IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.666 of 2015
Arising Out of PS. Case No.-196 Year-2012 Thana- MADHEPURA District- Madhepura
Mahendra Ram Son of Sukhdev Ram Resident of village – Dakti Ghat, Police
Station – Supaul, District – Supaul
… … Appellant/s
Versus
The State Of Bihar
… … Respondent/s
Appearance :
For the Appellant/s : Mr.Pankaj Kumar Jha, Adv
For the Respondent/s : Mr.Bipin Kumar, APP
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
25-09-2019 Appellant, Mahendra Ram has been found guilty for
an offence punishable under Section 366A/Section34 IPC and
sentenced to undergo RI for 6 years as well as to pay fine
appertaining to Rs. 6000/- in default thereof, to undergo SI for
six months additionally, under Section 376 IPC and sentenced to
undergo RI for 10 years as well as to pay fine appertaining to
Rs. 20,000/- in default thereof, to undergo SI for one year with a
further direction to run the sentences concurrently, with a further
direction that the period having undergone during course of trial
will be set off in accordance with Section 428 CrPC vide
judgment of conviction dated 17.06.2015 and order of sentence
2nd
dated 25.06.2015 passed by Additional Sessions Judge,
Madhepura in Sessions Trial No. 185A/2012 arising out of
Madhepura (Dhailarh) PS Case No. 196/2012.
Patna High Court CR. APP (SJ) No.666 of 2015 dt.25-09-2019
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2. Arjun Sah (PW 2) filed written report on
03.05.2012 alleging therein that Mahendra Ram whose Sasural
lies in his village and happens to be brother-in-law of his co-
villager, Lal Bahadur Ram used to exercise exorcism for treating
the people. On that very score, he treated his daughter (name
withheld, PW-8 aged about 15 years) who was suffering from
ailment since before and was being treated otherwise. It has
further been disclosed that on 25.04.2012 at about 4:00 PM, the
aforesaid Mahendra Ram enticed away the victim and in spite of
hectic search at their end, failed to locate. Wife of Lal Bahadur
Ram, namely, Sangyan Devi and Ranju Devi, both had assisted
during course of commission of the crime.
3. From the record, it is evident that during course of
investigation, Ranju Devi and Sangyan Devi, both were
apprehended and so, before expiry of the statutory period of
ninety days, they were charge-sheeted keeping the investigation
pending against the appellant who was subsequently,
apprehended along with the victim at Madras wherefrom they
were brought, victim was examined under Section 164 CrPC,
was medically examined and then after concluding the
investigation, charge-sheet was submitted, facilitating the trial,
meeting with the ultimate result, subject matter of the instant
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appeal.
4. Defence case as is evident from the mode of cross-
examination as well as statement recorded under Section 313
CrPC is that the victim was major and she on her own volition
accompanied the appellant, availed his company, projected
herself to be his spouse and after having been emotionally
overpowered by her family members, giving a wrong and
fictitious date of occurrence, got his case filed. However,
nothing has been adduced in defence.
5. In order to substantiate its case, the prosecution
has examined altogether fourteen PWs who are PW-1, Sudhir
Kumar Sah, PW-2, Arjun Sah, PW-3, Ramnandan Sah, PW-4,
Ram Lakhan Sah, PW-5, Mithilesh Sah, PW-6, Shyam Yadav,
PW-7, Krishnadeo Sah, PW-8, Victim, PW-9, Avinash Kumar,
PW-10, Sudama Rai, PW-11, Bodhan Rai, PW-12, Dr. Ashok
Kumar Verma, PW-13, Dr. B.K. Gupta, PW-14, Dr. Ranjan
Kumari. Side by side, has also exhibited Ext-1, Signature of
informant on the formal FIR, Ext-2, Statement of victim under
Section 164, Ext-3, Writing and signature of Judicial officer on
the Statement of victim under Section 164, Ext-4, Writing and
signature of the then Police officer, Ran Vijay Singh on the
formal FIR, Ext-5, Signature of Police Officer, Ajay Kumar on
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the written statement, Ext-6, Signature of Police Officer, Ajay
Kumar on the formal FIR, Ext-8, Signature of Dr. B.K. Gupta
on medical report, Ext-8/1, Signature of Dr. A.K. Verma on
medical report, Ext-8/2, Signature of Dr. Parshuram Prasad on
Medical Report, Ext-8/3, Signature of Dr. Ranjana Kumari on
Medical Report, Ext-9, Writing and signature of Dr. Ranjana
Kumari on Medical Report. As stated above, nothing has been
adduced in defence.
6. It has been submitted at the end of the learned
counsel for the appellant that from the evidence, it is apparent
that victim was a consenting party. To substantiate such plea,
drew attention towards evidence of PW-2, father of the victim
who had gone to Madras and when they arrived at the place of
the victim, he had stated that at that very time, appellant was
taking meal while victim was drenching water. It is also evident
from his evidence that near about 50 houses lie in the
surrounding and, had there been some sort of criminal activity
or even distractedness in between, then in that event, right from
the village to Madras via Delhi would not have occurred so
smoothly, that too enjoying the company for four months
without any hitch and hindrance. Then it has been submitted that
the victim was major, although, there happens to be no
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suggestion given to the victim but from the evidence available
on the record, it is evident that victim was major and to justify
the same drew attention towards the medical evidence
whereunder age of the victim has been traced out in between 14-
14 having variance plus minus two years. So, she was aged
about 16-18.
7. After Amendment of Section 376 IPC in the year
2013, the age has been enhanced from 16 to 18 but prior thereto,
the consenting age was that of 16 years which the victim had
crossed and the same is also testified from the evidence of PW-
5. So, it has been submitted that victim was major and a
consenting party, therefore, no offence under any of the
provisions of law whereunder convicted is made out. That being
so, it is a fit case whereunder judgment of conviction and order
of sentence recorded by the learned lower court should be set
aside.
8. On the other hand, learned APP supporting the
finding recorded by the learned lower court, has submitted that
from the evidence available on the record, it is evident that the
finding so recorded by the learned lower court does not attract
interference as the same has been delivered after meticulous
examination of the materials available on the record. Hence,
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appeal be dismissed.
9. Learned counsel for the appellant is right in
arguing that the manner whereunder the victim, PW 8 has
deposed, indicates otherwise because of the fact that the journey
which she covered would not have materialized, had there been
any kind of resistance/protest/unwillingness at the end of the
victim. Furthermore, from the evidence of PW-2, father, the
relevant para-15 whereunder, he has stated that Mahendra Ram
was a mason at Madras. He was engaged in construction of a
new college. In para-16, he has stated that his daughter used to
go for menial work. Both of them shared their earnings and then
spent it at their livelihood. But, the sole question is whether the
victim was minor or major. The occurrence is of dated
25.04.2012 on which date the old Section was prevailing
whereunder 16 years of age was the age of consent.
10. The medical examination report, Ext-7, 8, 8/1,
8/2, 8/3 and 9 supported by PWs-11, 12 and 13 speak about
assessment of age of the victim in between 14-16 years. It is
needless to say that the Hon’ble Supreme Court times without
number has deprecated the assessment of age of the victim on
the basis of ossification, rather it should be by adopting the
procedure so prescribed for ascertainment of age of Juvenile as
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provided under I.I. (C.P.) Act.
In the case of SectionJernail Singh v. Haryana 2013
Cr.L.J. 3976 as reported in 2013 Cr.L.J it has been
held:-
“20. On the issue of determination of age of
a minor, one only needs to make a reference to
Rule 12 of the Juvenile Justice (Care and
Protection of Children) Rules, 2007 (hereinafter
referred to as the 2007 Rules). The aforestated
2007 Rules have been framed under Section 68(1)
of the Juvenile Justice (Care and SectionProtection of
Children) Act, 2000. Rule 12 referred to
hereinabove reads as under :
12. Procedure to be followed in
determination of Age.? (1) In every case
concerning a child or a juvenile in conflict with
law, the court or the Board or as the case may be
the Committee referred to in rule 19 of these rules
shall determine the age of such juvenile or child or
a juvenile in conflict with law within a period of
thirty days from the date of making of the
application for that purpose.
(2) The court or the Board or as the case may
be the Committee shall decide the juvenility or
otherwise of the juvenile or the child or as the case
may be the juvenile in conflict with law, prima
facie on the basis of physical appearance or
documents, if available, and send him to the
observation home or in jail.
(3) In every case concerning a child or
juvenile in conflict with law, the age determination
inquiry shall be conducted by the court or the
Board or, as the case may be, the Committee by
seeking evidence by obtaining .
(a) (i) the matriculation or equivalent
certificates, if available; and in the absence
whereof;
(ii) the date of birth certificate from the
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in the absence whereof;
(iii) the birth certificate given by a
corporation or a municipal authority or a
panchayat;
(b) and only in the absence of either (i), (ii)
or (iii) of clause (a) above, the medical opinion will
be sought from a duly constituted Medical Board,
which will declare the age of the juvenile or child.
In case exact assessment of the age cannot be done,
the Court or the Board or, as the case may be, the
Committee, for the reasons to be recorded by them,
may, if considered necessary, give benefit to the
child or juvenile by considering his/her age on
lower side within the margin of one year.
and, while passing orders in such case shall,
after taking into consideration such evidence as
may be available, or the medical opinion, as the
case may be, record a finding in respect of his age
and either of the evidence specified in any of the
clauses (a)(i), (ii), (iii) or in the absence whereof,
clause (b) shall be the conclusive proof of the age
as regards such child or the juvenile in conflict
with law.
(4) If the age of a juvenile or child or the
juvenile in conflict with law is found to be below
18 years on the date of offence, on the basis of any
of the conclusive proof specified in sub-rule (3),
the court or the Board or as the case may be the
Committee shall in writing pass an order stating
the age and declaring the status of juvenility or
otherwise, for the purpose of the Act and these
rules and a copy of the order shall be given to such
juvenile or the person concerned.
(5) Save and except where, further inquiry or
otherwise is required, inter alia, in terms of Sectionsection
7A, Sectionsection 64 of the Act and these rules, no further
inquiry shall be conducted by the court or the
Board after examining and obtaining the certificate
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or any other documentary proof referred to in sub-
rule (3) of this rule.
(6) The provisions contained in this rule
shall also apply to those disposed off cases, where
the status of juvenility has not been determined in
accordance with the provisions contained in sub-
rule(3) and the Act, requiring dispensation of the
sentence under the Act for passing appropriate
order in the interest of the juvenile in conflict with
law.
Even though Rule 12 is strictly applicable
only to determine the age of a child in conflict with
law, we are of the view that the aforesaid statutory
provision should be the basis for determining age,
even for a child who is a victim of crime. For, in
our view, there is hardly any difference in so far as
the issue of minority is concerned, between a child
in conflict with law, and a child who is a victim of
crime. Therefore, in our considered opinion, it
would be just and appropriate to apply Rule 12 of
the 2007 Rules, to determine the age of the
prosecutrix VW-PW6. The manner of determining
age conclusively, has been expressed in sub-rule
(3) of Rule 12 extracted above. Under the aforesaid
provision, the age of a child is ascertained, by
adopting the first available basis, out of a number
of options postulated in Rule 12(3). If, in the
scheme of options under Rule 12(3), an option is
expressed in a preceding clause, it has overriding
effect over an option expressed in a subsequent
clause. The highest rated option available, would
conclusively determine the age of a minor. In the
scheme of Rule 12(3), matriculation (or equivalent)
certificate of the concerned child, is the highest
rated option. In case, the said certificate is
available, no other evidence can be relied upon.
Only in the absence of the said certificate, Rule
12(3), envisages consideration of the date of birth
entered, in the school first attended by the child. In
case such an entry of date of birth is available, the
date of birth depicted therein is liable to be treated
as final and conclusive, and no other material is to
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be relied upon. Only in the absence of such entry,
Rule 12(3) postulates reliance on a birth certificate
issued by a corporation or a municipal authority or
a panchayat. Yet again, if such a certificate is
available, then no other material whatsoever is to
be taken into consideration, for determining the age
of the child concerned, as the said certificate would
conclusively determine the age of the child. It is
only in the absence of any of the aforesaid, that
Rule 12(3) postulates the determination of age of
the concerned child, on the basis of medical
opinion.
11. In the case of SectionMahadeo v. State of
Maharashtra as reported in (2013) 14 SCC 637 wherein it has
been held as follows:-
11. Though the learned counsel for the
appellant attempted to find fault with the said
conclusion by making reference to the evidence of
PW 8, the doctor, who examined the prosecutrix
and who in her evidence stated that on her
examination she could state that the age of the
prosecutrix could have been between 17 to 25 years,
it will have to be held that the rejection of the said
submission even by the trial court was perfectly in
order and justified. The trial court has found that to
rely upon the said version of PW 8, the doctor,
scientific examination of the prosecutrix such as
ossification test to ascertain the exact age should
have been conducted which was not done in the
present case, therefore, merely based on the opinion
of PW 8, the age of the prosecutrix could not be
acted upon.
12. We can also in this connection make
reference to a statutory provision contained in the
Juvenile Justice (Care and Protection of Children)
Rules, 2007, where under Rule 12, the procedure to
be followed in determining the age of a juvenile
has been set out. We can usefully refer to the said
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provision in this context, inasmuch as under Rule
12(3) of the said Rules, it is stated that:
“12. (3) In every case concerning a
child or juvenile in conflict with law, the age
determination inquiry shall be conducted by the
court or the Board or, as the case may be, by the
committee by seeking evidence by obtaining–
(a) (i) the matriculation or equivalent certificates, if
available; and in the absence whereof;
(ii) the date of birth certificate from the school
(other than a play school) first attended; and in the
absence whereof;
(iii) the birth certificate given by a corporation or a
municipal authority or a Panchayat;”
Under Rule 12 (3) (b), it is specifically provided
that only in the absence of alternative methods
described under Rules 12 (3) (a) (i) to (iii), the
medical opinion can be sought for. In the light of
such a statutory rule prevailing for ascertainment
of the age of a juvenile, in our considered opinion,
the same yardstick can be rightly followed by the
courts for the purpose of ascertaining the age of a
victim as well.
13. In the light of our above reasoning , in the case
on hand, there were certificates issued by the
school in which the prosecutrix did her Vth
standard and in the school leaving certificate
issued by the said school under Exhibit 54, the date
of birth of the prosecutrix has been clearly noted as
20.05.1990, and this document was also proved by
PW 11. Apart from that the transfer certificate as
well as the admission form maintained by the
Primary School, Latur, where the prosecutrix had
her initial education, also confirmed the date of
birth as 20.05.1990. The reliance placed upon the
said evidence by the courts below to arrive at the
age of the prosecutrix to hold that the prosecutrix
was below 18 years of age at the time of the
occurrence was perfectly justified and we do not
find any good grounds to interfere with the same.
12. SectionIn State of Madhya Pradesh vs. Anoop Singh as
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reported in (2015) 7 SCC 773, it has been held as follows:-
” 12. This Court in the case of SectionMahadeo
S/o. Kerba Maske v. State of Maharashtra and
Anr. : (2013) 14 SCC 637, has held that Rule
12(3) of the Juvenile Justice (Care and Protection
of Children) Rules, 2007, is applicable in
determining the age of the victim of rape. Rule
12(3) reads as under:
Rule 12(3): In every case concerning a
child or juvenile in conflict with law, the age
determination inquiry shall be conducted by the
court or the Board or, as the case may be, the
Committee by seeking evidence by obtaining-
(a) (i) the matriculation or equivalent
certificates, if available; and in the absence
whereof;
(ii) the date of birth certificate from the
school (other than a play school) first attended;
and in the absence whereof;
(iii) the birth certificate given by a
corporation or a municipal authority or a
panchayat;
(b) and only in the absence of either (i),
(ii) or (iii) of Clause (a) above, the medical
opinion will be sought from a duly constituted
Medical Board, which will declare the age of the
juvenile or child. In case exact assessment of the
age cannot be done, the Court or the Board or, as
the case may be, the Committee, for the reasons
to be recorded by them, may, if considered
necessary, give benefit to the child or juvenile by
considering his/her age on lower side within the
margin of one year.
and, while passing orders in such case
shall, after taking into consideration such
evidence as may be available, or the medical
opinion, as the case may be, record a finding in
respect of his age and either of the evidence
specified in any of the Clauses (a)(i), (ii), (iii) or
in the absence whereof, Clause (b) shall be the
conclusive proof of the age as regards such child
or the juvenile in conflict with law.
13. This Court further held in paragraph 12
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of Mahadeo S/o. Kerba Maske (supra) as under:
Under Rule 12(3)(b), it is specifically
provided that only in the absence of alternative
methods described Under Rule 12(3)(a)(i) to
(iii), the medical opinion can be sought for. In
the light of such a statutory rule prevailing for
ascertainment of the age of the juvenile in our
considered opinion, the same yardstick can be
rightly followed by the courts for the purpose of
the ascertaining the age of a victim as well.
13. That being so, irrespective of age so assessed at
the end of medical board so constituted having presence of
PWs-11, 12, 13, as members, does not inspire confidence as
being in contravention of direction of the Hon’ble Apex Court
which, under SectionArticle 142 of the Constitution of India happens to
be binding upon all concerned.
14. Apart from this, from the evidence of PW-2,
para-6 on court’s question disclosed age of victim on the dated
of occurrence to be 15 years found duly corroborated under
para-23 whereunder he has stated that his eldest son is engaged
in agriculture. He had studied up to Class-8. Victim also up to
Class-8 and the youngest son is reading in Class-7. There
happens to be no cross-examination to the I.O, PW-10 that
during course of investigation whether he had gone to school to
search out the date of birth of the victim. The most surprising
feature is that the victim has not been even suggested that she
happens to be a minor. Though PW-2 under para-19 has been
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cross-examined whereunder he has stated that he was married
in the year 1984. The eldest son Sudhir was born after seven
years of marriage. The victim was begotten six years thereafter,
that is to say, 13 years after marriage and the youngest one came
in the year 1999. So, the victim was begotten in the year 1997
and so, was aged about 15 years on the date of occurrence.
15. The learned counsel for the appellant drew
attention towards the evidence of PW-5 on this score and
referred para-8 whereunder, he has disclosed his date of birth as
18.09.1985. Then drew attention towards para-7, wherein, he
has stated that Sudhir is two years younger than him and the
victim is also younger to him. She is one year younger to
Sudhir. Whether his evidence is reliable in comparison to the
evidence of PW-2 that too when there happens to be averment
since initial stage that the victim was aged about 15 years and
that too when under para-11, (PW 5) he had admitted that his
house and house of Arjun happens to be separate intervened by
one house. In the aforesaid background, the identity of the
victim to be major became non reliable and so, is found and
held below the age of 16 years at the time of occurrence and so
consent has got no legal recognition.
16. Then it has been submitted that the instant case
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should not have been investigated and tried because of the fact
that from the evidence of PW-2, it is apparent that while he had
gone to Madras, he had gone to the police and police recorded
his statement and then thereafter, police had gone to the place
where the victim as well as the appellant were residing and in
the aforesaid background, as per evidence of PW-10, he had not
gone to Madras to see the version of the victim, led the instant
prosecution illegal and so, the finding so recorded by the
learned lower court would not sustain. In order to search out the
same deposition of PW-2 has thoroughly gone through. From
para-11, PW-2 has stated that after reaching at Madras, first of
all, he had gone to the police but he is unable to disclose his
designation as well as name of the police station as the same
was not in Hindi script. In para-12, he has stated that the victim
was recovered after covering two kilometre distance from the
police station. In para-18, he has stated that police had not
seized any article from the place where accused was
apprehended. Just after arrest of the accused, recovery of the
victim, they had gone to the station. Accused was handcuffed.
He also came along with police. They have come by Chennai
Express. Then had disclosed that police after getting the accused
and his daughter boarded on the train, returned back. At that
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very time, police had not given any paper but, had taken his
signature. In the midst of way at Katihar, Mahendra tried to flee
but his effort was frustrated by him. Then they came to Sialdah
and then from Kolkata to Katihar by bus and from Katihar to
Purnia by bus and then from Purnia to Baijnathpur and from
Baijnathpur to police station on motorcycle. In para-24, he has
stated that he had submitted written report before the police
which was ascribed by Munshi of Police Station. After 2-3 days
after filing of written report, he had made statement before the
police. He is not remembering whether the police had taken his
signature or not.
17. So, from the evidence of PW-2, it is evident that
whatever been submitted at the end of the learned counsel for
the appellant is not at all visible from the evidence of the PW-2
and so, the submission having at the end of learned counsel for
the appellant that there was institution of a case at the end of
PW-2 before the police of Madras, is not at all found true. From
the lower court records, it is found that appellant was produced
before the learned lower court on 12.09.2012. From the
evidence of PW-10, I.O, it is evident that accused, Mahendra
Ram and the victim were produced by the PW-2 (para 2) of the
examination-in-chief and, on that very score, there happens to
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be no cross-examination. As such, the submission having been
made on behalf of learned counsel for the appellant, is found
non appreciable.
18. Now coming to the question of sentence. Less
said is better. It is needless to say that the appellant is a married
man. He has disclosed his age 50 years at the time of statement.
The victim was below the age of 16 years and then alluring her,
only to satisfy his lust, he spoiled life of the victim, whereupon,
needs no sympathetic approach.
19. After considering, analyzing evidence as
discussed hereinabove, the appeal is found deficient one.
Consequent thereupon, the same is dismissed. Appellant is
under custody which he shall remain till the saturation of the
period of sentence.
(Aditya Kumar Trivedi, J)
perwez
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 27/09/2019
Transmission Date 27/09/2019
