Appeal (SJ) No. 500 of 2006 ----------- Against the judgment and order of conviction and sentence dated 16.6.2006 passed by Shri Krishna Sinha, 9th Additional Sessions Judge, Saran in S.T. No. 436 of 2002 ---------- 1. Mannan Ansari, 2. Khrusheed Ansari, both sons of Dhautal Ansari, 3. Dhautal Ansari, son of Alijan Ansari, 4. Bibi Halima, wife of Dhautal Anssari, all residents of village – Brahimpur Chakrapan (Koiya Tola), Police station – Mashrakh, District – Saran …………. Appellants Versus The State of Bihar …………. Respondent --------- For the Appellants : Sarvshree Y.V. Giri, Sr. Advocate V.R. Bharti, Advocate For the State : Shree Ajay Mishra, APP ------- PRESENT THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA --------- Dharnidhar Jha, J. The present appeal is directed against the judgment passed by the learned 9th Additional Sessions Judge, Saran on 16.6.2006 in Sessions Trial No. 436 of 2002 by which the appellant Mannan Ansari was found guilty of committing offences under sections 366A and 376 IPC. The remaining three appellants were found guilty only of committing an offence under section 366A IPC. However, while passing sentence upon the appellants the learned trial judge was not sticking up to the principle of uniformity in passing sentence for committing a similar offence and was ordering each of the appellant to 2 suffer a different sentence in spite of being convicted of the same offence. Appellant Mannan Ansari was directed to suffer rigorous imprisonment for five years as also to pay a fine of rupees ten thousand, else to suffer simple imprisonment for nine months on each of the counts as under sections 366A and 376 IPC, whereas appellant Khursheed Ansari was directed to suffer rigorous imprisonment for four years and to pay a fine of rupees five thousand instead to suffer simple imprisonment for six months for his conviction under section 366A IPC, appellant Dhautal Ansari, in turn, was directed to suffer rigorous imprisonment for three years and pay a fine of rupees one thousand, else to suffer simple imprisonment for two months for his conviction under section 366A IPC. As regards appellant Bibi Halima, she was let off on being given the benefit of Probation of Offenders Act after being convicted under section 366A IPC. 2. The appellants have preferred the present appeal to assail the judgment and order of conviction and sentence dated 16.6.2006. 3. The prosecution case is based on the written report of Bishwanath Singh in which he stated that his daughter Ranju Kumari who was about 14 years of age, had gone out of her house to take tuition and she went missing. Subsequently, on 18.3.2002, he received a telephonic message from one Muslim Ansari through Gautam Singh that the victim (P.W. 2) was in Calcutta and that P.W. 1, the informant should go there to bring the girl back to her house. P.W. 1 stated that he thereafter made enquiry into the whole affair and came to know that the four appellants had conspired together and planned the taking away of 3 the girl to Calcutta for the purpose of getting her married to someone. It was alleged that the young girl had taken away the ornaments of the wife of the informant of rupees fifteen thousand and some clothes and rupees five hundred in cash with her. 4. On the basis of Ext. 1, FIR was drawn up and investigation was carried out. The I.O. has not been examined, as such, it is not available from the records as to how the progress was made in investigation or what steps were taken so as to complete it, but, it is clear from the record that charge sheet no. 87 of 2002 was placed before the C.J.M., Chapra sending up the accused persons and that resulted in their trial and ultimately in the impugned judgment. 5. The suggestion given to P.W. 2 Ranju Kumari, the daughter of P.W. 1 (the informant) is that she had neither been taken away nor was raped, rather she had eloped out of her own free will and came back also voluntarily and had filed a false case on account of some enmity. 6. Two witnesses were examined. The witnesses were the informant and the victim Ranju Kumari. The victim stated that she was going to her friend Rekha’s house which was situated at a distance of one kilometer and when she was half way down the distance, she saw appellants Mannan Ansari and Bibi Halima sitting under a Peepal tree who asked her to company her to Calcutta, which place they were destined to, which she refused, upon which Mannan Ansari flashed a handkerchief on her face as a result of which P.W. 2 lost her consciousness and when she regained it, she found that she was inside a 4 room and she was told by the appellant that she was in Calcutta. She stated that she was not allowed to go out of the room and was raped by Mannan Ansari in day time as also in the night. It further appears from the cross examination of P.W. 2 that she was produced by the police before the magistrate and statement was recorded under section 164 Cr.P.C., a copy of which is available on record also and it was suggested that she had not stated before the police that she had forcibly been taken away to Calcutta. The witness stated that on one particular day one Muslim with another came to the house of the appellants and the lady took opportunity of telling them about her tale of woes and they also told the accused persons that it was never acceptable that a village girl be forcibly brought to Calcutta for the purpose as indicated above. Accordingly, they gave a telephone call to the father of the victim and this is how she was brought from there. 7. The fact stated by P.W. 2 has been supported by P.W. 1 and there does not appear any doubt in it that the lady was taken away by appellant Mannan Ansari and Bibi Haleema to Kolkata, might be that there is some twist in the fact as regards the manner in which the young lady claimed herself to be taken away but before granting the argument of Shri Y.V. Giri, the learned senior counsel that the lady might be a willing party, the court cannot lose sight of the fact that there was no challenge thrown to any of the witnesses that the lady was aged about 14 years. In fact, during lengthy cross-examination of the two witnesses not even a single question was put as to what was the age of P.W. 2 except that P.W. 2 was suggested in paragraph 2 that she was 5 19-20 years of age, but that statement goes without any support from any other source by the defence so as to point out that the lady was 18 years or above those years of age or she could be a consenting party to the whole incident. 8. The father of the victim (P.W. 1) was a competent witness and he had given the age of the victim in paragraph 1 of his deposition as 14 years. His cross-examination was carried out at quite some length, but not even a single question was put to him so as to setting any circumstance which may point out that the lady was major and not about 14 years of age, which was claimed by P.Ws 1 and 2. Thus, this court does not have any hesitation in accepting the age of the victim as 14 years and in that view, the lady could be said not to have crossed the threshold of taking her own decision and even if she was accompanying the appellants Mannan Ansari and Bibi Halima, it can be said that she was misled on account of her immaturity to be swayed by their art of enticing a young lady. Evidence of P.W. 2 clearly indicates that she was ravished by Mannan Ansari on quite some occasions. That way, I find that the evidence available on record fully corroborated the charges under sections 366A and 376 IPC which was framed against appellant Mannan Ansari and his conviction as such cannot be said to be illegal. As regards the appeal of appellant Bibi Halima, on the same reasoning, her conviction has also to be upheld. 9. So far as the conviction of appellants Khursheed Ansari and Dhautal Ansari is concerned, the evidence of P.W. 2 itself indicates that they had not participated at any stage of the occurrence to entice 6 away the victim girl to take her to Calcutta. There is complete lack of evidence showing their participation in the crime and therefore, their conviction appears against the evidence available on record. 10. In the result, the appeal in respect of appellants Mannan Ansari and Bibil Halima is dismissed. So far appellants Dhautal Ansari and Khursheed Ansari are concerned, the same is allowed. The conviction and sentence passed upon Dhautal Ansari and Khursheed Ansari are set aside and they are acquitted of the charges. They are on bail. They shall stand discharged from the liability of bail bonds. 11. As regards appellant Bibi Halima, she was let off after having executed a bond as per direction of the court as may appear from the order of sentence on 16.6.2006 by the learned trial court. She is not required to surrender in the court below. Appellant Mannan Ansari was all along in custody and it was informed that he has been released on account of having served out rigorous imprisonment for five years. However, assuming that he has not been released, the court orders that in case he has served out the sentence which was awarded to him and is still in custody, he be released forthwith if not wanted in any other case. 12. The appeal is partly allowed in terms as indicated above. (Dharnidhar Jha, J.) Patna High Court, The 8th July, 2011, NAFR/Anil/