Criminal Appeal (SJ) No.282 of 1996 with Criminal Appeal (SJ) No. 283 of 1996 with Criminal Appeal (SJ) No. 287 of 1996 **** Against the judgment, dated 16.109.1996, passed by Sri Braj Kishore Thakur, Sessions Judge, Purnia, in S. Tr. No. 4 of 1994 **** Md. Mansoor Alam, son of Haji, Islamuddin, resident of v illage Pipal Tola, P.S. Kishanganj, district Kishanganj .. Appellant (in Cr. Appeal (S.J.) No. 282/1996 1. Jhatu @ Obedur Rahman, son of Ekram Ali 2. Israil @ Md. Israil, son of Abdul Jalil Mistry 3. Md. Matin @ Matin, son of Laskar Ali 4. Md. Jalal @ Jalal, son of Korhan Ali, all residents of Pipal Tola, P.S. Kishanganj, district Kishanganj .. Appellants (in Cr. Appeal (S.J.) No. 283/1996 Md. Belal @ Belal, son of Sakuruddin, resident of Pipal Tola, P.S. Kishanganj, district Kishanganj .. Appellant (in Cr. Appeal (S.J.) No. 287/1996 Versus The State Of Bihar .. Respondent ( in all the cases) **** For the appellant .. Mrs Rina Sinha, Adv. Amicus curiae (in Cr. Appeal (SJ) No.282/96) For the appellants .. M/S Sunil Kumar II & Ranjan Kumar Singh, Advs. (in Cr. Appeal (SJ) No. 283/96) For the appellants .. Mr. Arun Kumar Tripathi, Adv. Amicus Curiae (in Cr. Appeal (SJ) No. 297/96) 2 For the respondent .. Mr. Parmeshwar Mehta, APP (in all the cases) **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellants and the State. 2. These three criminal appeals have been heard together and disposed of by this common judgment as the same arise out of the same judgment and order, dated 16th October, 1996, Sessions Judge, Purnea, in S. Tr. No. 4 of 1994 by which he has convicted the appellant, Md. Belal @ Belal of Cr. Appeal (S.J.) No. 287 of 1996 under Sections 366 and 376 of the Penal Code and sentenced to undergo rigorous imprisonment for eight years and ten years respectively, the appellant, Md. Mansoor Alam, of Cr. Appeal (S.J.) No. 282 of 1996 and appellants, (1) Jhatu @ Obedur Rahman, (2) Israil @ Md. Israil, (3) Md. Matin @ Md. Matin and (4) Md. Jalal @ Jalal, of Cr. Appeal (S.J.) No. 283 of 1996 have been convicted under Section 366 of the Penal Code and sentenced to undergo rigorous imprisonment for eight years each. 3. The prosecution case as alleged by the informant, P.W. 11, Sabita Devi, that on 20.06.1993 in the evening at about 07.00 p.m. Belal, Md. Jalal, Md. Matin, Md. Israil, Md. Mansoor Alam and Md. Jhatu came at her door and Belal caught hold of her daughter put clothes in her mouth and dragged her with intention to kidnap and when prosecution party tried to make alarm then associates of Belal 3 threatened to kill them and then accused persons fled away. On hulla villagers came and make out a search, but, the victim could not be traced out. 4. During the investigation the victim and Belal caught at Calcutta and was taken into custody by the investigating officer and the statement of the victim was recorded under Section 164 of the Criminal Procedure Code and after investigation the charge sheet submitted under Sections 366 and 376 of the Penal Code. After the submission of the charge sheet, cognizance taken and the case was committed to the Court of sessions and the charge was framed under Section 376 of the Penal Code against Belal and under Section 366 against all the five appellants and trial proceeded. 5. During the trial fourteen witnesses were examined by the prosecution. 6. The witnesses examined are P.W. 1, Rajendra Prasad Singh, P.W. 2, Subodh Kumari, P.W. 3, Parwati Kumari, P.W. 4, Rana Pratap Singh, P.W. 5, Shanti Kumari, P.W. 6, Dabulal Singh, P.W. 7, Parmanand Singh, P.W. 8, Md. Firoz, P.W. 9, Arti Devi, P.W. 10, Urmila Kumari, P.W. 11, Sabita Devi, the informant, P.W. 12, Jagdish Prasad Singh, P.W. 13, Anup Lal Manda, the investigating officer, and P.W. 14, the Subdivisional Judicial Magistrate, who recorded the statement of the victim under Section 164 of the Criminal Procedure Code. 7. The documentary evidence adduced are Exhibit 1, formal first information report, Exhibit 2, medical report of the victim, 4 Exhibits 3 and 3/1, signature on zimmenama, Exhibit 4, the endorsement, Exhibit 5, formal first information report and Exhibit 6, the statement of Arti Kumari, under Section 164 of the Criminal Procedure Code. 8. After considering the oral and documentary evidence the order of conviction and sentence passed, as stated above. 9. The learned counsel for the appellants, appearing as amicus curiae, contended that the victim went along with Belal on her own sweet will and recovered after two months along with Belal and remained with Belal for two months and, hence, it can well be inferred that there was consent of the victim and further that the age of the victim was more than 18 years and, further, they have falsely been implicated in this case. 10. The learned counsel for the State, however, contended that there is evidence of kidnapping and, further, the evidence of the witnesses with regard to the occurrence that the victim was kept under threat and was never left free to make any complaint and, hence, in such circumstance it can not be said that she was a consented party and more over the age of the victim assessed in medical examination as 16 years. 11. The prosecution case as alleged in the fardbeyan that these accused persons entered into the courtyard and caught the victim putting clothes in her mouth and taken her dragging by force. P.W. 11 is the informant and she has supported the prosecution case. However, fourteen witnesses have been examined in this case out of which P.Ws. 5 4 and 6 are tender and P.W. 7 is a formal witness, P.W. 9 is the victim, P.W. 11 is the informant, P.Ws. 1, 2, 3, 5 and 7 has come to support the prosecution case substantiating the evidence of P.Ws. 9 and 11, P.W. 12 is the devar of P.W. 11, P.W. 13 is the doctor, P.W. 10 is the doctor, P.W. 14 is the Judicial Magistrate, who recorded the statement of the victim under Section 164 of the Criminal Procedure Code. 12. P.W. 11, Sabita Devi, has supported the prosecution case naming six accused persons who had come and kidnap the victim. She has, further, stated that after two months the victim was recovered and it stated that the victim was in love with Belal. P.W. 9 is the victim, she has also supported the prosecution case about the kidnapping by the accused persons and when she tried to make alarm she was threatened and clothes were put in her mouth. She has, further, stated that she was taken to Silliguri by all the six accused persons and then she was taken to Maldah and at Silliguri she was raped by Belal and others. She was kept at Maldah for 5-6 days. She has, further, stated that she was kept under veil and at the house under lock and her thumb impression was taken before an Advocate at Maldah and then she was taken to Calcutta and there also she was raped. She has, further, stated that she was kept in a room under lock and the Bengal police with Kishanganj police came and recovered her and sent to Kishanganj with the police where her medical examination done and her statement was also recorded. Hence, from the evidence of this victim it is apparent that she was kidnapped, taken to Maldah and Calcutta and threated to kill, confined and concealing her identity she 6 was kept in veil and in the house under lock. P.W. 5 has also supported the prosecution case. P.Ws. 1, 2, 3 and 7 have deposed that on alarm they went to the place of occurrence, the house of the informant, and there the informant disclosed about the kidnapping and the names of the appellants and, hence, their evidence corroborated as just after the occurrence they reached at the place of occurrence. P.W. 12 is the Judicial Magistrate and has stated that he has recorded the statement of the victim girl. P.W. 13 is the investigating officer and he has stated in his evidence that he got the investigation of the case and has proved Exhibits 4 and 5. He has, further, stated that on 19.08.1993 he got information that the victim has been caught at Kamtiphari and then he went there and Artri Kumari, the victim was handed over to him and, thereafter, he got medical examination of the victim on 20.08.1993 and got her statement recorded on 23.08.1993. P.W. 10 is the doctor, who has examined the victim and assessed her age as 16 years. However, she has stated that there is no sign of recent sexual assault and the victim was not pregnant. 13. Hence, from the evidence of the witnesses, P.Ws. 9 and 11, it appears that they have supported the prosecution case about the kidnapping of the victim and statement of her mother and other witnesses, P.Ws. 1, 2, 3, 5 and 7 have also supported the prosecution case. However, the victim has supported the prosecution case about the rape on her person by Belal during the period after kidnapping till her recovery. However, there is only evidence with regard to the rape is evidence of this witness, Arti Kumari, and there is no corroboration. 7 However, it has been argued, at length, that the evidence of the victim be not believed in the absence of any corroboration and, further, the defence has taken that Arti Kumari was in love with Belal and she out of her sweet will went with Belal. However, regarding this fact except suggestion there is no material, at all, on record. From the evidence of the victim, itself, it appears that from the day of her kidnapping she was kept in confinement under threat to kill and she used to be carried in concealment of clothes under veil and used to be kept under lock, there was no circumstance that she was every free for to communicate her impression to any person and, hence, under this circumstance her non- reporting the matter to any one or to ask anything from any one requires corroboration, under the circumstance will amount adding, further, injury to her person. Further, the recovery was on 19.08.1993 and the medical examination conducted on 23.08.1993 and, hence, there is no possibility of finding any sign of recent rape. However, the victim is reported to be 16 years of age, however, even if assuming her age as 18 years there is nothing to disbelieve her testimony or evidence regarding the allegation of rape as no woman will like to jeopardize her moral character allege false about rape and having regard to the fact that there are evidence regarding rape and there is nothing to disbelieve the evidence of the victim. However, the corroboration with regard to the evidence is not a rule of law, but, a rule of evidence. However, in a society the women are reluctant to admit the incidence of rape or any incidence which reflects her chastity as this incidence may lower down her prestige in society and they may loose the love and respect. 8 However, having regard to the fact there are clear evidence of kidnapping and there is no reason to disbelieve the evidence of the victim. 14. Hence, taking into consideration the entire evidence and the facts and circumstances, I do not find any reason to interfere in the order of conviction recorded by the trial Court as prosecution has been able to prove it’s case beyond reasonable doubts. 15. The learned counsel for the appellants, however, contends that the occurrence is of the year 1993 and except Belal the other appellants have only been convicted under Section 366 of the Penal Code and they have been attributed the role only to go with Belal to aid him and, further, these appellants have remained in jail for more than three years, except Jhatu. The interest of justice shall meet by sentencing the appellants of Cr. Appeals (S.J.) No. 282 and 283 of 1996 for the period already undergone by them. However, the order of conviction and sentence recorded against the appellant, Md. Belal @ Belal, shall maintain and Cr. Appeal (S.J.) No. 287 of 1996 is dismissed. 16. Cr. Appeals (S.J.) No. 282 and 283 of 1996 are dismissed with the modification in sentence. ( Gopal Prasad, J. ) The Patna High Court, The 22nd day of July 2011, N.A.F.R., S.A.