Criminal Appeal (SJ) No.483 of 2006 Against the judgement of conviction dated 01.02.2006 and order of sentence dated 02.02.2006 passed by Additional Sessions Judge, Fast Track Court No.II, Kishanganj in Sessions Trial No.613 of 2004/Trial No.45 of 2004. NIB LAL @ NEBU LAL, Son of Rup Lal, Resident of Village-Zamira Dengga, Police Station- Rauta, District- Purnea ----- Appellant Versus State Of Bihar ----- Respondent ------ For the appellant:- Md. Najmul Hoda, Advocate. 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 Nib Lal @ Nebu Lal stands convicted under Sections 366 and 376 IPC by a judgment passed on the Ist day of February, 2006 by the learned Additional Sessions Judge, Fast Track Court No.II, Kishanganj in Sessions Trial No.613 of 2004/Trial No.45 of 2004. After hearing the appellant on point of sentence on 02.02.2006 the learned trial Judge directed him to suffer rigorous imprisonment for five years as also to pay a fine of Rs.2,000/- under Section 363 IPC and rigorous imprisonment for six years as also to pay a fine of Rs.2,000/- under Sections 366 IPC. The appellant was 2 directed to suffer rigorous imprisonment for seven years as also to pay a fine of Rs.2,000/- under Section 376 IPC. The learned trial Judge directed that in case the appellant had defaulted in making payment of fine, he would have to suffer simple imprisonment for further period of six months. The sentences were directed to run concurrently. 2. Kelatan Devi(P.W.4), mother of the victim Iner Kumari(P.W.5)presented a written report before the officer-in-charge of Kochadhaman police station alleging that on 22.02.2004 when she had gone to Barbatta- Hat along with her husband to sell fish her youngest son Ashok Kumar came running at about 5.30 P.M. to tell her that 5-6 persons had taken P.W.5 Iner Kumari away. She came back and enquired about the incident from her villagers and came to know that Shiv Lal, Radha Lal, Sohail, Bhola, Rup Lal and Neeb Lal, the present appellant, had kidnapped her daughter (P.W.5) on the point of knife and gun. P.W.4 went to the house of the above named accused persons, but they threatened her and her husband as a result of which they came back and lodged the report. 3. On the basis of the written report, the FIR of the case was drawn up and the investigation was handed over to A.S.I. R.P.Rai(not examined)who on completion of the investigation sent up the appellant for trial which resulted in the impugned judgment. 3 4. It appears from the record that the prosecutrix appeared and she was produced before a Board of Doctors on 14.06.2004 and, accordingly, the Board examined her and found her aged in between 18 to 19 years. The Board further found that the lady was quite grown up. 5. The defence of the appellant was that Iner Kumari had fallen in love with him and she eloped with him to get herself married, as such no offence was committed by the appellant. 6. In support of the charges, the prosecution examined as many as nine witnesses out of whom P.Ws.8 and 9 Dr. Bhagwan Manjhi and Dr. R.P.Singh were the members of the Medical Board which was to determine the age of the victim P.W.5 Iner Kumari. The report of the board has been marked Ext-1 in the case. P.W.1 Maiki Devi, P.W.2 Manoj Lal, P.W.3 Ashok Kumar and P.W.4 Kelatan Devi, the mother of the victim as also P.W.5 Iner Kumari supported the prosecution story. P.W.6 Birju Lal was a witness who had learnt about the incident, as per his evidence, from P.W.4 and others P.W.7 Dr. Nalini Kant Prasad was also one of the members of the Medical Board along with P.Ws.8 and 9. 7. All the witnesses stated that Iner Kumari had forcibly been taken away or had been enticed away by the present appellant and she came back after five months of the incident. As regards the evidence of P.W.5 Iner Kumari she stated that while she was washing utensils in her 4 Aangan the present appellant along with other brothers came there and picked her up to take to Purnea by a motorcycle. She was kept in a hotel room where she was raped by the present appellant. She stayed in the hotel for 6-7 days and from where she was shifted to a rented house and was kept there for about five months. It was stated that a constant watch was kept on her and she was not allowed to come out and subsequently she was released at the bus stand to go to her father’s house from where the police took her to the court and she made statement before a Magistrate. She stated that she had made statement under Section 161 Cr.P.C. after being tutored by the police. In cross-examination P.W.5 stated that she deposed as tutored by her father and brother and further that she had vermilion on her head and that she lived with Nib Lal @ Nebu Lal in Purnea. P.W.5 further stated that she gave birth to a son who was born as per desire of Nib Lal @ Nebu Lal and the child died. 8. As appears from the evidence of three doctors who were members of the Board which that the victim, P.W.5, was aged in between 18-19 years. The evidence shows that she was forcibly taken away but there is nothing on record to indicate that while being taken away or while being confined wrongfully either in a hotel room or a rented house, the victim P.W.5 was raising any voice or was complaining to any one as to how she had been forcibly 5 picked up and brought to Purnea. She has herself stated that she lived at Purnea with appellant Nib Lal @ Nebu Lal for five months. She agreed to get a child delivered after conceiving from him and the child, lastly, was born but died. The defence has not cross-examined the witness P.W.5 to his previous statement, but the very evidence of P.W.5 that she was making her statement before a Magistrate after being produced by the police when she was arrested by them as per the tutoring of the police indicates as if she had not supported the prosecution case initially during the course of investigation. This was the reason that she was negating the question which was put to her in cross-examination that she had herself got married to the appellant. From the evidence of P.W.5 and other witnesses and considering the circumstances appearing there-from in the light of the age determined by the Medical Board the only inference which I could draw was that there could be a possibility that the lady eloped with appellant Nib Lal @ Nebu Lal for going to Purnea where she resided with him for five months or so and where she also gave birth to a child. It is true that in court she made out a completely different story, but the evidence always gives an inkling that she was not making a true and correct disclosure of the incident and probably she was herself a willing party to fly away with the appellant. 9. Forcibly being taken away or being enticed 6 away by a person for any of the purposes which is stated by Section 366A IPC is what constitutes an offence under that Section. But, if a probability arising out of the evidence of the prosecution witnesses, much less from the evidence of the prosecutrix, that she could be a willing party and on that account she was running away with the accused then in that case the important ingredients of being forcibly taken away or enticed away is not established and as such the offence of kidnapping for the purposes as is indicated by any of the Sections for which the appellant was convicted could not be said to be constituted. Likewise, sexual intercourse with a lady against her will irrespective of her age constitutes the offence of rape, but when a lady is eloping with a man and is residing with him for so long a period as to conceiving from a man and then to deliver the child out of the relationship, it could hardly remain in doubt that a charge under Section 376 IPC was not established. I have appreciated the evidence and has recorded the impact thereof on the proof of charges. The very circumstances which I have identified out of the evidence of the witnesses raised a probability that the charges were not proved. It was a case in which the trial court ought to have acquitted the appellant after having given benefit of doubt to him. In fact, it was a case in which the charges were disproved. 7 10. In the result, the appeal succeeds and the same is allowed. The order of conviction and the sentences passed upon the appellant are hereby set aside. The appellant is in custody. He is directed to be released forthwith, if not wanted in any other case. Patna High Court, Dated, the 8th day of July, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)