Alwin @ Alwin Marandi @ Doman Marandi vs State Of Jharkhand

Heard Mr. Rajeeva Sharma, learned Senior counsel along with Ms. Anjana Rana, learned counsel appearing on behalf of the petitioner.

Heard Mr. Jitendra Pandey, learned A.P.P. appearing on behalf of the Opposite Party-State.

This criminal revision application has been filed against the judgment dated 10.07.2014 passed by the learned Principal Sessions Judge, Pakur in Criminal Appeal No. 19 of 2013 whereby the learned appellate court has been pleased to affirm the Judgment of conviction and the depositional order dated 20.02.2013 passed under Section 15 of the Juvenile Justice Act in G.R. Case No. 399 of 2011 (T.R. No. 8 of 2013) by the learned Juvenile Justice Board, Pakur by which the juvenile petitioner was found in conflict with law in committing the offence punishable under Section 376 of the Indian Penal Code and ordered to send the petitioner to the Special Home, Dhanbad for his detention for a period of three years. The learned Juvenile Justice Board, Pakur further ordered that the period of detention already undergone by the petitioner during the course of investigation, enquiry, etc. of this case shall be set off against the term of aforesaid detention period of three years as provided under Rule 97(4) of Juvenile Justice Rules, 2007.

Arguments on behalf of the petitioner

Learned Senior counsel for the petitioner has submitted that there are material inconsistencies in the evidence of P.W.-7 and rest of the witnesses are hearsay witnesses. Learned Senior counsel also submitted that the arguments advanced before the learned lower appellate court have been recorded in Para-9 of the appellate court judgment and they have not been properly considered while upholding the impugned judgment of conviction. He also submitted that the victim P.W.-7 had stated that the petitioner had claw her breast and cheek, resulting thereof, oozing out of blood from her breast and also there was a scar on her cheek, but during her examination by the Doctor, no such injury was found. The alleged incident has taken place on 22.06.2011 at about 6:30 P.M. and the victim was examined on 24.06.2011 at about 11:45 A.M. Learned counsel also submitted that although the hymen was found torn, but the Doctor did not give any definite opinion of rape and that she had admitted during her cross examination that hymen may be ruptured or torn on fall, cycling or due to accident. He also referred to the evidence of P.W.-8 in particular and submitted that narration given by P.W.-8 does not match with the narration of the victim P.W.-7, but at the same time it is not in dispute that P.W.-8 is also a hearsay witness and he is the grand-father of the victim. The learned counsel has also submitted that as per the cross-examination of P.W-8, there is a custom among the Adiwasi that before marriage, the bride groom brings the girl to his house. He submits that negotiation of marriage was going on between the petitioner and the victim (P.W-7). Learned counsel also submitted that although the petitioner was taken to hospital, but he was never examined by the Doctor which is a serious lacuna in the prosecution case.

Arguments on behalf of the Opposite Party-State

Learned A.P.P. appearing on behalf of the Opposite Party-State Mr. Jitendra Pandey, on the other hand, opposed the prayer of the petitioner and submitted that the minor victim who was examined as P.W.-7 has fully supported the prosecution case. He submitted that evidence of the victim, when read with the evidence of P.W.-9 - the doctor, is sufficient to uphold the judgment passed by the learned courts below. He further submitted that both the learned courts below have found the evidence of P.W.-7 reliable and consistent and accordingly, they have convicted the petitioner.

Learned A.P.P. appearing for the Opposite Party-State relied upon the judgments passed by the Hon'ble Supreme Court in the case of State of H.P. -versus- Asha Ram reported in AIR 2006 SC 381: (2005) 13 SCC 766 and in the case of Raju and Others -versus- State of Madhya Pradesh reported in (2008) 15 SCC 133 to submit that these judgements deal with the reliability of the evidence of victim in the case of rape. The learned A.P.P. further submitted that the learned Senior counsel for the petitioner has also argued regarding certain customary law, but no customary law has been proved before the learned trial court indicating that a person can take away a girl and commit rape upon her, even if it is assumed that some negotiation of marriage was going on.

Learned A.P.P. for the Opposite Party further submitted that the place of occurrence has also been fully established and considered by both the learned courts below. He submitted that the High Court has limited jurisdiction in revision jurisdiction and there is no illegality or perversity in the impugned judgments calling for any interference. He also submitted that no lenient view may be taken in favour of the petitioner.

In response, the learned Senior counsel appearing for the petitioner submitted that without prejudice to his arguments on the merits of the case, it may also be considered that the petitioner has already remained in detention for a period of more than 8 months and considering the age of the petitioner, the sentence may be confined to the period already undergone in detention and some sympathetic view may be taken.

Findings of this Court

After hearing the counsel for the parties and going through the impugned judgments and the lower court records of the case, this Court finds that the prosecution case is based on the written report of the Victim, aged about 15 Years, (P.W.-7) alleging inter-alia that on 22.06.2001 at about 06:30 P.M., when she had gone behind her house to attend the call of nature, the petitioner stealthily came from behind and caught hold her and gagged her mouth. She tried to free herself, but the petitioner made her lie down on the field and forcibly committed rape upon her. Thereafter, the petitioner took the victim towards forest and when she started crying, the petitioner pressed her mouth, threatened her for dire consequences and as a result, the victim got frightened. Thereafter, the petitioner caught hold the victim and took her further towards forest and during the night, the petitioner committed rape upon her twice. It was further alleged that on the following morning, the victim requested the petitioner to free her, but he did not allow and kept her in the forest in hungry and thirsty condition. It was further alleged that on 23.06.2011 at about 12:00 noon, the petitioner again committed intercourse with her. In course of search for the victim, her parents, uncle, aunty, grandfather and grandmother came there and caught hold her and the petitioner and brought them at their home. Thereafter, the P.W-7(victim) alongwith her parents went to the police station after handing over the petitioner to the Village Pradhan.

On the basis of the written report, the case was registered as Littipara P.S. Case No.21/2011 under Section 376 of Indian Penal Code against the petitioner.

The petitioner was found to be a juvenile and accordingly, on 24.06.2011, the case record of the petitioner was sent to the Juvenile Justice Board, Pakur for inquiry and disposal.

After completion of investigation, the Investigating Officer submitted charge-sheet under Section 376 of the Indian Penal Code against the petitioner and accordingly, on 19.08.2011, cognizance of the offence under the same section was taken in the case.

On 29.08.2011, the substance of accusation for the offence under Section 376 of the Indian Penal Code was read over and explained to the petitioner in Hindi to which he pleaded not guilty and claimed to be tried.

This Court further finds that in course of inquiry, the prosecution examined altogether ten witnesses. PW-1 is Nachan Kisku, who is mother of the Victim, PW-2 is Rameshwar Tudu, who is father of the Victim, PW-3 Baro Kisku and PW-4 Asti Kisku are maternal uncles of the Victim, PW-5 Mistry Murmu is mousa of the Victim, PW-6 Hariram Soren is uncle of the Victim, PW-7 is the Prosecutrix (Victim) herself, PW-8 Bhagan Tudu is grandfather of the Victim, PW-9 is Dr. Anita Sinha who is the Medical Officer who examined the victim and PW-10 is Krishnanand Jha who is the investigating officer of the case.

The prosecution has proved the written report of the prosecutrix as Exhibit-1, Medical Examination Report of the Prosecutrix as Exhibit-2, Age Determination Report of the prosecutrix prepared by Medical Board as Exhibit-3.

On 06.02.2013, the statements of petitioner under Section 313 of Cr.P.C. were recorded wherein he denied the case of the prosecution and claimed to be innocent.

This Court finds that the deposition of all the witnesses have been elaborately stated and discussed in the judgment passed by the learned Juvenile Justice Board, Pakur as well as by the learned appellate court. The counsel for the petitioner has not raised any arguments regarding any error in recording of the evidence by the Juvenile Justice Board and the appellate court.

This case is to be decided in the light of the ratio of various judgments decided by the Hon'ble Supreme Court dealing with appreciation of evidence in rape cases with particular reference to the evidence of the rape victim.

In the judgment passed by the Hon'ble Supreme Court in the case of State of H.P. v. Asha Ram, (2005) 13 SCC 766, the law in connection with appreciation of evidence in the case of rape has been elaborately discussed right from Para-15 of the judgment. The Hon'ble Supreme Court considered the ratio of the judgment laid down in Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, reported in AIR 1983 SC 753 that in the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule is adding insult to injury. It was further pointed out that on principle the evidence of a victim of sexual assault stands on a par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self- inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. The Hon'ble supreme court also considered the following judgments: -

i. Rafiq v. State of U.P reported in (1980) 4 SCC 262 wherein it has been held that corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances.

ii. Madan Gopal Kakkad v. Naval Dubey reported in (1992) 3 SCC 204 wherein it has been pointed out that even in cases wherein there is lack of oral corroboration to that of a prosecutrix, a conviction can be safely recorded, provided the evidence of the victim does not suffer from any basic infirmity, and the "probabilities factor" does not render it unworthy of credence, and that as a general rule, corroboration cannot be insisted upon, except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming.

iii. Ranjit Hazarika v. State of Assam, reported in (1998) 8 SCC 635 wherein it has been held that even non-rupture of hymen or absence of injury on victim's private parts does not belie her testimony. It was further held that the opinion of the doctor that no rape was committed cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix.

iv. The manner in which the rape cases are to be dealt with has been well explained inState of Punjab v. Gurmit Singh reported in (1996) 2 SCC 384 as follows:

Rape is not merely a physical assault -- it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.

v. In State of Rajasthan v. N.K. reported in (2000) 5 SCC 30 it has been held in the context of rape case that if the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and giving benefit thereof where none exists. A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for a finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on the prowl for easy prey, more so when the victims of crime are helpless females. .......The courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on women.

In the present case, in view of the aforesaid law laid down by the Hon'ble Supreme Court, there can be no doubt that the most important witness is the prosecutrix (PW-7) herself. Her evidence has been elaborately recorded in the impugned judgments. She has deposed that on 22.6.1l at about 6.30 P.M, she had gone to attend the call of nature behind her house and in the meantime, the petitioner came from behind and gagged her mouth and committed rape upon her. She further deposed that the petitioner forcibly took her in the forest and when she tried to go to her house, he threatened to kill her. She further deposed that the petitioner again committed rape upon her. On the next day, he again committed rape upon her and kept her in the forest for the whole night. She further deposed that on the next day, her mother and others searched them out and they found her alongwith the petitioner. Thereafter, she submitted written report in Littipara police station. She further proved the written report, which has been marked as Ext.-1. She identified the petitioner before the Juvenile Justice Board.

In cross-examination by defence, P.W-7 stated that she went to police station along with her parents. Petitioner was not produced before the police. Thereafter, she went to Pakur Hospital, where her medical examination was held. She has further stated that the doctor had not examined the petitioner. She further deposed that at the time of occurrence, she tried to free herself from the clutch of petitioner, but she could not succeed. She further deposed that she went to attend the call of nature about 3/4th kilometer away. At the time of occurrence, she was crying, but no one came to save her. She has further deposed that the petitioner took her 3 to 4 kilometers away from first place of occurrence and committed rape upon her. She has further stated that she was studying at Dumka and her date of birth has been mentioned in school as 10.3.96 and it is wrong to say that she is aged about 18 years and she did not know, whether the petitioner was also studying in her school or not. She further deposed that on the next day, she did not raise alarm because no one was there. She protested, when the petitioner tried to open her cloth, but he opened her cloths. She further deposed that the petitioner claw her breast and cheek, resulting thereof, her blood was oozing from her breast and also there was a scar on her cheek. She further deposed that the blood was also oozing from her other parts of the body. Her clothes also had blood stains. She further deposed in her cross- examination that no panchayat was held in her village. She does not know the name of Village Pradhan. She further deposed that the police arrived at her village, after her medical examination. The police went to see the place of occurrence alongwith her and her statement was taken by police in her village. She denied the suggestion that it is wrong to say that her mother, father wanted to marry her with the petitioner and when the father and mother of the petitioner did not agree, then, she falsely implicated the petitioner in a false case. She also denied the suggestion that it is also wrong to say that no such occurrence had ever taken place and she deposed falsely.

P.W-7 has fully supported the prosecution case and has given detailed description of the alleged occurrence and the sequence of events. This witness was thoroughly cross- examined, but there was no material contradiction during her cross examination.

P.W.10 Krishna Nand Jha, being the I.O of the case has deposed that on 23.6.11, he was posted as an A.S.I. at Littipara P.S. and on that day, he took the charge of investigation. During the course of investigation, he inspected the P.O. and recorded the supplementary statement of the prosecutrix. He further gave details of P.O., which was situated about ¾ K.M. away in the south from the house of prosecutrix on the land of Hari Ram Soren, on which, Mango and other trees were planted. The place of occurrence was bounded by the land of Rameshwar Tudu on the east, land of Barsan Murmu on the west and land of Hari Ram Soren on the north-east side. He further deposed that he recorded the statement of witnesses namely, Rameshwar Tudu, Nachan Kisku, Bhagan Tudu, Churki Murmu and Hari Ram Soren. He sent the prosecutrix for her medical examination report to Sadar Hospital, Pakur and he received the medical examination report. After finding the occurrence true, he submitted charge-sheet against the petitioner u/s 376 IPC.

In cross-examination, he deposed that he did not prepare the sketch map of place of occurrence and there was no whispering regarding the marriage of the prosecutrix with the petitioner. He has further stated that there was a panchayat, but the father of the petitioner came to P.S. with the purpose that no case be registered, but the father of prosecutrix was not ready for marriage as the prosecutrix was not marriageable. The prosecutrix stated that petitioner committed rape upon her in the night, in the forest.

This witness (investigating officer) has fully supported the prosecution case and was also thoroughly cross-examined, but there was no material contradiction during his cross- examination.

This Court further finds that P.W.-9, Dr. Anita Sinha examined the prosecutrix medically and proved the Medical Examination Report of the prosecutrix as Exhibit-2 wherein she opined that "as the hymen was torn, it was the case of sexual intercourse". She has deposed that on 24.6.11 while she was posted as Lady M.O at Sadar Hospital, Pakur, she examined the prosecutrix on the same day at about 11.45 a.m. and she found the following observations: -

1- Auxiliary and public hair present but no foreign hair found 2- Mark of violence over body: - Nil 3- Mark of violence over external genital: - Nil 4- Hymen - torn 5- victim was menstruating since that day i.e. 24.6.11 On pathological examination: - vaginal swab smeared, which was sent for pathological examination but no spermatozoa found.

6- Age - Age was decided by the Medical Board.

7- Opinion - As the hymen was torn, it was the case of sexual intercourse.

P.W-9 has deposed that the report was in her pen and bears her signature, marked Ext. - 2. On the same day i.e., on 24.6.11 Medical Board consisting of Dr. S.R. Soren, Dr. R.K. Singh and herself and on the basis of physical, radiological and dental examination, found the age of the prosecutrix between 14-15 years. This age determination report was in the hand writing of Dr. R.K. Singh and the same bore her signature as well as signatures of Dr. S.R. Soren, Dr. R.K. Singh and Dr. N.K Mehra, C.M.O., Pakur. In cross- examination, by defence, she stated that she did not find any symptom on her body. Only on the basis that hymen was torn, she opined that it was a case of sexual intercourse. Since victim was menstruating, she did not examine if two fingers could be inserted in her vagina or not. She had not mentioned in her report regarding the age of sexual intercourse. She further admitted that hymen might be ruptured or torn on fall, cycling or due to accident. She denied the suggestion that her report was not proper.

This witness has also fully supported the prosecution case and has stated that on the basis that hymen was torn, she opined that it was a case of sexual intercourse. Though in her cross-examination, she has stated that since the victim was menstruating, she did not examine if two fingers could be inserted in her vagina or not; she had not mentioned in her report regarding the age of sexual intercourse and also admitted that hymen might be ruptured or torn on fall, cycling or due to accident. She denied the suggestion that her report was not proper.

The learned Juvenile Justice Board, Pakur considered the oral and documentary evidences adduced on behalf of the prosecution and summarized its findings in Para-20 to 24. The learned Juvenile Justice Board recorded that on 22.06.11, at about 6.30 p.m. the first occurrence of rape took place when the prosecutrix had gone to attend the call of nature. Thereafter, she was forcibly taken to the forest by the petitioner and there he kept her whole night. There also he committed rape upon her. On the next day i.e., on 23.06.11 again he committed rape upon her in the forest. On 23.06.11 at about 12.00 noon the witnesses came searching there and they found the prosecutrix and the petitioner. The petitioner was taken to village by them and he was handed over to the Village Pradhan. The prosecutrix submitted the written report and thereafter the F.I R. was lodged. The rape occurrence took place on 22.06.1l and on 23.06.11 and on 23.06.11, the F.I.R. was lodged. Immediately after the occurrence, the informant went to the P.S. and submitted the written report. P.W-9 is the doctor and she has opined that it is a case of sexual intercourse. She had found the hymen of the prosecutrix torn. Her age has been determined by the medical board between 14-15 years. The learned Juvenile Justice Board recorded its conclusion at para 24 as follows: -

"24. From analysis of the prosecution evidence, we are of the opinion that the evidence of the prosecutrix (P.W.-7) is entirely reliable and the same has been corroborated by P.W.-1, P.W.-2, P.W.-3, P.W.-4, P.W.-5, P.W.-6 and P.W.-9 (Doctor). P.W.-8 is an illiterate person and he has also deposed that forcibly Doman took the prosecutrix. He does not know as to where he kept her in the night. P.W.-10 is the I.O. and he has also fully supported the prosecution case. The ld. defence counsel has not been able to make a dent in their deposition. They have stood the test of cross-examination. By adducing evidence, the prosecution has fully proved the fact that on 22.06.11 and on 23.06.11, juvenile in conflict with law namely, Albin Marandi @ Doman Marandi committed rape upon the prosecutrix. The prosecution has proved its case beyond the shadow of reasonable doubt against the juvenile in conflict with law."

The learned appellate court also considered the evidences and materials on record and also considered the arguments advanced on behalf of the parties and recorded its findings in Para-21which reads as under:

"21. Having considered the entire facts and circumstances of the case as well as argument advanced on behalf of both the sides, placing reliance upon the principles of law in the aforesaid case laws, I do find that Medical Officer (P.W.-9) who examined the prosecutrix on 24.06.11 did not give definite opinion of rape, but she opined that as the hymen was torn, it was a case of sexual intercourse. Further the age of the victim has been assessed by the Medical board and on the basis of physical, radiological and dental examination, the age of the victim has been assessed between 14-15 years. Thus, the prosecutrix was definitely a minor on the date of alleged occurrence. Further P.W.-7 prosecutrix is very much consistent about the occurrence and she has fully supported the case in the manner as alleged. Though she has been cross-examined at length, but nothing was elicited in her cross-examination to render her testimony doubtful. The evidence of the victim seems to be worthy of credence and inspire confidence. The evidence of a victim of rape stands on par with the evidence of an injured witness, in the sense that she is least likely to exculpate the real offender and she is entitled to great weight, if the evidence of the victim does not suffer from any basic infirmity. Thus, I find and hold that evidence of prosecutrix is totally reliable and it is free from inherent-tent and infirmity and same can be acceptable and acted upon even without corroboration. The fact is that she is also corroborated in all material particulars by P.W.-1 to P.W.-6 and P.W.-8, though all of them are hearsay witnesses, but their evidence constituted a strong piece of circumstantial evidence, corroborating the evidence of P.W.-7, though the evidence of prosecution witnesses referred to above, is worthy of credence, inspiring confidence. Therefore, in the face of unimpeachable evidence of the victim that she was ravished by the accused, the evidence of M.O. cannot be ground in itself for throwing entire prosecution case over board. I do further find that there is no major contradiction or discrepancy in the statement of P.W.-7 and other witnesses. I do further find that appellant, who taking disadvantage of prosecutrix alone, forcibly committed rape upon the person of the victim, while she had gone to attend the call of nature behind her house for the whole night and also on the next day, either in the field or in the forest, till satisfaction of his notorious lust."

This Court is of the considered view that evidence of the doctor when read with the evidence of the victim, P.W-7 is sufficient to convict the petitioner and the cross-examination of the doctor is not sufficient to create any doubt on the prosecution case and the evidence of P.W-7. Further, the other witnesses, including her mother and father, uncles etc. have fully corroborated prosecution case. So far as the evidence of P.W-8 is concerned, he has also supported the prosecution case to the extent that the petitioner forcibly took the P.W-7 and he did not know where he kept her at night. So far as the evidence of P.W-8 about customary law regarding groom taking the bride before marriage, which has been heavily relied upon by the petitioner is concerned, the same has no bearing in the matter as the story of negotiation of marriage between the petitioner and P.W-7 prior to the date of the incident has been rejected by the witnesses in their cross-examination and otherwise also, no such customary law has been claimed to be existing or proved so as to enable the proposed groom to commit rape forcibly upon the proposed bride prior to marriage.

This Court finds that the defence has not been able to elicit anything doubtful in the cross-examination of the prosecution witnesses which may suggest false implication of the petitioner by the victim.

This Court also finds that both the learned courts below have found the evidence of the P.W-7 (victim) consistent and reliable and also corroborated by other witnesses including the doctor and the I.O of the case. The evidence of the victim does not suffer from any such infirmity so as to render it unworthy of credence. The learned counsel for the petitioner has heavily relied upon the testimony of the victim wherein she has stated about injury and bleeding on her breast and that no such injury was pointed out by the doctor. This Court is of the considered view that such contradiction is minor and is not fatal to the prosecution case. Other contradictions and inconsistencies as pointed out by the learned counsel for the petitioner and recorded in his submissions are also not material contradictions / inconsistencies. This Court is of the considered view that such contradictions are minor in nature and is not fatal to the prosecution case. Further, the point regarding non-examination of the petitioner by the doctor also does not have any bearing in the matter when there is consistent evidence on record regarding commission of alleged offence by the petitioner. Moreover, the learned courts below have returned consistent finding of facts after appreciating the materials on record and this Court does not find any perversity or illegality in the impugned judgments calling for any interference in revisional jurisdiction.

Considering the heinous nature of the offence involved in the case and the manner in which it was committed by the petitioner, this Court is not inclined to take any lenient and sympathetic view to modify the order of detention of the petitioner.

This Court finds that the Judgment passed by the learned Juvenile Justice Board, Pakur as well as the Judgment passed by the learned appellate court are well reasoned judgments having consistent findings and this Court does not find any illegality or perversity in the impugned judgments and under such circumstances, no interference is called for under revisional jurisdiction.

Considering the aforesaid facts and circumstances of the case, the conviction of the petitioner under Section 376 of the Indian Penal Code is upheld and the period of his detention is maintained. Accordingly, the present criminal revision petition is hereby dismissed.

Interim order, if any, stands vacated.

Bail bond furnished by the petitioner is hereby cancelled.

Pending interlocutory application, if any, is dismissed as not pressed.

Let the Lower Court Records be sent back to the learned Juvenile Justice Board/court concerned.

Let a copy of this order be communicated to the learned court below through "email/FAX".