Jharkhand High Court
Badal Bhandari vs State Of Bihar (Now Jharkhand) on 27 September, 2005
Equivalent citations: 2006CRILJ1589, [2006(1)JCR65(JHR)], 2006 CRI. L. J. 1589, 2006 (1) AIR JHAR R 248, (2006) 1 JCR 65 (JHA), (2006) 3 RECCRIR 22, (2006) 2 CURCRIR 30, (2006) 1 JLJR 34, (2006) 1 EASTCRIC 339
Author: R.K. Merathia
Bench: R.K. Merathia
JUDGMENT R.K. Merathia, J.
1. Heard.
2. This case has been transferred from Patna. As nobody appeared on behalf of the appellants, Mr. Sunil Kumar Dubey assisted the Court on behalf of the appellants as Amicus Curiae. Mr. Jawhar Prasad, learned APP appeared on behalf of the State.
3. The prosecution case in brief is that Doman Kumar Dey, the brother of the victim Soriali Dey, lodged a fardheyan on 8.12.1992 about an occurrence, which took place at 11 p.m. on 6.12.1992, alleging, inter alia that when her mother woke up, she found Sonali missing from her room. His mother informed him. They started searching her in course of search, some co-villagers disclosed to the informant that at about 5.30 p.m. on 6.12.1992, they have seen the appellant and Sonali talking between themselves. It was further alleged that when the informant alongwith the said persons reached at the place where Sonali used to sleep, he found that golden ornaments worth Rs. 13,5000/- and Rs.2,500/-in cash kept inside the wall were missing.
4. The prosecution examined nine witnesses. PW 5 is the informant, PW 6, Sonali (victim girl) PW 3 is the mother of the victim. PW 7 is the Doctor, who examine the victim girl. PW 8 is the Magistrate, who recorded the statement of the victim under Section 164, CrPC. PW 9 is the Investigating Officer. PW 2 and 4 are the tendered witnesses. PW 1 is a hearsay witness.
5. Admittedly, the door of the house was found open and the victim girl, Sonali Dey was found missing in the night of 6,12.1992. She was recovered on 30.12.1992 i.e., after about 24 days from the in law's house of the uncle of the appellant. Admittedly, the victim was taken by the appellant from one place to another between these 24 days. The house of the appellant is situated after four hosues of the victim. The Doctor assessed her age between 15-16 years. No internal or external injuries were found though the Doctor opined that signs of sexual intercourse was found on the basis of spermatozoa in the vaginal swab, but she did not opine that it, was a case of rape.
6. Referring to the aforesaid circumstances, Mr. Sunil Kumar Dubey, learned Amicus curiae appearing for the appellant submitted that it was a case of love affair and consent. He further submitted that it cannot be believed that for 24 days, the victim was helpless in taking any action against the appellant when she was taken by the appellant from place to place. It is further submitted that the love letters, which were admittedly written by the victim girl cannot be disbelieved on the ground that they were written by her on the threat of the appellant when she was in his custody.
7. Mr. Jawahar Prasad, learned APP appearing for the State could not dispute the said position but submitted that as the victim was minor, the appellant cannot take advantage of her alleged consent.
8. In reply, Mr. Dubey, submitted that the age of the victim girl as opined by the Doctor cannot be taken to be conclusive proof of age and it can be plus or minus two years. He further submitted that the appellant has faced this trial since 1992 and he has remained in jail for about six months and if he is convicted, his career may be jeopardized.
9. I am convinced with the submissions of Mr. Dubey that the prosecution has not been able to prove its case beyond all reasonable doubts including that the victim girl was minor. In the circumstances, the appeal is allowed. The judgment of conviction and sentence is set aside and the appellant is discharged from the liability of his bail bonds. Appeal allowed.