Criminal Appeal (SJ) No.121 of 1996 Against the judgment of conviction dated 02. 04. 1996 and Order of sentence dated 03. 04. 1996 passed by Shri Chiranji Singh, Sessions Judge, West Champaran, Bettiah In Sessions Trial No. 114 of 1993. 1. Jagdish Prasad Chaurasia, son of Shri Satya Narain Bhagat, resident of Village- Pipra Siswania, Police Station- Chanpatia, District- West Champaran. 2. Suresh Prasad Chaurasia, son of Late Narsing Bhagat. 3. Akhtar Ansari, son of Chokat Mian. Both resident of Village- Auraiya, Barai Tola, Police Station- Bettiah Mufassil, District- West Champaran. ……Appellants. Versus The State of Bihar …………………….Respondent. = For the Appellants : Mr. Vijay Kumar Bhagat, Advocate. Mr. Amlesh Kr. Verma, Advocate. For the State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. Appellants Jagdish Prasad Chaurasia, Suresh Prasad Chaurasia and Akhtar Ansari have been convicted for the offence under Sections 363 and 366 of the Indian Penal Code and sentence to under go rigorous imprisonment for the period of seven years for offence under Section 363 of Indian Penal Code and also to under go rigorous imprisonment for the period of seven years for the offence under Section 366 of the Indian Penal 2 Code. Further, accused Jagdish Prasad Chaurasia has also been convicted for the offence under Section 376 of the Indian Penal Code and sentence to under go rigorous imprisonment for the period of seven years for the offence under Section 376 of the Indian Penal Code. All the sentences, as imposed against accused Jagdish Prasad Chaurasia for the offence under Sections 363, 366 and 376 of the Indian Penal shall run concurrently. 3. The prosecution case as alleged in the Fardbeyan by the informant Khobhari Sah, father of the victim that he was in the house for the last three days for illness. His wife had gone to her maika. Her daughter Manju kumari, daughter-in-law and his son Ramakant who has fractures his leg were in the house. On 31. 07. 1992, at about 6 P.M. Jagdish Prasad Chaurasia came and asked welfare of the informant. The informant was not keeping well at that time as he was suffering from fever. The daughter-in-law of the informant was cooking the meal in another room of the house. The daughter of the informant, namely, Manju Kumari was present in the house at that time who was looking after the informant. The informant slept for a moment and when he woke up, after some time, 3 he found that Jagdish Prasad Chaurasia was not present there. The informant called his daughter, but even after repeated calls, she did not respond. In the mean time, daughter-in-law of the informant came there and the informant enquired about his daughter from his daughter- in-law, but the daughter-in-law of the informant told that she did not know where the daughter of the informant had gone. The informant suspected that accused Jagdish Prasad Chaurasia might have kidnapped his daughter. Thereafter, the informant and his daughter-in-law enquired about Manju Kumari from the neighbours, but she was not there. The informant entered into the inside the room of his house and found that box was opened and some articles, kept in the box, a gold locket, cash of Rs. 1000/- and some cloths were found missing. Hence it was doubted that Jagdish Prasad Chaurasia had kidnapped his daughter with intention to rape. During enquiry, one Om Prakash Shahu, resident of village- Kalibag disclosed that he saw Manju Kumari going with a adult boy with some material towards Railway station by a Richshaw. The informant enquired, but could not trace out. On the basis of Fardbeyan of the informant Ext. 2, F.I.R. was 4 lodged and the investigation proceeded. After investigation charge sheet was submitted under Sections 363, 366A and 376 of the Indian Penal Code. Cognizance was taken and charge sheet submitted and the case was committed to the court of sessions and after commitment, the charge was framed for offence under Sections 363 and 366 against all the three appellants. Further charge was framed for offence under Section 376 of the Indian Penal Code against Jagdish Prasad Chaurasia. 4. However, during trial six witnesses were examined on behalf of the prosecution and thirty two letters were produced as marked as Ext. A to A/31 alleged to be written by the victim. However, after considering the oral and documentary evidence the trial court convicted the appellants. 5. Learned counsel for the appellants has however, contended that in the First Information Report itself there is allegation that box was in the house was found opened and victim was found traceless. Further the informant in the F.I.R. itself has stated that one Om Prakash Shahu disclosed that he has seen the victim going with a adult boy and numbers of letters which are Ext A 5 series indicates that there was consent of the victim in leaving her house out of her own sweet will. It has further been contended that the Doctor who examined the victim has assessed the age of the victim as18 years. Hence the age of the victim to be held as 18 years in view of evidence of the Doctor and if the age of victim held to be 18 years then it can well be inferred that the victim went along with accused persons with consent and was consenting party to the occurrence and hence this facts and circumstances lenient view is required to be taken on the basis of oral and documentary evidence recording the conviction and sentence. 6. Learned counsel for the State has opposed the prayer and submitted that victim has supported the prosecution case and facts point not distrust by appellant enticing the victim and committing rape by force and allurement. It has further been contended that X-ray plate and report has not been proved to show that X-ray report does not indicate that the age of the victim has been assessed on scientific measurement and scientific mode. Moreover, the victim disclosed her age as 16 years during her evidence and the trial court has also assessed the age of 6 the victim as 16 years and the court has expert. Further the evidence of the Doctor can not be taken to be substantive as the evidence of the Doctor is not based on scientific mode and there is no reason to show as what basis he has assessed the age there is correctional error with regard to the age of the victim. 7. However, taking into consideration the respective submissions, question for consideration as to whether order of conviction recorded by the lower court is sustainable or not or prosecution has been proved the charges beyond reasonable doubt. 8. However, the point raised are about age of victim was below 18 years, the kidnapping and rape on the victim was done by the appellant. 9. However, the informant is P.W. 2 of the prosecution and has alleged that accused Jagdish Prasad Chaurasia used to come at his house from before this occurrence because he was a friend of his son. Thereafter, the informant found that Jagdish Prasad Chaurasia is missing from the house along with his daughter and he found that jewellery and other articles which were kept in a box also missing from the open box of the house of the 7 informant. However, there is no eye witness either to the occurrence of kidnapping or missing the articles. However, P.W. 2 found that Manju Kumari (victim) was missing from the house and then he enquired about Jagdish Prasad Chaurasia who was also missing along with daughter from the place. 10. However, P.W. 1 is the victim and supported the prosecution case and submitted that on 31. 07. 1992, at about 6- 7 P.M. when she had gone to outside the house to attend the call of nature then she alleged that Jagdish Prasad Chaurasia, Suresh Prasad Chaurasia and Akhtar Ansari caught hold of her and gagged her mouth and got herself seated in a jeep. They took her by the alleged jeep at Pandey Tola in Narkatiaganj and then Jagdish Prasad Chaurasia has committed rape on her thrice. She further stated that accused Jagdish Prasad Chaurasia threatened her to kill her if she would raise voice against the aged act of accused Jagdish Prasad Chaurasia. She further stated that other two accused persons, namely, Suresh Prasad Chaurasia and Akhtar Ansari were outside the alleged house in Pandey Tola. She further stated that accused Jagdish Prasad Chaurasia kept her there for ten days. She 8 has further stated that accused Jagdish Prasad Chaurasia, during her captivity in the alleged house pressurised to write 10-12 letters with anti dating and when she refused to write letter and she was threatened. She admitted in course of her cross-examination, that 32 letters, produced by accused Jagdish Prasad Chaurasia, were written by her, which have been marked as Ext. A to A/31. She further stated that when the police started exercising pressure on Satayanarayan Prasad, father of the accused Jagdish Prasad Chaurasia, then Satya Narayan Prasad came at the house of his son in Pandey Tola and he pressurized accused Jagdish Prasad Chaurasia to get the victim sent at the house of her father. Thereafter, Bharat Prasad Chaurasia, brother of the accused Jagdish Prasad Chaurasia and his friend Akhilesh Pandey her from there on a motorcycle near her village and they left her. Thereafter, she came at the house of her father at 11 A.M. though, she has proved 31 letters which have been marked as Exhibit A series. She has further stated that she has denied to suggestion that she used to communicate to Jagdish Prasad Chaurasia and she wanted to marry him and when Jagdish Prasad Chaurasia refused to marry, false 9 case has been instituted. 11. However, P.W. 3 Bali Ram Sah is the neighbour of the informant Khobari Sah and stated that khobhari Sah is his uncle and he disclosed the fact which has been stated by P.W. 1. Thus this witness is a simply hearsay witness about the kidnapping of Manju Kumari from the house of the informant 12. P.W. 6 Brij Bihari Pandey is the Police Officer who was posted at Bettiah Mufassil P.S. in the month of August, 1992. He has taken the charge investigation of the case from another Police Officer Ashok Kumar and lateron, he submitted the charge sheet in this case. This witness had not recorded the statement of witnesses in course of investigation and in this way, he is simply a formal witness. He is material witness and supported the prosecution about kidnapping and rape while confinement of Jagdish Prasad. 13. However, the victim has disclosed her age 16 years and the trial court has also assessed the age of the victim as 16 years. However, Doctor has assessed her age as 18 years and in the X-ray report has not been given any reason as to how she has assessed her age as 18 years and 10 what basis for the said report. 14. However, Ext. 3 is the medical report and there is mentioned that the said report is based on X-ray report and X-ray plate is yet to be produced and on the basis of finding and general appearance her age was assessed to be 18 years. 15. However, X-ray report has not been adducing evidence of the Doctor though found that no sign of recent sexual assault. However, the victim has been examined on 18. 08. 1992, However, in cross-examination this witness has deposed that X-ray was done but it was not brought on record hence neither X-ray report nor X-ray plate has brought in evidence. 16. In that back ground learned lower court has assessed the age of the victim as 16 years. Learned lower court has taken into consideration of the statement of victim who stated that her age as 16 years, but no cross- examination neither the age the victim has been challenged by the accused persons in the deposition of the victim. Hence held that Manju was not major. 17. Learned counsel for the appellant has however, challenged and based on argument on the 11 evidence of the Doctor. However, evidence of the Doctor is mere suspicious and moreover, in view of the facts that X-ray report on the basis of which Doctor has assessed her age as 18 years has not been brought in evidence and hence it is difficult to assess the age of the victim. 18. However, taking into consideration the entire evidence, the victim was aged about 16 years or even less then 18 years and since there was taken out of statement of the father and love letters and will once established that she was less than 16 years or less than 18 years then love letters and consent of victim became immaterial. Moreover, with regard to the rape the victim has specifically stated that she was raped and there is no cross- examination to challenge the evidence of P.W. 1 except that she has falsely been implicated. However, the girl of major age having been married while ultimately alleged that she voluntarily regarding rape on her assassinating his character is first to make false allegation of rape itself appears to be absurd proposition that she was falsely been implicated and there is no merit in the sufficient allegation with allegation of rape by Jagdish was false and fabricated just accused Jagdish refused to marry. No lady a good 12 character will make such false allegation of rape hence I do not find any merit to disturb the conviction recorded by the lower court for offence under Sections 366, 363 of Indian Penal Code. 19. So far appellant nos. 2 and 3 are concerned for their role attributed at the time of kidnap they were present. However, learned counsel for the appellants has contended that the informant himself in his Fardbeyan has stated when he searched Manju, one Om Prakash has disclosed that the victim was going with a adult boy on rickshaw. 20. However, P.W. 7, Lalmuni Devi, is the daughter-in-law of the informant has stated in her evidence that Om Prakash Shahu is son of her Bhaisur and he has seen Manju going with a adult boy. However, the said Om Prakash Shahu has not been examined. 21. Having regard to the fact that appellant nos. 2 and 3 have already remained in jail from 22. 08. 1992 to 18. 12. 93 and again remained in jail for four months after conviction till grant of bail by Hon’ble Court. 22. Having regard to the facts and circumstances, the end of justice shall meet by sentencing the appellant 13 nos. 2 and 3 for the period which had already undergone by them. 23. Further with regard to appellant no. 1, I do not find to interfere with the order and conviction recorded by the lower court. However, taking into consideration to the facts and circumstances that appellant no. 1 has already married and blessed with children, hence, under the facts and circumstances, in the special circumstances, to meet the end of justice sentencing him to undergo rigorous imprisonment for six years for offence under Sections 363, 366 and 376 of the Indian Penal Code. 24. The appeal is accordingly, dismissed with modification in sentence. Patna High Court, The 29th June, 2011. NAFR/m.p. ( Gopal Prasad, J.)