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2012 DIGILAW 1660 (PAT)

LAL BAHADUR DAS v. STATE OF BIHAR

2012-12-10

SHEEMA ALI KHAN

body2012
JUDGMENT Sheema Ali Khan, J. Ghuran Das, appellant no. 5 has died during the pendency of this appeal sometime in the year 1998 as per the submission of the learned Counsel for the appellants. This fact may be ascertained by the Trial Court from the Superintendent of Police, Madhepura. If the Trial Court comes to the conclusion that appellant no. 5, namely, Ghuran Das, is dead, then the appeal against him shall abate, if not found dead, he shall be covered by the findings IN this judgment. 2. The appellants have been found guilty under Section 366/34 of the Indian Penal Code for kidnapping Lukhri Devi, daughter of Kokai Sah in the year 1996 and have been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,000/- 3. The case, as per the First Information Report, is that on 31.03.1989, Kokai Sah had left his house to get the sugarcane weighed, his wife had gone to the fields to mind the crops. When Kokai Sah returned at about 1 AM, he learnt from his wife that his daughter was missing. After about 12-13 days, he came to know that Lal Bahadur Das (appellant no. 1) and Rajendra Das had come to his house and kidnapped his daughter. According to the informant, he went to the house of Lal Bahadur Das, however the appellants came out with lathies and refused to allow the girl to return with him. Thereafter, he has lodged this First Information Report. 4. The prosecution has examined seven witnesses out of which PW 7 Ram Chanchal Sharma is a formal witness whereas PW 6, Dr. Saroj Singh has examined the victim girl. 5. This Court will begin with the evidence of the victim girl Lukhri Devi, PW 4. According to PW 4, Rajendra Das and Lal Bahadur Das came to her house and asked her to accompany them. She went to the house of Lal Bahadur Das where she was forcibly retained by the appellants. According to her, she was first taken to Behariganj and then to Banmankhi. From Banmankhi, she took a train and went to Calcutta, where she was forcibly married to Lal Bahadur Das. She returned after 13 days and began to live in the house of Lal Bahadur Das. In her examination-in-chief, she has stated that she was minor on the date the occurrence took place. From Banmankhi, she took a train and went to Calcutta, where she was forcibly married to Lal Bahadur Das. She returned after 13 days and began to live in the house of Lal Bahadur Das. In her examination-in-chief, she has stated that she was minor on the date the occurrence took place. Her statement in the cross-examination is contrary to the case made out by the informant in the First Information Report. She has specifically stated that she is giving her evidence as per the direction of her father. She has stated in paragraph 4 of her deposition that “firkth ds dgs vuqlkj vkt xokgh nh gw¡” She further states that the Daroga had taken her to give her evidence at Madhepura, where she gave her evidence as directed by the informant. “tSl¢- tSls bUg¨us dgk Fkk oSl ¢gh eSus n.Mkf|dkjh ds le{k C;ku fn;k ” According to her case, her eldest child is 7 years and her youngest child is 3 years old. She has stated that she had her first child after about 1½ years of her marriage. She admits that there was a Panchayat held in the village in which she held the hand of Lal Bahadur Das and dragged him out of the Panchayat saying that they love with each other, and she wants to live with him. Subsequently, it appears she has given evidence after being pressurized by her father. 6. On the basis of the evidence of PW 4 Lukhri Devi, Counsel for the appellants submits that it would appear that she was married about 8½ years before she gave her evidence, which would be around august, 1995. According to her, she was major when she got married and as such, she was also major on the date on which the alleged kidnapping took place. Besides which, it would appear that she had willingly left her house and wanted to live with Lal Bahadur Das and it was only on the intervention of her father that she was recovered by the Police and that is why the case has been instituted after 13 days of the occurrence. It is further submitted that her evidence would reveal that a panchayat was held between 31.03.1989 and 13.04.1989 i.e. before the lodging of the First Information Report. It is further submitted that her evidence would reveal that a panchayat was held between 31.03.1989 and 13.04.1989 i.e. before the lodging of the First Information Report. At this juncture, it may be mentioned that two witnesses to the Panchayat, namely, Bhola Sharma and Baleshwar Mishra have been examined as DWs 1 and 2 respectively. The document has been proved by the aforesaid witnesses and marked as Exhibits A and B, which is the photocopy of the original proceeding to the Panchayat. No objection has been raised by the prosecution with respect to this document. It would thus appear that Lukhri Devi and Lal Bahadur Das were married, and because they came from different castes, an objection was raised by the father of Lukhri Devi who instituted the First Information Report after having failed to convince his daughter in the Panchayat. 7. The evidence of the informant Kokai Sah, PW 5 is contrary to the evidence given by PW 4 Lukhri Devi. According to PW 5, he reached his house at 6 PM and he has produced the receipt indicating that he had got his sugarcane weighed on 31.03.1989. PW 4 Lukhri Devi has stated that she left her house at 3 PM whereas according to the informant, he reached his house at 6 PM. The first discrepancy between the evidence of PWs 4 and 5 arose at this juncture itself. According to the informant, no one was present at his house when the alleged kidnapping had taken place. Although, the evidence would reveal that PW 4, the informant had four other children between 5 to 17 years of age. He has stated that his youngest child was 5 years old on the date on which the occurrence had taken place. It is said that he was not present at the place of occurrence, when it took place, as he had gone for tuition. This story is rather farfetched and unbelievable in view of the fact that no child of 5-6 age group can travel alone to receive tuition at a distance of one mile. No explanation is given regarding the presence of elder siblings of the victim girl. The delay in instituting the First Information Report raises doubts regarding the veracity or truthfulness of the prosecution case. No explanation is given regarding the presence of elder siblings of the victim girl. The delay in instituting the First Information Report raises doubts regarding the veracity or truthfulness of the prosecution case. The informant admits that Lal Bahadur Das had filed a case against the informant claiming that he had forcibly taken his wife away. According to the informant, no Panchayat whatsoever took place. 8. The evidence of the informant not only contradicts the evidence of the victim girl but also the evidence of PW 3 Bindeshwari Sah, who was a hearsay witness, but admits that a Panchayat took place with respect to the same occurrence. 9. PW 1 Kamleshwari Sahu who has been declared hostile has also accepted that there was a panchayat and that these two i.e. Lukhri Devi and Lal Bahadur Das were in love with each other. 10. This Court is also not inclined to believe the case of the informant that the appellants 2 to 6 were involved in the kidnapping as no role has been assigned to them except that they had resisted when the informant came to Calcutta to take his daughter. 11. Counsel for the State, on the other hand, relies on the evidence of the doctor, which indicates that the victim girl was a minor as the doctor has found that she was about 16 years of age on the basis of the X-ray which was not produced before the Court. Besides which, it has been held in the case of Jaya Mala vs. Home Secretary, Government of Jammu & Kashmir ( AIR 1982 SC 1297 ) that one may take judicial notice of the fact that there may be margin of error in the age ascertained by the radiologist by two years on either side. The evidence reveals in this particular case that the victim girl was married soon after the occurrence, and she claims that she was a major at the time of marriage. 12. Whatever be the opinion of the doctor, it would appear that this is not a case where the victim girl was forcibly kidnapped, rather she was a grown up young lady who knew her mind and had left her home to live with Lal Bahadur Das because her father was marrying her to an elder man or had sold her to an elder person, which would be apparent from Exhibit-A. 13. Considering the fact that the case made out by the informant cannot be believed, this Court has, therefore, to give the benefit of doubt to the appellants and acquit them for the offences alleged. This appeal is allowed. The appellants are discharged from the liabilities of their bail bonds. Appeal allowed.