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2001 DIGILAW 566 (PAT)

Lakho @ Lakhlya Devi v. State Of Bihar

2001-07-11

S.N.PATHAK

body2001
Judgment S.N.Pathak, J. 1. This appeal is directed against the judgment and order of conviction and sentence passed by 3rd Addl. Sessions Judge, Rohtas, at Sasaram in Session Trial No. 103/98. Two lady-appellants were convicted under Section 366 of the Indian Penal Code and sentenced to undergo RI for 6 years. Male appellant Kamata Choubey, was convicted under Section 376 of the Indian Penal Code and sentenced to undergo RI for 7 years. 2. The case of the prosecution was that on 16.4.1997, the daughter of the informant was missing from her house. There was search for her and during the course of search, the informant came to Sasaram on 28.4.1997 and learnt that some persons had seen the victim with one Lalmuni Devi of village Muhania. The informant further learnt that Lalmuni Devi and accused Kamata Choubey had kept Bindu Deri (victim) for illegal purpose. He further learnt that Lalmuni Devi used to keep her as Dharamshala. The informant and his family members waited at Dharamshala where Lalmuni Devi failed to produce the victim. Lalmuni Devi was arrested with the help of public and she confessed that she handed over the victim to Kamata Choubey and thereafter the informant and his family members went to the house of Kamata Choubey, but he refused to hand over the victim. Thereafter the case was instituted and the police went to raid the house of Kamata Choubey and arrested the accused alongwith victim. 3. The defence of the accused-appellants during the statement under Section 313, Cr PC was that Bindu Devi was brought to him for treatment. Female accused appellants simply denied the allegations of abduction of Bindu Devi from Banaras station. 4. Prosecution has examined all together 9 witnesses. PW 9, a formal witness, was declared hostile. PW 8 was the IO of the case. This witness arrested Lalmuni Devi. He further stated that he was informed by the Officer Incharge, Agrar police station that accused Kamata Choubey was arrested in the company of victim. PW 7 was Dr. Sunila Singh who examined the victim girl and found no sign of rape on the victim. victim was examined on 23.5.1997 and she was recovered on 22.5.1997. He further stated that he was informed by the Officer Incharge, Agrar police station that accused Kamata Choubey was arrested in the company of victim. PW 7 was Dr. Sunila Singh who examined the victim girl and found no sign of rape on the victim. victim was examined on 23.5.1997 and she was recovered on 22.5.1997. PW 5 was Laxmania Devi, PW 4 was Sarbjeet Choubey, PW 3 was Ram Bahadur Choubey, PW 2 was Damodar Choubey, who are all hearsay witnesses who spoke about the traceness of the victim from her house since 16.4.1997 and whatever they learnt about the alleged offence come against Bindu Devi, victim, it was from her. 5. So on the point of occurrence, it is the evidence of Bindu Devi who said in her evidence that on the relevant date at 4 a.m. she left her house to go to her husband who was posted at Kapurthala in the army. She went to Buxar through koohs by a bus; but when she could not get medicine, she went to Buxar and from where she went to Banaras and at Banaras she was in confusion as to catch what train for Kapurthala. Then she was confronted by these two female appellants who persuaded her to go in their company so that they may make her catch the night train but they carried her to different places. Ultimately, she was handed over to accused Kamata Choubey, who also carried her from one place to another and during the whole course of trek from one place to another, she was subjected to criminal assault on the point of fire-arms. 6. On the basis of the evidence of the victim the trial Court recorded his order of conviction. 7. The learned counsel for the appellants, who was appointed to assist the Court as amicus curiae, submitted that the victim perhaps went in the company of Kamata Choubey with her own consent otherwise there was no explanation for hot raising any alarm when she was being carried from one place to another. So it was a case of consensual visit of the victim to the accused, Kamata Choubey, and she had voluntarily went in the company of the female appellant. 8. Admitted circumstance on record is that the victim was recovered from the company of the accused, Kamta Choubey. So it was a case of consensual visit of the victim to the accused, Kamata Choubey, and she had voluntarily went in the company of the female appellant. 8. Admitted circumstance on record is that the victim was recovered from the company of the accused, Kamta Choubey. Kamta Choubey in his statement has clearly stated that she was brought to him for treatment. So the fact that the victim was in his company is well admitted. The circumstance also shows that the victim was neither known to the female appellants nor she was known to the accused Kamta Choubey. In such a circumstance, leaving her house voluntarily and going in the company of two female appellants with consent does not appear to be convincing. Consensual sex of the victim with the accused also does not appear to be convincing, simply because she did not raise alarm while she was carried from one place to another. It depends on the individual capacity of female victim to the bold and smart to get herself released from the clutches of the captor. She failed to raise alarm under threat of direct consequences by the accused, Kamta Choubey. 9. In the result, I am to hold that Bindu Devi was, of course, abducted by two female appellants at Banaras railway station and then she was subjected to criminal assault by the accused, Kamta Choubey. I do not think that the order of conviction requires any interference by this Court. 10. The female accused person appear to have been in custody since the date of their arrest. So period of incarceration undergone by them shall be treated as period of sentence, they (Lakho @ Lakhiya Devi and Lalmuni Devi) shall be released forthwith, if not wanted in any other case. So far male accused Kamta Choubey is concerned, I do not think that there is any necessity to interfere with his period of sentence. So this appeal is dismissed with the modification in the sentence as stated above.