IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.270 of 1998 (Against the Judgment and Order dated 09.07.1998 passed by the learned 4th Additional Sessions Judge, Vaishali at Hajipur in Sessions Trial No. 43/1991) ========================================================== Mukund Sah son of Nageshwar Sah, R/o Vill. Katra, P.S. Hajipur Town, District-Vaishali. .... .... Appellant Versus The State of Bihar .... .... Respondent/s ========================================================== Appearance : For the Appellant : Mr. Arun Kumar Tripathi, (Amicus Curiae) For the Respondent : Mr. Satyanarayan Prasad. A.P.P. ========================================================== J U D G M E N T PRESENT (HONOURABLE MR. JUSTICE MANDHATA SINGH) Mandhata Singh,J. Heard, learned Amicus Curiae and learned counsel for the State. This appeal is filed against the Judgment and order dated 09.07.1998 passed by the learned 4th Additional Sessions Judge, Vaishali at Hajipur in Sessions Trial No. 43 of 1991 whereby and whereunder the appellant has been convicted for the offence under Sections 376, 363 and 366 of the I.P.C. and sentenced to undergo R.I. for 7 years for the offence under Section 376 of the I.P.C. and 5 years for Patna High Court CR. APP (SJ) No.270 of 1998 dt.07-12-2011 2 the offence under Section 363 of the I.P.C. and to run both the sentences concurrently. Fardbeyan of victim’s father is recorded for the F.I.R. which, in short, is that he had gone to Forbisganj in connection with his vegetable business and returned on 19.01.1990. He was told by his wife that on 18.01.1990 his daughter was taken by the appellant to market to purchase some books but they did not return till 9.00 pm. The same was informed to neighbours. Again she came to appellant’s house along with neighbours but they (appellant and victim) were found absent there also. Finding their no whereabouts after coming of the informant from Forbisganj, matter was informed to the Police. After concluding the trial, conviction and sentence under Sections 363, 366 and 376 of the I.P.C. is the result. Validity of which has been questioned through filing of this appeal. Two points are only raised by the amicus curiae appointed for the appellant. They are :- first the act if was kidnapping and sexual intercourse was with consent of the victim. Second victim was major at the time of the incident. Both the points are interconnected. In all 12 witnesses are examined in the case. P.W. 9 is I.O. His statement is about conducting Patna High Court CR. APP (SJ) No.270 of 1998 dt.07-12-2011 3 of investigation properly and further has got exhibited Ext.2 and 3. P.W.11 is a Doctor to whom X-Ray Plate was sent for assessment of the age and P.W. 12 is a Doctor who examined the victim. Rest of the witnesses are either victim, her family members or villagers. P.W. 7 is victim of the case. All the rest except P.W.7 are there to state disappearance of the victim along with accused-appellant. More specifically, P.W.2 and P.W.3 are making statement about coming to know the incident from mother of the victim girl. P.W.7, the victim herself is there that she was taken to Ramashish Chowk, thereafter Rajendra Chowk then Muzaffarpur where some papers were got signed and then to Delhi then to Ranchi to Ramgarh and Koilwar from where in absence of the appellant the victim girl came to her house. Stress is made on the point that no force ever was used, so every thing was with the consent of the victim lady. That has rightly been replied that victim was minor below the age of 16 years, so consent was to play no role either for kidnapping or commitment of rape. Witnesses are constraint on the point that victim’s age was 13 years and two of the prosecution witnesses namely P.W.11 and P.W.12 are there to state the age of the victim. P.W. 12 to whom Patna High Court CR. APP (SJ) No.270 of 1998 dt.07-12-2011 4 initially victim was sent for medical examination is of the opinion that victim was near about 16 years old but on this point also rightly has been observed by the Trial Court that for assessment of the age she (victim) was sent to P.W.11 and basing the X-Ray Report her age is assessed 14 years. So, the age of the victim is assessed 14 years. On the point of kidnapping and rape, victim is there to state her kidnapping by this petitioner and commitment of the rape also and nothing has appeared in cross-examination either to disbelieve or doubt her statement. Once victim’s age appeared below 16, there remains no scope to scrutinize the non objection by the victim and making no disclosure or raising alarm can be taken for her consenting as same does not arise. So, I find no infirmity in conclusion reached by the trial Judge on point of conviction save and except convicting the appellant for kidnapping under Sections 363 and 366 I.P.C. which has been materialized by sentencing a single punishment. On the point of sentence amicus curiae assisting the Court for the appellant is submitting that every thing was consented. No harm was caused to the victim. So the punishment may be minimized to the Patna High Court CR. APP (SJ) No.270 of 1998 dt.07-12-2011 5 period undergone. Circumstances can only lead to conclude that victim was a consenting party but her age is observed 14 years in which consent plays no role at all has been considered by the Trial Court itself in awarding minimum punishment for 7 years for the offence under Section 376 of the I.P.C. and 5 Years for the offence under Sections 363 and 366 of the I.P.C. Sentence awarded for the offence under Sections 363 and 366 of the I.P.C. could be minimized but ultimately will be of no avail for the appellant as both the sentences are to run concurrently. In the facts and circumstances of the case, Judgment and order of conviction and sentence is hereby affirmed making it clear that appellant is entitled for set off the period undergone by him. Accordingly, the bail bond of the petitioner is cancelled and he is directed to surrender to serve the punishment. Let a copy of the first page and last page of the Judgment be handed over to the learned Amicus Curiae. Patna High Court, Patna 7th December, 2011 Shailendra Bh. Prasad/ N.A.F.R. (Mandhata Singh, J.) Patna High Court CR. APP (SJ) No.270 of 1998 dt.07-12-2011 6