IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) NO.565 OF 2009 Against the judgment of conviction dated 28.05.2009 and order of sentence dated 29.05.2009 passed by Additional Sessions Judge, Fast Track Court-I, Bhojpur, Ara in Sessions Trial No.99 of 1998. BIJENDRA YADAV @ BIJENDRA KUMAR YADAV, Son of Lobhi Yadav @ Lobh Nath, resident of village- Kulharia, P.S.Koilawar, District-Bhojpur at Ara. -------Appellant Versus State Of Bihar.... .... Respondent For the Appellant: S/Sri Pushkar Narain Shahi Ritesh Kumar No.1 Advocates. For the Respondent: Sri Ajay Mishra, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The appellant Bijendra Yadav @ Bijendra Kumar Yadav was charged with committing an offence under Section 376 IPC and was put on trial in Sessions Trial No.99 of 1998 by the Additional Sessions Judge, Bhojpur at Ara. The judgment was delivered by the learned Presiding Officer, Fast Track Court-I, Bhojpur at Ara on the 28th day of May, of 2009 and the appellant was found guilty of committing the said offence. After being heard on sentence on the 29th day of May, 2009 the appellant was directed to suffer rigorous imprisonment for ten years. The appellant has preferred the present appeal to question the above noted judgment of 2 conviction. 2. The prosecution case is contained in the fardbeyan of P.W.4 Dhanmuni Kumari who happens to be the daughter of P.W.1 Sheo Nandan Mahto. It is stated that she and P.W.3 Dukhani Devi went to collect woods in the orchard at about 5 P.M. This appellant came and caught P.W.4 and dragged them inside a brick kiln where both were sexually assaulted. It is further alleged that the appellant committed rape upon P.W.3 and during that course P.W.4 kept weeping but she was also raped by the appellant. Hearing the cries Sukan Ram(P.W.2) came there calling as to who it was and seeing him the appellant ran away. 3. The prosecutrix stated that she came weeping to their house and narrated the whole story to her mother and thereafter went to the police station to lodge the first information report. 4. It appears that the case was investigated into and during that course a board of doctors was constituted which was comprised by P.W.5 Dr. Anupama Srivastava, P.W.6 Dr. Vijay Lakshmi Sharma and P.W.7 Dr. Shiv Sagar Paswan under the chairmanship of P.W.7 who examined both the victims P.Ws.3 and 4 and reported, that both appeared having sexually been assaulted. Finding materials sufficient, the police sent up the appellant for trial. 3 5. During the course of the trial, seven witnesses were examined. P.W.1 Sheo Nandan Mahto was the father of P.W.4 and he stated that when he was at his house at about 5-6 P.M., his daughter Dhanmuni Kumari(P.W.4) who had gone in the orchard for picking up woods came back and stated that this appellant had raped her after undressing her near the brick kiln. He, thereafter, went to the police station where the statement of the victim P.W.4 was recorded. In cross- examination, there does not appear anything brought on record as regards the veracity of P.W.1. 6. P.W.2 Sukan Ram was the person who picked up the cries of the two little girls and was attracted to the scene of occurrence. However, he did not support that fact and as such he was declared hostile. P.W.3 Dukhani Devi and P.W.4 Dhanmuni Kumari, the informant and another victim supported the occurrence by stating that when they had gone into the orchard for picking up woods this appellant captured both of them to take them to the brick kiln where they were undressed and raped, one after the other, by the present appellant. When the victims were weeping, they stated, the appellant held out threats to kill them and picking up their cries. P.W.2 Sukan Ram came and this appellant ran way seeing him. 7. In cross-examination of P.W.4 Dhanmuni 4 Kumari the details of place of occurrence, i.e., orchard as also the brick kiln has been brought on record and that appears properly described in paragraph-2 of P.W.4 which also appears fitting into that the description given by P.W.3 Dukhani Devi in her paragraph-3. Likewise, the other details of the occurrence also appears being corroborated as regards the evidence of P.W.4 to the two victims. It was stated that P.W.3 was raped first by being put on cries and thereafter she was also raped. It was stated by P.W.4 Dhanmuni Kumari that while she was being ravished she attempted to run away but the appellant threaten her to be assaulted. 8. On perusal of the evidence of P.Ws.3 and 4, I find that there is consistency in the evidence of two witnesses and that consistency appears corroborated to some extent as regards the evidence of P.W.5 by the evidence of P.W.6 Dr. Vijay Lakshmi Sharma who had examined P.W.4 Dhanmuni Kumari as one of the members of the board of doctors which was headed by P.W.7 Dr. Shiv Sagar Paswan who was the Civil Surgeon. It appears from the evidence of P.W.5 that the hymen was found bearing old rupture on right infero-latral margin and there was evidence of redness with mild tenderness. That probably indicated the evidence that there was some sort of penetration and that evidence was still existing. P.W.4 was examined by P.W.5 after about 16 days of the 5 occurrence. On the basis of the radiologist examined P.W.4 was opined aged about 10-12 years which was also the opinion as regards the age of P.W.3. However, P.W.3 appears examined by the board of doctors and it appears that her vagina was also bearing old rupture which was detected in the infero-latral margin of the vagina of P.W.3 but there was no internal injury. This also indicated as if P.W.3 had also been subjected to sexual intercourse. Thus, what appears from the evidence of the witnesses including the three doctors is that there could be sufficient evidence to indicate that the victims P.Ws.3 and 4 who were somewhere in between 10-12 years of age had been subjected to sexual intercourse. The opinion of the doctor which was obtained after 16 days of the occurrence was lending credible support to the story as narrated by them. 9. The learned counsel appearing on behalf of the appellant has submitted that it does not appear reasonably acceptable that one man could indulge in the act of sexual intercourse with two little girls simultaneously. It was further contended that considering that the appellant had indulged in the act somewhere in 1997 and the judgment was delivered in May, 2009 and further that the appellant has remained in custody for over three years, this Court should show its indulgence by directing the period already undergone by 6 the appellant to be sufficient sentence inflicted upon him. 10. It may be a reasonable proposition as was suggested by the learned counsel for the appellant that a single man could not indulged in the act simultaneously with two little girls but on consideration of the evidence of P.W.3 Dukhani Devi in paragraph-3 that both the girls were restrained by the appellant at the same place and were not allowed to leave the place for quite some hours, it may be suggested that the appellant could have sufficient time to indulge into the act on that particular day. Moreover, on the day of the occurrence the appellant was aged somewhere around 20 years and that could have been another fact or to explain the arguments as advanced by the learned counsel. I have already noted that there was sufficient medical opinion indicative of the fact that the two little girls, who were aged around 12 years, had been subjected to sexual intercourse by the appellant. The manner in which they were captured and the place they were taken to and again the manner in which they were restrained to be subjected to the worst sort of offence coupled with the evidence does not permit me to direct that the ends of justice would be served if the court reduces the sentence passed by the trial court. 11. Under the facts and circumstances of the 7 case, the sentence of ten years rigorous imprisonment appears less than sufficient but this Court cannot do much on the enhancement of sentence in absence of any notice having been issued to the appellant. 12. In the result, the appeal is dismissed. Patna High Court, Dated, the 15th day of November, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)