Criminal Appeal (SJ) No. 279 of 1997 ****** Against the judgment and order dated 19.08.1997 passed by Sri Priya Saran, Sessions Judge, Nalanda at Biharsharif in Sessions Case No. 308 of 1992. ****** 1. Manohar Kewat, Son of Late Mevi Kewat. 2. Inder Kewat, Son of Latte Mevi Kewat. 3. Lallu Kewat, Son of Inder Kewat. All residents of village – Takia Kalan, P.S. – Deep Nagar, District – Nalanda. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. ****** For the Appellants : Mr. Nawal Kishore Singh, Advocate. Mr. Jitendra Nath Tiwary, Advocate. For the Respondent : Mr. Sujit Kumar Singh, A.P.P. ****** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellants have been convicted under Section 366A/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. 3. The prosecution case as alleged in the fardbeyan of the informant P.W. 4 is that his daughter Kiran Kumari, aged about ten years went to market on 14.09.1991. Accused Manohar Kewat was following her when Kiran Kumari reached near the side of the truck standing on the road Manohar Kewat lifted her and boarded her on the truck and fled 2 away. When Kiran Kumari did not return, informant made out a search and got information that she has been kidnapped by Manohar Kewat. On the basis of said written report, FIR was lodged and investigation proceeded. During investigation accused surrendered and the victim was also produced in Court on 22.10.1991. The order-sheet dated 22.10.1991 shows that the victim appeared in court and disclosed that she had been married with accused Mahohar Kewat and want to live with him and since bail of Manohar Kewat was rejected and he was sent to jail and the victim Kiran Kumari was not willing to go with her parents, hence she was sent to remand home. The victim was subsequently produced from remand home to court and her statement under Section 164 of the Cr.P.C was recorded and thereafter, after completion of investigation, charge-sheet was submitted and the case was committed to the court of Sessions. During the trial eight witnesses were examined on behalf of the prosecution, who are P.W. 1 Muneshwar Kewat, P.W. 2 Chando Kewat, P.W. 3 Siya Sharan Kewat, P.W. 4 Hira Kewat, P.W. 5 Kamleshwar Prasad Singh, the I.O of the case. P.W. 6 Dulari Devi, the mother of the victim, P.W. 7 Brij Bihari Singh, who has submitted the charge-sheet and P.W. 8 is Kiran Kumari the victim. 4. After considering the oral and documentary evidence, the documentary evidence adduced in the case is Ext. 1 written report, Ext. 3 2 is the endorsement in the pen and signature of S.I. on written report and Ext. 3 is the formal FIR. 5. On considering the oral and documentary evidence, the order of conviction and sentence was recorded as stated above. 6. Learned counsel for the appellants, however, contended that the informant and the mother of the victim are not the eye-witness to the occurrence and though they have stated that three persons P.Ws. 1, 2 and 3 are eye-witnesses to the occurrence, but P.Ws. 1 and 2 have turned hostile and P.W. 3 though supported the prosecution case, but from his evidence it transpired that the victim went along with the accused with her consent and the evidence of the victim recorded after so many years after her marriage and in such a situation she may not have accepted the consent of going with the accused due to social compulsion and further the medical report has not been sent nor the doctor has been examined and hence the prosecution has not been able to establish its case. 7. The learned counsel for the appellants has further contended that the occurrence is of the year 1991 and a lenient view may be taken as the victim has also already married. 8. Learned counsel for the State, however, contended that the victim has supported the prosecution case and the evidence of P.W. 3 has also supported the case and it was just and proper that when he 4 learnt about the missing of the victim then he disclosed about the same. 9. Hence, on the respective submission of the parties, the question for consideration is whether the prosecution has established its case. 10. However, the prosecution case is that while the victim was going to market she was lifted and boarded in the truck and hence the victim was kidnapped on truck. 11. P.W. 4 in his fardbeyan has stated that he learnt from P.Ws. 1, 2 and 3 about her boarding and taking in the truck. 12. However, P.Ws. 1 and 2 have turned hostile as they have not supported the prosecution case. 13. However, P.W. 3 in his evidence has supported the prosecution case. He has stated that while the victim was going to the market he saw a truck was standing and its door were opened and Manohar Kewat was also coming behind the victim and as soon as reach at the gate of the truck Manohar Kewat lifted her and took her in the truck and fled away. However, in cross-examination he has stated that she did not make any Halla and on the next day when there was search of Kiran Kumari then he disclosed about the occurrence to the parents. 14. However, P.W. 4 is the father and P.W. 6 is the mother and they have stated in their evidence that she had gone to the market for taking vegetables when the occurrence took place. However, they are not the eye witness to the occurrence and they learnt about the occurrence from 5 Siaya Saran Kewat and Mugeswar Kewat. 15. However, P.W. 8 the victim also has stated that she forcefully against her will was boarded in the truck and has also stated that her statement was recorded by the police as well under Section 164 of the Cr.P.C. and hence she has fully supported the prosecution case. However, she says that in her cross-examination that while she was going to the shop to take flour when she was kidnapped. 16. However, learned counsel for the appellants, contended that some witnesses stated that she went to market to take flour and some stated that she went to take vegetable to market and there is contradiction. However, the contradictions pointed out are so minor that it does not go to the root of prosecution case to shake the substratum of the prosecution case. 17. However, P.W. 3 specifically stated that he did not make Halla at the time of occurrence nor even when the truck proceeded after kidnapping the victim, since the accused was going behind the victim and victim being 13-14 years old lifted in truck is fit of moment and truck proceeded so P.W. 3 may well have presumed that she was going with consent but when she was being searched in village as missing then he immediately disclosed to the parents of Kiran Kumari about the occurrence and hence I do not find there is any abnormality in the conduct of the witness P.W. 3. The I.O. has also been examined and has 6 stated that victim was remanded and then brought from remand home for recording her statement under Section 164 of the Cr.P.C. on 4.11.1991. Kiran Kumari even medically examined on 25.11.1991. 18. However, he has denied the suggestion that the victim was brought on 3.11.1991 at the police station and she was threatened for making favourable statement. 19. Hence, taking into consideration the entire evidence the prosecution has supported the prosecution case about kidnapping of Kiran Kumari and there is no material in the entire evidence on the basis of which it can be inferred that there was consent, moreover, the court has assessed her age also 12 years and her statement recorded under Section 164 of the Cr.P.C. also on record in which victim stated her age about 18 years but her age has been assessed as 14 years and has stated that she wants to live with her father. However, there is nothing in the evidence to suggest that she went with accused with consent. However, only circumstance in favour of the accused is what has been recorded in the order-sheet dated 22.10.1991 but there statement of the victim has not been recorded by the lower court. Hence, there is nothing to show that the victim went with appellant with consent hence, having regard to the facts and circumstances I find no merit to interfere with the order of conviction recorded under Section 366A of the Indian Penal Code. However, it has been pointed out that 7 the medical report has not been adduced in evidence. However, non- production of the medical evidence does not prejudice the case of the prosecution or no prejudice is caused to the appellants and hence I do not find any merit to disturb the finding of conviction recorded by the learned lower court. However, taking into consideration the fact that the occurrence is of the year 1991 and Manohar Kewat the main accused in this case has remained in jail for more than one year hence under the facts and circumstances the appellant no. 1 and the other appellants have remained in jail for seven years. 20. Hence, under the facts and circumstances since the occurrence is of the year 1991 and the appellants have suffered a lot due to the criminal prosecution since 1991 and appeal and hence the ends of justice shall meet by sentencing the appellant no. 1, namely, Manohar Kewat for the period undergone with fine of Rs.5,000/-. However, with regard to the appellant nos. 2 and 3 taking into consideration the age of the appellant nos. 2 and 3 they are ordered to be sentenced for the period already undergone in jail during trial after conviction and hence with this modification in sentence the appeal is dismissed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 25th July, 2011. N.A.F.R./Kundan.