Criminal Appeal (SJ) No.279 OF 2005 -------- Against the judgment and order of conviction and sentenced dated 26.2.2005 and 1.3.2005 passed by the Additional Sessions Judge F.T.C. 2, Munger in S.T. No. 60 of 1988. --------- Shankar Modi, son of Late Biro Modi, resident of village – Banbarsa, P.S. – Kharagpur, District – Munger ………….. Appellant Versus The State of Bihar ………… Respondent ------ For the Appellant : Shri Bhola Kumar, Advocate For the Respondent : Shri Ajay Mishra, APP ------- P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA --------- Dharnidhar Jha, J. The solitary appellant Shankar Modi was tried by the learned Additional Sessions Judge-cum-Presiding Officer, Fast Track Court No. 2, Munger after being charged under sections 366 and 376 IPC in S.T. No. 60 of 1988 and by judgment dated 26.2.2005, was found guilty of having committed the above noted offences. After being heard under section 235 Cr.P.C. on 1.3.2005, the appellant was directed to suffer rigorous imprisonment for seven years for his conviction under section 376 IPC as also to pay a fine of rupees one thousand, in default of which, he was directed to suffer imprisonment of three months. As regards his conviction under section 366 IPC, the appellant was inflicted the sentence of rigorous imprisonment for six years, the sentences, however, were directed to 2 run concurrently. The appellant has challenged the above judgment and order of conviction and sentence. 2. P.W. 3 Govind Turi, who is the father of P.W. 6 Pato Kumari, the victim, lodged FIR at the police station alleging that his daughter was not found by him in his house at 7 P.M. when he had come back from Kharagpur, he made hectic search of the girl, but he could not trace her out and, lastly, learnt that the lady had been enticed and taken away by the present appellant. The informant stated that he contacted this appellant and inquired about his daughter, to which he gave no reply. It was stated further that the informant saw his daughter in the very house of the appellant, who did not allow her to go with her father. Villagers were also requested to get P.W. 6 rescued but nothing came out of their attempt and the appellant was furious and was bent upon assaulting them also. 3. On the above facts, after drawing up the FIR, P.W. 9 S.I. Rajib Ranjan Dayal came to the village on 9.9.1987 and searched the house of the appellant from where he recovered P.W. 6 Pato Kumari. P.W. 9 sent her for medical examination and also got her statement recorded under section 164 of the Cr.P.C. and after finding materials sufficient, sent the appellant up for trial. 4. The defence of the appellant was that he had neither enticed nor taken away Pato Kumari and he had falsely been implicated somewhere in the village, as may appear from paragraph 10 of the evidence of P.W. 9, the I.O. of the case. 3 5. During the course of the trial, nine witnesses were examined in support of the charges. P.W. 1 Dr. Asha Prasad had examined Pato Kumari on 10.9.1987 at 12.30 A.M. and had opined that the lady was about 17-19 years and that her vagina was wide enough to admit two fingers easily and the hymen of the victim was bearing old ruptures, which was completely healed up, indicating that the lady was habituated to sexual intercourse. Witnesses, like, P.W. 2 Sukhdeo Turi, P.W. 4 Dhaneshwar Turi, P.W. 5 Arjun Turi were giving evidence in the court below that the police had come to the house of the appellant Shankar Modi and after having searched it, had recovered Pato Kumari. 6. P.W. 3, the informant of the case, lent support to his case by stating that he had gone to some village market for selling vegetables and when he came back at about 7 A.M., he found his daughter Pato Kumari aged 14 years not available in the house. He made a search for her and learnt that it was this appellant who had taken away the victim from the house and on being contacted, the appellant said that there was no girl inside his house. Subsequently, he went to the police station and lodged a report on Wednesday. The occurrence appears taking place on 7.9.1987 and thereafter the police came and recovered his daughter (P.W. 6) from the house of this appellant. During the course of cross-examination, especially, on 17.2.1990, P.W. 3 stated that he had gone to the house of the present appellant Shankar Modi and while he was going there, he had a 4 glimpse of his daughter standing in the Angan of the house of the appellant. P.W. 3 stated in paragraph 3 that the door, which was put up at the entry of the Angan at the house of the appellant, was made up of Tatti and it was partly open and through the opening he saw the girl standing in the Angan. He has further stated in paragraph 12 that he gave his statement before the police that he saw his daughter standing inside the Angan of the appellant. 7. In addition to the above evidence, what appears further emerging from the evidence of P.W. 9, I.O. of the case, is that when the recovery was made, the appellant and the lady both were found inside one room. This appears from paragraph 7 of the evidence of P.W. 9. Thus, the probability arising out of the above evidence of P.W. 3 and P.W. 9 is that there was no restriction imposed upon Pato Kumari, while she was inside the house of the present appellant. Besides, the occurrence appears taking place at 7 P.M. on 7.9.1987. It is true that the informant had given some explanation as to why he could lodge the case on 9.9.1987 but, unless the lady had been a willing party, it must not have been a case of delayed report and that appears probabilized by the fact I have just noted from the evidence of P.Ws 3 and 9 that the lady was free and was standing amidst the Angan of the house of the appellant. 8. Thus, in the light of the above evidence, the proof of the charge under section 366 IPC and the conviction of the appellant on that count could not be sustained. The offence under section 366 IPC 5 presupposes the kidnapping or abduction of a lady for the purposes which are indicated by that section, like, being subjected to illicit intercourse or for the purposes of being married against will. There might be the purpose of this appellant of having illicit intercourse with the lady but, when it comes to abduction because the lady was aged in between 17 to 19 years, then it has necessarily to be shown by the prosecution through proper evidence that she was forced to go out of her house to the house of the appellant, as appears from the definition of abduction as per section 362 IPC. 9. The evidence of the lady indicates that the appellant approached her to want her to accompany him up to his house. The lady stated that there was none at that particular moment in her house and she requested a child available there to look after the shop and walked out of that premises to enter into the premises of the appellant’s Angan. As appears from the evidence of the lady and other witnesses, house of P.W. 3, the informant and that of this appellant faced each other. There was a road intervening in between. There were houses of villagers. Some houses were very close to the house of this appellant. It has also come in the evidence of the prosecutrix that the appellant had also parents, his wife and little children residing under the same roof. If this could be the circumstances under which the lady is said to have been forcibly taken away, then it could simply have to be rejected on the scale of probability. This could happen only when there could be a 6 relationship between the two persons and the two persons were willing to walk out together out of their own agreement. The circumstance which I have just noticed that the lady was standing freely in the Angan of the appellant indicates that there was no coercion, there was no obstruction nor there could be any pressure upon her to remain inside the Angan. She was a free soul, who was living inside the house of the appellant out of her own volition. These are the reasons upon which conviction of the appellant under section 366 IPC is not sustainable. 10. As regards the conviction of the appellant under section 376 of the IPC, the very reasons which I have just pointed out for upsetting the conviction of the appellant under section 366 IPC apply as regards the finding of the learned trial judge while convicting the appellant of that particular offence. The lady was found aged about 17 to 19 years by P.W. 1. I have already noticed the medical findings that she was habituated to sexual intercourse for quite some times as she was bearing a completely healed up hymen which had old ruptures. Her vagina was wide enough to admit two fingers easily. The medical examination of the lady was being conducted on the very next date, i.e., 10.9.1987. That the statement of the victim that she was forcibly raped on account of being frightened does not appear supported by the findings of the doctor. If there had been forcible commission of rape, the state of her private parts which was recorded by P.W. 1 in her evidence and in her report, might not have 7 been found by her. Moreover, the story of being taken away has been rejected by me and I have no hesitation in pointing out that it could be a case where the victim, P.W. 6, was walking out of her house to enter into that of the appellant and had resided there for two complete nights, i.e., from the night of 7.9.1987 till the night of 8.9.1987 as she was recovered some times on 9.9.1987 at 12.30 P.M. It would have been so fresh had she really been ravished, some sign of rape must have been left on or around the private part of the lady. Besides, the very circumstance as narrated by the lady also does not carry well as regards the appreciation of her evidence on the balance of reasonableness. She stated in her evidence that after taking her into his house, the appellant had committed rape on her but the first statement she was making under section 164 Cr.P.C. before the magistrate, to which her attention had been drawn in paragraph 14, indicates as if she has stated before the magistrate that the appellant had entered inside the house and then committed rape upon her. The two statements do not go hand in hand. The very place and manner of occurrence is changed. 11. After considering the evidence of P.W. 6 in its entirety, what appears is that she was a willing party, who was walking out of her father’s house and going to the house of the appellant to live with him and probably, was carrying some relationship with him and it was on account of that that she had deserted her parents. If this could 8 be the probability, the conviction of the appellant under section 376 IPC may also not be sustained. 12. In the result, the appeal succeeds and the same is allowed. The order of conviction and the sentence passed upon the appellant are set aside. The appellant is acquitted of the charges. As per records of this case, he is in custody. If he has not been released, he must be released forthwith if not wanted in any other case. (Dharnidhar Jha, J.) Patna High Court, The 18th April, 2011, NAFR/Anil/