Criminal Appeal (SJ) No.471 of 2007 Against the judgment of conviction dated 28.03.2007 and order of sentence dated 28.03.2007 passed by Additional District Judge, Fast Track Court No.IV, Sitamarhi in Sessions Trial No.24 of 2004/97 of 2005 arising out of Runnisaidpur P.S.Case No.156 of 2003, G.R.Case No.1157 of 2003. NIRPAT DAS.... .... APPELLANT VERSUS STATE OF BIHAR.... .... RESPONDENT For the Appellant: Sri Amarendra Nath Tiwary, Amicus Curiae. For the Respondent:- Sri Ajay Mishra, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J The solitary appellant Nirpat Das was indicted of committing offences under Sections 363, 366 and 371 IPC by the learned Additional Sessions Judge, Sitamarhi for being tried in Sessions Trial No.24 of 2004/97 of 2005. After conclusion of the trial, the judgment was delivered by the learned Additional Sessions Judge-cum-Presiding Officer of Fast Track Court IV, Sitamarhi in the above noted trial on 28.03.2007 and the appellant was held guilty of committing the above offences. After 2 hearing the appellant on sentence on 29.03.2007, the learned trial Judge directed the appellant to suffer rigorous imprisonment for five years under Section 363 IPC, rigorous imprisonment for seven years under Section 366A IPC and rigorous imprisonment for ten years as also to pay a fine of Rs.5,000/- for being convicted under Section 376 IPC. In case the appellant would default in paying up the fine, the trial court directed him to suffer rigorous imprisonment for a further period of six months. The appellant has preferred the present appeal to question the above judgment and order of conviction. 2. P.W.5 Hema Kumari, who happened to be the daughter of P.W.6 Girija Devi and sister of P.W.4 Sanjay Sah and P.W.9 Shiv Shankar Sah, had gone with P.W.1 Rinku Kumari and P.W.2 Shital Kumari to offer her Puja in a temple. The case of the prosecution is that as such as she had come out with P.W.2 (Shital 3 Kumari)after offering her Puja, this appellant had came there with a Maruti Car to tell P.W.5 that her brother P.W.4 Sanjay Sah had met with an accident and he is hospitalized in the hospital where the victim was required to be present. Accordingly, the victim, P.W.5 sat into the car in which she was offered some drinks which was refused by her. However, it was forcibly administered to her and she lost her conscious and when she regained her conscious she made enquires about her brother. It is alleged that the present appellant stated to her that her brother had been shifted to Darbhanga for better treatment and she was to be taken there. On this pretext was brought to Sitamarhi railway station and was put in a train. The prosecutrix stated that the train stopped at a railway station and the appellant told her that it was Darbhanga but she could read the name of the place to find that it was Nagpur. She was brought into a 4 room and kept there and it is stated that she was repeatedly raped inside the room. 3. The further story is that in a particular night the Nagpur Police came and recovered the victim and brought her and the appellant to Runnisaidpur from where she was produced before Magistrate and her statement was recorded under Section 164 Cr.P.C.(Ext-3). She was also produced before P.W.7 Dr. Pushplata Chaudhary for her medical examination and P.W.7 submitted the report Ext-1. On the basis of the written report of P.W.4, the FIR of the case was drawn up and the investigation was conducted by S.I. Santosh Kumar (not examined). After conclusion of the investigation, the appellant was sent up for trial and it resulted in impugned judgment. 4. The defence of the appellant was of false implication and his innocence and further that no occurrence had taken place as 5 was alleged by the prosecution. 5. In course of the trial, 12 witnesses were examined. P.Ws.1 and 2 deposed on the fact that they had accompanied P.W.5 up to the temple, where, after they had come out of the temple, the appellant came with a Maruti car to tell the victim that her brother P.W.4 had met with an accident and was seriously injured and as such was lying in the hospital where she was required by her mother and Bhabhi and, accordingly, was made to sit in the car to be taken away. P.W.3 Ramchandra Pd. Sah is not an eye witness to the occurrence. Likewise, P.W.4 Sanjay Sah is also not an eye witness to the real occurrence as is the case with P.W.6 Girija Devi, the mother of the victim and other witnesses, like, P.w.8 Diplal Sah, P.W.9 Shiv Shankar Sah, another brother of the victim and the wives of P.Ws.4 and 9, i.e., P.Ws.10 and 11. However, all these witnesses have stated this much that 6 P.W.1 Rinku Kumari was duped into the belief that P.W.4 Sanjay Sah had met with an accident and was hospitalized and on such fraud being played upon her she was taken from her village where she had gone to a temple for Puja. The evidence of P.W.5, the victim, is the full narration of the occurrence and reproduction of the same facts as stated in the written report. However, the criticism which has been made of the evidence of P.W.5 may not be brushed aside. P.W.7 Dr. Pushplata Chaudhary had assessed her age to find her about 14 years of age. But, the doctor’s opinion is uncertain inasmuch as when the medical text which was put to her in her cross-examination by the defence in paragraph-4 it was stated by her that there could be a variance of two years on either sides of the assessed age of a person. Thus, what may appear reasonably from the evidence of P.W.7 is that if we add up two years to 14 the victim could be 16 years of 7 age and which may not be the age of discretion as regards the offences under Section 363 or 366A IPC. But in my considered view it could still be the age sufficiently to keep any person on alert specially a young girl, when it comes to the lady being subjected to such offences. This is one reason which creates some difficulty in appreciation of the evidence of P.W.5 to reach a conclusion that she was either enticed away or taken away by the appellant. If she was really enticed or taken away, firstly, from the place near the temple and then to the railway station Sitamarhi and from there to Nagpur it could be the ordinary expectation of the court that she could have raised her voice about the acts being perpetrated by the appellant by shouting to the whole of the world as to how she had been duped on the false pretext of her brother having met an accident and being hospitalized in a serious condition where the young lady 8 was required to be present. Not only that she appears confined in a house or room in Nagpur for at least two months from the day of commission of the offence of kidnapping, where as per her evidence she was subjected to sexual intercourse also, but she does not appear raising any alarm or telling any body as to how she had been duped to be brought to Nagpur and how she was subjected to sexual intercourse at the threat of losing her life or being seriously injured as appears told by her to the court. The above evidence of P.W.5 simply appears not consistent with the ordinary human conduct specially of a lady who has been tortured to submit to the carnal desires of a man. The circumstances noted above may give rise to an inference as if she had been a willing party in going with the appellant but the evidence of P.Ws.1 and 2 who were little girls of 11 and 12 years convinces me that something, had really been told to 9 the victim of the offence by the appellant and that appears to be the clinching evidence as regards being taken away. ‘Taking away’ envisages being either misled into going with a person or being subjugated by use of force to the wishes of the person and thereby compulsively to accompany that person. It might not be a case of show of force or use of force and thereby to subjugate the victim to the evil designs of the appellant but the evidence of P.Ws.1, 2 and 5 does indicate as if it was by mere concealment of fact and thus cheating the victim. That she was misled to believe to the words of the appellant so as to be moved out of her village to different places. 6. The age of the victim may not be 16 years. Even if she had been of that age the evidence of the victim appears clear on the point that this appellant had committed rape upon her. The circumstances of the case 10 indicate as if she was forced to compromise with the circumstances in which she had been put into and thereby to bear the trauma of being sexually exploited by the appellant. The offence continued for two months till the lady was recovered from the captivity of the appellant by Nagpur police. The evidence of P.W.7 points out as may appear from paragraph- iii of her evidence that if a lady was subjected to sexual intercourse for two months then she could be said to be sexually habituated. This was the reason that the doctor was finding her habituated to sex and was describing her private part as may appear from her evidence in paragraph-1. Two months of continuous sexual intercourse with a man and that too forcibly, could not be leaving any other evidence on the private parts being found than what was found by the doctor. The anatomical description of private parts of the lady and the findings recorded by P.W.7 in 11 her evidence or the report appears quite correct when one considers the period for which the lady was subjected to sexual intercourse. On the day of examining P.W. 5, the doctor found the inter orifice of vagina bleeding as blood tricked on her gloves. Thus, what I find is that the evidence which was adduced by the prosecution during the trial clearly made out a case for conviction of the appellant under Sections 366A and 376 of the IPC. The appellant was also convicted under Section 363 IPC but once he has been convicted for the offence under Section 366A of the IPC which offence is constituted also by the ingredients of the offence of kidnapping simplicitor, even if the appellant had not been convicted for offence under Section 363 IPC, it could not result in an illegality. I, as such, record and uphold the conviction of the appellant only under Sections 366A and 376 IPC and uphold the 12 sentences passed upon the appellant on the two counts. The appeal stands dismissed in its entirety with the modification that his conviction under Section 363 and sentence passed upon him on that count may not be sustained in the light of the fact that the conviction has already been recorded under Section 366A of the IPC. Patna High Court, Dated, the 9th day of August, 2011, Brajesh Kumar, NAFR ( Dharnidhar Jha,J.)