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2012 DIGILAW 649 (PAT)

Mohan Sah v. State of Bihar

2012-04-20

MANDHATA SINGH

body2012
ORAL JUDGMENT Mandhata Singh, J.—Heard learned Amicus Curiae and learned counsel for the State. 2. Prosecution case initiated on fardbeyan of Muneshwar Sah (P.W.6), informant of the case, in brief, is that his co-villager, this accused-appellant Mohan Sah was giving tuition to his children along with his sister (victim) aged about 16 years and time for teaching was varying from morning till evening, that was depending on convenience. On the day of occurrence, it is said that informant had gone to Patna to look after his ailing father. In the night on 11.5.2002 at about 8.30 pm., he came back his home from Patna and informed by family members that this accused-appellant Mohan Sah had taken away his sister either after alluring or enticing with a view to marrying or having illicit relation. He searched his sister hither and thither, to neighbours and to the house of Mohan Sah also but could not know whereabouts of his sister. Mohan Sah was also found absent. In course of investigation, victim recovered rather appeared, her statement under Sections 161 and 164 of the Cr. P.C. was recorded and section 376 of the I.P.C. also was added. She was medically examined by a team of Doctors on the point of her age and commitment of rape, if any. 3. Trial ended in conviction and sentence to accused-appellant for the offence under Sections 376 and 366A of the I.P.C. 4. In all 9 witnesses are examined on behalf of the prosecution. They are P.W.1 Asmita Devi, wife of the informant, P.W.2 Nutan Kumari, Daughter of the informant, P.W.3 Pradeep Sah, uncle of the informant, P.W.4 Ritu Kumari @ Pankaj Kunwar, victim herself, P.W.5 Bishundeo Sah, father of the victim, P.W.6 Muneshwar Sah, informant and brother of the victim, P.W.7 Ganesh Sahay, I.O. of the case, P.W.8 Dr. Sushila Devi, one of the members of the Medical Board, examined the victim and P.W.9 Ganesh Sah, a formal witness to get mark exhibited different documents. 5. Of witnesses, P.W.1, P.W.3, P.W.5 and P.W.6 are hearsay witnesses, on the point of kidnapping or abduction if really occurred. Their statement is relevant on the point of age of the victim and giving of tuition to the victim and other children of the informant by the accused-appellant. Accused-appellant was giving tuition at the relevant period is not denied in the case. Their statement is relevant on the point of age of the victim and giving of tuition to the victim and other children of the informant by the accused-appellant. Accused-appellant was giving tuition at the relevant period is not denied in the case. On the point of age apart from above witnesses, P.W.4 herself also is examined including P.Ws. 2 and 8, one of the members of the Medical Board. Age of the victim has to play vital role in the case. Though in the F.I.R. age of the victim is shown 16 years but that is varied below 16 years by prosecution witnesses. P.W.1 on this point is about victim’s age at relevant time 13-14 years. Victim herself has stated her age in the Trial Court 16 years while she was examined after 2 years of the incident that come to 14 years. Medical Board is there also on the point of age i.e. 16 to 18 years. 6. In this case it is admitted to the parties that victim disappeared from her home and returned after a month, if was taken forcibly and she was major then it was abduction if was taken forcibly or after alluring or enticing and was minor is kidnapping. 7. As discussed above prosecution and its witnesses are not constant on the point that victim’s age was below 16 years at the time of the incident, same is 16 years in F.I.R. so, not acceptable. Now, opinion of Medical Board remains there which can be relied only. Report by the Medical Board is submitted in the case, is exhibited as 7/1. One of its member namely, Dr. Sushila Devi is examined in the case as P.W.8 and in conformity to the report she is stating victim’s age 16 to 18 years. Difference of these two years is allowed by the Medical Jurisprudence and the age favouring the accused is to be accepted, so the age of the victim is accepted 18 years which has been ignored by the Trial Court. 8. Once Court is of the opinion that victim was 18 years old, the act of the accused and conduct of the victim remain to discuss if can be taken for constitution or commitment of offence under Section 366 or 376 of the I.P.C. 9. 8. Once Court is of the opinion that victim was 18 years old, the act of the accused and conduct of the victim remain to discuss if can be taken for constitution or commitment of offence under Section 366 or 376 of the I.P.C. 9. On the point of abduction, P.W.2 states about her presence at the time when victim was taken away by the accused-appellant specifying that she was assaulted and victim was dragged by the accused-appellant but no such statement was given on her behalf to her mother or the informant as same is lacking in the F.I.R. No doubt, F.I.R. is not substantive piece of evidence but it is important on the point that same was lodged/stated after gathering informations in this case from family members. 10. Victim herself is examined in the case, so in face of her statement there is no importance of other witnesses. In Chief, she is stating about her forcibly taking away by the accused-appellant but her attention is drawn on her statement under Sections 161 and 164 Cr. P.C. that she was taken away by the accused-appellant without referring force or even allurement. Otherwise also if her statement is accepted as it is, then also she was taken to Barauni Railway Station, thereafter to Karnal (Haryana) where accused-appellant remained in constant sexual relation with her though occasionally was giving threatening also but nowhere it has appeared that ever she was confined, she was not allowed to talk with others or she had no opportunity at the station or in train to disclose her abduction or kidnapping to others rather in paragraph-23 of her cross-examination, it has appeared that ticket was taken by accused-appellant only after remaining in queue and at that time, she was standing at a distance certainly was in position to flee from there, at least to disclose her abduction to others. This much is accepted and observed by the Trial Court also even then has accepted the story of kidnapping assuming that she was minor which only is a mistake. 11. Circumstances discussed above go in favour of accused-appellant. Though she is stating about commitment of the rape but she remained for month with him to his relation also but never opposed or stated to anyone about the relation of accused-appellant with her. 12. 11. Circumstances discussed above go in favour of accused-appellant. Though she is stating about commitment of the rape but she remained for month with him to his relation also but never opposed or stated to anyone about the relation of accused-appellant with her. 12. In paragraph-32 of her cross-examination, her attention is drawn on the point of commitment of rape, if was stated by her in her statement before the Police or Magistrate under Section 161 or 164 Cr. P.C. While this penal legislation was enacted, every care was taken for the circumstances probably appearing. Sexual intercourse itself cannot be defined as rape that needs some ingredients to be fulfilled as same should not be against the will of the victim or without her consent or with consent when consent was obtained by putting her or any person with whom she was interested in fear of death or of hurt, with her consent when the man knows that he was not her husband and that her consent was given because she believed that he was another man to whom she believed herself to be lawfully married or with consent when at the time of giving such consent by reason of unsoundness of mind or intoxication or administration by him personally or through another of any stupefying or unwholesome substance, she was unable to understand the nature and consequences of the act. None of the circumstances was existing in the case. 13. Last one is with or without consent if the victim’s age was below 16 years. In this case she has been accepted as major even not below 18 years. 14. In the case a young girl observed major was being given tuition by a young boy. They remained in contact with each other if attracted for any relation which is natural also, any of them may be blamed for legal action permissible by law only even in constituting the offence under Sections 366A, 366 or 376 of the I.P.C. There can be no hesitation to hold that no offence under any of the sections is made out/established or proved in the case. So, the order of conviction or sentence is not liable to sustain. 15. On the observations made above, evidence on record and circumstances of the case, this appeal is allowed, the Judgment of conviction and Order of sentence passed by the Addl. So, the order of conviction or sentence is not liable to sustain. 15. On the observations made above, evidence on record and circumstances of the case, this appeal is allowed, the Judgment of conviction and Order of sentence passed by the Addl. Sessions Judge, F.T.C.-IV, Begusarai are set aside. Accordingly, accused-appellant is acquitted of the charges leveled against him. He (accused-appellant) is in custody, is ordered to be released forthwith, if not wanted in any other case and set at liberty. 16. Let copy of the first page and last page of this Judgment be handed over to the learned Amicus Curiae. 17. Office is directed to send the records along with a copy of this Judgment to the Trial Court.