CRIMINAL APPEAL No.684 OF 2004(DB) With CRIMINAL APPEL NO. 715 OF 2004 (DB ********* Against the judgment and order of conviction and sentence dated 27th July, 2004/29th July, 2004 passed by Dr. Syed Akhtar Uddin, Additional District and Sessions Judge F.T.C. II, Sitamarhi. --------- 1. Nandu Mandal, son of late Siya Saran Mandal 2. Yogendra Mandal alias Manu Mandal alias Bhanu Mandal, son of late Chulai Mandal, both residents of village – Mahesh Farakpur, P.S. Runni Saidpur, District - Sitamarhi ……… Appellants in Cr. Appeal 684/2004 Vinay Ram ……… Appellant in Cr. Appeal 715/2004 Versus State of Bihar ………Respondents in both the Appeals. --------- For the Appellants : Sri Vinay Kirti Singh, Advocate For the Respondents : Sri Ashwani Kumar Sinha, APP ----------- P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA & THE HON'BLE SHRI JUSTICE RAKESH KUMAR -------- Dharnidhar Jha & Rakesh Kumar, JJ. The two appeals have been preferred by the appellants to question the propriety and correctness of the judgment and order of conviction and sentence passed against them by the learned Presiding Officer-cum-Additional Sessions Judge, F.T.C. II, Sitamarhi in Sessions Trial No. 87 of 1998 / 55 of 2004 (G.R. No. 263 of 1997). By the aforesaid judgment, rendered by the above noted court on 27th July, 2004, the appellants were found guilty of having committed offence under 2 sections 366A and 376 of the Indian Penal Code and were directed to suffer rigorous imprisonment for life under section 376 of the Indian Penal Code. They were further directed to suffer simple imprisonment for five years as also to pay a fine of rupees five thousand each for their conviction under section 366A of the Indian Penal Code. It was directed that if the appellants defaulted in paying up the fine, they shall have to serve further sentence of simple imprisonment for six months. 2. The prosecution case is contained in the fard-e-beyan of Ram Chandra Sah, P.W. 4, in which he alleged that the wife of his grand son, Goni Sah, named, Ram Kumari had gone out of the house for attending to the call of nature and when she did not come back, he set out on search of her in the village and came to know from one Kishori Sah, P.W. 1 that while he was coming back after attending to the call of nature, he found that appellant Nandu Mandal, his wife Kaushlaya Devi along with Laxmi Mandal (not put on trial) and appellant Rakesh Mandal were accompanying the lady and they all were going towards west of the village. P.W. 4 further alleged that Kaushalya Devi, wife of appellant Nandu Mandal, visited his house very often and used to talk to the victim Raj Kumari, the wife of his grand son, and as such, they all had taken or enticed her away. 3. The fard-e-beyan of P.W. 4 was recorded by P.W. 5 Parmeshwar Prasad Singh, at the house of the witness and sent it to Runnisaidpur police station for registering a case and himself took up the investigation. He inspected the place of occurrence, recorded the statement of witnesses and handed over the charge of investigation on 29.4.1997 to the Officer 3 Incharge of the police station namely, C. D. Sharma, who does not appear examined in the case. 4. However, it is evidently clear that the victim Raj Kumari Devi, P.W. 3, was recovered and she was examined by P.W. 6, Dr. Sudha Jha, who found the victim aged about seventeen years, as may appear from the evidence of the doctor aforesaid. It may further be recorded that witnesses have supported the allegations and the victim had also supported the story of herself being taken away and as such, the appellants were sent up for trial. 5. It is true that some of the appellants were not named in the FIR, like, appellant Yogendra Mahto alias Manu Mandal alias Bhanu Mandal and Vinay Ram. On consideration of the evidence of the witnesses, the court below came to a finding that there was sufficient material to substantiate the charges under section 366A of the Indian Penal Code against all the accused persons and further that they had also committed rape upon the victim during her confinement by the appellants. 6. The defence of the appellants, as may appear from the suggestion given to the victim, P.W. 3 Raj Kumari Devi in paragraph 30 of her evidence, was that she had made false accusation against the appellants and the fact of the matter was that she herself went out of the house with the appellant and married appellant Vinay Ram out of her own sweet will. It was further suggested to P.W. 3 that because for some reasons appellants Nandu Mandal, Yogendra Mandal alias Manu Mandal alias Bhanu Mandal and Rakesh Mandal had socially boycotted the family 4 members of the prosecutrix, so they had been falsely implicated out of that grudge. 7. During the course of hearing of the present appeal, it was contended that the lady who was aged 17 years, had reached the age of discretion and was already married to a person. The circumstances appearing from the evidence may indicate that she was a willing partner who had gone out of her matrimonial house at her sweet will to elope with one of the appellants and probably under social and family pressure, she changed her mind and made accusation of being forcibly taken away or enticed away and thereafter being ravished and ultimately was sold to appellant Vinay Ram. It was contended that the evidence of P.W. 4, Ram Chandra Sah, may also indicate that it was a simple case of elopement as he appears stating to the court in his evidence in paragraph 7 that he went to the house of the parents of the prosecutrix to convey about the elopement of the victim. It was contended that the evidence of the witness in the same paragraph further indicates, as is indicated by the evidence of prosecutrix also, that it could never be a case of forcibly taking away or enticing away the lady inasmuch as the lady had left her matrimonial house after having dressed up fully by putting on all her ornaments. It was contended that the places where she claims being confined by the appellants, were the surrounding villages of the village of the prosecutrix and she was being moved from one village to the other but was not raising any cry or alarm or complaining to any person with whom she was making contacts during that course as to what had happened to her or what acts had been committed by the appellants. It was contended, as such, that the learned 5 Judge ought not to have, under the facts of the case, convicted the appellants. 8. Learned Additional Public Prosecutor Sri Ashwani Kumar Sinha has been fair in conceding that the circumstances appearing in the case clearly make out a case of the prosecutrix eloping voluntarily from her house and the material does not support the conviction of the appellants. 9. We have considered the evidence of the witnesses, specially of PWs 3 and 4, namely, Raj Kumari Devi and Ram Chandra Sah. The prosecutrix has stated that she was taken away by the accused persons when she had gone out of her house for attending to the call of nature and was confined at different places in the houses of different persons, when ultimately she was sold for Rs.4000/ to appellant Vinay Ram. She has stated that she was subjugated at gun point to be raped. It is admitted by the prosecutrix that while going to attend the call of nature, she had dressed up quite well, so much so, that she had put on all her ornaments as per description in her evidence. She has stated in paragraph 9 of her evidence that whenever she went out to attend the call of nature, she did not go with any additional clothes except she had already put on her person, but what we find is that when she went to attend the call of nature on the day of occurrence, she had put on all her ornaments what were in her possession though she has admitted that she never put on her ornaments on other days when she went out to attend to the call of nature. When we read the evidence of P.W. 4, the informant Ram Chandra Sah, who happens to be the grand father of the husband of the prosecutrix, and from whose lawful guardianship the lady is said to be taken or enticed away, what he has stated is that he 6 found that the prosecutrix had eloped and, as such, he went to the house of the father of the prosecutrix to inform them that she had fled away and further while running away from the house, she had taken all the seven ornaments of hers. The very evidence defies the reason and logic that a lady would be going to attend the call of nature with additional clothes and all her ornaments which, she never put on on similar occasions on other days. The very statement of P.W.4 that she had fled away, clearly indicates that she voluntarily left the house of her husband. 10. The difference between „taking away‟ and voluntarily going out with an accused was considered by the Supreme Court of India in the case of S. Varadarajan V. State of Madras reported in AIR 1965 Supreme Court 942. The discussion is available in paragraph 9 of the report and we are tempted to reproduce that particular part of the judgment of the Apex Court which reads as under: “It must, however, be borne in mind that there is a distinction between “taking” and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S. 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father‟s protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can 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. The same judgment may indicate that if there is voluntariliness in the evidence of the prosecutrix about going out of her house herself, then it cannot be a case of taking away or enticing away and it could be simply 7 a case of elopement or voluntarily going out of one‟s guardianship. We have referred to some of the important evidences available on record of some of the important witnesses like the informant of the case under whose guardianship the prosecutrix was residing and we have very clearly pointed out as to how the evidence indicates that the lady had run away from her house. 12. The other circumstances which we cull out of the evidence are that the lady while being moved out allegedly by the appellants, was still being kept in the vicinity of the village of her matrimonial place. It has come in the evidence of P.Ws 3 and 4 also that she was being kept at some unknown place in the house of some unknown persons. It was not that she was being kept confined at a lonely and abandoned place, inaccessible to human soul, rather, she was being hosted by some of the families who were relatives of the appellants. Unless the lady had willingly accompanied the appellants to those places, it would not have been possible for any of the appellants to confine her or keep her at such places of their own relatives, so much so that one such place was the parental house of one of the appellants‟ wife. She could have very well told to the family members of those house or the persons of the neighbourhood of the family as to what had been done to her by the appellants. She did not protest. She went with the appellants to another place and she again lived there and did not protest. These facts raise an ordinary presumption that the lady was a willing partner of the appellant while being moved from one place to the other and, as such, the element of taking away or enticing away the lady from her guardianship appears not established. 8 13. In view of the above findings which emerge from the ordinary consideration of the evidence, we find that the most important ingredient of the section 366A of the Indian Penal Code is not established and, as such, the conviction of the appellants under that particular provision of the Penal Code, appears to us, out right erroneous. 14. As regards the conviction of the appellants under section 376 of the Indian Penal Code, it is true that the lady had leveled allegations of being raped by the appellants and has stated that she was raped at gun point. We are simply not persuaded by the evidence of the lady that it could have happened without her consent, the reasons we have already assigned that the incidents of rape on all occasions were committed by one appellant or the other in the house of some persons unknown to her but known to any of the appellants. What appears to us is that firstly, it would have been impossible without the consent of the prosecutrix to commit such an act at an unknown place, amidst unknown surroundings. Secondly, if the appellants were putting pressure or threatening the lady by showing guns, there was no hindrance in the lady to cry out to the whole world to tell them as to what had been done to her. The very conduct of the lady in keeping mum and moving further from one particular place to the other convinces us that she was a complete consenting party. The cross- examination of the lady is extensive and that evidence leads to no other inference than what we have presently drawn. In view of the above inference and on discussion of evidence, we are convinced that conviction of the appellants under section 376 of the Indian Penal Code also cannot be sustained. 9 14. In the result, the conviction of the appellants and sentence passed against each of them is hereby set aside. They are acquitted. The two appeals are allowed. All the appellants are on bail except appellant Yogendra Mandal alias Manu Mandal alias Bhanu Mandal who was also on bail but his bail bond was cancelled by this court by order dated 9.5.2007. He shall be released forthwith if not wanted in any other case. Other appellants who are on bail, stand discharged of the responsibility of their respective bail bonds. (Dharnidhar Jha, J.) (Rakesh Kumar, J.) Patna High Court, The 12th January, 2010 NAFR/Anil/