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Mahendra Ram vs The State Of Bihar on 25 September, 2019

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
2/17

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
Patna High Court CR. APP (SJ) No.666 of 2015 dt.25-09-2019
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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
Patna High Court CR. APP (SJ) No.666 of 2015 dt.25-09-2019
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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
Patna High Court CR. APP (SJ) No.666 of 2015 dt.25-09-2019
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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,
Patna High Court CR. APP (SJ) No.666 of 2015 dt.25-09-2019
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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
Patna High Court CR. APP (SJ) No.666 of 2015 dt.25-09-2019
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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
Patna High Court CR. APP (SJ) No.666 of 2015 dt.25-09-2019
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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.

(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
Patna High Court CR. APP (SJ) No.666 of 2015 dt.25-09-2019
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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
Patna High Court CR. APP (SJ) No.666 of 2015 dt.25-09-2019
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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
Patna High Court CR. APP (SJ) No.666 of 2015 dt.25-09-2019
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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
Patna High Court CR. APP (SJ) No.666 of 2015 dt.25-09-2019
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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
Patna High Court CR. APP (SJ) No.666 of 2015 dt.25-09-2019
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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
Patna High Court CR. APP (SJ) No.666 of 2015 dt.25-09-2019
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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
Patna High Court CR. APP (SJ) No.666 of 2015 dt.25-09-2019
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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
Patna High Court CR. APP (SJ) No.666 of 2015 dt.25-09-2019
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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
Patna High Court CR. APP (SJ) No.666 of 2015 dt.25-09-2019
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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

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