Criminal Appeal (SJ) No.977 of 2006 Against the judgment of conviction and order of sentence dated 25.09.2006 passed by Additional Sessions Judge, Fast Track Court No.II, Patna in Sessions Trial No.153 of 1993/675 of 2005 arising out of G.R.Case No.5206 of 1989. FEKNI DEVI.... .... APPELLANT VERSUS STATE OF BIHAR.... .... RESPONDENT For the Appellant: Sri Anil Kumar Sinha, 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 Fekni Devi stands convicted under Sections 366A and 372 IPC by the learned Presiding Officer of Fast Track Court No.II, Patna in Sessions Trial No.153 of 1993/675 of 2005. The appellant was directed to suffer rigorous imprisonment for seven years and five years respectively on the two respective counts with further direction that the sentences inflicted upon her were to run concurrently. The appellant appeals against the judgment of conviction and sentence passed against her by the learned trial court. 2 2. Most of the facts are not much in dispute. Savita Kumari, the alleged victim of the offence, went with the appellant to watch a movie in Ashok Cinema Hall, Patna where she met the acquitted accused Bachi Devi who was introduced by the present appellant as her Malkin and, accordingly, the victim Savita Kumari was asked to accompany her. It is not disputed that Savita Kumari out of her own free will went with the acquitted accused Bachi Devi and lived there in her house for a couple of days also, where as per the allegations two men came and put her on a rickshaw along with the appellant. The rickshaw was intercepted by one Niralajee and the police was informed upon which the appellant was arrested and the alleged victim was rescued. 3. After investigation of the case three persons including the present appellant were put on trial which included Bachi Devi and Bijay Kumar @ Pintu. The two namely, Bachi Devi and Bijay Kumar hence acquitted in lack of evidence of their identification. The prosecution did not give up its story that the victim Savita Kumari lived in the house 3 of Bachi Devi for more than two days. The evidence of doctor P.W.2 Dr. Beena Gupta indicated that the height of the lady was four feet and 8½” and she had thirteen upper teeth with 14 on her lower jaw. All her sexual characters were quite developed. As regards the state of her private part, the finding of P.W.2 was that her hymen was ruptured and her vagina was admitting two fingers easily. The above findings of P.W.2 indicated that Savita Kumari was quite habituated to sex and it could not be unusual for her that she could have chosen to digrace out of her mother’s house. This was more indicated by the fact that she was accompanying Fekni Devi out of her own free will on the pretext of witnessing a moving show. Not only that she went with the acquitted accused Bachi Devi to her house but also that she stayed these for two days. If she had been taken or enticed away then it could have been a normal-natural-human conduct that she should have raised cries to save herself, but, she out of her own free will got trapped by the appellant or other accused persons. If she had been in wrongful 4 confinement on account of being misled into the trap which was laid by the appellant Fekni Devi, then it would have been more imminently reasonable to accept that she could have identified Bachi Devi as she was in her captivity at least for two days. But, she was not raising any voice against any one. In fact she absolved Bachi Devi during the trial by stating that the two other accused persons were not known to her as they were not connected with the offence in any manner. 4. The learned Judge who convicted the appellant has in fact gone to raise presumptions after conjecturing against the accused. He was reading the evidence of the Magistrate to point out that the lady could be aged less than 14 years. It was the duty of the prosecution to establish the age of the lady and to point out to the court that she could be less than 18 years of age as it was one of the essentials of the offence under Section 366A. The lady was telling the court that she was more than 27 years of age and that she was married when she was 14 and the marriage had taken place some 13 years 5 prior to the incident. The doctor’s evidence on assessment of age is absent but the sexual characters and the features specially her height of 4 feet 8½” besides the presence of 27 teeth indicates that she was around 18 years of age. 5. Taking away or enticing away a lady less than 18 years of age out of her lawful guardianship is an offence and it is offence under Section 366A IPC when it had been done with intent that the lady had either been offered in sex to another man or is given in marriage or is subjected to sexual intercourse. There is no ingredient that she was offered to any one for having sex with her and there was quite absence of the evidence that she was primarily taken outside her lawful guardianship. It is doubtful that she could be aged less than 18 years. It remains still in doubt that she was being enticed away or was being forced to go out of her lawful guardianship. ‘Taking away’ generally connotes applying force to moving a person from once place to other. Inducing away envisages duping a persons or cheating or misleading a person to fall into a trap 6 by being moved from one particular place which might be within the lawful guardianship of that particular victim to another custody which could be quite alien and unlawful. There is complete lack of evidence as regards taking away or enticing away. I have already pointed out that the lady Sabita Kumari, out of her own sweet will went into the company of the present appellant. I have already highlighted that when she was going out of her mother’s house, it was not on account of any duping or on account of any fraud which could be played upon her neither it was due to use of force to take her away. She was simply a willing person to accompany Bachi Devi to her house where she live happily probably for two days. These are some of the facts which makes the conviction of the appellant under Section 366A IPC not sustainable. 6. So far as the conviction of the appellant under Section 372 IPC is concerned, the offence punishes selling minor for purposes of prostitution, etc. I have already discussed the evidence which was available on record. There was complete absence of the 7 evidence indicating that the lady had been sold or was otherwise being disposed of with purposes as are indicated by Section 372 IPC. If the ingredients of the offence which could be punishable under Section 372 IPC were not constituted, the conviction of the appellant could never be justified for that offence. 7. In the light of the reasons, just recorded, I find merit in the appeal. The same is hereby allowed. The conviction of the appellant and the sentenced passed upon her by the learned trial Judge both are hereby set aside. The appellant is in custody. She shall be released forthwith, if not wanted in any other case. Patna High Court, Dated the 22nd day of July, 2011/Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)