Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) NO.162 OF 2000 =========================================================== AGAINST THE JUDGMENT OF CONVICTION DATED 08TH MAY, 2000 AND ORDER OF SENTENCE DATED 11TH MAY, 2000 PASSED IN SESSIONS TRIAL NO.571 OF 1996 BY SHRI SURENDRA PRASAD SHARMA, 5TH ADDITIONAL SESSIONS JUDGE, EAST CHAMPARAN, MOTIHARI =========================================================== 1. SOBARATI ANSARI SON OF GHURAN ANSARI 2. ABDUL ANSARI SON OF SOBARATI MIAN 3. AMANULLAH ANSARI SON OF SHEFAYAT ANSARI ALL RESIDENTS OF VILLAGE-GHUNGHIA, P.S.GHORASAHAN (JETNA), DISTRICT-EAST CHAMPARAN .... .... APPELLANT/S VERSUS THE STATE OF BIHAR .... .... RESPONDENT/S WITH CRIMINAL APPEAL (SJ) NO. 164 OF 2000 =========================================================== NATHUNI THAKUR SON OF MAHABIR THAKUR VILLAGE-GHOGHIA, POLICE STATION JITUA (GHORASAHAN) DISTRICT-EAST CHAMPARAN (MOTIHARI) .... .... APPELLANT/S VERSUS THE STATE OF BIHAR .... .... RESPONDENT/S =========================================================== APPEARANCE : (IN CR. APP (SJ) NO. 162 OF 2000) FOR THE APPELLANT/S : MR. ASOKA JANG BAHADUR, ADVOCATES MR.MD. ANIS AKHTAR,ADV. MR. MAHTAB ALAM, ADV. MR.ASIF KALIM,ADV. MR.MD. RASHID ALAM,ADV. FOR THE STATE : MRS. ABHA SINGH, A.P.P. FOR THE INFORMANT : MR. NIRMAL KR. SINGH-3,ADV. MR. ARUN KUMAR, ADV. (IN CR. APP (SJ) NO. 164 OF 2000) FOR THE APPELLANT/S : MR. MAHESH CHANDRA MR. PARMANAND PD.NR.SAHI =========================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL JUDGMENT Date: 24-09-2012 Sheema Ali Khan, J. Nobody appeared on behalf of the appellant Nathuni Thakur in Criminal Appeal (SJ) No. 164 of 2000. Patna High Court CR. APP (SJ) No.162 of 2000 dt.24-09-2012 2 Accordingly, Mr. Rashid Alam, Advocate is appointed as Amicus Curiae to assist this Court on behalf of the appellant Nathuni Thakur in Criminal Appeal (SJ) No. 164 of 2000. 2. These two Appeals arise out of a common judgment by which all the four appellants have been found guilty for the offences under [STATUTE] and have been directed to undergo R.I. for five years. They have also been found guilty under [STATUTE] and have been sentenced to undergo R.I. for eight years by the 5th Additional Sessions Judge, East Champaran at Motihari in Sessions Trial No. 571 of 1996. 3. The appellant, Sobarati Ansari is the father of Abdul Ansari, who has supposedly run away with Ruby Roshan @ Lahasaniya whereas Amanullah Ansari and Nathuni Thakur are friends and co-villagers of Abdul Ansari. The appellant Abdul Ansari has remained in custody for about three years and nine months in this case. The informant of the case is P.W.8 Sheikh Zaheer, who is the uncle (Chacha) of the victim girl. He alleges in his fardbeyan that the victim girl had gone to attend the call of nature on 01.06.1996 at about 5. 00 A.M. in the morning at Banthanka which is about a half kilometer from her house. It is said that he learnt from P.W.1 Md. Khurshid Alam, Sheikh IZahar P.W.2 and Sheikh Abdul Lais P.W.3 that the appellants of Criminal appeal No. 162 of 2000 were seen at the place of occurrence. They had surrounded the victim girl. When the victim Patna High Court CR. APP (SJ) No.162 of 2000 dt.24-09-2012 3 girl did not return home, the informant took steps to recover her, he went to the house of Sobarati Ansari (appellant) who promised that the victim girl will be returned within a few days. However, when the informant went to visit him for the second time, Sobarati Ansari (appellant) said that it was not possible for him to return the girl and, as such, he lodged the case on 30.06.1996. 4. Two questions arise before this Court: (1.) Firstly whether the girl was kidnapped without her consent? (2.) Secondly; whether she was a minor? 5. This Court will first deal with the age of the girl in question. The informant and the father i.e. P.W.11 have tried to make out a case in Court that the girl was 13 years of age. In order to substantiate the case, they have examined the Headmaster of the Government School where the victim girl had studied till Class-V. A certificate has been produced by the Headmaster P.W.12 which would indicate that the girl was a minor. According to the Headmaster he has not granted any School Leaving Certificate after 1997. The evidence indicates that so-called certificate produced by the Headmaster has been obtained for the purpose of this case. In any event, the Court will rely on the medical evidence, Exhbit-2. In this context, I must refer to the statement of the Doctor P.W.9. According to P.W.9, it is said that the girl is between 16 to 17years. He has specifically stated as follows: “Vide X-ray’s plate no. 42; pelvis crest of Ilium- Patna High Court CR. APP (SJ) No.162 of 2000 dt.24-09-2012 4 not fused.” Therefore, the opinion aforesaid if compared the statement with Exhibit-2 which are quoted below: “(a) For Age determination X-ray of wrist, elbow and tibia - expert advised- (1) Lower end of radius and ulna just fused. (2) X-ray elbow AP-EP (torn) or all the bones are fused. X-ray pelvis-crest or illion found (torn). According to Radiologist Sadar Hospital her probable age is between 16 to 17 years vide Plate No. 42. 6. The statement of the Doctor is contrary to Exhibit-2. Exhibit-2 states that the bones are “just fused”. 7. Thus, this Court concludes that the medical evidence would suggest that the girl was anywhere between 17 to 18 years of age. The oral evidence of the father P.W.11 indicates that she was married five months after her recovery and that she was major at the time of her marriage (paragraph 15 of evidence). Thus, this Court concludes that the girl who have been any way between the age of 17 to 18 years. This Court may also point out that the evidence of the Doctor in Court and Exhibit-2 vary with each other. In Court, the Doctor claims that there is no fusion of the bones whereas Exhibi

Applicable IPC Section: 365

Statute Text:
Section 365 of the Indian Penal Code. Kidnapping or abducting with intent secretly and wrongfully to confine a person. Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.