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2006 DIGILAW 1202 (JHR)

Krishna Bhuiya v. State Of Jharkhand

2006-09-18

DILIP KUMAR SINHA

body2006
JUDGMENT Dilip Kumar Sinha, J. 1. The sole appellant Krishna Bhuiyan has preferred this Cr. Appeal under Section 374(2) of the Code of Criminal Procedure for his conviction under Section 366-A, IPC passed by Shri B.N.P. Singh, Sessions Judge, Palamau at Daltonganj in Sessions Trial No. 367/1997 on 17th July, 1998 whereby and whereunder he was sentenced to undergo rigorous imprisonment for 5 years. 2. The brief fact of the case as it stands narrated in the statement of Bandhu Bhuiyan (PW 4) before the police on 21.2.1997 that while he was returning on 10.2.1997 from his matrimonial village with his wife Shakunti Devi to his own village Paneri Bandh and arrived near the cross roads after alighting from the bus at about 6 p.m., he was apprehended by the appellant Krishna Bhuiyan and two unknown persons who forcibly abducted his wife Shakunti Devi from his custody. The appellant happened to be the uncle of the informant Bandhu Bhuiyan in relation and it was alleged that whenever the appellant visited Latehar. he used to come in contact with Shakunti Devi. After extensive search the informant came to learn that the appellant had taken away Shakunti Devi to village Golhna and she was put in the house of one Rajmuni Bhuiyan. He further alleged that his wife Shakunti Devi was kidnapped by the appellant with the intention to many her. The law was set in motion by institution of Daltonganj (Sadar) F.S. Case No. 71/1997 for the offence under Section 363/366, IPC. In course of investigation Shakunti Devi was recovered by the police from the custody of Rajmuni Bhuiyan. the brother-in-law of the appellant Krishna Bhuiyan from village Golhna. The victim girl was examined by doctor and alter investigation the police submitted charge-sheet against the appellant Krishna Bhuiyan for the offence under Section 366/366-A/376 IPC. The charge against the appellant was framed in the aforesaid sections to which the appellant pleaded not guilty and hence he was put on trial. 3. Mr. Tripathy, learned Counsel submitted that as many as 7 witnesses were produced and examined on behalf of the prosecution and out of them PW 2 Rajmuni Bhuiyan and PW 3 Sita Devi were tendered by the prosecution for their cross- examination. 3. Mr. Tripathy, learned Counsel submitted that as many as 7 witnesses were produced and examined on behalf of the prosecution and out of them PW 2 Rajmuni Bhuiyan and PW 3 Sita Devi were tendered by the prosecution for their cross- examination. Since none of the witnesses including the victim Shakunti Devi supported the allegation of rape, the appellant was acquitted from the charge under Section 363/376, IPC but was convicted for inducing a minor girl Shakunti Devi below 18 years of her age with intent that she might be married with the appellant. 4. Advancing his argument Mr. Tripathy submitted that Sakunti Devi was produced and examined as PW 6 before the trial Court who disclosed her age as 20 years on 26.5.1998 and the same view was taken by the trial Judge while assessing her age. In this view of the matter the conviction of the appellant under Section 366-A is not sustainable. He further submitted that the offence under Section 366-A relates to procuration of minor girl which speaks: Whoever, by any means whatsoever, induces any minor girl under the age of 18 years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extent to 10 years, and shall also be liable to fine. 5. Mr. Tripathy commented in view of the above definition that for conviction of an accused under Section 366-A, IPC it is sine quo non that the victim girl must be below 18 years age but in the instant case the age of the girl has been assessed by the trial Court as 20 years and therefore conviction of the appellant under Section 366-A, IPC is not sustainable. 6. Concluding his argument. Mr. Tripathy submitted that admittedly, Shakunti Devi was not recovered from the possession of the appellant rather from the possession of one Rajmuni Bhuiyan and the trial Court below perhaps lost sight of this fact that Rajmuni Bhuiyan was not figured as an accused in the present case for the reasons best known to the prosecution. The occurrence as alleged took place on 10.2.1997 but FIR was lodged on 21.2.1997 without any plausible explanation of such inordinate-delay. The recovery of the girl was made on 28.2.1997. The occurrence as alleged took place on 10.2.1997 but FIR was lodged on 21.2.1997 without any plausible explanation of such inordinate-delay. The recovery of the girl was made on 28.2.1997. However, the appellant has served out half of the period of sentence in judicial custody and therefore, if the conviction is maintained by this appellate Court, the sentence imposed upon the appellant by the trial Court may be modified to the extent of the period already undergone by him. 7. Learned APP opposed the contention advanced by the learned Counsel for the appellant and submitted that the charge under Section 366-A was well proved against the appellant and he was proportionately sentenced for 5 years rigorous imprisonment for his conviction under Section 366-A, IPC. The judgment is well discussed which does not call for interference of this Court in appeal. 8. Having regard to the facts and circumstances of the case, I find that PW 1 Satam Bhuiyan, PW 4 Bandhu Bhuiyan (informant) PW 5 Mafzul Haque and PW 6 Shakunti Devi (victim girl) have categorically supported the prosecution case for the alleged charge to which the appellant was convicted under Section 366-A, IPC. I find that PW 4 Bandhu Bhuiyan (informant) and PW6 Shakunti Devi arc the eye-witnesses of the occurrence who have categorically supported the prosecution case. PW 4 Bandhu Bhuiyan has corroborated his previous statement before the police in his substantial evidence before the trial Court as to how and under what manner the appellant forcibly took away his wife Shakunti Devi and the police recovered his wife. Similarly, the victim girl Shakunti Devi has also given a short account of the occurrence as to while she was returning to her matrimonial home with her husband and arrived near a cross roads, she was abducted by the appellant and was taken to village Golhan. 9. The statement of PW 8 Dr. Snail Sinha is important in the sense that she had examined Shakunti Devi on 1.3.1997. On dental examination of Shakunti Devi her teeth were found 14 + 14 = 28. Her hymen was not intact but no injury was found inside her vagina which admitted two fingers easily. In the opinion of the doctor, as per pathological report, there was sign of recent sexual intercourse and on the basis of her physical as well as dental examination her age was assessed between 14 to 16 years. Her hymen was not intact but no injury was found inside her vagina which admitted two fingers easily. In the opinion of the doctor, as per pathological report, there was sign of recent sexual intercourse and on the basis of her physical as well as dental examination her age was assessed between 14 to 16 years. He proved the medical report exhibit 3. In the cross-examination the doctor admitted that the victim lady was accustomed to sexual intercourse. 10. The occurrence as alleged took place on 10.2.1997 and the victim girl was examined in the trial Court on 26.5.1998 after about 15 months. After her deposition in the trial Court, she put her thumb-impression after her statement was read over and explained which indicates that Shakunti Devi was illiterate and therefore, it can well be presumed that she was not capable to assess her own age. Usually the trial Court adopts the same age as disclosed by the witness and therefore, the assessment of age made by the trial Judge appears to has been made on a casual appearance of the witnesses in the witness box and therefore, such assessment is not authentic. On the other hand, the age assessed by the doctor in the present case, on her clinical as well as dental examination is more authentic and scientific. I, therefore, find that the age of the victim girl as assessed below 18 years does not call for interference. The inordinate delay in lodging FIR has been properly explained and the learned Sessions Judge has given his finding thereon that the informant-husband was engaged in hectic search for his wife who at the later stage came to know bout her confinement in village Golhan and it was quite logical for the hapless husband to make search for his wife first than to lodge FIR before police. The conviction of the appellant under Section 366-A, IPC is based upon reasoning and the material evidence which does not call for interference. 1 further find that no ground has been made out to disbelieve the prosecution case. 11. Since the appellant has been convicted for his involvement related to moral turpitude by abducting his niece in law with the intention to marry her or for seducing her to illicit intercourse, his such act does not warrant modification in his sentence. 12. 1 further find that no ground has been made out to disbelieve the prosecution case. 11. Since the appellant has been convicted for his involvement related to moral turpitude by abducting his niece in law with the intention to marry her or for seducing her to illicit intercourse, his such act does not warrant modification in his sentence. 12. In the result, the conviction as well as the order of sentence awarded to the appellant in Sessions Trial No. 367 of 1997 by Sessions Judge. Palamau is maintained and upheld. The appellant Krishna Bhuiyan is directed to serve out the remaining period of his sentence by his surrender to the judicial custody. His bail bond stands vacated.