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2013 DIGILAW 573 (PAT)

Mani Tanti @ Moni Tanti v. State of Bihar

2013-05-01

RAJENDRA KUMAR MISHRA

body2013
CAV JUDGMENT The petitioner has preferred this Criminal Revision under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000, against the Judgment dated 4.5.2012 passed in Criminal Appeal No.41 of 2011 by which the court of Sessions Judge, Katihar, dismissed the aforesaid Criminal Appeal of the petitioner, affirming the Judgment and Order dated 23.8.2011 passed in G.R. No.507 of 2003 by the Juvenile Justice Board, Katihar, who held the appellant-petitioner guilty under Section 377 of the Indian Penal Code and ordered to send him to Special Home for a period of two years with a direction to set-off the period for which he has already been detained in course of investigation and enquiry. 2. The prosecution case, in brief, is that the informant, Gaytri Devi (P.W.4), gave her fardbeyan (Ext.2) on 30.3.2003 at about 1.00 P.M. at Mufassil Police Station, Katihar, to the effect that on 30.3.2003, in the morning, she was watching television programme “Vishnu Puran” alongwith the neighbours in her house and her husband had gone outside the village in connection with irrigating the vegetable filed. After watching “Vishnu Puran” her neighbours returned to their houses, while her neighbour, Moni Tanti (petitioner), started to play with her daughter, Khushbu. Thereafter, she entered in her house to take meal. In the meantime, she heard the sound of weeping and crying of her daughter, Khushbu, then she came outside the house to enquire about the same on the advice of her mother-in-law and saw that Moni Tanti (petitioner) was fleeing towards the field from Banana Orchard and her daughter, Khushbu, was weeping in a naked condition. She reached near her daughter and made query about her weeping, then she told that Moni Tanti (petitioner) on unfolding her paint entered his penis in her anus by pulling her buttock. She and her husband saw the redness around the anus and also the viscous materials on the buttock of her daughter. 3. On the basis of the aforesaid fardbeyan of the informant, Gaytri Devi (P.W.4), Katihar (Mufassil) P.S. Case No.134 of 2003 was instituted under Section 377 of the Indian Penal Code against the petitioner. In course of investigation, the petitioner was arrested and produced before the court of the Chief Judicial Magistrate, Katihar, who assessing the age of the petitioner as 12 years, sent him in a remand home. 4. In course of investigation, the petitioner was arrested and produced before the court of the Chief Judicial Magistrate, Katihar, who assessing the age of the petitioner as 12 years, sent him in a remand home. 4. The police on investigation submitted the chargesheet under Section 377 of the Indian Penal Code against the petitioner in the court of the Chief Judicial Magistrate, Katihar. Accordingly, the court of the Chief Judicial Magistrate, Katihar, took the cognizance of the offence against the petitioner and transferred the record of the case to the court of Additional Chief Judicial Magistrate, Katihar, who, at that time, was vested with the power under the Juvenile Justice Act. Later on, on the establishment of the Juvenile Justice Board, the record of the case was sent to the Juvenile Justice Board, Katihar. 5. The substance of accusation under Section 377 of the Indian Penal Code was explained to the petitioner to which he denied and claimed for enquiry. In course of enquiry, the prosecution examined altogether seven witnesses. They are Madho Devi (P.W.1), Salita Devi (P.W.2), Raji Tatwa (P.W.3), Gaytri Devi (P.W.4), the informant of the case, Karu Roy (P.W.5), the husband of the informant, Gaytri Devi (P.W.4), Smt. Manju Rani Sinha (P.W.6), who medically examined the victim, Khushbu, and Subhash Chandra Thakur (P.W.7). Apart from that, the prosecution has also got exhibited certain documents including the fardbeyan (Ext.2) of the informant, Gaytri Devi, and the medical report (Ext.1) of the victim, Khushbu. 6. Learned counsel appearing on behalf of the petitioner made submission that it would appear from the trial court record that Madho Devi (P.W.1), Salita Devi (P.W.2), Raji Tatwa (P.W.3), Gaytri Devi (P.W.4), the informant of the case, and Karu Roy (P.W.5), the husband of the informant, Gaytri Devi (P.W.4), have been examined by the prosecution on the fact but their evidence is hearsay as they are not eye witnesses to the occurrence. In spite of that the Juvenile Justice Board, Katihar, illegally relied on the evidence of the informant, Gaytri Devi (P.W.4), the mother of the victim, Khushbu, and held the petitioner guilty for offence under Section 377 of the Indian Penal Code and ordered to send him in Special Home for two years. The appellate court also affirmed the Judgment and Order of the Juvenile Justice Board through the impugned Judgment illegally. 7. The appellate court also affirmed the Judgment and Order of the Juvenile Justice Board through the impugned Judgment illegally. 7. P.W.4, Gaytri Devi, who is the informant of the case and the mother of the victim, Khushbu, has stated in her evidence that the occurrence took place at about 10.30 A.M. at about one year and eight months earlier. At that time, she was taking meal in her house and her daughter was playing at the door. Moni Tanti (petitioner) took her daughter, Khushbu, from the door and after ten minutes Khushbu started weeping and crying. She went at the door of Moni Tanti (petitioner) and saw that her daughter, Khushbu, is naked and on query, she told that Moni Tanti (petitioner) has done illegal work at her anus. She saw the redness and some viscous material around the anus of her daughter, Khushbu. At that time, Moni Tanti (petitioner) stated to flee in a north direction. Thereafter, she narrated the incident to her neighbours and when her husband returned to his house at about 12 O’ clock then at about 1 P.M. she went to the police station, where her fardbeyan was recorded by the police and read over to them and, thereafter, she and her husband put their thumb impressions on the fardbeyan. The police sent her daughter for treatment to the Civil Hospital. She has further stated that at the time of occurrence the age of her daughter was about six years. This witness has also stated in her cross examination that she had seen her daughter in a naked condition and fleeing the accused in a south direction. She has also denied the suggestion of the defence about the false implication of the accused-petitioner due to enmity. 8. From the evidence of the informant, Gaytri Devi (P.W.4), it is apparent that she on hearing the sound of crying and weeping of her daughter, Khushbu, came out from her house and saw the victim in a naked condition and the victim made complaint about committing the unnatural offence by the accused-petitioner, Moni Tanti, and this witness also saw the redness and viscous materials around the anus of the victim. At that time, the petitioner was also seen by her in fleeing condition from there. At that time, the petitioner was also seen by her in fleeing condition from there. As such, there is no time gap in between the occurrence and reaching at the place of occurrence by this witness, who also saw the petitioner in fleeing condition. As such, there is no interval in between the occurrence and seeing the victim and the accused-petitioner by this witness. Therefore, her evidence would be exception to hearsay evidence and would be admissible as res gestae evidence in purview of Section 6 of the Evidence Act. It also appears from the evidence of P.W.6, Smt. Manju Rani Sinha, who medically examined the victim, Khushbu, on 30.3.3003 on the requisition of the police, that there was evidence of recent sodomy and she has proved the medical report of the victim, Khushbu, as Ext.1. It also appears from the evidence of P.W.2, Salita Devi, and P.W.3, Raji Tatwa, who are the neighbours of the informant, Gaytri Devi (P.W.4), that the victim, Khushbu, died due to small pox in course of enquiry. 9. The learned appellate court has discussed the evidence, oral as well as documentary, in detail in the impugned Judgment and has rightly dismissed the Criminal Appeal of the petitioner. 10. I find no illegality in the impugned Judgment for interference with the same in revisional jurisdiction. Accordingly, this Criminal Revision stands dismissed.