgment dated the 11th of August, 2006, the appellant was found guilty of committing the said offence and was directed to suffer rigorous imprisonment for ten years as also to pay a fine of rupees five thousand, else, to suffer rigorous imprisonment for two more months. The appellant brings into question the 2 judgment of conviction and order of sentence by preferring the present appeal. 2. Informant is the father of the victim (P.W. 5) who was aged about seven years on 31st December, 2006 and while she along with her younger brother in her lap was proceeding to purchase lozenges from the shop of one Sukan Sharma, the appellant, at that particular moment, was sitting in his shop itself and he allured the small child (P.W.5), took her to a place near a mango tree, bite teeth in her cheek and thereafter committed rape upon her. The little girl P.W. 5 came weeping to her house when Ranjeet Chauhan, nephew of the informant Bijendra Chauhan (not examined) inquired from her about the reasons for weeping when she stated that the appellant had committed the act as just described. The said Ranjeet who had not been examined, took P.W. 5 to her mother and she found that the little girl was bleeding from her private parts and was almost soaked in blood. 3. The occurrence had taken place in between 7 and 7.30 P.M. and at that particular time, P.W. 2, the informant was not present at his house. When he came back and learnt about it, it was quite late in the night, not allowing him to travel up to the distant police station and he could do it only after he had traced out the chowkidar in the next morning and thus, filed the report (ext 1). 4. P.W. 6 SI Mohan Kumar was the Officer Incharge of Makhdumpur Police station in the district of Jehanabad and after 3 receiving Ext., 1 he drew up FIR of the case and himself took up investigation during which course he recorded the statements of various witnesses, like, Rinku Devi (PW 3), Mamta Devi (PW 4), Sushil Kumar, Usha Devi, Binod Kumar, Sheopujan Sharma, Munna Singh, Nitish Kumar, Laila Devi and Butan Sharma (all not examined). He inspected the place of occurrence and arrested the appellant. He also recorded the statement of the informant and the victim and as may appear from the evidence of other witnesses, like, P.W. 7 Dr. Neelam Kumari and P.W. 8 Dr. Sarweshwar Kumar, sent the victim for her medical examination and finding material sufficient, sent the appellant on the very next day of occurrence for trial. 5. P.W. 7 Dr. Neelam Kumari had examined the victim on 2.1.2006, i.e., on next day of the occurrence and found that there was a teeth mark on the left side of the face of the victim though there was no other external or internal injury recorded by P.W. 7. However, on examination of private part of P.W. 5, P.W. 7 found ½” perenial tear on the right side of her vagina which was not bleeding. P.W. 7 found hymen ruptured and that rupture according to P.W. 7 could have been caused within six to twelve hours of her examination. In the opinion of P.W. 7, the injuries which were recorded by her on the person of P.W. 5 could be caused by hard and blunt substance and were simple in nature. 4 6. P.W. 8 Dr. Sarweshwar Kumar carried out the medical examination of P.W. 5 so as to assessing her age and after collecting all necessary medical data, was of the opinion that the prosecutrix could be aged in between seven – eight years on 2.1.2006. 7. The learned trial judge has recorded in his judgment that when it is an offence of rape, no one could be the real eye witness of the occurrence except the victim. Thereafter, he had gone on to record that the doctor was of the opinion that there was no definite evidence of commission of rape upon P.W. 5, but the possibility of commission of such an offence upon the little child could not be ruled out. The learned trial judge thereafter went on to analyze the evidence both of public witnesses and that of P.W. 7 and recorded the finding that the evidence clearly indicated that P.W. 5 had been raped forcibly by the present appellant as may appear from the findings recorded after discussion of the evidence in paragraph 19 of the judgment. 8. The contentions which were raised before me during the hearing of the present appeal was that one of the attesting witnesses to the FIR, namely, chowkidar Ramashankar Paswan had not been examined and the evidence of the doctor indicated that there was no sign of rape found by her on the person of P.W. 5 as there was complete absence of external or internal injuries. 9. As may appear from the evidence which was recorded by the learned trial judge, chowkidar Ramashankar Paswan was not a 5 witness to any aspect of the case. He was simply traced out by P.W. 2, the informant of the case for accompanying him up to the police station for lodging the report. The FIR was recorded in his presence. The non examination of such a witness whose evidence could not be material so as to unravel the prosecution story has regularly been not found to be of any importance by the courts. I carry the same opinion as regards non examination of the chowkidar. The evidence of P.W. 1 Sushil Kumar indicates that while he was coming from the orchard to his house he was asked by his mother, i.e., wife of the informant, who was searching out the prosecutrix P.W. 5, and when went out in search of P.W. 5 he found that this appellant was coming with P.W. 5 and the youngest brother of P.W. 1 and P.W. 5. The appellant then ran into his house and P.W. 1 found that his sister P.W. 5 was not in a position to move and she was also bleeding, then he picked her up by her hands and took her inside the house and found that she was bleeding from her private parts whereafter he and her mother looked at that particular part of her body to be confirmed in their opinion that there was injury into the private part or not. P.W. 5 narrated the incident to her mother. 10. P.W. 2 has supported his fardbeyan and has stated that when he came back from outside, he was told as to what had happened to P.W. 5 and who had committed the act to her. P.W. 3, the mother of the prosecutrix, has fully supported the evidence of P.W. 1 and the same support has come from P.W. 4 Mamta Devi, 6 who happens to be the wife of the younger brother of P.W. 2, the informant of the case. P.W. 5 is the victim herself and she in her brief but effective evidence, has narrated as to how she was ravished by the present appellant. It is true that she was four – five years of age as per the assessment of the board of doctors, but in her examination before the court some searching questions were put to her and it appears that she withstood the test of lengthy cross examination, specially, when her age is considered in context to the questions put to her. She has fully described all finer aspects of the offence which was committed upon her by the appellant as may appear from replies to questions which are contained in paragraph 5 of her deposition sheet. When I consider those particular statements which are contained in paragraph 5 and compare them with the evidence of P.W. 7, the doctor, I find that the evidence of the little child was fully in line with the records made by P.W. 7 in her medical report. Thus, what is found by me is that the act of appellant of committing rape upon the little child of 7 – 8 years stands fully established by evidence. 11. It was contended that P.W. 7 was not clear in her opinion regarding the commission of rape rather she was stating that she did not find any external or internal injury while examining P.W. 5. The learned counsel appears missing important findings recorded by P.W. 7 when she found a mark of teeth bite on the left side of the face of P.W. 5. This is stated in the very opening line of the report, 7 not as a finding of an injury on the person of P.W. 5, but as a mark of teeth bite, might be that the doctor was not very specific and contextual in noting down the injuries and describing them, nonetheless, her findings were sufficient elucidations about the offence to any prudent mind that the rupture of the hymen and the perenial tear in the length of ½” on the right side of that particular part of the person of the victim which was opined to be caused by hard and blunt substance could never be caused by any other act than the act committed by the appellant on a little child of seven – eight years. 12. If one could refer to himself the definition of rape contained in section 375 IPC, it could be found that mere penetration could be sufficient to constitute the offence. Here the medical opinion does not only confirm the act rather describes the act and its intensity. The opinion of P.W. 7 corroborates the evidence of the victim that she was sexually assaulted by the appellant. 13. On perusal of the evidence on record, I find that the conviction of the appellant under section 376 IPC cannot be said to be bad by any angle of its consideration. However, when I was examining the impugned judgment, I was simply taken aback by the leniency that was doled out by the learned trial judge to the present appellant. The learned court below was justifying his order of sentence, which in my opinion, was simply too lenient to be supported, on the ground that there was no evidence justifying that 8 the appellant was a previous convict. The learned court below was simply ignoring the evidence of P.W. 6, the I.O. of the case that the appellant had been put under suspension on account of having indulged in committing an offence under section 377 IPC and he was spending his days of suspension at his village when he was found indulging into more serious an offence as could barely be punished appropriately as by the punishment which was inflicted upon him by the learned trial judge. The learned trial judge was also considering another circumstance and that was the age of the appellant and the future of his families. While the learned court below was doing so, he was simply ignoring the other aspect of the life of a little girl who was aged merely seven – eight years and was subjected to such brutal assault as was described by P.W. 7 in her report. The age of the appellant was more than a father’s age in comparison to the little child who was made a prey to the carnal desire of the present appellant and that could have never been treated as a mitigating circumstance so as to inflict a lesser sentence. This court is of the opinion that the appellant was unduly benefited by an order of sentence, which was insufficient by all means when considered in context and circumstances of the case. But the difficulty is that the state has not appealed against the lenient sentence and this court has also not issued any notice and at this belated stage of delivering the present judgment, this court could not do it. This court, as such, is 9 compelled to uphold the sentence which was passed upon the appellant. 14. The appeal stands dismissed. (Dharnidhar Jha, J.) Patna High Court, 13th July, 2011, NAFR/Anil