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2011 DIGILAW 2551 (PAT)

Kapil Das v. State of Bihar

2011-12-23

MANDHATA SINGH

body2011
JUDGMENT Mandhata Singh, J.- This appeal is directed against the judgment and order dated 08th October, 1999 and dated 11.10.1999 passed by Sri Mahesh Prasad Sinha, 7th Addl. Sessions Judge, Bhagalpur in Sessions Trial No. 90 of 1991 for the offences under Sections 363, 366(A) of the I.P.C. 2. Heard learned counsel for the appellant and learned counsel for the State. 3. Prosecution case initiated on written application of one Shambhu Shankar Mandal, in brief, is that his sister Rukmani Devi was found traceless from her house since 9.00 a.m. of 04.1.1988. He along with his brother in-law Pramod Mandal came in search of his sister. He came to know about taking away of his sister by the appellant Kapil Das towards Sabour Railway Station. At Sabour, appellant was seen with informant’s sister along with some boys. Informant when wanted to take his sister, he was abused even assaulted his sister was being dragged on his (appellant’s) behalf catching her hand. On informant’s hulla, local people gathered, police also reached there then appellant was taken into custody by the police along with victim girl and appellant was remanded to judicial custody. 4. After concluding the trial, case is ended in conviction and sentence to the appellant. 5. Submission of learned counsel for the appellant is that appellant has been convicted for kidnapping a minor girl and again for her abduction or kidnapping under Section 366A of the I.P.C. She had two marriage as she has accepted in her chief itself that she was first married with Sachchidanand Mandal then married to Mahendra Mandal. She is medical1y examined in the case also, but doctor is not examined to state her age nor any of the witnesses has been asked or deposed age of the victim. No doubt she (victim) has stated her age while examined in the Court and same is assessed by the Trial Judge also. 6. PW 2 is victim of the case. She is stating about her forceful kidnapping and committing of rape also, but in not conformity with her statement made before the police under Section 161 of the Cr.P.C. Any statement made for the first time in the Court, in the discussed circumstances of the case may never be accepted for admissible evidence. PW 2 is victim of the case. She is stating about her forceful kidnapping and committing of rape also, but in not conformity with her statement made before the police under Section 161 of the Cr.P.C. Any statement made for the first time in the Court, in the discussed circumstances of the case may never be accepted for admissible evidence. Other witnesses namely PW 1 and PW 5 are there to state that victim girl was recovered while she was accompanying this appellant, but victim of the case had made a statement before police under Paragraph-4 of the case diary that there was quarrel in the family with her mother, she left the house for going to maternal uncle at Bhagalpur and was in his search then only met this appellant, who was giving every facility to her in search or otherwise residing and in the circumstance she was found in company of the appellant. 7. Further submission of learned counsel for the appellant is that some mistake has been committed in course of trial by the lawyer for defence that even no attention has been drawn about her (victim’s) statement made in Paragraph-4 of the case diary, but that is there and at the stage, appellant is not seeking any relief on the point of conviction rather on the point of sentence only. 8. In my view, though appellant remained in custody for a period of near about a month only, but was entitled for acquittal, only due to laches of the counsel in conducting the case, he is convicted. Now the victim and the appellant both are married and are leading their married life peacefully to their own satisfaction. So, a lenient view is taken on the point of sentence. 9. On the observation made above and evidence on record, the appeal is allowed in part on the point of sentence only. Conviction is affirmed and on the point of sentence same is minimized to period undergone by appellant in course of trial. Appeal allowed in part.