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2013 DIGILAW 50 (PAT)

Lalmati Devi @ Lalpati Devi v. State of Bihar

2013-01-10

HEMANT KUMAR SRIVASTAVA

body2013
ORAL JUDGMENT Hemant Kumar Srivastava, J. 1. This Criminal Appeal has been preferred by the appellants against the judgment of conviction dated 17-05-2011 and order of sentence dated 18-05-2001 passed by Sri Mazhar Alam, Additional Sessions Judge- II, West Champaran, Bettiah in Sessions Trial No. 182 of 1990/166 of 2000 arising out of Gaunaha P.S. Case No. 63 of 1988 by which and whereunder, he convicted the appellant Nos. 1, 2 & 3 under Section-380 of the Indian Penal Code and for the aforesaid offence, they were sentenced to undergo rigorous imprisonment for three years and, furthermore, all the appellants were convicted for the offence punishable under Section-366 of the Indian Penal Code and, for the aforesaid offence, they were sentenced to undergo rigorous imprisonment for ten years and, furthermore, appellant No. 7 namely, Kanchan Raut was separately convicted under Sections-376, 368 of the Indian Penal Code and for the aforesaid offences, appellant No. 7 namely, Kanchan Raut was ordered to undergo rigorous imprisonment for ten years for the offence under Section-368 of the Indian Penal Code and to undergo rigorous imprisonment for ten years for the offence under Section-376 of the Indian Penal Code. All the sentences were ordered to run concurrently. 2. The prosecution case, in brief, is that, P.W. 5, Singasan Raut filed complaint case in the court of Chief Judicial Magistrate, Bettiah, West Champaran and the aforesaid complaint case was sent to Gaunaha Police Station for institution of FIR and investigation, and on the basis of aforesaid complaint case, Gaunaha P.S. Case No. 63 of 1988 for the offence under Sections-363 & 366 of the Indian Penal Code, was registered against the appellants and the matter was investigated by the I.O. and, after completion of the investigation, the I.O. submitted charge sheet for the offences under Sections-366, 368, 376 & 380 of the Indian Penal Code against all the appellants. The cognizance of the offences was taken and the case was committed to the Court of Sessions. 3. P.W. 5 stated in his complaint petition that the marriage of his daughter namely, Sharda Devi was solemnized with Amar who happens to be son of Kishun Mahto and at the time of marriage, his daughter was minor and that was the reason, her Gauna was not performed. 3. P.W. 5 stated in his complaint petition that the marriage of his daughter namely, Sharda Devi was solemnized with Amar who happens to be son of Kishun Mahto and at the time of marriage, his daughter was minor and that was the reason, her Gauna was not performed. He further stated that on 11-10-1988, the appellant No. 7, being his neighbour, used to visit his house and having had sweet relation with his family members. He, further stated that appellant No. 7, in collusion with the rest appellants, allured his daughter and took her away. In the morning, when he found his daughter missing, he immediately, rushed to the house of the appellants, but they were also found missing from their houses and after that, he met with Rameshwar Raut and Habibulla Khan, who disclosed that they had seen his daughter at the railway station alongwith the appellants. Having got the aforesaid information, he went to the railway station and found his daughter sitting in the train alongwith the appellants but the train was about to proceed. After that, he came to concerned Police Station and gave his statement before Officer-in-charge of Police Station who assured him to register his case. He, further stated that on 14-10-1988, the appellants returned to their home but his daughter was not with the appellants and, after that, he made inquiry from the appellants, but they did not give any satisfactory answer and thereafter, a Panchayati was convened and in the aforesaid Panchayati, the appellant, Indrasan Raut agreed to return his daughter as well as cash, which was taken away by them and he also executed a bond to the above-said fact but appellants neither returned his daughter nor the cash and after that, he filed the aforesaid Complaint Case in the court of Chief Judicial Magistrate, Bettiah, West Champaran. 4. The appellants were put on trial and the appellant No. 7, Kanchan Raut was separately charged for the offence under Seection-376 of the Indian Penal Code whereas; all the appellants and one, Sudama Das were charged under Sections-366, 368 & 380 of the Indian Penal Code. 5. To substantiate the charges, the prosecution examined altogether seven witnesses and also got exhibited Medical Report of P.W. 7 as Ext-1 well as the statement of P.W. 7 recorded under Section-164 of the Cr.P.C. as Ext.-2. 6. 5. To substantiate the charges, the prosecution examined altogether seven witnesses and also got exhibited Medical Report of P.W. 7 as Ext-1 well as the statement of P.W. 7 recorded under Section-164 of the Cr.P.C. as Ext.-2. 6. The statement of appellants were recorded under Section-313 of the Cr.P.C. in which, they denied the entire prosecution story. No evidence was adduced by the appellants in support of their defence but from perusal of their statements recorded u/S 313 of the Cr.P.C. as well as trends of cross-examination of prosecution witnesses, it appears to me that the defence of the appellants is total denial of the prosecution story. 7. Having relied upon the statements of P.Ws. 5 & 7 as well as documentary evidence, the Trial Judge passed the impugned judgment of conviction and order of sentence in the manner as stated above. 8. Learned counsel Sri Ram Priya Saran Singh appearing as amicus curiae for the appellants, assailed the impugned judgment of conviction and the order of sentence on the ground that the prosecution could not succeed to prove charges levelled against the appellants beyond shadow of all reasonable doubts. Continuing his submission, he submitted that neither P.W. 5 nor P.W. 7 stated this fact that P.W. 7 was kidnapped by the appellants for the purpose of marriage after taking her to enter into illicit intercourse and, therefore, one of the important ingredients of Section-366 of the Indian Penal Code is missing in this case and, therefore, the appellants cannot be convicted under Section-366 of the Indian Penal Code. To fortify his above-said contention, he referred a decision reported in AIR 1998 SC 2694 in which, it has been held by the Apex Court of this country that “if the prosecution fails to prove this fact that the victim has been kidnapped for the purpose of marriage or she may be forced to illicit intercourse, the offence under Section-366 of the Indian Penal Code is not constituted.” 9. Learned counsel appearing for the appellants further submitted that so far as Section-380 of the Indian Penal Code is concerned, the P.W. 7 has herself admitted in her deposition as well as in her statement recorded under Section-164 of the Cr. Learned counsel appearing for the appellants further submitted that so far as Section-380 of the Indian Penal Code is concerned, the P.W. 7 has herself admitted in her deposition as well as in her statement recorded under Section-164 of the Cr. P.C. that when she could not pick up the box, the lady appellants picked up the aforesaid box and assured her that the aforesaid box would be delivered to her later on and, therefore, in the light of the aforesaid statement of P.W. 7, the offence under Section-380 of the Indian Penal Code is not made out and, so, the learned trial court has committed an error in convicting the appellants for the offence punishable under Section-380 of the Indian Penal Code. Learned counsel for the appellants further submitted that the deposition of P.Ws. 5 & 7, suggests that the P.W. 7 had sweet relation with the appellant No. 7 and she had herself eloped with the appellant No. 7 on account of love affairs and, furthermore, it would appear from her statement recorded under Section-164 of the Cr.P.C. that she was found major by the learned Magistrate, who recorded the statement of P.W. 7 and the assessment of age of P.W. 7 by learned Judicial Magistrate is supported by Medical Report of P.W. 7 and, therefore, it is apparent that P.W. 7, being major lady, eloped with the appellant No. 7 by her own sweet will and, even if, there was physical relation with the appellant No. 7 and P.W. 7, then also, the P.W. 7 was a consenting party and, so, offence under Section-376 of the Indian Penal Code is not made out against the appellant No. 7 and, therefore, the learned trial court has committed an error in convicting the appellants for the above-said offences. 10. On the other hand, learned Additional Public Prosecutor, appearing for the State, supported the impugned judgment of conviction and order of sentence submitting that P.W. 7, being the victim lady, has supported the prosecution case and, in course of investigation, she was recovered from the house of co-accused, Sudama and, therefore, the aforesaid circumstance clearly goes to show that P.W. 7 was taken away by the appellants and the learned Trial Judge, has rightly convicted the appellants for the above said offences. 11. 11. As I have already stated that to substantiate the charges, the prosecution has examined, altogether, 7 witnesses, but out of the aforesaid prosecution witnesses, P.Ws. 1, 3 & 4 have been declared hostile. P.W. 2 has been tendered and he has stated nothing in respect of the occurrence. P.W. 6 is a witness on the point of Panchayati and he has admitted that he had not seen the occurrence; rather he stated that he prepared Panchnama at the direction of the Punches. 12. P.W. 5 is the informant and father of P.W. 7. Admittedly, he had not seen the appellants taking away P.W. 7 rather he came to know about the alleged occurrence, when in the next morning, he found P.W. 7 missing from her house and one, Rameshwar as well as Habibulla disclosed before him that they had seen the P.W. 7 and appellants at railway station. Admittedly, the aforesaid Rameshwar and Habibulla have not been examined in this case. P.W. 5 has stated that when he reached at railway station, he found the appellants and P.W. 7 sitting in the compartment of a train. In his cross-examination, he has admitted that at the time of marriage of P.W. 7, her age was between 18-20 years. 13. The most important witness of the present case is P.W. 7, the victim herself. She supported the prosecution story in her examination-in-chief and, she categorically, stated as to how, the alleged occurrence took place. She very clearly stated that she was taken to Amolwa station from where, she was taken to Narkatiyaganj by rail and from Narkatiyaganj, she was taken to Nawalpur and from there, she was brought to Bairagi village,, where, she was kept in the house of co-accused, Sudama for 12-13 days and, from there, she was recovered by the police and, she was brought to court for recording her statement. 14. On perusal of the materials available on the record, it is explicit clear that P.W. 7 was taken away by appellant No. 7 to Narkatiyaganj from Amolwa station and from there, she was taken away by him at several places but during the entire journey, she never raised alarm. Though, she has stated that the appellant No. 7 used to give threatening to her but her statement does not inspire confidence. Though, she has stated that the appellant No. 7 used to give threatening to her but her statement does not inspire confidence. Furthermore, she has admitted in her examination-in-chief itself that she had been confined in the house of one, Sudama for 12-13 days but she never attempted to flee from the aforesaid house and, therefore, the aforesaid circumstance suggests that she was a consenting party. 15. Admittedly, appellant No. 7 has been convicted under Section-376 of the Indian Penal Code and for the aforesaid offence, he was separately charged but it is apparent from perusal of format of the charge that a defective charge has been framed against him. For better appreciation of the aforesaid fact, I would like to reproduce the format of the charge which runs as follows: “That you, on or about the 11th day of October, 1988 at village…….. P.S. Gaunaha, District-West Champaran committed rape on Sharda Devi and, thereby, committed an offence punishable under Section-376 of the Indian Penal Code.” 16. The aforesaid charge clearly shows that the place of occurrence has not been mentioned in it and it is not clear as to where the offence of rape was committed. Apart from this, when the statement of appellant No. 7 was recorded under Section-313 of the Cr.P.C. , the question with respect to the factum of rape, was not asked for, from him, rather it has been simply stated in the statement recorded under Section-313 of the Cr.P.C. that he and other accused kidnapped P.W. 7. So, the aforesaid fact clearly goes to show that the statement recorded under Section-313 of the Cr.P.C. is also defective because the evidencs and circumstances which have emerged in course of trial to constitute the offence under Section-376 of the Indian Penal Code were not put before the appellant No. 7. It is well settled principle of law that if, the statement of an accused is not properly recorded under Section-313 of the Cr.P.C., the entire trial of the aforesaid accused is vitiated. It is well settled principle of law that if, the statement of an accused is not properly recorded under Section-313 of the Cr.P.C., the entire trial of the aforesaid accused is vitiated. In the present case, admittedly, the learned Trial Judge failed to record the statement of appellant No. 7 in accordance with law and he did not put the evidence and circumstances, which came against the appellant No. 7 in course of trial, before him and, therefore, in my view, even if, there is statement of P.W. 7 that she was raped by the appellant No. 7, the appellant No. 7 could not have convicted under Section-376 of the Indian Penal Code. 17. On the basis of aforesaid discussions, I am of the opinion that the prosecution could not succeed to prove its case beyond shadow of all reasonable doubts and, the learned Trial Judge has committed error in convicting the appellants on the basis of above discussed materials. 18. In the result, this Cr. Appeal is allowed and the impugned judgment dated 17-05-2001 and order of sentence dated 18-05-2001 are, hereby, set aside. All the appellants are on bail and, hence, they are discharged from the liabilities of their bail bonds. Appeal allowed.