Criminal Appeal (SJ) No.299 OF 1994 (Appeal against the Judgment and Order dated 31.8.1994 passed by the 1st Additional Sessions Judge, Saharsa, in Sessions Case No. 272 of 1989) 1. MD. SAKOOR @ BABLOO, SON OF MD. JAHOOR RESIDENT OF VILLAGE – NARIYAR, P.S. AND DISTT. SAHARSA. 2. MD. MANJOOR, SON OF MD. MAINUL, RESIDENT OF VILLAGE – ADAMPUR, P.S. KRITYANAND NAGAR, DISTT. PURNEA. 3. MD. NAZIM, SON OF MD. HAMID, RESIDENT OF VILLAGE ISLAM NAGAR, P.S. ARARIA, DISTT. PURNEA (NOW ARARIA) ------- APPELLANTS. Versus THE STATE OF BIHAR ------------------------RESPONDENT For the Appellants : Mr. Bidhanesh Mishra, Advocate (Amicus curiae) For the State : Mr. M.K. Khare, A.P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: Since the sole counsel appearing on behalf of the Appellants has been elevated to the Bench, Mr. Bidhanesh Mishra is appointed Amicus Curiae to assist this Court. Heard. The Appellants have been convicted under Sections 366/34, 366A/34, 368/34 of the Indian Penal Code and also under Section 376 of the Indian Penal Code and sentenced to rigorous imprisonment for five years and a fine of Rs. 500/- in default of which two months each. However, no separate sentence has been passed under Section 366A of the Indian Penal Code. The prosecution case is that on 5.8.1989, the Informant noticed his daughter aged about 15 years always 2 talking to the Appellant No. 1 in private and when he was chastised, the daughter of the Informant was kidnapped. The prosecution examined nine witnesses out of whom PW-1 is the victim lady whereas PW-2 is the Doctor who conducted her medical examination. PW-3 has been tendered and PW-4 is the Informant of the case. PW-5 is the neighbour of the Informant and PWs 6, 7 and 8 have been tendered cross- examination. PW-9 is the Investigating Officer. The Defence also examined three witnesses on its behalf mainly on the point that the Appellant Manjoor was in his village when he was arrested by the Police as also that Md. Nazim had gone out of his house and it was in his absence that his house was raided whereas PW-3 has stated that there were two fractions in the Village. The Defence also proved a number of documents to assert that the girl was a major at the time of occurrence and in fact, she was in love with the Appellant No. 1 who had eloped with him but thereafter, on recovery, she had given an incriminating statement on coercion. PW-2 had estimated the age of the victim as 17 years and PW-4 also stated that his daughter, i.e. the victim was 17 years of age. In view of the numerous decisions on the point that two years margin should be allowed while assessing the age of a victim, I am inclined to hold that the victim was a major at the time of occurrence. Exbt. B series reveal that various love letters have 3 been written by the alleged victim to the Appellant No. 1 which in effect was also conceded by the Informant in the First Information Report and, therefore, the possibility of there being sweet relationship between the parties cannot be completely ruled out. In the background of the relationship between the Appellant No. 1 and the victim, it can safely be assumed that in fact, PW-1 had eloped with the Appellant No. 1 out of her own sweet will and she gave the incriminating statement, later on, only to save her honour. The fact that a major was taken to another place and kept for a number of days also points to the falsity of the prosecution case. In the result, the Appeal is allowed. The order of conviction and sentence passed against the Appellants in Sessions Case No. 272 of 1989 by the 1st Additional Sessions Judge, Saharsa, is hereby set aside. The Appellants are discharged from the liability of their bail bonds. Let a copy of Judgment be handed over to Mr. Bidhanesh Mishra (Amicus Curiae) and his payment shall be made by the Patna High Court Legal Services Committee. Patna High Court, Patna, Dated, the 7th April, 2011 NAFR/S.ALI ( Anjana Prakash, J.)