Jharkhand High Court
Nirmal Kumar Dey @ Khokhan Dey @ ... vs The State Of Jharkhand on 18 May, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision. No. 728 of 2007
Nirmal Kumar Dey @ Khokhan Dey @ Nirmal Dey
... ... Petitioner
- Versus -
The State of Jharkhand ... ... Opposite Party
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CORAM: - HON'BLE MR. JUSTICE AMBUJ NATH
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For the Petitioner : M/s. Sharda Kumari, Amicus Curiae
For the State : M/s. Jitendra Pandey, A.P.P
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C.A.V. on 26.04.2023 Pronounced on 18.05.2023
Heard the Parties.
The petitioner has filed this application against the
judgment dated 18.04.2007, passed by Sri Indra Deo Mishra,
learned Additional Sessions Judge-VI, Dhanbad in Criminal Appeal
No. 68 of 1994, whereby and wherein the Additional Sessions
Judge-VI, Dhanbad dismissed the appeal of the petitioner filed
against the judgment of conviction and order of sentence dated
26.02.1994, passed by Sri Satish Chandra Sinha, learned J.M.F.C.,
Dhanbad in connection with Sindri P. S. Case No. 05/1981
corresponding to G. R. No. 70/1981, holding the petitioner guilty of
offence under section 377 of the Indian Penal Code and thereby
sentencing him to undergo rigorous imprisonment for 3 years.
The case of the prosecution is that on 05.01.1981 at
about 02:00 P.M, the petitioner had sodomized the son of the
informant aged about 12 years.
The victim has been examined as P.W. 2., He has stated
that about 6 years ago, he was returning home from school, when he
reached near the orchard of Kavita, this petitioner on the pretext of
providing him berries took him inside the orchard, fell him on the
ground and sodomized him
He has claimed to identify the petitioner in the dock.
He has been cross-examined at length, in his cross-examination he
has stated that there was no previous enmity with the petitioner and
his family members. He has further stated that he had tried to raise
alarm but the petitioner had gagged his mouth.
Bhagwan Singh P.W.4 has stated that on 04.01.1981, he
was going to attend his duty when he reached near the orchard of
Kavita, he heard cry of alarm of a child. He went there and saw that
the petitioner had caught hold of the victim. He did not confront the
petitioner thinking that both were of the same village and the victim
must have done something for which he was being reprimanded.
When he returned in the evening, he came to know about the
occurrence. Ram Lakahn Singh P.W.3 , Bhagwan Singh P.W.4 are
hearsay witnesses. However, in his cross-examination Ram Lakhan
Singh P.W.3 has stated that he had taken the victim to the hospital
for treatment. Bhagwan Singh P.W.4 has stated that when he came
to know about the occurrence, he went to see the victim and found
that blood was oozing from his anus. He along with father of the
victim and others took the victim to hospital. Bihari Singh P.W.7
had stated that police seized the semen-stained lungi of the victim.
Ms. Sharda Kumari, learned amicus curiae appearing
on behalf of the petitioner submitted that the petitioner is an old
man aged about 70 years and as such the sentence passed by the
learned court below may be reduced to the period already
undergone by the petitioner during the trial.
Mr Jitendra Pandey, learned A.P.P. has submitted that
the prosecution has been able to prove its case against the petitioner
beyond all reasonable doubt and considering the nature and gravity
of the offence leniency should not be shown towards the petitioner.
The victim has categorically stated that the petitioner
had sodomized him. Bhagwan Singh P.W.4 has corroborated the
fact that he had seen the blood oozing from the anus of the victim.
Bhagwan Singh P.W.4 has corroborated the fact that at the time of
occurrence he had seen the petitioner and the victim together. There
is nothing in the cross-examination of the witnesses to doubt their
veracity.
From the aforesaid facts; I come to a finding that the
prosecution has been able to prove its case against the petitioner for
the offence under section 377 of the Indian Penal Code beyond all
reasonable doubt. Both the learned trial court as well as the learned
appellate court have come to a correct finding regarding the guilt of
the petitioner.
Considering the gravity of offence, the sentence passed
by the learned trial court does not require any interference.
This Criminal Revision Application is dismissed.
Pending I.A., if any, also stands disposed of
Before parting I would like to record my deep sense of
appreciation for M/S. Sharda Kumari, learned amicus curiae who
has very ably assisted this court in deciding this application.
The Member Secretary, JHALSA, is directed to pay Rs.
3000/- to her as a remuneration for her services rendered as Amicus
Curiae
(Ambuj Nath, J.)
Saurabh/-
