Criminal Appeal (SJ) No. 47 of 1997 WITH Criminal Appeal (SJ) No. 55 of 1997 WITH Criminal Appeal (SJ) No. 143 of 1997 ****** Against the judgment of conviction and order of sentence dated 28.01.1997 respectively passed by Sri Nand Kishore Narayan Sinha, learned Ist Additional Sessions Judge, Sitamarhi in Sessions Trial No. 156 of 1990, Sessions Trial No. 61 of 1990 and Sessions Trial No. 153 of 1994. ****** Janarasi Devi @ Bhuily (Bholi) Devi, Aged about 45 years, wife of Ram Pragash Rai, Resident of village – Pakaria, P. S. – Parihar, District – Sitamarhi. .... .... Appellant (In Cr. Appeal No. 47 of 1997). Indradeo Rai, aged about 50 years, son of Achchey Lal Rai, Resident of village – Pakaria, P. S. – Parihar, District – Sitamarhi. .... .... Appellant (In Cr. Appeal No. 55 of 1997). 1. Rajdeo Rai, Aged about 40 years, Son of Pragash Rai, Resident of village – Pakaria, P. S. – Parihar, District – Sitamarhi. 2. Rangi Lal Rai, Aged about 40 years, Son of Ram Jash Rai, Resident of village – Pakaria, P. S. – Parihar, District – Sitamarhi. 3. Satya Narain Rai, Aged about 35 years, Son of Anup Lal Rai, Resident of village – Masaha, P. S. – Parihar, District – Sitamarhi. 4. Manjhi Rai, Aged about 40 years, Son of Bujhawan Rai, Resident of village – Pakaria, P. S. – Parihar, District – Sitamarhi. .... .... Appellants (In Cr. Appeal No. 143 of 1997). Versus The State Of Bihar .... .... Respondents. ****** For the Appellants : Mr. Harendra Kumar, Advocate. Mr. Sanjeev Kumar, Advocate. For the Respondents : Mr. Sujit Kumar Singh, A. P. P. ****** 2 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. These three appeals are being heard together and disposed of as the three appeals arise out the common judgment passed by passed Sri Nand Kishore Narayan Sinha, learned Additional Sessions Judge Ist, Sitamarhi in Sessions Trial No. 156 of 1990, Sessions Trial No. 61 of 1990 and Sessions Trial No. 153 of 1990. 3. The appellants have been convicted under Section 366A of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years with a fine of Rs.500/- and in default to undergo rigorous imprisonment for three months. 4. The prosecution case is that on 11.10.1989 at about 6:00 P.M. the accused persons i.e. Rajdeo Rai, Manjhi Rai, Rangilal Rai, Indradeo Rai and Satya Narayan Rai kidnapped the daughter of the informant and on Halla the informant chased. He remained pursuing the whereabouts of the girl and even tried to call Panchayati but failed and lodged the FIR on 26.10.1987. 5. On the fardbeyan, FIR was lodged and during investigation the victim was recovered from the house of one of the accused Satya Narayan Rai at village Masha. The statement of the victim was recorded 3 under Section 164 of the Cr. P. C. The police after investigation submitted charge-sheet. 6. During the trial nine witnesses were examined. P. W. 7 Bhikhia Devi is the mother of the victim. She has stated that she was along with her daughter Tetari then Sansariya came and took her daughter for playing Jhijhia. Her daughter did not return and there was Halla of the kidnapping of her daughter and then she searched out. The witnesses have stated that the accused persons have kidnapped her daughter. 7. P. W. 1 Dihal Rai is the father of the victim. He has also supported the prosecution case about the kidnapping of her daughter by the appellants. 8. P. W. 2 Tetari Devi is the victim herself supported the prosecution case about the kidnapping by the appellants and the recovery from the house of Satya Narayan Rai. 9. P. Ws. 3, 4 and 5 have also supported the prosecution case about the kidnapping. 10. P. W. 8 is the doctor who has found her age above 14 years but below 19 years and opined that her age finally found about 16 years and considering the evidence of the witnesses the trial court convicted the appellants. 11. Learned counsel for the appellants, however, challenged the order on the ground that the age of the victim was more than 18 years 4 and further challenged Sansaria and Janarasi are the same and the identity of the appellants have not been established. It has further been contended that there is allegation of kidnapping and rape. Hence Section 366A of the Indian Penal Code is not applicable as the kidnapping ought to have been done for committing rape by another person for which he has relied upon a decision reported in AIR 2008 (SC) 288 (Iqbal Vs. State of Kerala). 12. I perused the records and the evidence of the victim supported the prosecution case about kidnapping. P. Ws. 3, 4 and 5 have supported the prosecution case having regard to the point raised, so far the age of the victim is concerned the doctor in his evidence has opined that the age of the victim as 16 years. The victim also in her statement has stated her age as 14 - 16 years. The court has also assessed her age 18 years after one year of the occurrence. However, the only circumstance is that the doctor opined her age in between 14 to 19 years and hence it is contended that since 19 years has been stated but the doctor in his evidence itself has stated her age as 16 years. Hence, there is no evidence brought on record to suggest that the victim was more than 18 years old. 13. Learned counsel for the appellants, however, challenged the identity of Sansaria and Jenarsiya was not the same. However, the witness Sansaria has never challenged during the trial about her identity. 5 P. W. 3 also claims to have identified Sansaria who has filed his representation in the name of Janarsia but even in the entire cross- examination no challenge has been made regarding the identity of Sansaria or Janaria and hence there is no merit in the submission. 14. Learned counsel for the appellants relying upon a decision reported in AIR 2008 (SC) 288 (Iqbal Vs. State of Kerala) for proposition that when charge under Section 376 of the Indian Penal Code and Section 366A of the Indian Penal Code are framed and conviction recorded under Section 366A of the Indian Penal Code is residual as it does not satisfy the requirement that kidnapping must have been for person other than the accused who kidnapped. However, under the facts and circumstances of that case the charge framed only under Section 366 A of the Indian Penal Code hence ratio decided in AIR 2008 (SC) 288 (Iqbal Vs. State of Kerala) is not applicable. 15. Hence, taking into consideration the fact and circumstance of the case and evidence on record I find that the prosecution has proved the case beyond reasonable doubt and I do not find any merit to interfere with order of conviction. 16. However, having regard to the fact that the occurrence is of the year 1989 hence 20 years have already elapsed. The appellant suffered due to protracted prosecution and the appellants Rajdeo and Rangilal Rai have remained in jail for about more than 10 months at the stage of 6 investigation and trial and other appellants except Janarasi Devi @ Bhuily (Bholi) Devi has remained in jail during the investigation or trial as well as has remained in jail for about five months after the conviction till grant of bail by this Court. Janarasi @ Bhuily (Bholi) Devi has remained in jail for one month during the trial and two months after the conviction and hence the ends of justice shall meet by sentencing the appellants for the period already undergone and hence this appeal is dismissed with modification in sentence. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 12th September, 2011. N. A. F. R. /Kundan.