Criminal Appeal (SJ) No. 1016 of 2007 --------- Against the judgment and order of conviction and sentence dated 21.9.2007 and 25.9.2007 passed by Shri Vijay Bahadur Mall, Additional Sessions Judge, FTC – III, Vaishali at Hajipur in Sessions Trial no. 567 of 2003. ----------- Awadhesh Rai, son of Rajeshwar Rai, resident of village – Lawapur, Police Station – Mahnar, District – Vaishali ………………. Appellant Versus The State of Bihar ……………. Respondent ----------- For the Appellant : Shri Ansul, Advocate For the State : Shri Ajay Mishra, APP ---------- P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA ---------- Dharnidhar Jha, J. The solitary appellant Awadhesh Rai was tried by the learned Additional Sessions Judge-cum-Presiding Officer, Fast Track Court No. – III, Vaishali at Hajipur in Sessions Trial No. 567 of 2003 after being charged under sections 363, 366A and 376 IPC. By judgment dated 21.9.2007, the appellant was held guilty of committing the three offences and was directed to suffer RI for seven years each under sections 363 and 366A IPC as also to pay a fine of rupees ten thousand on each of the above counts. So far as the conviction of the appellant for the offence under section 376 IPC was concerned, he was punished with RI for ten years and also to pay a fine of rupees ten 2 thousand. There was no separate direction in each of the order of sentence as to what was to happen if the fine ordered to be paid was not paid rather there was a consolidated order that in case the appellant was defaulting in making the payment of fine, he was to undergo RI for two months. The substantive sentence of imprisonment were directed to run concurrently. 2. Babita Kumari (P.W. 8) who was the daughter of the informant Jageshwar Sharma (P.W. 7), is said to have been taken away by the appellant while she had gone to watch a television show and was coming back to her house. It is stated that the appellant lifted her by using a scooter and took her to different places. The occurrence is said to have taken place at 8.00 P.M. on 26.11.1989 for which the fardbeyan was given by P.W. 7 on 6.12.1989, on the basis of which the FIR of the case was drawn up and investigation was taken up. 3. It appears from the evidence of P.W. 11, who investigated the case, that the victim and the present appellant were found in a room of a house at village Harpur Saidabad and from there, they were taken into custody. The victim P.W. 8 was produced before a magistrate for recording her statement under section 164 Cr.P.C. and was also produced before P.W. 9 Dr. Suchita Choudhary for her medical examination, who also sought the opinion of the Radiologist as regards the determination of her age. 4. The doctor (P.W. 9) opined that the victim was aged 14 years on the day she was examined by her on 25.1.1990. 3 5. The defence of the appellant was that the victim was a willing consenting party, who had herself eloped with the appellant and had got herself married to the appellant and after being recovered from the company of the appellant was pressured by her parents as also due to the change of circumstances in her life to make statement as if the appellant had committed the offence for which he was convicted and sentenced. 6. During the course of trial, the prosecution examined 11 witnesses including the prosecutrix, who was examined as P.W. 8. Other witnesses coming forward to support the charges included P.W. 1 Prem Chandra Sharma who was the uncle of the prosecutrix, as per his evidence in paragraph 1, P.W. 2 Parmeshwar Sharma was also the uncle of P.W. 8, the victim of the occurrence. P.W. 3 Sukhdeo Sharma does not appear knowing anything about the occurrence. However, he appears claiming knowledge of the incident from the family members of P.W. 8. P.W. 4 Binda Sahni is an eye witness to the occurrence who stated before the court that while he was returning from Patori, he found the present appellant and the victim going together and at that time the appellant was at the driving seat. P.W. 5 Bechan Devi is the lady at whose house the victim had gone to watch shows on television and subsequently she learnt that the victim had been taken and enticed away by the appellant by use of a scooter. P.W. 6 Uma Shankar Rai is a witness of formal character as also witness to some facts of the case having learnt about the incident from others. P.W. 7 is the informant and father of the victim and he has supported the story. 4 7. P.W. 8 Babita Kumari has supported the story as told by P.W. 7 that while she was coming back to her house after witnessing television show at about 8 or 8.15 P.M. on 26.11.1989, with her brothers, namely, Mukesh Kumar and Rakesh Kumar and when she reached a particular place on the road, she found the present appellant standing there with a scooter. The appellant was accompanied by an unknown person and both of them forcibly caught hold of her and made her to sit on the scooter. She was, thereafter, gagged and the scooter was driven away towards east. P.W. 8 stated that the appellant took her to the house of one of his relatives and kept her confined there for two – three days. P.W. 8 was brought thereafter to Hajipur and from there to Patna but she did not know as to whose house those were at Hajipur and Patna where she was confined. The victim also could not say as to who the landlords of the houses at Hajipur and Patna were. But, after remaining there for some days, she was taken to Punjab and Haryana where she roamed around places for two months and again was brought back to Hajipur from where she was brought to Mohiuddin Nagar and she was recovered from the house of the Bahnoi of the present appellant. The lady stated that she was threatened and frightened during the course she remained in the company of the appellant and she was raped also against her will. The lady further stated that when she was brought to Hajipur, a photograph both of this appellant and the lady was taken. 8. The cross-examination of P.W. 8 was carried out on many dates. I am not concerned with the other part of her cross examination 5 except that which appears in paragraphs 14 and 15 of deposition of P.W. 8. That probably tells the real story or the circumstances indicating that the lady was a willing party. The lady stated that she was kept all alone in the room at all places, but she did not raise her voice against her kidnapping or being illegally confined at different places. Not only that, the lady stated that she was never gagged and she was brought to Hajipur and specially to the Notary Public before whom she was produced to swear an affidavit that she was willfully marrying the appellant. Likewise, while she was residing at Patna she was not again raising any objection or any hue and cry nor was sending any message to anyone pointing out as to how she had been kidnapped and wrongly confined by the appellant. She was being taken to Delhi by the appellant and she admitted that the bogie in which she was travelling was crowded and there was no restraint upon her to make any declaration or statement but she does not appear even whispering about her kidnapping and wrongful confinement by any person and thus stated that she was brought to Delhi where she resided with the appellant for eight – ten days. P.W. 8 stated that while she was residing in Delhi, the appellant left her all alone and went out for quite some times but, she kept herself confined to the four walls of the room and did not inform her parents as to what had happened to her or where she was. 9. P.W. 8 stated further that she was brought to Punjab by train from Delhi and she lived there for fifteen – twenty days and whatever expenses were incurred in leading their lives, the same were 6 being met by the present appellant. Thus, what may appear from the evidence of P.W. 8 in paragraphs 14 and 15 of the cross examination is that in spite of being free to make any statement or having the opportunity when she could have informed others or told others as to what had happened to her, the lady was maintaining a stony silence, even when she was sitting in a bogie of the train and travelling quite some long distances, with the appellant. She was being left all alone in a room but, still she was not complaining about the acts of the appellant. Not only that, she was very much in Hajipur from where she was taken to Notary Public for swearing an affidavit but again she was not making any statement to anyone. She has stated that when she was produced before Notary Public in the Civil Courts, Hajipur, she had not been gagged and she was enjoying her freedom. This statement of P.W. 8 clearly indicates as if the lady was a willing partner of the appellant in going to different places. 10. The learned trial judge has gone on to convict the appellant by reading the age of the victim. The Supreme court had occasion to consider the difference between kidnapping and elopement in the case of S. Vardarajan Vs. State of Madras AIR 1965 Supreme Court 942. It was pointed by the Apex Court in paragraph 9 of the report that there is a distinction between “taking” and allowing a minor to accompany a person. I am tempted to quote the relevant part of paragraph 9 of the report which is as follows: “There is a distinction between “taking” and allowing a minor to accompany a person. The two expressions are 7 not synonymous though it cannot be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S. 361. Where the minor leaves her father’s protection knowing and having capacity to know the full import of what she is doing, voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.” 11. Thus, the voluntary act of elopement by leaving the house of one’s parents could be quite different from the act of “taking” away or being enticing away. In an act of elopement the free will of the victim is always there for accompanying the accused to different places. Here, in the present case, as I have just noted, after considering the evidence of P.W. 8, the victim, it appears a case as if the lady had eloped with the appellant and there was no element of being enticed away or being taken away which fact necessarily means defrauding or cheating so as to misleading the lady or using criminal force against her so as to making her to go with the accused to different places. If the element of enticing away or taking away is absent then the offence of kidnapping could never be constituted and, as such, the conviction of the appellant under sections 363 and 366A IPC could never be sustained. I, as such, find that the conviction of the appellant under the two provisions of the IPC was not sustainable in law and, accordingly 8 I set aside the conviction of the appellant and sentence passed upon him on the above two counts. 12. As regards the conviction under section 376 IPC, the circumstances appear that the victim was a willing and consenting party to the act of sexual intercourse which might have been indulged into by the appellant with her. The conviction of the appellant again under section 376 IPC is solely due to the fact that P.W. 9 Dr. Suchita Choudhary has opined the victim aged 14 years on the basis of the report of Dr. Anil Kumar Sinha, Radiologist, Sadar Hospital, Hajipur dated 25.1.1990 who was rendering his opinion that the lady could be aged about 14 years. Section 375 Sixthly, thus, brings even the consented act of the appellant of having sex with P.W. 8 within the ambit of rape. 13. A huge number of decisions were placed by Shri Ansul, the learned counsel for the appellant, who submitted that the learned trial judge was reading the evidence of the doctor and not applying the principles of criminal jurisprudence, which has been recognized through a line of decisions which is mainly based on the decision of the Supreme Court in Jaya Mala Vs. Home Secretary, Government of J & K reported in AIR 1982 Supreme Court 1297. It has been held in cases, like, Nand Kishore Vs. State of Rajasthan 2002 Cri LJ 4157, Jintu Das Vs. State of Assam 2003 Cri LJ 1411, Md. Laddu Vs. State of Himachal Pradesh 2002 CriLJ 4178, Domnic Misquita & etc. Vs. The State 1996 CriLJ 2799 and, lastly, in Ratan Das Vs. State of West Bengal 2005 Cr.LJ 1876 that the margin of error of two years in the 9 age determined by the doctors is there and if the doctor is giving an opinion as regards the age of the victim then two years are necessary to be added up into the age determined by the doctor. In all the above cases which have been decided by the High Court of Rajasthan, Delhi, Himachal Pradesh, Assam and West Bengal, the accused persons were convicted under section 376, etc. IPC mainly on the ground that the trial courts had considered the age under 16 years on the basis of the record made by doctors in respect of the victim and were not adding up two years to the assessed age of the victim. In all these decisions, the case of Jaya Mala (supra) has been referred and relied upon to give a finding that whenever the age was assessed by a doctor, the courts are required to add up two years to the assessed age and thereafter to consider the age of the victim and decide the case. 14. Undisputedly, P.W. 9 had not assessed the age of the victim and had given her opinion, as may appear from the evidence of P.W. 9, on the opinion given by Dr. Anil Kumar Sinha, who has not been examined. Even assuming for the sake of argument that the report was filed as a relevant document without the examination of Dr. Sinha, who was required to render his opinion after assessing the age of the victim in discharge of his public duty, the trial judge appears falling in error when he was not considering the law settled in Jaya Mala (supra). It was incumbent upon him that he should have added up two years to the assessed age of the victim. 15. I have already indicated as to what are the circumstances one may find appearing from the evidence of P.W. 8, especially from 10 her evidence in paragraphs 14 and 15. She appears a willing person or a person who was going from one place to the other and was not raising any voice to complain against the acts of the appellant while she had ample opportunities at several occasions to do that. She was being left alone at different places when the appellant, as per her own evidence, was going out in the township of Delhi or other townships but again the lady was keeping silent and was keeping herself confine to the room where she had been kept by the appellant. 16. It appears that the lady was conceding some important aspects of her own connivance in eloping with the appellant and mainly because, as may appear from her evidence in paragraph 9, after about seven years of the occurrence she was married to another man and had begotten two children. The compelling circumstances would have been there because of her changed life, because she being the mother of two children, could not have stated many things. There could have been some of the circumstances which could have compelled her due to the pressure of her parents, husband and others to change her earlier statement, but still unintentionally she was admitting many of her circumstances which were indicative of elopement of the victim with the present appellant. 17. As a result of the above circumstances, I am clearly of the opinion that it could be a case of consented sexual intercourse of the lady which offence would not come within the purview of section 375 Sixthly. In the result, the conviction of the appellant under section 376 IPC is also set aside. On account of the discussion which I have just 11 recorded, I find merit in the present appeal and accordingly, the same is allowed. The appellant is in custody. He shall be released forthwith if not wanted in any other case. (Dharnidhar Jha, J.) Patna High Court, The 16th August, 2011, AFR/Anil/