Criminal Appeal (SJ) No.48 OF 1994 (Appeal against the Judgment and Order dated 4.2.1994 passed by the 10th Additional Sessions Judge, Gaya, in Sessions Trial No. 307 of 1990/92 of 1991) SURESH BHUIYAN, SON OF LATE RAMESHWAR BHUIYAN, RESIDENT OF VILLAGE – REWARA, P.S. BELAGANJ, DISTT. GAYA. ------ APPELLANT. Versus THE STATE OF BIHAR ------------RESPONDENT For the Appellant : Mr. Ashwini Kumar Singh, Advocate. For the State : Mr. Jiendra Kumar Singh No. 1, A.P.P. ---------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: Heard. The Appellant has been convicted under Section 366 of the Indian Penal Code and sentenced to five year rigorous imprisonment in Sessions Trial No. 307 of 1990/92 of 1991 passed by the 10th Additional Sessions Judge, Gaya, by a Judgment dated 4.2.1994. The case of the prosecution is that on 7.3.1989 the Appellant enticed away the daughter of the Informant whereafter she was found in his company on 23.5.1989 but the Appellant refused to give possession of the victim to the Informant whereafter the present case was instituted. The prosecution examined twelve witnesses out of whom PW-1 is the victim. PW-2 is mother of the victim. PW-3 is 2 father of the victim. PWs-4 and 5 are also on the factum of the occurrence. PW-6 is formal. PW-7 is tendered whereas PW-11 is the Investigating Officer who had recovered the alleged victim. PW-9 is the Doctor who examined the victim and PW-8 is a Para-Medical Assistant of Civil Surgeon merely brought the medical report of the girl. PW-10 is also a Doctor who is member of the Board constituted for ascertaining the age of the victim and the opinion was that she was 12 years of age. The defence disputed the identity of the girl examined by the Board and that it was not the victim of the present case. The defence on its behalf exhibited three documents and one Doctor. Exbt. ‘C’ was the statement of the victim recorded under Section 164 Cr. P.C. wherein she has stated before the court that she was in love with the Appellant since last 2-3 years and had fled with him on her own sweet will and also married him. However, during evidence she stated that she was coerced into giving such statement. On going through the evidence on record, I find that even though the occurrence had taken place on 7.3.1989, no information was given anywhere with regard to the same and it is only if the girl was recovered on 23.5.1989 that the present case was instituted. This indicates that in fact, the prosecution was also aware that there was relationship between the parties and was, therefore, in search of the girl. From the statement of PW-1, I find that all along she went with the Appellant willingly 3 and also lived with him for 2 ½ months. Under the circumstances it is difficult to accept that even if the victim was aged about 12 years, she would be detained for 2 ½ months without any resistance. This coupled with the fact that the Informant did not attempt to institute any case, I am not inclined to accept the prosecution case in its entirety. In the result, the conviction of the Appellant is converted from 366 of the Indian Penal Code to one under Section 363 of the Indian Penal Code and, he is sentenced to a period already undergone. In the result, the Appeal is dismissed with modification as mentioned above. Patna High Court, Patna, Dated, the 8th April, 2011 NAFR/S.ALI ( Anjana Prakash, J.)