Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.85 of 2000 =========================================================== Tapan Malakar, son of Late Hablu Malakar, resident of village Ganjan, P.S. Barsoi, District Katihar. .... .... Appellant Versus The State of Bihar .... .... Respondent with Criminal Appeal (SJ) No. 129 of 2000 =========================================================== 1. Nakki @ Lakhi Malakar, son of Late Tarni Kant Sarkar alias Malakar 2. Basu Malakar, son of Dhiren Malakar. Both residents of village Ganjar, P.S. Barsoi, District Katihar. .... .... Appellants Versus The State of Bihar .... .... Respondent =========================================================== Appearance : For the Appellant (in both the cases) : Mr. Shabbir Ahmad, Advocate For the State (in both the cases) : Mr. Jharkhandi Upadhyay, A.P.P. =========================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL JUDGMENT Date: 22-06-2012 S.A. Khan, J. This appeal arises out of the judgment of conviction dated 05th January, 2000 and order of sentence dated 06th January, 2000 passed in Sessions Trial No. 07 of 1998 by the 2nd Additional Sessions Judge, Katihar whereby the Trial Court has found the appellant Tapan Malakar guilty for the offences punishable under [STATUTE] and sentenced him to Patna High Court CR. APP (SJ) No.85 of 2000 dt.22-06-2012 2 / 6 2 undergo rigorous imprisonment for five years under [STATUTE] and seven years under [STATUTE] . Both the sentences are to run concurrently. The Trial Court also found the appellants Nakki @ Lakhi Malakar and Basu Malakar guilty for the offences punishable under [STATUTE] and sentenced them to undergo R.I. for 7 years and 5 years respectively vide judgment of conviction dated 15.03.2000 and order of sentence dated 06.03.2000 passed in Sessions Trial No. 84 of 1999 by the 2nd Additional Sessions Judge, Katihar. 2. The case, according to the victim girl, namely, Eti Goswami, is that on 05.07.1996 at about 7 PM, she was abducted by Tapan Malakar, Baso Malakar along with two other persons. They took her to Malda district and thereafter the other named accused persons returned to village Ganja. On the next day, she was forced to put her thumb impression on blank paper in the Chanchal Registry Office. After that, she was taken to Makhdumpur Police Station, Chanchal in the district of Malda (West Bengal) and it is alleged that Nakki and Tapan raped her. Tapan also took her to the temple and put ‘sindoor’ in the temple. Thereafter, they brought her back to her village. After she was brought to the village, a panchayati was held and there was a talk of compromise between the parties, however, it Patna High Court CR. APP (SJ) No.85 of 2000 dt.22-06-2012 3 / 6 3 did not work out and as such, the First Information Report was instituted, which has been marked as Exhibit-1. 3. The matter came up for trial and altogether nine witnesses were examined. PW 1 is the doctor who has declared the victim girl to be aged about 16-17 years and has also stated in his report that she was used to sexual intercourse, although there was no sign of recent intercourse during the examination. PWs 2, 3, 4 and 5 have been declared as hostile, although they have stated that they had heard that such an occurrence has taken place, but had no knowledge about the occurrence. Similarly, PW 5 has stated that he had no knowledge about the occurrence and that his statement was not recorded by the Police and, therefore, these witnesses are of no help to the prosecution. 4. PW 6 is the co-villager who had heard about the occurrence from the father of the victim girl regarding the occurrence. 5. PW 7 is the father of the victim girl who has supported the case of the prosecution, although he accepts that he has compromised the matter out of the Court with the accused Nakki and Basu. He also accepts that his daughter is married and is living happily. In the cross-examination, he has admitted that he has compromised this case as well outside the Court. 6. The most important witness is the victim girl herself. Patna High Court CR. APP (SJ) No.85 of 2000 dt.22-06-2012 4 / 6 4 She was examined as PW 8. She has stated in her examination-in- chief that somebody took her away forcibly but she cannot identify the persons. She claims that she was kept at Makhdumpur, from where she was taken to the Registry Office and she has put her thumb impression on a blank paper. She also claims that she was taken to a temple. In the cross-examination, she has denied the manner of the occurrence and has been declared as a hostile witness. 7. PW 9 is the Investigating Officer of this case, who has recorded the fardbayan of Eti Goswami. The fardbayan is Exhibit-1 whereas the First Information Report is Exhibit-3. He had also got the victim girl examined under Section 164 of the Code of Criminal Procedure. 8. As far as accused Nakki Malakar and Basu are concerned, the evidence as discussed above appears to indicate that the victim girl denies the involvement of the appellants to the extent that she does not name them, thus the prosecution has not been able to establish its case, that these appellants were responsible for abducting and subsequently raping the victim girl, rather a case has been made out that the girl ran away on her own accord. 9. The argument on behalf of the appellant is that all the prosecution witnesses have been declared hostile except the father of the victim girl. It is further submitted that the victim girl herself does Patna High Court CR. APP (SJ) No.85 of 2000 dt.22-06-2012 5 / 6 5 not support the case of rape and, therefore, the sentence under [STATUTE] is unwarranted. It would further appear that the victim girl had made out a case that she was a party to the elopement. 10. Whatever be th

Applicable IPC Section: 366A

Statute Text:
Section 366A of the Indian Penal Code. Procuration of minor girl. Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.