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2007 DIGILAW 602 (JHR)

Sushil Rawani v. State of Bihar (now Jharkhand)

2007-07-30

D.K.SINHA

body2007
Judgment D.K Sinha, J.-The present appeal is directed against the judgment of conviction under Section 366A read with Section 34 of the Indian Penal Code passed by the Ilird Additional Judicial Commissioner, Ranchi in S.T. No. 484 of 1998/Tr. No. 279 of 1998 whereby and whereunder both the appellants have been awarded sentence for seven years rigorous imprisonment and to pay fine of Rs.1000/- with default stipulation. 2. The prosecution was launched on the written report (Ext. 2) of the informant, Krishna Thakur (P.W. 6) presented before the Tatisilway police station alleging therein that on 19.11.1997 at about 6 p.m. his daughter aged about 14 years Poonam Kumari was taken away by Sushil Rawani and Suresh Mahli both of village Chatra towards overbridge of Tatisilway Railway Station on persuation and that he had information that the accused Balesh Mahli was about to go some where by train. The informant further narrated that he tried to search her out in his near relation but his daughter could not be traced out and therefore, he had reason to believe that his daughter Poonam Kumari was kidnapped by the appellants and the accused, Balesh Mahli. The informant requested the police to search out his minor daughter and to take action against the culprits. 3. On the basis of the said written report (Ext. 2) Tatisilway P.S. case no. 51 of 1997 was registered on 20.11.1997 for the offence under Section 366N34 of the Indian Penal Code against the appellants and one Balesh Mahli and subsequently, Section 376 IPC was added. The police after investigation submitted charge-sheet in the aforesaid sections of IPC. The victim girl was recovered and her statement was recorded under Section 164 Cr. PC. on 28.11.1997. In her statement she implicated the appellants that when she came out with Fulo Kumari to find out her father, who was a tempo driver, her mouth was gagged by both the appellants and was brought to Tatisilway Railway Station on a bicycle and thereafter they delivered her custody to the accused, Balesh Mahli. She further narrated that she was taken away by Balesh Mahli in a train to Patna and was threatened to be thrown out from the train in case of raising alarm. She came to Patna on 20.11.1997 and was kept in a room and in the same night the accused Balesh Mahli committed rape on her. She further narrated that she was taken away by Balesh Mahli in a train to Patna and was threatened to be thrown out from the train in case of raising alarm. She came to Patna on 20.11.1997 and was kept in a room and in the same night the accused Balesh Mahli committed rape on her. She was confined there till 23.11.1997 and on subsequent date i.e. 24.11.1997 her father came there with Tatisilway police and Patna police and took her to her home village. 4. Charge against both the appellants including Principal accused Balesh Mahli was framed under Sections 376/34 and 366A/34 of the Indian Penal Code and they were put on trial. I find that the charge under Section 376/34 IPC against all the three accused was erroneous. 5. As many as ten witnesses were produced and examined on behalf of the prosecution. Besides, prosecution proved certain documents such as signature of the victim girl Poonam Kumari on her statement under Section 164 Cr. P.C. Ext. 1, entire statement under Section 164 Cr. P.C. Ext. 1/1, signature of Judicial Magistrate on the statement of victim girl under Section 164 Cr. P.C. Ext. 1/2, signature of the informant Krishna Thakur on his written report Ext. 2, endorsement by the police on the written report Ext. 2/1, medical report of the victim girl- Ext. 3 and the formal FIR Ext. 4. 6. After examination of the prosecution witnesses the appellants were examined and their statements were recorded under Section 313 Cr. P.C. to which they individually denied guilt and declined to adduce defence witness. 7. Mr. D.K. Prasad, the learned counsel for the appellants submitted that the charge under Section 376/34 of IPC though was framed erroneously against the appellants but it was proved only against the principal accused Balesh Mahli and accordingly, he was convicted under Section 376 IPC and was adequately sentenced. The only allegation against these appellants was that they had carried Poonam Kumari to the railway station from outside the gate of her residence in presence of her friend Fulo Kumari. But Fulo Kumari, who could have been an important eye witness, was not produced and examined on behalf of the prosecution for revelation of the real fact. The only allegation against these appellants was that they had carried Poonam Kumari to the railway station from outside the gate of her residence in presence of her friend Fulo Kumari. But Fulo Kumari, who could have been an important eye witness, was not produced and examined on behalf of the prosecution for revelation of the real fact. The only relevant statement/material on record about the manner of escape of the victim was the statement of Poonam Kumari herself in absence of the statement of Fulo Kumari. The learned counsel submitted that there appeared vital contradictions between the statements of the victim, Poonam Kumari (P.W.1) with that of her mother P.W. 2 Smt. Meena Devi. The learned counsel pointed out that in the cross examination, Poonam Kumari testified that she was persuaded by Fulo Kumari to proceed from her home to answer the call of nature and while she was following her, in the meantime, she was kidnapped by the appellants forcibly and she could not raise alarm. Her such statement differs from the statement of P.W. 2 Smt. Meena Devi (mother) which was ignored by the trial court. P.W. 2 Meena Devi testified that her daughter on her own expressed that she had to go to answer the call of nature. Though the witness asked her that her father was not there but she proceeded alone expressing the urgency. The witness did not support the version of her daughter Poonam Kumari that she was persuaded and taken away by Fulo Kumari pretending that they were going to answer the call of nature and in this manner it can safely be said that the occurrence did not take place in the manner presented by the victim girl (P.W. 1). The important fact that she traveled all along on her sweet will stands reflected in her statement that during her journey from Tatisilway to Patna she did not disclose that she was kidnapped, by attracting attentions of the copassengers or to the travelling ticket examiner when he demanded tickets in train. According to the medical report, she was minor but there is no substantive evidence on the record that the appellants kidnapped her. According to the medical report, she was minor but there is no substantive evidence on the record that the appellants kidnapped her. If the versions of Poonam Kumari which she delivered time to time be analysed, the learned counsel submitted that she was pre determined to elope with her paramour and as she was sufficiently grown up, she did not require assistance from the appellants in any manner nor they had ventured to gag her mouth, and took her on a cycle to Tatisilway railway station in broad day light without notice to any by passer. The story is absurd and the appellants are innocent. 8. Section 366A of the Indian Penal Code is an offence which 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 extend to ten years and shall also be liable to fine." 9. Finally Mr. Prasad submitted that the prosecution failed to connect the appellants with the allegation that they forced and seduced Poonam Kumari to illicit intercourse with any person but the trial court failed to consider the requirement of law and convicted the appellants under Section 366A/34 IPC on erroneous consideration. 10. On the other hand, the learned A.P.P. opposed the contention and submitted that admittedly the victim girl Poonam Kumari was under 16 years of age at the relevant time of occurrence and she was induced by the appellants to go out from her home and they took her to Tatisilway railway station on bicycle with intent that Poonam Kumari was likely or be forced or seduced to illicit intercourse by co-accused Balesh Mahli. Poonam Kumari (P.W. 1) in her statement recorded under Section 164 Cr.P.C. as well as in her substantive evidence admitted that the accused Balesh Mahli ravised her in the night of 20.11.1997. 11. By way of reply, Mr. Poonam Kumari (P.W. 1) in her statement recorded under Section 164 Cr.P.C. as well as in her substantive evidence admitted that the accused Balesh Mahli ravised her in the night of 20.11.1997. 11. By way of reply, Mr. D.K Prasad the learned counsel for the appellants submitted that though ingredients attracting offence under Section 366A IPC are not fully proved by the prosecution against the appellants but they were convicted under Section 366A/34 IPC and sentenced disproportionate to their alleged participation ignoring that they were in judicial custody since 24.11.1997 on the day of judgment which was delivered on 15th March, 2000. Mr. Prasad finally submitted that the appellants were released on ad interim bail under Section 389(2) of the Code of Criminal Procedure on 30.5.2001 after about three and half years of detention as against seven years of sentence awarded to each of the appellants. Therefore, this court while considering the detention may modify the sentence for the ends of justice. 12. Having regard to the facts and circumstances of the case, arguments advanced on behalf of the parties, I find that the prosecution could be able to prove the charge that the appellants kidnapped and carried the minor girl Poonam Kumari on their bicycle to the railway station and made her custody to the principal accused Balesh Mahli. The consent and conduct of Poonam Kumari is reflected that she went to railway station with the appellants to elope with her paramour Balesh Mahli pretending that she was going to attend the call of nature which mitigates the gravity of the role played by the appellants and I find that under such situation the punishment awarded to the appellants to the extent of seven years rigorous imprisonment is disproportionate without according any opportunity to their remorse. It is settled law as propounded by the Apex Court in Surjit Singh vs. Nahara Ram and Anr. reported in (2004)6 S.C.C. 513 that "in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix". 13. In the present situation I am of the firm view that corrective machinery is required to be adopted for the appellants who have served out half of the sentence, by modifying their sentence and affirming the conviction. 13. In the present situation I am of the firm view that corrective machinery is required to be adopted for the appellants who have served out half of the sentence, by modifying their sentence and affirming the conviction. In the circumstances, upholding the conviction of the appellant under Section 366A/34 of the IPC their sentence is modified and reduced to the period already undergone in the judicial custody. Their bail bonds stand discharged subject to payment of fine amount in the trial court within 15 days of this order. 14. With the modification in their sentence in the manner indicated above, this appeal is dismissed.