IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.328 of 1998 Against the judgment of conviction dated 07.09.1998 and order of sentence dated 08.09.1998 passed by Shri Amitabh Kumar, learned Additional Sessions Judge – Vth, Gaya in Sessions Trial No. 228/97/435/91. Banwari Paswan, son of Late Jagdeo Paswan, resident of village Jolahbigha, P.S. Tekari, District, Gaya. ….Appellant. Versus State of Bihar …Respondent. For the appellant: Mr. Dinu Kumar, Advocate. Mr. Shiv Kr. Prabhakar, Advocate. For the State: Mr. Sujeet Kumar Singh, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted for the offence under Section 363 I.P.C. and sentenced to undergo rigorous imprisonment for seven years and further convicted for the offence under Section 366 I.P.C. and sentenced to undergo rigorous imprisonment for 10 years. 3. The informant is P.W. 1, the mother of the victim (P.W.3). She was sleeping with the victim in hut at about 4 A.M. in the night of 9/10 August 1990. The appellant along with accused Amar Paswan entered into the room and kidnapped her daughter. She got up & awoke her husband. Her husband chased them but they succeeded in kidnapping her daughter. It is further alleged that her daughter has earlier been fled away on enticing by Amar but returned after some time. 2 4. On the fardbeyan F.I.R. was lodged and charged was submitted u/ss 366A & 376 I.P.C. Cognizance taken and charge was framed u/ss 376 & 366A I.P.C. During trial P.W.1 the informant who is mother of victim, & father (P.W.2) of victim were examined. However P.W.1 & 2 stated that occurrence took place in the house at village Dumarsan whereas P.W. 3 has stated that occurrence took place from house at Murgiyabigha. Trial Court taking into consideration of the evidence found that P.W. 1, 2 &3 are consistent on kidnapping & the contradiction regarding the name of the village he found that Murgiyabigha is in the village Dumarsan and that the victim has not specifically mentioned about rape and there is no report of doctor and hence convicted the appellant for offence u/s 363 & u/s 366A I.P.C. 5. The learned counsel for the appellant has challenged the order of conviction that the place of occurrence has not been established. P.Ws.-1 and 2 have stated that the occurrence took place in the house at Village Dumarsan whereas P.W. 3 has stated that she was kidnapped from house at Murgiyabigha and further that the victim is of suspicious character and even she has stated that she did not know the enmity with the person and the evidence of P.Ws. 1 & 2 is in contradiction with the evidence of P.W.-3. 6. It has further been contended that the occurrence is of the year 1990 and the appellant remained in jail from 12th June 1990 to 7th June 1991, during the pendency of the investigation and trial and further remained in jail for about 2 and ½ months from the date of conviction till release on bail by this Court and hence a lenient view may be taken. 7. However the point raised before this Court was also raised before trial Court. The 3 witnesses have supported the prosecution case of kidnapping. The criticism is that there is contradiction in place of occurrence from where the victim was kidnapped. However P.W. 1, the informant stated that she lives at Dumarsan after her marriage. P.W.-2 has stated that he does not live at old house because he has constructed new house where occurrence took place from Murgiyabigha which is western side of the Dumarsan. 8. However, taking into consideration the contradiction pointed out, it does not go to the root of prosecution in criminal case. The evidence is required to be looked into broad probabilities & prosecution case cannot be disbelieved on minor contradiction in evidence. However the discrepancy is in desertion of home which are in close vicinity. The place Murgiyabigha is the western side of Dumarsan and hence the contradiction has no significance. P.Ws. 1 & 2 have supported the prosecution case and P.W.3 the victim has also supported the prosecution case about her kidnapping. The criticism that victim was 18 years old at the time of occurrence and was consenting party to the occurrence, neither appears to be probable nor acceptable under the fact and circumstance of the case. There is nothing in evidence that the victim had the opportunity during her period of kidnapping to flee away and was free to move at her own will or had opportunity to report the matter. Hence I do not find any reason to disbelieve the prosecution story. 9. However, having regard to the facts and circumstances, since the occurrence appears on 1990 and the appellant remained in jail for a period from 12.02.1990 to 07.09.1991 and further remained in jail 2 and ½ months after conviction and hence the end of justice shall 4 meet by sentencing the appellant for the period already undergone and hence with the modification in sentence the appeal is hereby dismissed. (Gopal Prasad, J.) Patna High Court. Dated the 6th September, 2011. N.A.F.R./Kamlesh