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Madhya Pradesh High Court · body

2002 DIGILAW 1115 (MP)

Jinish Lal Sah v. State of Bihar

2002-12-20

B.P.SINGH, N.S.HEGDE

body2002
JUDGMENT The appellant herein was convicted by the Sessions Judge, Sitamarhi in Sessions Trial No. 182 of 1989 for offences punishable under Sections 366-A and 376 IPC and was sentenced to rigorous imprisonment for five years on each of those counts but the sentences were directed to run concurrently. On appeal, the High Court of Patna has confirmed the said sentence. It is against that judgment and conviction the appellant is before us in this criminal appeal. Briefly stated, the prosecution case is that the appellant was giving tuition to the prosecutrix Geeta Kumari and her sister at their residence. It is stated that on 30.4.1989 at about 7 p.m. the appellant came to their house and in the presence of the family members told Geeta Kumari, PW 1 that he won't be giving tuition on that day and went away. Immediately, thereafter, it is stated that PW 1 left the house telling the members of the family that she was going to her grandfather's house to watch television. It is further stated that on the way she was met by the appellant and he on the pretext of taking her to a movie took her on his motorcycle towards Muzaffarpur. From Muzaffarpur, he took her in a train to Jasidih from where he took her to Devghar. The prosecution further states that there he forced PW 1 to marry him and made her sign certain papers. From Jasidih it is' stated that the appellant and PW 1 left for Babadham on 8.5.1989 and from there to Bajitpur on 9.5.1989. During this stay, it is stated that the appellant committed rape on PW 1. On 10.5.1989, PW 1 was recovered from the house of the appellant by the police. After investigation, a case was registered against the appellant and he was charged as stated above and having been found guilty by the two Courts below the appellant has filed this appeal. The factum of the recovery of PW 1 from the house of the appellant is not in dispute. After investigation, a case was registered against the appellant and he was charged as stated above and having been found guilty by the two Courts below the appellant has filed this appeal. The factum of the recovery of PW 1 from the house of the appellant is not in dispute. While it is the case of the prosecution that it is the appellant who either by inducement or threat took away PW 1 from her house, the defence case is that PW 1 had eloped with somebody and her love affair having failed with the person with whom she eloped and she being scared to get back to the house had come to the house of the appellant who then had informed PW 6, the father of the girl about PW 1 coming to his house. The defence further states that after being annoyed and having found none else to blame, her father has foisted a false case against the appellant. As noticed above, one of the charges of which the appellant has been found guilty is under section 366-A which refers to procuration of a minor girl. To establish this charge, the prosecution has to prove that PW 1 was minor on the date when she was taken away from her house. In regard to this fact, the prosecution relies on the evidence of PW 1, the girl herself, PW 6, her father and PW 10, the doctor who examined her. So far as PW l's evidence is concerned, it is prima facie not acceptable when she says that she was only 14 years on the date when she was taken away from her father's house. This evidence runs counter to all other material on record to which we shall refer presently. PW 6, the father of the girl in his evidence has stated that he was married in the year 1952 and he had two daughters. The first daughter Reeta was born 12 years after his marriage which would be in the year 1954. He states that his second daughter was born six years after Reeta was born that would be 18 years after his marriage which will be 1970. If that be the year of birth of PW 1 then the incident in question being in the year 1989, PW 1 ought to be 19 years on that day. He states that his second daughter was born six years after Reeta was born that would be 18 years after his marriage which will be 1970. If that be the year of birth of PW 1 then the incident in question being in the year 1989, PW 1 ought to be 19 years on that day. This witness further says that PW 1 had appeared for her Board examination in the year 1988 and had failed. This also gives an indication that it is likely that the age of PW 1 on the date of incident was around 19 years. PW 10, the doctor in his evidence· has stated that PW 1's x-ray photograph showed partial epiphyseal fusion of iliac crest. In her opinion, PW 1 appeared to be 17 years old which opinion of the doctor from the very language used by her shows it to be approximate. The physique of PW 1 as explained by PW 10 also indicates the probability of PW 1 being above the age of 18 years. In this background if we examine the evidence of PWs 6 and 10, it is clear that evidence of PW 1 is wholly unreliable when she states that she was only about 14 years old: Even though PW 10, the doctor, stated that PW 1 appeared to be 17 years old it cannot be held that this evidence is conclusive enough to come to the conclusion that PW 1 was really below 18 years on the date of incident, in view of positive statements made by PW 6, the father. We have already referred to the evidence of the father, according to whose evidence PW 1 was 19 years of age when she left the house of the father. In such situation, we think it not safe to come to the conclusion that PW 1 was less than 18 years of age on the date when she left the house of her father. While discussing this part of the prosecution case, the trial Court in its judgment has not considered the evidence of PW 6, the father at all. It merely relied upon the evidence of PW 10 accepting the same on its face value, without discussing the other material that was available on record. While discussing this part of the prosecution case, the trial Court in its judgment has not considered the evidence of PW 6, the father at all. It merely relied upon the evidence of PW 10 accepting the same on its face value, without discussing the other material that was available on record. Even the High Court in this regard in its judgment merely stated "the doctor who examined the prosecutrix found her age to be 17 years...", the High Court has not independently given any finding either accepting this evidence or not. It has also not discussed the evidence of PW 6 in regard to the age of PW 1. In this background for the reasons already stated hereinabove, we think that the prosecution has failed to establish that PW 1 was less than 18 years of age as on the date of incident if that be so, charge under section 366-A of which the appellant was found guilty by both the Courts below shall fail. The learned counsel for the State, however, contended that if the charge under section 366-A should fail, then the appellant is liable to be convicted under section 366 for kidnapping, abducting or inducing a woman to compel her to marry. He has referred to the evidence of PW 1 in this regard and contends that even though there is no specific charge under section.366, still on the material available on record a conviction under section 366 could be based and no prejudice would be caused to the appellant. But then, we will have to notice that even to establish the charge under section 366 IPC, there should be acceptable evidence to show that either PW 1 was compelled to marry the appellant against her will and/or was forced to or induced to intercourse against her will. This would therefore, require the prosecution to prove that there was some such undue force on PW 1 either to marry the appellant or to have intercourse with him. Therefore, it becomes necessary for us to examine the prosecution case whether there was a threat or whether there was consent as contended by the defence. This would therefore, require the prosecution to prove that there was some such undue force on PW 1 either to marry the appellant or to have intercourse with him. Therefore, it becomes necessary for us to examine the prosecution case whether there was a threat or whether there was consent as contended by the defence. While we consider this question of existence of consent or absence of it we may also consider the charge under section 376 IPC of which the appellant is found guilty by the Courts below because one of the ingredients necessary for establishing such a charge in regard to a girl over the age of 16 is the presence or otherwise of consent. Therefore, both for the purpose of section 366 and for the purpose of section 376 IPC, there should be material to establish that either the alleged marriage or the intercourse has taken place without the consent of PW 1 if she is above the age of 18 years or 16 years, as the case may be. In this regard, if we examine the evidence of PW 1, it is clear that on the date of incident when the appellant came to her house and told her that he will not be taking tuition class on that day, she decided to go to her grandfather's house to watch TV. She says on the way she was met by the appellant who took her on his motorcycle promising her of taking her to a movie at Sitamarhi. She found on the way that he was not going to Sitamarhi but was going to Muzaffarpur Railway Station. According to her, she protested but she was threatened. Then from Muzaffarpur to Jasidih they went by train and then onwards they went by tempo to Devghar for stay in Devghar for some days, than proceeded to Bajitpur from where she was recovered on 10.5.1989. She al1eges that the appellant forced her to sign some papers to marry him. In our opinion, it is extremely difficult to accept her evidence when she states that she was taken by the appellant without her consent. If we see the sequence of events starting from 30.4.1989 to 10.5.1989 it is clear that she has accompanied the appellant willingly. She al1eges that the appellant forced her to sign some papers to marry him. In our opinion, it is extremely difficult to accept her evidence when she states that she was taken by the appellant without her consent. If we see the sequence of events starting from 30.4.1989 to 10.5.1989 it is clear that she has accompanied the appellant willingly. The evidence of PW 1 indicates that there was a prior planning by her with the appellant together to elope, and it is because of that, the appellant came to PW's house on 30.4.1989 and told her that he will not be taking tuition on that day and immediately thereafter PW 1 left her house on the pretext of going to her grandfather's house to see television. It is not her case that when she was accosted by the appellant on his motorcycle, she went with him under a threat. On the contrary, the evidence shows that she willingly went with him on his motorcycle to see a movie at Sitamarhi. She says she was threatened only when she protested as against she being taken to Muzaffarpur. On the contrary, we notice she was with him from 30th April to 10th may, during which period she had travelled by train, tempo and stayed with the appellant without there being any evidence of her having protested or having made any effort to seek help from others or even trying to run away. Apart from that from. the record, it is seen that PW 6 in the FIR had stated that' 'I got information from my wife in the house that Geeta went away by taking clothes and a gold chain and she took Rs. 500 in cash in total amounting to Rs 8500". This evidence though subsequently resiled by PW 6 indicates that PW 1 had planned her departure from the house in advance and had willingly gone away with the appellant which also indicates that there was no threat or inducement either in regard to her leaving the house or in regard to accompanying the appellant. In such situation in the absence of any other material to show to the contrary, it will be difficult to accept the prosecution case that either there was a forcible marriage or rape as contended by the prosecution to find the appellant guilty under section 366 or 376 IPC. In such situation in the absence of any other material to show to the contrary, it will be difficult to accept the prosecution case that either there was a forcible marriage or rape as contended by the prosecution to find the appellant guilty under section 366 or 376 IPC. Since the Courts below proceeded on the basis that PW 1 was a girl below the age of 18 on the date when she left the house they have not properly appreciated the evidence in regard to her consent which is a mandatory requirement before finding a person guilty under section 366 or 376 IPC. There is no doubt that the appellant who was a tuition teacher of PW 1 has misused the trust reposed in him by PW l's family but then since the prosecution has failed to establish the fact that PW 1 was below the age of 18 and the evidence on record indicates that PW 1 had willingly gone away with the appellant, and in the absence of any threat, coercion or inducement, having been established by the prosecution we think it not possible to rely on the prosecution case to come to the conclusion that the appellant is guilty of the charges framed against him under sections 366A and 376 IPC or even section 366 as contended by the learned counsel for the State. For the reasons stated above, this appeal succeeds. The judgments and convictions of the Court below are set aside and the appellant shall be released forthwith if he is not required in any other case.