Criminal Appeal (SJ) No.319 OF 2005 ------- Against the judgment and order of conviction and sentence dated 18.5.2005 and 19.5.2005 passed by Shri Vijay Bahadur Mall, Additional District & Sessions Judge, F.T.C. II, Madhubani. -------- Nasim Mian, son of Shafi Mian, resident of village – Shaahpur, P.S. – Harlakhi, District – Madhubani ……………. Appellant Versus The State of Bihar ……….. Respondent ---------- For the Appellant : Sarvashree Ajay Kumar Thakur, Imtiyaz Ahmad, Advocates For the State : Shri Ajay Mishra, APP -------- P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA ------- Dharnidhar Jha, J. This appeal has been preferred to challenge the correctness of the judgment of conviction and the propriety of order of sentence passed by the learned Presiding Officer, Fast Track Court No. 2, Madhubani in S.T. No. 243 of 2003 on 18th May, 2005 by which the solitary appellant was found guilty of committing offences under sections 363, 366A and 376 IPC. The appellant was directed to suffer R.I. for two years and pay a fine of rupees one thousand for his conviction under section 363 IPC while he had to undergo R.I. for four years as also to pay a fine of rupees one thousand for his conviction under section 366A IPC. As regards his conviction under section 376 IPC, the appellant was to suffer R.I. for eight years and was also to pay a fine of rupees one 2 thousand. The learned trial judge has directed that if the appellant defaulted in making payment of the fine imposed upon him, he shall have to undergo imprisonment for one month while directing that the sentences were to run concurrently. 2. The prosecution case was that the prosecutrix Dulari Kumari (P.W. 9) who was the daughter of the informant Nand Lal Thakur (P.W. 7) was taken away by the present appellant while she was drawing water from the tube-well for being subjected to sexual intercourse. The FIR was drawn up on the basis of the written report and the case was investigated and ultimately, the appellant was sent up for trial. 3. It appears from the evidence of the prosecution that the lady was recovered from a house in Delhi along with the present appellant. She was produced before a magistrate and her statement under section 164 Cr.P.C. was recorded besides she was examined by Dr. Nirmala Kumari (P.W. 10) on 17.3.2004. The doctor found the prosecutrix (P.W. 9) aged above 18 years and she further found that the lady was habituated to sexual intercourse. 4. Besides her father and other witnesses, like, her sister, the prosecutrix herself supported the prosecution charge. She stated that while she was drawing water from the tube-well, the mother of the present appellant came and took the prosecutrix with her to her house, from where all the family members of the appellant took her to Basopatti and from there to Jainagar and further to Patna, from where, the mother of the appellant came back but others took the prosecutrix to Delhi. She 3 was kept confined in a room and was sexually assaulted. She was cross examined by the defence and it appears that the cross examination was not confined merely to the act but an attempt was made by the defence to show the probability that the lady was quite smart and there could be some reason that she could have herself run away from her parents’ house. This could evidently be clear from the questions, which were put to the lady in paragraphs 6 and 7 of her cross examination. Again she was put questions on the improbabilities on the probabilities of the allegations as may appears from the answers to questions which were put to P.W. 9 and stand recorded in paragraphs 12 and 16 of her deposition. The lady was pointing out to the court that she was taken to a town where she was kept confined in a room and she was not allowed to go out of that very room, as such, she used to shout and weep there. She has stated that she used to weep and shout during days and night as well but none of the persons residing in the neighbourhood either came to make an enquiry or to ask of her as to what was the reason for such a conduct of the prosecutrix. On her allegation that she was taken away, she was put questions and answers to those are recorded in paragraph 16 of the deposition wherein she stated that she came to Basopatti from her house at 5 A.M. and she came on foot. The way by which she was passing was quite busy and vehicles were also plying over it but she never complained to any one that she was being forcibly taken away or that she was not a willing party. She further stated that no one was also asking her as to why she was weeping as she claimed doing throughout the way. 4 5. I have already pointed out that the doctor assessed the victim’s age above 18 years. The conduct of the lady in moving out of her parents’ house at 5 A.M. in the month of February and walking with the appellant through a busy thoroughfare without raising any complaint or without raising any voice so as to solicit any assistance besides the fact that her claim that she was shouting and crying makes it abundantly difficult for this court to accept that she was an unwilling party and she had not left her house on her own sweet will. The lady was above 18 years. Circumstances indicate that she herself walked out of the house to go to different places right from the village Basopatti and from there to Jainagar and from there to Patna from where she was taken to Delhi, itself indicates that she was enjoying the company of the appellant and as such, no offence, in the opinion of this court, appears committed by the appellant. 6. In the result, the appeal is allowed. If the appellant has not been released from custody, he shall immediately be released from custody if not wanted in any other case. (Dharnidhar Jha, J.) Patna High Court, The 21st April, 2011, N.A.F.R./Anil/