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2012 DIGILAW 1177 (PAT)

Suresh Kumar v. State of Bihar

2012-08-24

SHEEMA ALI KHAN

body2012
JUDGMENT (ORAL) Smt. Sheema Ali Khan. J.- This appeal has been preferred against the judgment of conviction dated 11th January, 2000 and the order of sentence dated 12th January, 2000 passed by the VIII Additional Sessions Judge, Gaya in Sessions Trial No. 262 of 1999/298 of 1983 whereby the trial Court had found and held the appellant guilty for the offences punishable under Section 376 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for eight years. 2. The case was instituted on the statement of the father of the victim girl Manik Chand Sao. The informant was living in Kolkata along with his family in a rented premise on the first floor. His daughter who was supposedly 14 years of age was not found in her room. It has been categorically stated that Uma Kumari, the victim girl, had left the house taking her clothes along with her. The grandfather of the appellant Suresh Kumar was living in the ground floor as a tenant. It is said that Suresh Kumar often visits his grandfather. The informant suspected that his daughter had been kidnapped by Suresh Kumar. Later on, he began to look for Suresh Kumar and travelled to Gaya where he found his daughter and Suresh Kumar. 3. After recovery of the victim girl, she was sent to the Remand Home. Her statement was recorded under Section 164 of the Code of Criminal Procedure after taking all due precautions. At the time of recording the statement under Section 164 of the Code of Criminal Procedure, the Court assessed the age of Uma Kumari as 18 years. In her statement, Uma Kumari has categorically stated that she had left her house taking her belongings without any pressures or force. She claim that she married Suresh Kumar in the Court and she wants to live with Suresh Kumar and even follow him to jail, if necessary. 4. During the trial, seven witnesses have been examined, out of which PW 6 Lakhan Ram and PW 7 Ajay Kumar are formal witnesses. Dr. (Smt.) Krishna Choudhary has been examined as PW 4. The victim girl was examined by the doctor and according to the X-ray, the age of the girl is assessed as 17 years. The doctor has found no sign of rape but has found laceration of hymen. 5. Dr. (Smt.) Krishna Choudhary has been examined as PW 4. The victim girl was examined by the doctor and according to the X-ray, the age of the girl is assessed as 17 years. The doctor has found no sign of rape but has found laceration of hymen. 5. PW 1 Achhya Lal Rabidas is a formal witness on the question of recovery of the victim girl. He has proved her signature and the signature of the appellant at the time of recovery. 6. PW 2 Subhash Kumar Singh is the Magistrate, who had recorded the statement of the victim girl Uma Kumart under Section 164 of the Code of Criminal Procedure. 7. PW 3 Uma Kumari is the victim girl herself. According to her, she became friendly with Suresh as he used to come to visit his grandfather who resides in the ground floor. Suresh had convinced her to visit Gaya for few days. Accordingly, she left her house with him. After reaching Gaya, he had forcibly married her by threatening her. After marriage, both lived as husband and wife. This witness admits that she had stated before the Magistrate that she has left her house out of her own free will and that she wanted to live with Suresh. Paragraph 11 of her deposition is important, as it indicates, that it was Suresh who had released her from the Remand Home and she went and lived with Suresh after her release. Later on, she claims that she had run away to her father's house. This witness has tried to explain the statement under Section 164 of the Code of Criminal Procedure by saying that it was because of fear of Suresh, she had given the statement under Section 164 of the Code of Criminal Procedure showing her willingness to live with Suresh. The explanation that has come in her evidence is not believable in view of the fact that there was no pressure on her to go with Suresh after her release from the Remand Home; 8. PW 5 Manik Chand Sao is the informant of this case. He has supported the case as made out in the First Information Report. He denies that his daughter had left his house after taking permission from her mother or that she had left with Suresh without there being any element of threat. It may be pointed out that both. PW 5 Manik Chand Sao is the informant of this case. He has supported the case as made out in the First Information Report. He denies that his daughter had left his house after taking permission from her mother or that she had left with Suresh without there being any element of threat. It may be pointed out that both. PWs 3 and 5 have stated that the appellant came from a different caste. In fact PW 3 goes so far to state that her father had told her that it is not possible for her to marry out of her caste. 9. Counsel for the appellant submits that the statement of the victim girl as well as the boy indicates that both of them had got married because they were in love and they continued to live together even after her release from the Remand Home. It is submitted that it was only because of the intervention of the father of the victim girl that the girl left Suresh Kumar and returned to her father. Her statement before the Court is contrary to what she has stated under Section 161 or 164 of the Code of Criminal Procedure and should not be relied upon for the purpose of holding that an offence is made out under Section 366A of the Indian Penal Code. Referring to the age of the victim girl, it is submitted that the Court and the doctor has assessed the victim girl to be aged about 17-18 years and therefore, she cannot be described as a child. It is further submitted that if the victim girl was as young as alleged by the father of the victim girl, the Magistrate would have recorded his finding that she was incapable of taking a decision regarding her life while recording the statement under Section 164 of the Code of Criminal Procedure. The appellant, on the other hand, has also given the statement in which he admits that both of them had left the house together as both of them were in love for the purpose of marriage. It has been pointed out that the appellant has not tried to shy away from the responsibility of maintaining and looking after his wife. 10. It has been pointed out that the appellant has not tried to shy away from the responsibility of maintaining and looking after his wife. 10. Having given anxious consideration to the various aspects in this case, it would appear on the basis of the evidence of the main witnesses i.e. the victim girl and her father, it cannot be said that Uma Kumari was coerced into leaving her home or was taken away by force. Uma Kumari was living in Calcutta and even in the year 1982, it was an advanced town and she was definitely old enough to know the consequence of her action. The fact that she carried her clothes with her would indicate that she had no plan• to return home and that there was no element of force involved at that time. It would also appear that, the age of the victim girl being 17-18 years as found by the doctor and as such, she cannot be defined as a minor. It further transpires that Uma Kumari even after her release from the Remand Home, she choose to live with her husband. At that time, apparently there was no objection by her father nor has the Court rejected her release from the Remand Home on the ground that she was a minor. 11. The question regarding the age of the girl has to be considered by this Court for the purpose of deciding whether the victim girl was capable of understanding the consequences of her action. It is well settled that there can be a difference of a year or two while assessing the age, as it is difficult to conclusively establish whether a person is 17 years or 18 years of age. This Court would conclude that the victim girl was 18 years of age as, this is the age which the Magistrate has assessed at the time of recording of the statement of the victim girl under Section 164 of the Code of Criminal Procedure and also for the reason that the Court has to give weightage to the opinion of the doctor as there can be variation of a year or two. 12. 12. This Court having concluded that the victim girl had not been forced or coerced to run away, coupled with the fact that she was 18 years of age and not a minor, and certainly capable of understanding the consequence of her behaviour, it would be difficult to hold that the appellant was guilty for either kidnapping her or committing rape. The victim girl had obviously left her home willingly and had lived with the appellant even after her release from the Remand Home and the fact that she has now decided to live with her parents, does not change the fact that the victim girl had left her home willingly. 13. Considering the evidence available on record and the submission advanced on behalf of the appellant, the judgment of conviction passed in Sessions Trial No. 262 of 1999/298 of 1983 is set aside and the appellant is acquitted of the charges levelled against him. He is also discharged from the liabilities of the bail bonds furnished earlier in this case. 14. In the result, this appeal is allowed. Appeal allowed.