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2002 DIGILAW 711 (JHR)

Jairam Prajapati v. State Of Bihar

2002-07-04

VISHNUDEO NARAYAN

body2002
JUDGMENT Vishnudeo Narayan, J. 1. This appeal has been directed by the sole appellant named above against the judgment and order dated 23.2.1996 passed In ST No. 117 of 1985 by Sri Dilip Kumar Sinha, IInd Additional Sessions Judge, Hazaribagh whereby the appellant was found guilty for the offence punishable under Section 366 of the Indian Penal Code and he was convicted and sentenced to undergo R.I. for five years. 2. The prosecution case has arisen on the basis of the written report of informant Ganga Prasad, the father of alleged victim girl, Sunaina Devi lodged before the O/C Kuju O.R of Mandu P.S. on 13.10.1984 at 10.00 hours regarding the occurrence which is said to have taken place at 4.00 Oclock on 12.10.1984 at Village Topa, P.S. Mandu, District Hazaribagh. 3. The prosecution case, in brief, is that the informant awoke at 2.00 OClock in the night for urination and he found his daughter Sunaina sleeping in his quarter and when he again awoke at 4.15 Oclock he did not find his said daughter in the house and he waited for some time for her return. A search was made when she did not return and it transpired that daughter of Mahabir Ram Prajapati is also not in her house and on query Mahabir Ram Prajapati told him that Sunaina has gone to Doran-da, Ranchi in the company of his daughter Parvati and his son Jairam, the appellant. It is also alleged that Sunaina aforesaid is a married girl and she has left her house without his permission. 4. In course of investigation Sunaina aforesaid was recovered from the house of Sukra Oraon at Purana Ranchi, P.S. Kotwall, District-Ranchi. 5. The appellant has pleaded not guilty to the charge levelled against him and he claims to be innocent and to have committed no offence and that Sunaina aforesaid had gone with him out of her free will and she has solemnized her marriage with the appellant on 12.10.1984 in Jagan-nath temple and thereafter she has led her conjugal life with him. 6. The prosecution has examined four witnesses to substantiate the allegation levelled against the appellant. PW 1, Ganga Prasad is the informant of this case. PW 3, Sunaina Devi is alleged victim of this case. PW 4, Dr. 6. The prosecution has examined four witnesses to substantiate the allegation levelled against the appellant. PW 1, Ganga Prasad is the informant of this case. PW 3, Sunaina Devi is alleged victim of this case. PW 4, Dr. Ranjana Sharan has examined Sunaina aforesaid and she has assessed the age of Sunania Devi which is 15 years on 13.10.1984. PW 2, Rajendra Tripathi is the I.O. of this case. The report of PW 4 is Ext. 3 in this case. Ext. 1 is the written report of the informant and signature of Sunaina on the affidavit is Ext. 2. One Dwarika Sao has taken oath in this case as DW 1. 7. In view of the evidence oral and documentary on the record the learned Court below has found the appellant guilty for the offence under Section 366, IPC and has convicted and sentenced him as stated above. 8. It has been submitted - by the learned counsel for the appellant that Sunaina Devi, the alleged victim girl, is not a minor rather she was 19 years old at the time of the alleged occurrence and the affidavit sworn by Sunaina Devi shows that she has disclosed her age as 19 years on 12.10.1984. It has also been submitted that PW 3, Sunaina Devi has admitted her signature on the said affidavit which has been sworn by her before the Executive Magistrate, Ranchi. It has also been submitted that PW 3 Sunaina Devi had read in a School but no proof of her age has been brought on the record by the prosecution to show that on the date of the alleged occurrence PW 3, Sunaina Devi was below 18 years of age. It has also been submitted that the evidence of PW 4 assessing PW 3, Sunaina Devi to be 15 years old is erroneous in view of the fact that the medical witness has stated in her cross-examination that she could not give accurate age and only the approximate age can be given by any method. It has also been submitted that PW 3 Sunaina Devi, being major has voluntarily left her house in the company of the appellant and thereafter she, in her own sweet will, has solemnized her marriage with the appellant and thereafter she had led conjugal life with him at Ranchi. It has also been submitted that PW 3 Sunaina Devi, being major has voluntarily left her house in the company of the appellant and thereafter she, in her own sweet will, has solemnized her marriage with the appellant and thereafter she had led conjugal life with him at Ranchi. It has also been submitted that there is inherent inconsistency and material contradiction in the testimony of PWs 1 and 3 and the learned Court below did not meticulously scrutinize the evidence on the record and has gravely erred in coming to the finding of the guilt of the appellant in this case. 9. The learned APP has submitted that PW 3, Sunaina Devi was a minor girl aged about 15 years on the date of the occurrence and she has been inducted and forcibly kidnapped by the appellant by stuffing her mouth by clothes and the appellant has also intimidated her to be done to death if she will raise alarms. It has also been submitted that the evidence of PW 3, Sunaina Devi read with PW 1 and the recovery of PW 3 in the company of the appellant from the house of the maternal uncle of the appellant at Ranchi clearly establish the fact of the commission of the offence in question by the appellant. Lastly it has been submitted that affidavit has been brought into existence fraudulently under pressure and coercion by the appellant. 10. To constitute an offence under Section 366, IPC the prosecution has to prove kidnapping of PW 3, Sunaina Devi by the accused appellant with intent that she may be compelled or knowing it to be likely that she will be compelled to marry a person against her will or that she might or would be forced or seduced to illicit Intercourse. It is pertinent to mention at the very outset that the written report (Ext. 1} of PW 1 the informant does not contain therein the age of PW 3, Sunaina Devi. She was examined by PW 4, Dr. Ranjana Sharan on 13.10.1984. PW 4 has deposed that PW 3, Sunaina is about 15 years old. Ext. 3, the medical report of PW 4, also corroborates her testimony. PW 1, the informant, has deposed in para 2 of his testimony that PW 3, Sunaina Devi was 15 years old at the time of the occurrence. Ranjana Sharan on 13.10.1984. PW 4 has deposed that PW 3, Sunaina is about 15 years old. Ext. 3, the medical report of PW 4, also corroborates her testimony. PW 1, the informant, has deposed in para 2 of his testimony that PW 3, Sunaina Devi was 15 years old at the time of the occurrence. PW 1 has also deposed that Sunaina Devi was a married girl and her marriage was performed prior to the occurrence in question. PW 3, Sunaina Devi has disclosed her age as 15 years when she has taken oath on 20.8.1985 and the learned Court below has also assessed her age to be 15 years old. PW 3, Sunaina Devi has however, admitted her signature on the affidavit in which she has disclosed her age to be 19 years. This affidavit is dated 12.10.1984 te. of the date of the occurrence, PW 3 has deposed in para 8 of her testimony that she was asked to put her signature on a paper by a person wearing a black coat and thereafter she will be brought to her parents house and on this assurance she has put her signature on the said paper. The evidence of PW 3 as appear in Para 23 and 24 of her cross examination contradicts her testimony as stated above in Para 8. PW 3 has deposed in Para 23 of her testimony that she was brought before the Magistrate at Ranchi where she has sworn an affidavit and she has put her signature on the affidavit in presence of the Magistrate, In Para 25 of her evidence she has deposed that the advocate has put his signature in her presence. She has also deposed that appellant might have got her age as 19 years dictated in the affidavit but she has not disclosed her age to be 19 years therein. In Para 25 she has denied to have stated in the affidavit that her marriage has been solemnized on 12.10.1984 in Jagannath Temple with the appellant. In view of the evidence of PW 3 admitting her signature on affidavit in question does not ipso facto establish the fact that she has disclosed her age as 19 years therein. In Para 25 she has denied to have stated in the affidavit that her marriage has been solemnized on 12.10.1984 in Jagannath Temple with the appellant. In view of the evidence of PW 3 admitting her signature on affidavit in question does not ipso facto establish the fact that she has disclosed her age as 19 years therein. The non-production of the admission register of the school where PW 3, Sunaina Devi has read up to class 3 by the prosecution is not a ground in itself to show and prove that PW 3, Sunaina Devi was a girl above 18 years of age. The evidence of PW 4, the doctor read with the testimony of PWs 1 and 3 establishes the fact that PW 3, Sunaina Devi was a minor girl below 18 years of age on the date of the occurrence. 11. PW 1 has deposed that Sunaina has gone outside her house for natures call at about 4:00 Oclock in the morning on 12.10.1984 but she did not return from there and thereafter a search was made for her and in course of search Mahabir Prajapati, the father of the appellant, told the informant that appellant and his sister Parvati have gone to Ranchi with PW 3, Sunaina Devi and thereafter said Mahabir Prajapati also stated the said fact before the I.O. and thereafter the I.O, proceeded for Ranchi with Mahabir Prajapati aforesaid along with this informant PW 1 has further deposed that Sunaina was recovered from a house at Ranchi in presence of the appellant and the said house is the house of in-laws of Mahabir Prajapati. PW 1 has also deposed that on query Sunaina told that when she had gone for natures call the appellant has stuffed clothes in her mouth and has brought her here by Treckker. PW 3, Sunaina Devi is the most important witness of this case. She has deposed in Para 3 of her evidence that when she was coming after the natures call from the bush nearby her house, the appellant came there and he stuffed her mouth with clothes and intimidated her to be done to death if she will raise alarms and dragged her up to the road and got her seated in a Treckker in the company of his sister. She has also deposed that thereafter he has confined her in a room in the night. She has also deposed that thereafter he has confined her in a room in the night. She has also deposed that thereafter she was brought to another place, PW 2, I.O., has deposed in Para 6 of his testimony that he has recovered PW 3, Sunaina Devi from the house of Sukra Oraon, the maternal uncle of the appellant. It therefore, appears from the evidence referred to above that the appellant has kidnapped Sunaina Devi, a girl below 18 years of age, forcibly with Intent that she might or would be compelled to marry the appellant against her will or that she might or would be seduced to illicit intercourse. In view of the evidence on the record it cannot be said that PW 3, Sunaina Devi has accompanied the appellant out of her free will and volition. It is relevant to mention here that the consent of a kidnapped girl, below 18 years of age, for her marriage with the appellant, is no consent at all in the eye of the law. The evidence of DW 1 that PW 3. Sunaina Devi and the appellant have solemnized their marriage out of their free will has no relevancy In this case in view of the fact that Sunaina was a girl below 18 years of age on the date of the occurrence. The learned Court below has meticulously considered the facts, circumstances and materials on the record in and has rightly come to the finding of the guilt of the appellant in kidnapping PW 3, Sunaina Devi with intent that she may or would be compelled to marry him against her will. There is legal evidence on the record to substantiate the prosecution case beyond all reasonable doubts. There is no illegality in the impugned judgment and order requiring an interference therein. 12. There is no merit in the appeal and it fails. The impugned judgment and order of the Court below is hereby confirmed. The appeal is hereby dismissed.