Patna High Court
Sibu Kumhar (Pandit) vs State Of Bihar on 19 June, 2012
Author: Sheema Ali Khan
Bench: Sheema Ali Khan
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.4 of 2000
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Radhiya Khatoon @ Usia, Wife of Md. Suleman, Resident of Village Kapasiya,
P.S. Begusarai, District Begusarai.
.... .... Appellant
Versus
The State of Bihar
.... .... Respondent
with
Criminal Appeal (SJ) No. 74 of 2000
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Sibu Kumhar (Pandit), Son of Late Natho Pandit, Resident of Village Teta Pokhar,
P.S. Begusarai, District Begusarai.
.... .... Appellant
Versus
The State of Bihar
.... .... Respondent
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Appearance :
For the Appellants : Mr. S.N.P. Sinha, Sr. Advocate
Mr. Jitendra Nr. Sinha, Advocate
Ms. Mira Kumari, Advocate
Mr. Krishnandan Kumar, Advocate
For the State : Mr. Jharkhandi Upadhyay, A.P.P.
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CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN
ORAL JUDGMENT
Date: 19-06-2012
S.A. Khan, J. These two appeals arise out of a judgment and order
dated 20.12.1999 whereby Radhiya Khatoon and Shibu Kumhar
(Pandit) have been convicted by the Trial Court. Shibu Kumhar
(Pandit) has been convicted under Sections 365, 366, 368, 373 and
120B of the Indian Penal Code to undergo rigorous imprisonment
for 7 years under Sections 365, 366 and 368 of the Indian Penal
Code and rigorous imprisonment for 10 years under Section 373 of
2 Patna High Court CR. APP (SJ) No.4 of 2000 dt.19-06-2012
2 / 11
the Indian Penal Code. Radhiya Khatoon has been convicted for 7
years rigorous imprisonment under Section 368 and rigorous
imprisonment for 10 years under Section 373 of the Indian Penal
Code. The sentences have been ordered to run concurrently.
2. The appellant Shibu Kumhar (Pandit) has been in
custody since 11.8.2007 to 2.3.2000, when this Court granted bail
to him, whereas Radhiya Khatoon has been in custody from
13.7.1997to 11.2.2000. The question in these appeals is whether the prosecution has been able to prove the case of kidnapping and abduction beyond all reasonable doubt?
3. During trial six witnesses have been examined. P.W. 1 is Jai Prakash Poddar who was posted as a Home Guard Hawaldar in Matri Seva Sadan at Begusarai, P.W. 2 is the doctor who took the X-ray of the victim lady Kaili Devi, P.W. 3 is the Judicial Magistrate who examined Kaili Devi under Section 164 of the Code of Criminal Procedure, P.W. 4 is Basant Kumar Hessa who recorded the First Information Report and also conducted investigation of this case, P.W. 5 is the informant Kaili Devi and P.W. 6 is the formal witness who has proved exhibits 5, 5/1 and 5/2 which are the three medical reports of the doctor of Patna Medical College & Hospital. The defence has not examined any witnesses but has got paragraph 1 of the case diary exhibited which is the 3 Patna High Court CR. APP (SJ) No.4 of 2000 dt.19-06-2012 3 / 11 Sanha entry informing the police station that a lady had taken shelter at Matri Seva Sadan, Begusarai.
4. The case began with the recording of the Sanha entry and as stated earlier it merely said that the police station was informed by some unknown person that a girl had escaped from a brothel and had taken shelter in Matri Seva Sadan, Bugusarai. It is also recorded that she was being chased by touts. After recording the Sanha the Investigating Officer reached Matri Seva Sadan, Begusarai and took the statement of the victim lady. In her statement she has said that she was married 4 years back to one Ramu Mahaldar. On 5.7.1997 her husband is said to have taken her to the Forbesganj bus stand and left her at the bus stand. The victim got worried and began to cry as it was getting late in the evening. She met a person who sympathized with her and promised to take her to her husband's house. She reluctantly agreed to go with him, thereafter it is said that he called for a car. The victim was taken in the car along with unknown person and one old lady to Begusarai Chowk and was deposited in a house where there were 9-10 other females. She alleges that she came to know that the person who had persuaded her to leave with him was Shibu Kumhar (Pandit). She alleges that she was forced to have illicit sex with certain persons and was also assaulted if she raised a protest. In her Beyan 4 Patna High Court CR. APP (SJ) No.4 of 2000 dt.19-06-2012 4 / 11 it is said that she managed to escape with the help of a taxi driver who was a client of the establishment. On the basis of the said allegations, the First Information Report was recorded and the case investigated.
5. The statement of Kaili Devi was also recorded under Section 164 of the Code of Criminal Procedure which has been marked as Ext. 3 during trial. In her statement under Section 164 of the Code of Criminal Procedure she has said that she had gone to Forbesganj along with her husband Ramu Mahaldar who left her in Line Bazar and did not return. She thereafter took a taxi and asked the taxi driver to take her home, the taxi driver however, took her at Begusarai and left her there. In the brothel she was forced to have sex with strange men and was abused and assaulted when she refused to comply with the dictates of the owners of the brothel. She claims that she remained in the brothel for eight days where she was forced to enter into sex with different persons. Later she escaped from the brothel. She alleges that Shibu Kumhar (Pandit) was the person who used to assault her if she refused to comply with the dictates of the brothel owner.
6. P.W. 1 Jai Prakash Poddar has supported the prosecution case inasmuch as he has stated that a girl had taken shelter in the Matri Seva Sadan. P.W. 1 was posted as a Home 5 Patna High Court CR. APP (SJ) No.4 of 2000 dt.19-06-2012 5 / 11 Guard Hawaldar at the said Matri Seva Sadan. He discloses in his evidence that he was told by Govind (electric mistry) that one girl has escaped from the brothel and had taken shelter in the Matri Seva Sadan, thereupon P.W. 1 informed the police station. The Investigating Officer came and recorded his statement as well as the statement of the lady.
7. Learned counsel for the appellants submits that as far as P.W. 1 is concerned, his statement is not supported by Sanha entry as according to P.W. 1 he had disclosed his name and the name of the escaped victim to the Officer Incharge of the police station whereas the Sanha entry does not show such a disclosure. It is further argued that P.W. 1 had no occasion to converse with the victim girl as according to P.W. 1 he was given information by Govind (electric mistry). This argument of the counsel although true does not have any bearing on the merits of the allegation inasmuch as the counsel cannot dispute that the victim lady had taken shelter in the Matri Seva Sadan or that she had escaped from a brothel as such the evidence of P.W. 1 is restricted in effect, as it only supports that part of the prosecution case regarding escape of the victim from the brothel.
8. P.W. 2 is the doctor who conducted the X-ray of Kaili Devi. The X-ray report discloses that "Wrist- Epiphysis of 6 Patna High Court CR. APP (SJ) No.4 of 2000 dt.19-06-2012 6 / 11 both Radius and ulna fused. Pelvis- Epiphysis of Iliac crest not fully fused-fusion not complete. Mandible- Last molar not erupted both upper & lower." Thus P.W. 2 has not given an opinion regarding the question of age of the girl in question.
9. The next relevant witness is P.W. 4 who had recorded the First Information Report and conducted the investigation. As usual the investigation has been conducted in a perfunctory manner. Once it came to the notice of the Officer Incharge of the Police Station that a brothel is running it was incumbent on the police officer to conduct a raid and to arrest all the persons who were working in the brothel. However, despite visiting the house where the brothel was running nothing has been recorded by P.W. 4 which would indicate that any action was taken in this regard. Infact he has not even bothered to state regarding any steps taken in this direction or regarding whether he found that there was a brothel at the place of occurrence when he visited the alleged brothel. Nevertheless as far as the evidence of P.W. 4 is concerned, it is consistent inasmuch as it supports the case of the victim girl that she was taken to a brothel and that she escaped from there. The Officer Incharge also visited the house of Shibu Kumhar (Pandit) who had surrendered by that time. His evidence relates to description of place of occurrence i.e. the Matri Seva Sadan, rather 7 Patna High Court CR. APP (SJ) No.4 of 2000 dt.19-06-2012 7 / 11 than the brothel where the girl was forced to work and regarding steps which were taken to get her medically examined. Thus the evidence of P.W. 4 the Investigating Officer supports the fact that the victim girl was recovered at Matri Seva Sadan, her statement recorded and was medically examined at Patna Medical College & Hospital and X-ray was taken in Sadar Hospital at Begusarai.
10. Lastly this Court will deal with the statement of P.W. 5 Kaili Devi. Kaili Devi has come up with two versions of the occurrence. According to the First Information Report, Shibu Kumhar (Pandit) had approached her and assured her that he would deposit her safely to her husband's home whereas statement under Section 164 of the Code of Criminal Procedure she states that she hired a taxi on her own so that she could reach home and it was the taxi man who had deposited her in the brothel. She also differs in the First Information Report and the statement under Section 164 of the Code of Criminal Procedure to the extent that according to the First Information Report she has claimed that she was abandoned at the bus stand, whereas according to the statement under Section 164 of the Code of Criminal Procedure the case made out by her was that she was abandoned at Line Bazar by her husband. The manner in which she was abducted/kidnapped also differs as indicated above. In Court Kaili Devi has come up with a version which 8 Patna High Court CR. APP (SJ) No.4 of 2000 dt.19-06-2012 8 / 11 differs in the sequences of the occurrence which took place before she found herself in the brothel. In Court she has stated that she had gone to Forbeganj with her husband where her husband met with Shibu Kumhar (Pandit) who spoke with her husband for sometime and thereafter her husband left her, in the company of Shibu Kumar (Pandit) who took her in a taxi to Begusarai and lodged her in a brothel. It has also been stated in the First Information Report as well as before the Court that an old woman was also sitting in the taxi which took her to Begusarai. She supports her case of being abandoned by her husband, she also suspects that she was sold by her husband to Shibu Kumhar (Pandit) and was detained in the brothel for about 8 days. Therefore, there can be no doubt regarding the part of the occurrence that the victim lady was deserted by her husband and ended up in a brothel.
11. On the basis of the materials and the evidence that has come on record, it has been argued on behalf of the appellants that it cannot be said that an offence is made out under Section 373 of the Indian Penal Code and, therefore, the conviction under Section 373 of the Indian Penal Code is unwarranted by the Court. To this extent, this Court agrees with the counsel for the appellants as even according to the case of the victim lady she 9 Patna High Court CR. APP (SJ) No.4 of 2000 dt.19-06-2012 9 / 11 described herself to be 26 years of age on the date of giving her evidence dated 17.11.1999 coupled with the X-ray report which indicates that the ulna had fused completely, this Court would come to the conclusion that the girl in question was not a minor and, therefore, this Court sets aside the conviction under Section 373 of the Indian Penal Code.
12. As far as the conviction of appellant Radhiya Khatoon is concerned, it would appear that she cannot be described as the person who had participated in the actual act of kidnapping or abduction as it is the consistent case of the informant that there was an old lady sitting in the taxi whereas the appellant Radhiya Khatoon has been assessed as 30 years of age in the year 1999 which would mean that her age on the date of occurrence was 28 years. In the statement under Section 164 of the Code of Criminal Procedure she has also been assessed as 30 years old as such this Court finds that the then appellant could not be held to be guilty of provisions of Section 373 of the Indian Penal Code. As far as Section 368 of the Indian Penal Code is concerned, it is not the case of the prosecution that Radhiya Khatoon was responsible for concealing or confining the victim lady as there is no evidence to show that she was the woman who runs the brothel. Infact there is no evidence to highlighting this aspect of the matter and, therefore, 10 Patna High Court CR. APP (SJ) No.4 of 2000 dt.19-06-2012 10 / 11 this Court finds that there is insufficient evidence against Radhiya Khatoon.
13. It has been argued on behalf of the appellants that on the basis of the case made out in the First Information Report, the statement under Section 164 of the Code of Criminal Procedure which has been duly proved and exhibited and the statement given in Court, a story has been made out that the victim girl was sold by her husband to Shibu Kumar (Pandit) who had abducted her by misleading her into believing that he would deliver her safely to her husband's home, had infact detained her in order to force her to enter into illicit intercourse and thus be liable for an offence under Section 498 of the Indian Penal Code, rather than an offence under Sections 365 and 366 of the Indian Penal Code. This Court on the basis of the facts noted aforesaid finds that although it may not be a clear case of kidnapping, certainly it is the case where the lady was illegally and deceitfully detained for the purposes of forcing her to enter into illicit immoral acts of sexual nature, with the consent of the husband and as such in the facts this Court holds that the appellant Shibu Kumhar (Pandit) is guilty of an offence under Sections 365 and 366 of the Indian Penal Code however, his sentence is reduced to the period undergone along with a fine of Rs. 5,000/- to be paid to the victim lady within a period of 6 months 11 Patna High Court CR. APP (SJ) No.4 of 2000 dt.19-06-2012 11 / 11 failing which to undergo simple imprisonment for 6 months.
14. In the result, Cr. Appeal No. 4 of 2000 (SJ) is allowed and the Cr. Appeal No. 74 of 2000 (SJ) is dismissed with the alteration of the sentence. The appellants are accordingly, discharged from the liabilities of their bail bonds furnished earlier in this case.
(Sheema Ali Khan, J.) Patna High Court, The 19th of June, 2012, Sanjay/N.A.F.R.