Case Facts:
Patna High Court CR. APP (SJ) No.265 of 2009 dt.25-01-2012 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.265 of 2009 (Against the Judgment of conviction dated 18.03.2009 and Order of sentence dated 23.03.2009 passed by the Ist Addl. Sessions Judge, Sitamarhi in connection with S. Tr. No. 14 of 2004) =========================================================== 1. Poshan Sahni S/o late Aghanu Sahni 2. Sukan Sahni S/o late Aghanu Sahni 3. Dhana Paswan S/o late Tetar Paswan 4. Jitendra Paswan S/o Dhana Paswan All R/o Manik Chowk, Tola Chainpura, P.S. Runni Saidpur, District – Sitamarhi. .... .... Appellant/s Versus The State of Bihar .... .... Respondent/s =========================================================== Appearance : For the Appellants : Mr. Jagdish Prasad Mr. Virendra Kumar For the Respondent : Dr. Indiwar Kumar, A.P.P. =========================================================== PRESENT HON’BLE MR. JUSTICE MANDHATA SINGH J U D G M E N T Mandhata Singh, J. 1. F.I.R. initiated on written application of one Md. Arif, in brief, is that house of Poshan Sahni, Sukan Sahni, Bihari Sahni and others are situated in side of informant’s house. Jitendra Paswan, Dhana Paswan, Md. Junaid and others were in habit to come there for toddy, liquor and ganja. On 23.09.2003 with common intention or in a conspiracy at about 8.00 pm. took away his 12 years minor sister after alluring her. Her sister was bearing ornaments of more than Rs. 3000/-. She was searched Patna High Court CR. APP (SJ) No.265 of 2009 dt.25-01-2012 2 hither and thither and in that continuation, he was informed that accused no.4 to 6 had kept her secretly. They are committing rape upon her or intending to involve to have illicit relation with some persons. Accused persons were also away from their house and did not return till filing of the case. Earlier also informant’s mother had watched accused persons talking with his sister. 2. After concluding the trial, appellants no. 1, 2 and 3 are convicted for the offence under [STATUTE] . along with [STATUTE] ., while appellant no.4 Jitendra Paswan is convicted for the offence under [STATUTE] . 3. In all 9 witnesses are examined in the case. They are P.W.1 Rajendra Rai, P.W.2 Md. Najim, P.W.3 Ishmail, P.W.4 Md. Muslim, P.W.5 Chandtara Khatoon, P.W.6 Sahnaj Khatun, P.W.7 Sami Khatun, victim of the case, P.W.8 Md. Arif, informant of the case and P.W.9 Satish Kumar, I.O. of the case. 4. Finding corroboration of the incident by the witnesses including victim, sentence is pressed only for sympathy to minimize to any extent with submission that no offence under [STATUTE] . is made out against appellants no.1, 2 and 3. On this point, submission of learned counsel for the appellants is Patna High Court CR. APP (SJ) No.265 of 2009 dt.25-01-2012 3 that victim was kidnapped by all the accused persons and rape was committed upon her by Jitendra Paswan along with Maithu Sahni, Bihari Sahni and Md. Junaid but Maithu Sahni, Bihari Sahni and Md. Junaid are not appellants in this case. [STATUTE] . is conspiracy to commit any crime including falling under [STATUTE] . [STATUTE] . is kidnapping of a minor girl with intention that such girl may be forced or seduced to illicit intercourse with another persons. 5. So, in my view, also if once liability is fixed for kidnapping of a minor girl for the above purpose may not be added with conspiracy of the act of similar nature. In the instant case, three of the appellants are convicted for the offence under [STATUTE] . which is not liable to be sustained. 6. For the offence under [STATUTE] ., there is provision for minimum punishment of 7 years and in the instant case, appellant no.4 is convicted for the offence under [STATUTE] . and rest under [STATUTE] . In absence of adequate and special reasoning as in instant case 7 years may not be minimized. Now, appellants no. 1, 2 and 3 are exonerated from the liability of [STATUTE] . So there is scope to minimize their sentence to any extent even to the period undergone. Patna High Court CR. APP (SJ) No.265 of 2009 dt.25-01-2012 4 7. For sympathy and leniency on the point of sentence, submission of learned counsel for the appellants is that no harm was caused to the victim even was taken to different places in day time nor any alarm was made on her behalf. In her statement under Section 164 of Cr. P.C., she (victim) did not level any allegation against any of the appellants though that is not proved nor attention has been drawn on the relevant portion. Doctor also is not examined in the case as she was examined by no Doctor. To me it appears that weakness of the defence lawyer has worked more in conviction of the appellants for the offence under [STATUTE] . Anyhow, that is taken for liberal view only which easily can be taken. 8. With the observations made above, evidence on record and circumstance of the case, this Criminal Appeal is partly allowed on the point of conviction that of the appellants no.1, 2 and 3 for the offence under [STATUTE] . is set aside and rest of the conviction for all the accused-appellants passed by the 1st Addl. Sessions Judge, Sitamarhi in S. Tr. No. 14 of 2004 is hereby affirmed. Minimum punishment for rape upon a girl above 12 years is 7 years. So, the sentence is minimized to 7 years for appellant no.4 and to others namely appellant nos. 1 to 3 to the period undergone. 9. It is made clear that Poshan Sahni Patna High Court CR. APP (SJ) No.265 of 2009 dt.25-01-2012 5 remained in custody from 29.09.2003 to 07.05.2004, Sukan Sahni from 30.09.2003 to 07.05.2004, Dhana Paswan from 03.10.2003 to 11.03.2004 and Jitendra

Applicable IPC Section: 366

Statute Text:
Section 366 of the Indian Penal Code. Kidnapping or abducting a woman to compel her marriage or to cause her defilement etc. Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid.