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2012 DIGILAW 1515 (PAT)

Ganga Bishun Sah v. State of Bihar

2012-11-05

SHEEMA ALI KHAN

body2012
JUDGMENT S.A. Khan, J. The appellant has been found guilty for offences under Sections 366 and 376 of the Indian Penal Code and sentenced to undergo R.I. for seven years for each of the offences by the Sessions Judge, Purnia in Sessions Trial No. 353 of 1992. 2. The prosecution case instituted by Sundar Turi, the father of the victim girl, is that he learnt from Wakil Rai that his daughter was seen on the tractor of the appellant near Birauli Bazar. On learning this fact, he went to the house of the appellant and met the appellant’s father who promised to return his daughter as soon as possible. When the daughter did not return he lodged a case on 8.7.1992. His daughter was missing since 14.6.1992. 3. To substantiate the prosecution case, eight witnesses have been examined. P.W. 7 is the doctor who has found the girl to be about 14-15 years of age. According to the doctor, the girl was used to sexual intercourse. P.W. 8 is the formal witness who has proved Exhibits 2 and 3 i.e. the signature on the Fardbeyan and has formally proved the First Information Report. The other witnesses have deposed regarding the occurrence. 4. P.W. 1, Wakil Rai is named in the First Information Report. He was the person who claimed that he had seen the victim girl Sonamani Kumari on the tractor of the accused. A suggestion has been given to this witness that the appellant has been dragged into this case because there was some land dispute between the father of the appellant and the father of the victim girl. Apart from this fact, there is nothing which would lead this Court to doubt the testimony of P.W. 1. On the other hand, this Court finds that P.W. 2 has been introduced by the prosecution as an after thought. According to P.W. 2, he had seen the appellant and the victim girl together. It is the case of P.W. 2 and subsequently of both the father and mother of the victim girl that the victim girl had handed over a bundle to P.W. 2 Basudeo Mandal which he subsequently handed over to the sister of the victim girl. This story has been introduced for the first time in Court. It is the case of P.W. 2 and subsequently of both the father and mother of the victim girl that the victim girl had handed over a bundle to P.W. 2 Basudeo Mandal which he subsequently handed over to the sister of the victim girl. This story has been introduced for the first time in Court. No such fact has been mentioned in the First Information Report and as such this Court is not inclined to believe P.Ws. 2, 3, 4 and 5 regarding this aspect of the case which has been developed by the prosecution. From the tenor of the evidence of P.W. 6, it would appear that she had consented to go with the appellant as according to her he had enticed her, assuring her of a good future in view of the fact that he was well placed in life and has plenty of property as well as a tractor and was quite rich as compared to the family of the victim girl. P.W. 6 states that after she went with the appellant they lived at different places. She admits that they also went to the Court to marry but the marriage could not take place on account of the fact that their lawyer had supposedly told her that she was a minor. It further transpires from her evidence that when the appellant came to know that a case has been instituted against him, he thought it better to bring her back to the village, however, they were apprehended by the Mukhiya on the way who took them to the police station where the girl was examined by the Investigating Officer and the Doctor i.e. P.W. 7. 5. Learned counsel for the appellant has argued that the entire case has been instituted due to enmity and greed. It is submitted that in fact the witnesses have not been able to make out a case of kidnapping. It is further submitted that delay in lodging of the First Information Report as well as the subsequent introduction of new facts by bringing P.W. 2 to give evidence in this case indicates that the allegations are false and the whole case has been instituted with the help of the local Mukhiya who had not come forward to be examined in Court to support the story of recovery. After considering the evidence that has come in this case, it would appear that Sonamani Kumari was not forced to accompany the appellant, rather she did so willingly without any threat to her life. However, considering that the victim girl was a minor at the time of occurrence, her consent is of no consequences and as such it cannot be a ground for acquitting the appellant. 6. Counsel for the appellant lastly argued that the occurrence has taken place in 1992 and that the appellant has remained in custody for about 8½ months and as such, this Court should not sent him back to jail after two decades. 7. Considering the submissions aforesaid, this Court dismisses this appeal and alters the sentence to period already undergone with stipulation that the appellant should pay a compensation of Rs. 11,000/- to the victim girl Sonamani Kumari. The Trial Court shall issue notice to the appellant as well as the victim girl through the informant of this case so that she may collect the compensation amount. The said amount should be paid within a period of four months of valid service of notice failing which the appellant shall have to undergo R.I. for one year. The appellant will be discharged from the liabilities of the bail bonds only after depositing the compensation amount. The web copy of this order may be utilized so that the trial court may accept the compensation amount, if the certified copy is not available to the Court. 8. This appeal is accordingly, dismissed with the aforesaid alteration in sentence. Appeal dismissed.