CRIMINAL APPEAL NO. 279 OF 1993 (SJ) *** Against the judgment dated 28.08.1993 and order dated 30.08.1993 passed in Sessions Trial No. 535 of 1992 by the Additional Sessions Judge-IInd, Patna. *** Surendra Ram . . . . Appellant. Versus The State of Bihar . . . . Respondent. *** For the Appellant : Mr. Sanjay Sinha, Advocate (Amicus Curiae) For the State : None For the Informant : Mr. Kumar Veerendra Narayan, Advcoate, *** P R E S E N T HON’BLE MR. JUSTICE SYED MD. MAHFOOZ ALAM S.M.M.ALAM, J. This Criminal Appeal has been preferred against the judgment dated 28.08.1993 and the order dated 30.08.1993 passed in Sessions Trial No. 535 of 1992 whereby the sole appellant has been convicted for offence under section 366 and 376 of the Indian Penal Code (hereinafter will be called as I.P.C.) and sentenced to undergo Rigorous Imprisonment for 3 (three) years on each count with direction that both the sentences shall run concurrently. 2. The prosecution case in brief is that victim Bindu Kumari aged about 13 years was residing with her parents in a quarter situated within the campus of P.M.C.H.. She was found missing from her house since 21.11.1991. The informant Hemanti Rai, who is the mother of the victim Bindu Kumari made hectic search of her daughter and when she failed to trace her, she informed the police. On the basis of which the police registered Station diary entry (Ext.6). In the mean 2 time the informant came to learn that her daughter had been concealed in the adjacent quarter of the appellant then the informant along with her family members went to the house of the appellant and demanded return of her daughter but neither the appellant nor his parents became ready to release the girl and then again the informant approached police and submitted her written report (Ext.9) in the police station. Thereafter the police arrived at the quarter of the appellant and recovered the victim girl along with the appellant. It is further said that some persons attacked the police party and threw brick bats upon the police personnel. After recovery the victim was referred for medical examination and she was examined by a lady doctor. During course of investigation police recorded the statement of the victim and on the basis of the statement of the victim the police submitted charge sheet under section 363, 366 and 376 of the I.P.C. against the appellant on the basis of which the learned Chief Judicial Magistrate, Patna took cognizance of the offence and transferred the case to the Court of Sri Om Prakash, Judicial Magistrate, 1st Class, Patna for trial. Thereafter on 24.06.1992 the case was committed to the Court of Sessions. On 18.08.1992 charge under section 366 and 376 of the I.P.C. was framed against the appellant, who denied the charge and then he was put on trial. 3. During trial the prosecution examined altogether 09 witnesses in this case namely Shyam 3 Kumar (P.W.1), Yogendra Prasad (P.W.2), Jogendra Prasad (P.W.3), Anil Kumar (P.W.4), Hemanti Rai (P.W.5), Bindu Kumari (P.W.6), S.I. Sriram Singh (P.W.7), S.I. Nawal Kishore Singh (P.W.8) and doctor Narendra Kaur (P.W.9). Out of the said witnesses P.W.1, P.W.2 and P.W.4 are hostile witnesses. P.W.5 is the informant of this case, P.W.6 is victim Bindu Kumari, P.W.7 and P.W.8 are police officers who had recovered the victim from the house of the appellant, P.W.9 is doctor who had examined the victim and P.W.3 is an independent witness on the point of recovery of the victim from the house of the appellant. 4. It appears that the defence has also examined two witnesses namely Ramanuj Prasad Singh (D.W.1) and Sansan (D.W.2). D.W.1 has proved certain entries of School admission register with regard to age of the appellant whereas D.W.2 has deposed that the victim Bindu Kumari was actually recovered from the quarter of informant Hemanti Rai and not from the quarter of the appellant. 5. From the perusal of the judgment of the trial court it appears that for coming to the conclusion that the appellant is guilty of the offence under sections 366 and 376 of the I.P.C. the trial court has mainly believed the statement of P.W.5 (informant) Hemanti Rai, P.W.6 Bindu Kumar, who is victim herself and P.W.7 and P.W.8 both police officers. Besides that the trial court has believed the statement of P.W.3 with regard to the recovery of 4 victim girl from the quarter of the appellant. I am of the view that the learned trial court while coming to the conclusion that the appellant is guilty of the offence of kidnapping and rape has elaborately discussed the evidence of the above said witnesses and has considered every aspect of the case and I have no hesitation to hold that from the materials available on record it has been established beyond doubt that on the alleged date of occurrence Bindu Kumari was taken away by this appellant from her quarter on the false pretext that her mother was ill. The fact that Bindu Kumari was taken away by the appellant is established from the fact that the police had recovered the said Bindu Kumari from the quarter of this appellant and the evidence of P.W.7 and P.W.8 is very much acceptable beyond doubt. So the factum of kidnapping of Bindu Kumari by this appellant is established from the evidence of P.W.3, P.W.5, P.W.6, P.W.7 and P.W.8.Likewise the factum of committing rape by the appellant upon the victim girl is established from the statement of P.W.6 Bindu Kumari who has deposed that the appellant had committed sexual intercourse with her while she was confined in a room at Muzaffarpur. The evidence of P.W.9 doctor Narendra Kaur, although does not support that any mark of violence or spermatozoa were found on her private part but the fact that her hymen was ruptured indicates that she was sexually assaulted. In such view of the matter I am of the view that the case of kidnapping and rape 5 punishable under section 366 and 376 of the I.P.C. is well established. 6. It has been argued by the learned advocate of the appellant (Amicus Curiae) that although it is true that there is sufficient material on record with regard to the commission of the offence against the appellant but truth is that the appellant was also a minor boy at the time of the occurrence and as per the entry of School admission register he was only 15-16 years old. He further submitted that even the assessment of the court with regard to the age of the appellant shows that the appellant was about 16-16½ years old at the time of alleged occurrence. The learned Amicus Curiae submitted that the learned trial court has recorded the statement of the appellant under section 313 of the Cr.P.C. on 06.04.1993 and the court has assessed the age of the appellant as 18 years old. He submitted that this fact establishes that even in the assessment of the court the appellant was just above 16 years when he had committed the alleged offence. He submitted that as per law as existed on the date of occurrence a boy below 16 years was entitled to be tried by Juvenile Court. He submitted that it is a marginal case, as such while awarding sentence this aspect should be considered and the appellant should be released on probation of good conduct. 6. The learned advocate appearing on behalf of the informant opposed this view of the learned Amicus 6 Curiae and submitted that the appellant has committed a serious offence, so no lenient view should be taken. 7. It appears from the record that there was love affairs between the victim and the appellant and the trial court was also of the same view and that is why the judgment of the trial court starts from sentence like this “The frustrated lover finding remote possibility of his union with his beloved took her from the house on the pretext of taking her to the mother”. This sentence of the trial judge shows that he was also of the view that behind this incident there was some love affair. In such situation I am of the view that while awarding the sentence this fact must be kept in mind. 8. In the result, I find no merit in this appeal and as such the same is hereby dismissed and the conviction of the appellant under section 366 and 376 of the I.P.C. is hereby upheld but so far the sentence is concerned, I am of the view that the ends of justice will be met by awarding him sentence to the period to which the appellant had remained in jail as under trial prisoner (the appellant has remained in jail as under trial prisoner from 24.11.1991 to 01.09.1993). Accordingly the sentences passed against the appellant are modified to the extent that the appellant shall undergo imprisonment for the period he had already remained in jail as under trial prisoner in connection with this case. Appellant is on bail, 7 his bail bond is hereby cancelled and he is ordered to surrender before the trial court. (Syed Md. Mahfooz Alam, J.) Patna High Court, Patna Dated the 7th July, 2008. NAFR/Uday/-