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2013 DIGILAW 1358 (PAT)

Nanki Bhagat @ Bhulo Bhagat v. State of Bihar

2013-12-02

ANJANA PRAKASH

body2013
JUDGMENT Anjana Prakash, J. 1. The appellants have been convicted under Section 366-A of the Indian Penal Code and sentenced to rigorous imprisonment for ten years by a Judgment and order of conviction dated 2/3.7.1999 passed by the 6th Additional Sessions Judge, Purnia, in Sessions Trial No. 229 of 1998/74 of 1998. 2. The case of the informant Yogendra Sharma, PW 8 is that on 12.11.1997 when his daughter went out of the house did not return till 7.00 p.m. he and his family started searching for her. In course of search, he was informed by Arun Sharma and Puran Sah that his daughter had been seen going on a rickshaw along with these three appellants towards Purnia. He then went to their house and found all of them missing from their houses and, hence, the present case was instituted. 3. It appears that the girl was recovered soon thereafter from Khagaria Railway Station and sent for medical examination under Section 164, Cr PC which was incriminating in nature. 4. During trial, the Prosecution examined eleven witnesses, out of whom PW 8 is the informant and father of the victim girl. He stated that his 13 years old daughter went missing upon which he searched her in course of which he was informed by Arun Sharma, PW 6 and Puran Sah, PW 7 that she had been seen going on a Tempo from Purnia City to Railway Station. He, thereafter, did not find the appellants in their house and hence, instituted the present case. 5. PW 6 Arun Sharma stated that on the date of occurrence at about 5.00 p.m. he saw the victim and the appellant going towards Bus Stand. When he came to his house, he learnt that the accused persons had run away with the victim. PW 7 Puran Sah also stated the same version as PW 6 Arun Sharma. 6. PW 1 Srimati Sita Devi has stated that on the date of occurrence, the informant had come looking for his daughter but she was not available in her house and then she learnt that the appellants had taken the victim to Khagaria from where she was arrested along With three accused persons. She stated the age of the victim about 12-14 years. 7. She stated the age of the victim about 12-14 years. 7. PW 2 Smt. Barti Sharma as the grandmother of the victim supported the factum of the victim went missing from her' house and also on the point of recovery. PW 3 Rajendra Sharma stated that he was informed by PW 6 that PW 7 Puran Sah had seen going towards the Railway Station on the date of occurrence. PW 5 has also supported the same version. PW 4 Dr. Smt. Krishna medically examined the girl on 17.11.1997 and opined that she was aged about 14-15 years. 8. PW 9 is the victim herself who stated that she had been kidnapped by the appellants on the point of gun and locked up in a room of their Aunt and forced to wear a saree so that she would not be recognized. She supported the fact that she had been apprehended from Khagaria Railway Station from where she was rushed to the Police Station and thereafter to the Magistrate where her statement was recorded under Section 164. Cr PC. She was cross-examined on the point that as to under what circumstances she had been kept without any protest for next three days but she could not give a reasonable explanation and merely stated that it was on account of threat that she had not raised protest. 9. PW 11 is the Judicial Magistrate who examined the victim under Section 164, Cr PC. 10. The learned counsel for the appellants submits when the victim has been opined to be 14-15 years, benefit of at least, two years should be given to the appellants. More so because the Prosecution case appears to be highly unbelievable, for the reason that the. victim did not raise any alarm for next three days and she was recovered from an open and busy place like a Railway Station, where there was plenty of opportunity to raise a protest. Evidently it is a case of consent and not one under Section 366-A, IPC but merely one under Section 304, IPC. 11. I am inclined to accept such submission of the appellants in the facts of the case and hence, convert the conviction of the appellants under Section 366-A, IPC and one under Section 341, IPC and reduce the sentence to one already undergone by them during trial i.e. about two years. 12. 11. I am inclined to accept such submission of the appellants in the facts of the case and hence, convert the conviction of the appellants under Section 366-A, IPC and one under Section 341, IPC and reduce the sentence to one already undergone by them during trial i.e. about two years. 12. Hence, the Appeal is dismissed with modification in conviction and sentence dated 2/3.7.1999 passed by the 6th Additional District and Sessions Judge, Purnia, in Sessions Trial No. 229 of 1998/74 of 1998. Appeal dismissed.