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2002 DIGILAW 660 (JHR)

ETA SINGH v. STATE OF BIHAR

2002-06-17

VISHNUDEO NARAYAN

body2002
Judgment : VISHNUDEO NARAYAN, J. ( 1 ) BOTH the appeals aforesaid arise from the common judgment and order as such they have been heard analogous and disposed of by this judgment. ( 2 ) BOTH the appeals aforesaid have been directed by the appellants named above against the judgment and order dated 20-3-1996 passed by Sri Sarju Prasad, VIIth Addl. Judicial Commissioner, Ranchi in Sessions Trial No. 588/94/t. R. 40/95 whereby all the appellants named above were found guilty for the offence punishable under Section 366, I. P. C. and convicted and sentenced to undergo R. I. for 7 years each. However, the appellants were not convicted for the offence punishable under Section 363, I. P. C. in view of the conviction under Section 366, I. P. C. ( 3 ) THE prosecution case has arisen on the basis of the fardbeyan of P. W. 1 Dharmshila Devi, the mother of the alleged victim girl Asha Kumari (P. W. 4) recorded by S. K. Rai, O/c Kotwali (Sukhdeo Nagar) P. S. on 6-4-1994 at 13. 00 hours at Sukhdeo Nagar P. S. regarding the occurrence which is said to have taken place on 2-4-1994 at about 9. 00 p. m. at New Madhukum Bhawani Path, P. S. Sukhdeo Nagar, District Ranchi. ( 4 ) THE prosecution case, in brief, is that P. W. 4 Asha Kumari aged about 15 years had gone for natures call north of her house at 9 Oclock in the night on 2-4-1994 and appellants Mamta Singh and Ram Narain Singh had forcibly kidnapped her with intention to have illicit intercourse with her. It is alleged that the said Asha Kumari is a student of Class VII of Marwari Kanya Pathshala, Upper Bazar, Ranchi and they used to vex her while going to school but for the sake of prestige the informant has not made any complaint to the police. It is also alleged that they used to tell invariably that they will kidnap Asha Kumari aforesaid. The prosecution case further is that in course of search of Asha Kumari, the informant came to know that the appellants Mamta Singh and Ram Narain Singh had kept Asha Kumari in the house of one Ropna but the mother of Ropna had brought Asha Kumari to the house of appellant Eta Singh. The prosecution case further is that in course of search of Asha Kumari, the informant came to know that the appellants Mamta Singh and Ram Narain Singh had kept Asha Kumari in the house of one Ropna but the mother of Ropna had brought Asha Kumari to the house of appellant Eta Singh. It is also alleged that appellant Eta Singh did not inform the informant regarding Asha Kumari and he has concealed Asha Kumari along with two other appellants somewhere else. Lastly it has been alleged that all the appellants aforesaid has kidnapped Asha Kumari with intention to solemnize marriage of appellant Mamta Singh with her. ( 5 ) THE appellants have pleaded not guilty to the charges under Sections 366 and 363, I. P. C. framed against them and they claimed themselves to be innocent and to have committed no offence and that they have been falsely implicated in this case. It has also been contended that the occurrence has not taken place in the manner as alleged rather Asha Kumari is major and she has voluntarily left her house and she has solemnized her marriage with appellant Mamta Singh. ( 6 ) THE prosecution has examined seven witnesses to substantiate the charge levelled against the appellants. P. W. 1, Dharmshila Devi, the informant is the mother of P. W. 4, Asha Kumari, the alleged victim of this case. P. W. 2, Upendra Prasad Sao is the husband of P. W. 1, P. W. 7 is the I. O. of this case. P. W. 3, Sanicharwa Bhagat, P. W. 5, Pankaj Kumar Sinha and P. W. 6, Arjun Prasad, the neighbours of the informant, have turned hostile and they do not at all support the prosecution case rather P. Ws. 3 and 5 in their cross-examination have deposed in support of the defence version. The doctor, who is said to have medically examined, P. W. 4, the informant on her recovery, has not taken oath in this case for the reasons best known to the prosecution and no explanation for the non-examination of the said medical witness is forthcoming on the record for the prosecution. Ext. A series are the letters written by P. W. 4, Asha Kumari to appellant Mamta Singh and Ext. B series are the signatures of P. W. 4 on the affidavit sworn by her. Ext. A series are the letters written by P. W. 4, Asha Kumari to appellant Mamta Singh and Ext. B series are the signatures of P. W. 4 on the affidavit sworn by her. ( 7 ) VEHEMENTLY assailing the impugned judgment and order of the learned Court below it has been contended by the learned counsel for the appellants that the learned Court below has wrongly scrutinized and appreciated the evidence on the record and has erred in coming to the finding of the guilt of the appellants. It has been submitted that P. W. 4, Asha Kumari was major on the date of the occurrence and she had intimate relationship and love affairs with appellant Mamta Singh and she has voluntarily accompanied appellant Mamta Singh out of her free will and volition and, thereafter, P. W. 4, Asha Kumari has solemnized her marriage with appellant Mamta Singh. It has also been submitted that the letters (Ext. A series) of P. W. 4, Asha Kumari and the affidavit sworn by her totally demolish the case of the prosecution regarding kidnapping/abduction of Asha Kumari by the appellants. It has also been contended that there is also unexplained and abnormal delay in instituting the case by the informant which is a fatal lacunae of the prosecution case though P. W. 1, the informant had gone to the P. S. on 3-4-1994 but her fardbeyan was recorded on 6-4-1994. It has also been contended that the independent witnesses of the vicinity of the alleged place of occurrence do not at all support the prosecution case and Ropna and her mother are the most important witnesses and they have been deliberately withheld by the prosecution in this case along with the medical witness for the reasons best known to the prosecution. Lastly, it has been contended that appellant Eta Singh is the father of appellant Mamta Singh and it does not stand to reason that he will be a party in abduction of P. W. 4 along with his son and son-in-law. Lastly, it has been contended that appellant Eta Singh is the father of appellant Mamta Singh and it does not stand to reason that he will be a party in abduction of P. W. 4 along with his son and son-in-law. ( 8 ) THE learned A. P. P. has contended that though the medical witness has not taken oath in this case but the testimony of P. W. 1, the informant and P. W. 2, the husband of the informant, besides P. W. 4, the alleged victim girl, will show that the said victim girl was minor below 18 years of age on the date of the occurrence and the letters and the affidavit in question are all forged and fraudulent documents brought into existence under coercion and duress. ( 9 ) IT is essential to mention at the very outset that for constituting an offence under Section 366, I. P. C. kidnapping or abduction of a woman must be with intent that she may be compelled to marry any person against her will or in order that she may be forced or seduced to illicit intercourse. Let us now scrutinize and scan the evidence on the record. According to the prosecution case P. W. 4, Asha Kumari is said to be aged about 15 years on the date of the occurrence. P. W. 1, the informant has deposed that Asha Kumari was 15 years and 14 days old on the date of the occurrence. P. W. 2 has deposed that Asha Kumari was 15 years and three months old on the date of the occurrence. P. W. 4 has disclosed her age as 16 years on 11-8-1995 when she has taken oath in this case and the Court below has also assessed her age to be 16 years. P. W. 1 and P. W. 2 in their evidence on oath have not specifically deposed regarding the date of birth of Asha Kumari. Even P. W. 4, Asha Kumari herself did not disclose her date of birth in her testimony. Admittedly P. W. 4, Asha Kumari is a student reading in Class VII of Shiv Narayan Marwari Kanya Pathshala. Her date of birth stands recorded in the admission register of her school. The admission register of the school is the most authentic document to testify the age of a person. Admittedly P. W. 4, Asha Kumari is a student reading in Class VII of Shiv Narayan Marwari Kanya Pathshala. Her date of birth stands recorded in the admission register of her school. The admission register of the school is the most authentic document to testify the age of a person. The admission register has not been brought on the record by the prosecution to show the date of birth of P. W. 4, Asha Kumari to establish the fact that she was a minor below 18 years of age on the date of occurrence. P. W. 7, the investigating officer of this case, has deposed that P. W. 4, Asha Kumari was medically examined by the doctor. The said medical witness has not taken oath in this case to establish the fact that P. W. 4, Asha Kumari, the alleged victim girl, was a minor below 18 year of age. No explanation is forthcoming on the record as to why the medical witness has not been examined in this case which had definitely caused prejudice to the appellants. The non-examination of the medical witness is a fatal lacunae of the prosecution case and the fact that P. W. 4, Asha Kumari was a minor on the date of the occurrence is not at all establish in the absence of the evidence of the medical witness. On the contrary, there is an affidavit on the record which bears the signature of P. W. 4, Asha Kumari thereon. P. W. 4, Asha Kumari has admitted her signatures on the said affidavit. Those signatures are Ext. B series. P. W. 4, Asha Kumari has deposed in her evidence on oath that she has sworn an affidavit and her signature thereon are Ext. B and B/1. There is averment in para 2 of the said affidavit that she is 21 years old. Even P. W. 2, the husband of the informant, has also deposed to have identified the signature of P. W. 4, Asha Kumari on the said affidavit. In view of the averment of P. W. 4, Asha Kumari in the affidavit aforesaid and in the absence of the school admission register of Asha Kumari as well as in the absence of the evidence of medical witness, the testimony of P. Ws. In view of the averment of P. W. 4, Asha Kumari in the affidavit aforesaid and in the absence of the school admission register of Asha Kumari as well as in the absence of the evidence of medical witness, the testimony of P. Ws. 1 and 2 regarding the age of Asha Kumari is fit to be brushed aside and cannot be accepted as reliable evidence in this case. P. W. 4, Asha Kumari has wrongly disclosed her age in her deposition as 16 years old which is in conflict with her averment made in the affidavit aforesaid. As such I hold as a question of fact that P. W. 4, Asha Devi was definitely not a minor below 18 years of age on the date of the occurrence. The learned Court below has not properly weighed the evidence on the record in proper perspective in respect thereof. The finding of the learned Court below in Para 4 of impugned judgment that even if it is presumed that the victim girl was not minor then also I find that the accused persons have forcibly took her away against her will to different places and forcibly took her photographs in the pose of marriage and got her signature on blank paper and also obtained letters from her byputting her in fear of her life, is not at all corroborated by the evidence on the record and the learned Court below has erred in arriving to such a finding. It will admit of no doubt that appellant Mamta Singh is the close neighbour of the informant and his house is adjacent to the house of the informant and appellant Mamta Singh was known to the informant, her husband and her daughter Asha Kumari from before. There is also no denying the fact that there was intimate relationship between P. W. 4, Asha Kumari, the alleged victim girl and appellant Mamta Singh. P. W. 2, the husband of the informant, has deposed that the letters (Ext. A series) are per pen (sic) of P. W. 4, Asha Kumari. P. W. 4 has also admitted that she had written letters to appellant Mamta Singh. P. W. 2, the husband of the informant, has deposed that the letters (Ext. A series) are per pen (sic) of P. W. 4, Asha Kumari. P. W. 4 has also admitted that she had written letters to appellant Mamta Singh. The contents of the letters are self-explanatory which equally show the intimate relationship of P. W. 4, Asha Kumari with appellant Mamta Singh and they were living together as husband and wife and leading conjugal life after her marriage at Pahari temple, Ranchi. In para 29 of her cross-examination, P. W. 4 has also deposed that she had not gone to the police after her marriage at Pahari temple. Her evidence is further to the effect that she was residing in the house of appellant Mamta Singh after her marriage and, thereafter, she had gone to the house of her parents where her subsequent marriage was performed with Bharat Prasad Sahu. P. W. 3, a neighbour of the informant, has deposed that Asha Kumari was not abducted by anybody. He has further deposed that Asha Kumari had gone to Khelari after her marriage and she started living there where Mamta was working. P. W. 5 has deposed that P. W. 4, Asha Kumari and appellant Mamta Singh have solemnized their marriage in the temple at Ranchi and it is a love marriage and, thereafter, they lived together as husband and wife and said marriage was not accepted by the parents of Asha Kumari. Similar is the evidence of P. W. 6, P. W. 5 has further deposed that there is a bathroom and latrine in the house of the informant. According to the prosecution case the occurrence, as alleged, is said to have taken place when P. W. 4, Asha Kumari had gone for natures call. In view of the evidence of P. W. 5 referred to above P. W. 4, Asha Kumari going for natures call outside her house when there is a bathroom and latrine in her house does not stand to reason. P. W. 2 has deposed in para 1 of his evidence that his wife, the informant, had gone to see Asha Kumari when she became late in return from the natures call and she had seen all the three appellants kidnapping Asha Kumari. P. W. 2 has deposed in para 1 of his evidence that his wife, the informant, had gone to see Asha Kumari when she became late in return from the natures call and she had seen all the three appellants kidnapping Asha Kumari. It is pertinent to mention here that as per the prosecution case appellant Eta Singh is not a party in kidnapping of Asha Kumari, P. W. 1, the informant has deposed that appellants Mamta Singh and Ram Narain Singh had taken away Asha Kumari with them when she had gone to case herself and she had seen this occurrence but she has not raised alarm. The conduct of the informant in view of her evidence referred to above is against a normal conduct and behaviour of a person in such a situation. It also does not stand to reason as to why P. W. 1, the informant did not take recourse of the authorities soon thereafter on seeing appellants Mamta Singh and Ram Narain Singh taking away Asha Kumari with them. From the evidence on the record it appears that P. W. 4 Asha Kumari was a consenting party and she was major at that point of time and she had accompanied the appellant Mamta Singh out of her free will. The evidence on the record on the other hand does not indicate that the appellants Mamta Singh and Ram Narain Singh have kidnapped Asha Kumari rather she has escaped away from her house voluntarily and out of her free will as she had intimate love affairs with appellant Mamta Singh. In the facts, circumstances and the evidence on the record of this case do not at allestablish and prove beyond doubt the ingredients of the offence under Section 366, I. P. C. And last but not the least, there is also unexplained and abnormal delay in instituting the case by the informant which is a fatal lacunae of the prosecution case. P. W. 1, the informant had gone to the P. S. on 3-4-1994 but her fardbeyan was recorded on 6-4-1994. It was the duty of the police to record the F. I. R. in accordance with the provision of Section 161, Cr. P. C. on 3-4-1994 itself when the informant has stated to have come to the police station. P. W. 1, the informant had gone to the P. S. on 3-4-1994 but her fardbeyan was recorded on 6-4-1994. It was the duty of the police to record the F. I. R. in accordance with the provision of Section 161, Cr. P. C. on 3-4-1994 itself when the informant has stated to have come to the police station. This inordinate delay in the registration of the F. I. R. renders the prosecution case suspicious and it appears under the facts and circumstances of this case that delay in instituting the case casts a cloud of suspicion to the very credibility of the warp and woof of the prosecution case. The learned Court below has been swayed more by conjectures and surmises than on evidence on the record and has erred in coming to the conclusion of the guilt of the appellants. ( 10 ) THERE is merit in both the appeals and they succeed. Both the appeals are hereby allowed and the impugned judgment and order of the learned Court below is hereby set aside. The appellants are not found guilty of the charge levelled against them and they are, accordingly, acquitted and they are also discharged from the liability of their bail bonds. Appeal allowed. --- *** --- .