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2012 DIGILAW 1546 (PAT)

RAMJI PRASAD v. STATE OF BIHAR

2012-11-07

SHEEMA ALI KHAN

body2012
ORAL JUDGMENT Sheema Ali Khan, J. The appellant has been found guilty for the offences under Sections 366 and 366A of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for ten years for each of the offences and to pay a fine of Rs. 1,000/- by the 5th Additional Sessions Judge, Gaya in Sessions Trial No. 217 of 1998/280 of 1998. 2. The prosecution case, as per the informant who is the father of the victim girl Priyanka Kumari, Basudeo Prasad, is that he learnt that his daughter who is 14-years of age, was kidnapped while she was going to a house at Jheelganj from Aliganj. He tried to search for his daughter, but he could not find his daughter. Eventually, he learnt from PW 6 Surendra Kumar that his daughter was seen on a richshaw with Ramji Prasad, the appellant. Despite the best efforts, he was not able to locate his daughter and ultimately lodged this First Information Report. 3. The prosecution has examined seven witnesses. PW 2, 3 and 5 are the family members of the victim girl Priyanka Kumari, whereas PW 6 is the Headmaster who had seen Priyanka Kumari with Ramji Prasad on a richshaw. Priyanka Kumari has been examined as PW 4 in this case. The doctor has been examined as PW 1 whereas the Investigating Officer of this case has been examined as PW 7. 4. It is the specific case of the informant that his daughter was 14 years of age and was studying in Class-IX. However, he has not produced any certificate from the School which would indicate the date of birth of the victim girl. Therefore, this Court has to rely on the medical evidence with respect to determination of the age of the victim girl. 5. PW 1 Dr. Punam Kumari after examining the victim girl and also on the basis of the X-ray has come to the conclusion that the victim girl is between 17 to 19 years of age. In her cross-examination, she has stated that Priyanka Kumari is less than 19 years and that she may be 18 years of age. The basis for such a finding is the X-ray of different parts of the body of Priyanka Kumari. X-ray was taken of the pelvis including iliac crest, which has not fused. The age of fusion is between 17 to 19 years. The basis for such a finding is the X-ray of different parts of the body of Priyanka Kumari. X-ray was taken of the pelvis including iliac crest, which has not fused. The age of fusion is between 17 to 19 years. X-ray of wrist joint shows complete fusion which takes place between 16½ to 18 years. The ulna was completely fused which takes place in 17 years. X-ray of the knee joint shows fusion of lower end of femur which takes place between 14 years to 17 years. The upper end of tibia and fibula was fused which takes place between 14 years to 16 years. Ultimately, the doctor has concluded that Priyanka Kumari is between 17 to 19 years of age. On the basis of the medical evidence, this Court cannot conclusively hold that the victim girl was a minor, rather this Court would tend to believe that she was major being 18-19 years of age as determined by the doctor. 6. The question that arises for this Court is whether Priyanka Kumari had left her home under duress or she had consented to run away with Ramji Prasad, the appellant? 7. For the aforesaid purpose, this Court will examine the evidence of P.W.4 Priyanka Kumari, the victim girl. According to her case, accused Ramji Prasad was known to this witness. While she was coming from her house at Alipur towards Jheelganj, Ramji Prasad told her that her brother had met with an accident and he is going there to see him. He asked Priyanka Kumari to accompany him to hospital. Thereafter she accompanied Ramji Prasad on a rickshaw in order to meet her brother. He took her to Maranpur instead of hospital. He took Priyanaka Kumari to a friend’s house where she remained for about four days after which he took her to Calcutta by train. They stayed at Calcutta with a friend’s family. She has stated that Ramji Prasad put vermilion on her forehead and took a picture of her with him. In the cross-examination, Priyanka admits that she was well treated by Ramji Prasad and was given proper treatment, food, etc. She claims that she lived with family both at Maranpur and Calcutta. She also admits that there were several women and girls at both the places. In the cross-examination, Priyanka admits that she was well treated by Ramji Prasad and was given proper treatment, food, etc. She claims that she lived with family both at Maranpur and Calcutta. She also admits that there were several women and girls at both the places. According to her, while she was in Calcutta, the elder brother of Ramji Prasad came to Calcutta and informed them that a case had been instituted. Thereafter, both Ramji Prasad and she returned home. She was recovered at the railway station by the police. According to her statement, Ramji Prasad was also present when she was recovered at the Station. She further claims that her mother accompanied her while her statement under section 164 of the Code of Criminal Procedure was recorded and she was examined by the doctor. 8. On the basis of the aforesaid facts it is apparent that Priyanka Kumari did not raise any sort of protest when she was taken to Maranpur although she had an opportunity to interact with the ladies of the house at both at Maranpur and Calcutta. 9. On a perusal of her statement this Court comes to the conclusion that there was no threat or force used by Ramji Prasad and as such it cannot be said that the girl was forcibly kidnapped and kept in custody by the appellant. Her statement that she was well treated and given good food to eat during her stay with Ramji Prasad will also indicate the absence of any force or threat. The subsequent change in her statement is because of the influence of her mother and it is perhaps good for the future of the girl, that her mother was able to influence her. However, this Court cannot ignore the statement of the victim girl herself that she was not allured by Ramji Prasad. It is, therefore, a case where the girl had left her home without any pressure which indicates that she had consented to the act. 10. The evidence of Priyanka Kumari may be compared with that of P.W. 6 Surendra Kumar who saw them together on a rickshaw on the date of occurrence. It is, therefore, a case where the girl had left her home without any pressure which indicates that she had consented to the act. 10. The evidence of Priyanka Kumari may be compared with that of P.W. 6 Surendra Kumar who saw them together on a rickshaw on the date of occurrence. He has frankly admitted that no doubt was created in his mind on seeing them together, because Ramji Prasad used to visit the house of Priyanka quite often and as such he did not suspect that Ramji Prasad was in the process of kidnapping Priyanka Kumari. The other witnesses i.e. brother and father of the victim girl have supported the prosecution case and have tried to make out a case that Priyanka Kumari was forcibly kidnapped by the appellant. 11. The most important evidence in this case is, the evidence of the victim girl herself. On the basis of her statements discussed above coupled with the fact that the girl was definitely more than 17 years of age and thus not a minor, this Court concludes that no case is made out under Sections 366 and 366A of the Indian Penal Code. The appellant is directed to be discharged from the liabilities of the bail bonds furnished earlier in this case. 12. In the result, this appeal is allowed.