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2007 DIGILAW 346 (PAT)

Sardar Hardeyal Singh v. State Of Bihar

2007-02-14

C.M.PRASAD

body2007
Judgment C.M.Prasad, J. 1. This appeal is against the judgment dated 9th October 2002 of the Additional Sessions Judge (F.T.C.I). Sasaram passed in S.T. No. 598 of 1985/136 of 2001 whereby the appellant has been convicted under Sections 366, 376 and 379 IPC with respective sentences of R.I. for 10 years, R.I. for 10 years and R.I. for 1 year. 2. It appears that the appellant along with Manu Singh, the father of the appellant and Soni Kumari, sister of the appellant were also tried on the charge of conspiracy for the offences but they were acquitted by the trial court. 3. The prosecution case is that the appellant was residing near the house of the victim. The father of the victim Rekha Kumari and he (the appellant) used to do tution for teaching Rekha Kumari and her two younger sisters. The further case was that on 22nd October 1981 while Rekha Kumari was cleaning a glass jar in her house, her finger got cut and her mother sent Rekha Kumari with the appellant to the doctor for treatment of the cut injury. It was further alleged that instead of taking Rekha Kumari for medical treatment, the appellant took her to Dehri-on sone and then to Kolkata and also committed rape on her and that he came back to Dehri- on-sone where the father of Rekha Kumari along with witnesses (P.Ws,1.2 and 3) went to Dehri-on-sone at the residence of appellants father and brought the daughter Rekha Kumari back to house at Sasaram. The FIR of the case was lodged on 31st October 1981. The victim Rekha Kumari is also said to have been produced before Police on 1st November 1981 for which production list (Ext-1) was also prepared. 4. As many as ten witnesses were examined by the prosecution out of whom P.W.1 Dasai Yadav, P.W.3 Shiv Kumar Singh, P.W.4 Lakshmi Narayan Singh and P.W.5 Bijay Kumar Dubey turned hostile to the prosecution. P.W.2 Indira Devi is the mother of the victim who stated that the appellant had taken the victim Rekha Kumari with him for giving medical treatment for cut injury. P.W.6 Shanti Devi is the sister of Rekha Kumari who also stated similar to P.W.5. P.W.7 Rekha Kumari is the victim herself. P.W.8 Dr. P.W.2 Indira Devi is the mother of the victim who stated that the appellant had taken the victim Rekha Kumari with him for giving medical treatment for cut injury. P.W.6 Shanti Devi is the sister of Rekha Kumari who also stated similar to P.W.5. P.W.7 Rekha Kumari is the victim herself. P.W.8 Dr. Prabhawati Prasad is the doctor who examined the victim and also stated about the findings of Medical Board with regard to the examination of the victim and deposed that the age of the victim was assessed by the Board as 13-14 years. But any sign of rape or marks of external or internal injury was not found on her. P.W.9 Kedar Nath Singh and P.W.10 Narendra Kumar Singh were formal witnesses who proved the writings on the FIR. The I.O. was not examined. The informant Parmeshwar Mishra, father of the victim girl was also not examined by the prosecution. 5. After some argument, the learned counsel for the appellant submitted that he does not challenge the merit of the conviction but he tried to cite some pieces of evidence in order to draw some mitigating circumstances and submited that a lenient view with regard to the sentence should be taken in this case. Thus the conviction was not challened, hence, the same is confirmed. However, the quantum of sentence is challenged and the learned counsel made his submissions in this regard. Learned counsel for the appellant submitted that, no doubt, the girl is said to be a minor girl but the appellant was himself a young boy with tender age of 21-22 years at the time of occurrence. Learned counsel referred to the four letters (Ext-A series) written by the victim Rekha Kumari and pointed out that the very contents of the letters show that she had her intense love and affection for appellant and she even offered to go with the appellants and complaining even against her parents who tried to restrain her. The learned counsel submits that the appellant was also a young boy of 21 -22 years and he too was in love with girl and it was compulsion of their sentiment that they went away together and such a offence is said to have been committed at the hands of appellant. The learned counsel submits that the appellant was also a young boy of 21 -22 years and he too was in love with girl and it was compulsion of their sentiment that they went away together and such a offence is said to have been committed at the hands of appellant. Learned counsel also submitted that the appellant is said to have gone to his brother-in-law at Kolkata and stayed there with the victim Rekha Kumari and to have co-habitation with her and according to the statement of the victim herself to have visited the cinema-show and that the appellant sold her ear ring and gold chain. Learned counsel also refers to the evidence of the victim (P.W.7. Para-1) that while she was at the house of the appellants Bahnoj at Kolkata, appellants grand-father had gone there and on her request the grand-father had asked for taking the victim to her parents whereupon the appellant had replied that he cannot live without her (victim) and he will die if she is sent back and separated from him The learned counsel says that even despite these things, the appellant took the girl to his fathers house at Dehri-on-sone from where the victims father took her. Learned counsel says that this case was instituted with a view to prohibiting the victim and the appellant from further attachment. Learned counsel also submits that it is a case in which a young boy and a girl who were not matured took steps of leaving their house under intense feeling of attachment for one another. It was submitted that the appellant has no criminal antecedent and at the time of occurrence, he was a young boy of 21-22 years only. He also submitted that the girl has been married and she is living a conjugal life with her children at her Sasural. Learned counsel also submits that the occurrence took place 6 years back and the appellant has suffered a long stress of trial and appeal. Learned counsel also submits that the appellant is in custody since 9.10.02 and during the trial also he remained in custody from 10.12.1981 to 2.3.1982 and thus the appellant has remained in custody for a period of 4 years and 9 months. Learned counsel also submits that the appellant is in custody since 9.10.02 and during the trial also he remained in custody from 10.12.1981 to 2.3.1982 and thus the appellant has remained in custody for a period of 4 years and 9 months. The learned counsel submits that in the facts and circumstances of the case a lenient view should be taken and the period undergone by the petitioner would be sufficient in this case. 6. The learned counsel also referred to a decision of this court in the case of Ram Niwas Sahu vs. The State of Bihar reported in 2001(3) PLJR 828 wherein this Court while awarding the sentence for offence u/s 376 IPC had considered the sentence of 1 year 6 months sufficient in the facts and circumstances of that case. 7. Mr. S.N. Prasad, learned APP submitted that the girl was a minor one. 8. Learned counsel for the appellant replied that no doubt the girl was a minor according to the medical evidence but the boy was also a young boy aged about 21-22 years and both were under love and affection for with the engagement of both of them. Learned counsel also submitted that the appellant was a young boy at the time of occurrence and he has a career in future. 9. Thus hearing I feel that a sentence of R.I. for 5 years will meet the ends of justice. Therefore, the sentence is reduced to R.I. for 5 years u/s 366, R.I. for 5 years u/s 376 and R.I. for 1 year u/s 379 IPC. The sentences will run concurrently. 10. Thus, with the modification in sentence, the appeal stands dismissed.