CRIMINAL APPEAL No.797 OF 2004(S.J.) ----- Against the judgment dated 29th September, 2004, passed by the Additional Sessions Judge,Fast Track Court V, Katihar, in Sessions Trial No.205 of 1995. ------ 1. Sk. Salwa @ Sekh Salim son of Kitab Ali. 2. Sk. Tamja @ Sekh Tamizuddin son of Kitab Ali & 3. Jakir Miyan @ Mohammad Zakir son of Noor Mohammad All resident of village- Sirkatta, Police Station-Barari, District- Katihar. ……..Appellants Versus The State Of Bihar ………Respondents ----- For the Appellants : Mr. Ajit K. Singh, Advocate. For the State : Mr. R. N. Jha, A.P.P. ----- P R E S E N T The Hon’ble Justice (Mrs.) Sheema Ali Khan. ----- S. A. Khan, J. This Cr. Appeal has been filed against the judgment and order of conviction dated 29th September, 2004, passed in Sessions Trial No. 205 of 1995 by the Additional District & Sessions Judge, Fast Track Court V, Katihar, whereby and whereunder all the three appellants have been convicted for the offence under sections 363, 366-A and 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years under section 363 of the Indian Penal Code, ten years under sections 366-A of the Indian Penal Code and further ten years under section 376 of the Indian Penal Code with fine of rupees one thousand each and in default thereof further sentenced to undergo simple imprisonment for three months. All the sentences are to run concurrently. 2. The F.I.R. has been instituted on the fard-e-bayan of the informant Tala Murmu, who is the mother of the victim girl, Hanji Kumar. It has been stated in the fard-e-bayan that the informant being the widow had shifted to his brother’s house and after constructing the hut was living with her two daughters. It is - 2 - alleged that Hanji Kumar, who was aged about 16 years used to work in the fields and three months prior to the lodging of the first information report she had gone to work in the field but did not return thereafter. The informant looked for her but could not trace her daughter. Fifteen days prior to the lodging of the first information report, it is alleged that Salwa came to her and asked her for rupees three hundred promising that he would trace the informant’s daughter and give the concrete information regarding her daughter’s whereabouts. Finally, she alleged that Salwa, Tamja and Zakir Mian had kidnapped her daughter with intention to marry her. 3. Altogether seven witnesses have been examined in this case. P.W.1 (Mansoor Murmur) is the brother of the informant, P.W.2 (Tala Mai Hembram) is the sister-in-law (brother’s wife) and P.W.3 (Sheetal Manjhi) is the uncle of the informant. P.W.4 is the victim herself, P.W.5 (Tala Murmu) is the informant of this case, P.W.6 (Dr. Kanak Ranjan) is the doctor, who examined the victim girl and P.W.7 (Shekhar Singh) is a formal witness who had proved the formal FIR. 4. Learned counsel for the appellants has argued that no case under section 363 of the Indian Penal Code is made out in this case. The points raised on behalf of the appellants are that no offence under section 363 of the Indian Penal Code is made out against the appellants. Secondly, it has been argued that the delay in lodging the first information report has not been explained by the prosecution and thirdly, and in the alternative it has been argued without accepting the allegations, that the girl had run away willingly with Zakir and after she has returned she has changed her mind and come up with the story alleging rape. 5. For the purpose of deciding these issues, it would be relevant to discuss the evidence of the witnesses which has come on the record. First of all, I will take up the evidence of P.W.4, Hanji Kumar, the victim girl. Hanji Kumari - 3 - has stated that she used to work in the field of Zakir. It is her statement that Zakir always behaved with her properly and did not look at her. On the date of the occurrence, she went to work in the field of Zakir, who took her by hand and pulled her from the field and thereafter took her to village Chilmara. They crossed on a boat and reached village Chilmara. In her cross-examination, she has stated that she did not raise “Halla” or seek help of any co-worker or any person whom she met on the way while she was being dragged from the field or while she was taken on a boat. After she reached village Chilmara, it is alleged that all three appellants committed rape with her. She claims that she was taken to Katihar, where her thumb impression was taken on a piece of paper and thereafter she was given money and released. This document has not been produced in court. After she returned home, she gave information about the occurrence. 6. P.W.1 has taken the name of all the three appellants and said Zakir was the person, who wanted to marry the complainant and he was responsible for taking the victim girl away. P.W.5, who is the informant has stated that her daughter was missing three months prior to the occurrence and Salwa and Tamja had asked the informant for money and the informant had paid them rupees three hundred for disclosing the whereabouts of her daughter. The rest of the allegations are hearsay as far as P.W.5 is concerned, as she has learnt about the rape from her daughter. With respect to the question of delay in lodging the first information report, no explanation has been given and there can hardly be any doubt or justification for lodging the report after three months’ delay. P.W.5 has given no explanation with regard to the delay except to say that she had made enquiry from some relatives regarding the whereabouts of her daughter. P.W.5 has also does not disclosed that how she suspected that Zakir was the person, who had kidnapped her daughter or that he was the person who wanted to marry her daughter. It is unnatural that the informant remained silent and did not lodge any - 4 - Sanha or information with regard to disappearance of her daughter for three months. The court can believe that any parent would first make enquiry and try to find out the whereabouts of the girl and would also try to recover the daughter without raising hue and cry about it but in this case, delay of three months can not be justified and, therefore, this court has to examine the story of kidnapping which appears strange for the reasons which have not come on record or simply for the reason that the mother knew that her daughter had run away with Zakir and wanted to avoid making it public until the last moment. P.W.5 has named Salwa in the first information report and has alleged that he was the man, who offered to help the informant on payment of rupees three hundred. It has been argued that the victim has taken the name of Salwa and Tamja, who are brothers, in this case because the informant had grudge towards them. Whatever be the reason, the delay in lodging the first information report certainly cast shadow on the prosecution case. 7. The second argument advanced on behalf of the appellant Salwa and Tamja is that they cannot be made guilty for the offence under section 363 of the Indian Penal Code i.e. kidnapping as it would appear from the evidence of the victim girl that she has stated that Salwa and Tamja was not responsible for taking her away from the place of work. Therefore, as far as conviction and sentence of Salwa and Tamja under section 363 of the Indian Penal Code is concerned, I set aside the findings of the learned court below and acquit them of the charge under section 363 of the Indian Penal Code. 8. Learned counsel next referred to the evidence of P.W.6 Dr. Kanak Ranjan, who has examined the victim girl to ascertain her age and also to ascertain whether she had been raped or not. With respect to the age of the girl, the doctor has said that according to the clinical, dental and radiological finding the girl is between the age of 17 to 18 years. Section 366-A of the Indian Penal - 5 - Code envisages that whoever, induces a minor girl under the age of eighteen years to go from any place or to do any act would come within the mischief of this section. It has been submitted on behalf of the appellants that the doctor has opined that the girl is aged between 17-18 years. It is further submitted that this aspect of the matter ought to have been considered by the court along with the evidence of the victim girl when she states that she did not protest while she was being taken by Zakir. It is surprising that the occurrence took place in the broad day light, yet not a single person has witnessed the alleged kidnapping. No one from the village has come forward to say that the girl was seen in the company of Zakir when she was being taken from her village, where the fields of Zakir are situated to Chilmara. Therefore, the submission, on behalf of the appellants is that Hanji Kumari had left her home willingly in order to marry Zakir and the allegation that she was kidnapped is unfounded. 9. Having discussed the evidence of the parties and even after considering the explanation, submissions made on behalf of the appellants seems to be reasonable. The drawback which all the three appellants have to face is that Hanji Kumar has alleged that all three appellants had raped her. 10. With regard to the allegation of rape, learned counsel firstly, submits that the doctor has not come to a positive finding that the girl was raped as it has been recorded that she had been used to sexual intercourse. Hanji Kumari is not specific or clear as to the manner in which she was kept in custody for three months. No details have been given by Hanji Kumari regarding the three months that she has spent away from home. She is also not specific with respect to the fact that while she was away for three months, who were restraining her and with whom she was living for those three months. All these aspects of the case are unexplained and create some doubt with respect to the truthfulness of the version given by P.W.4 coupled with the fact that it has been lodged after three months. - 6 - 11. In view of the unexplained delay in lodging the first information report and conduct of the victim girl, I think that ends of justice will be served by reducing the sentence of the appellants to the period already undergone in custody in the special facts that have emerged in this case. The appellants have remained in custody since 29.9.2004. 12. Accordingly, the conviction and sentence of all the three appellants awarded to the appellants by judgment dated 29th September, 2004, passed in Sessions Trial No. 205 of 1005 by the Additional District &Sessions Judge, Fast Track Court no. V, Katihar, is modified to the period already undergone in custody. 13. In the result, this Cr. Appeal is dismissed with modification in the sentence. (Sheema Ali Khan, J.) Patna High Court, Patna. Dated the 23rd April, 2009. NAFR / JA/-