Patna High Court
Babloo Kumar & Anr vs The State Of Bihar on 23 May, 2017
Author: Vinod Kumar Sinha
Bench: Vinod Kumar Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.669 of 2013
Arising Out of PS.Case No. -120 Year- 2011 Thana -SAHEBPUR KAMAL District- BEGUSARAI
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1. Babloo Kumar Son Of Late Jageshwar Yadav Resident Of Village - Parnarpur,
East Hardiachak, P.S. - Muffasil, District - Khagaria At Present Resident Of Village
- Panchvir, Hazipur Tola, P.S. - Sahebpur Kamal, District - Begusarai
2. Suraj Kumar Son Of Sri Kakkar Das Resident Of Village - Panchvir, P.S. -
Sahebpur Kamal, District - Begusarai
.... .... Appellant/s
Versus
1. The State Of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Sunil Prasad, Advocate.
For the Respondent/s : Mr. Binod Bihari Singh, APP
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CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
ORAL JUDGMENT
Date: 25-05-2017 This appeal is directed against the judgment 02.09.2013 and order dated 05.09.2013, passed by Shri Binay Kumar Sinha, learned 3rd Additional Sessions Judge, Begusarai, in Sessions Trial No. 854 of 2011, by which he has convicted the appellants under Sections 366A/34 and 376/34 of Indian Penal Code and sentenced them to undergo R.I. for five years and to pay a fine of Rs. 1,000/- under Section 366A/34 of Indian Penal Code and in default of payment of fine S.I. for one month. They have further been sentenced to undergo R.I. of eight years with a fine of Rs. 5,000/- each, under Section 376/34 Indian Penal Code and in default of payment of fine S.I. for five months. Both the sentences were Patna High Court CR. APP (SJ) No.669 of 2013 dt.25-05-2017 -2- directed to run concurrently and the period of already undergone in custody was directed to be set off.
Prosecution case in brief is that a joint written report was lodged by Raj Kumari Devi and Lila Devi, mothers of the victim girls, stating therein inter alia that on 18.06.2011 at about 3. P.M., Sinku Kumari, aged about 15 years, daughter of Raj Kumari Devi and Sangeeta Kumari, aged about 15 years, daughter of Wakil Das and Lila Devi, had gone to Panchveer Bazar for purchase of some cosmetic items but when they did not return till evening, informants went to search them at Panchveer Bazar, where they came to know that the appellants had enticed their daughters and took them away with themselves for the purpose of performing marriage with them. It is also the case of prosecution that in spite of rigorous search, none of them could be recovered, as such the present written report ahs been filed. They also alleged that the appellants have abducted the girls with the purpose of performing marriage with them.
On the basis of the above written report Sahebpur Kamal P.S. Case No. 120/2011 was registered under Section 366(A) against the appellants and police after investigation submitted charge-sheet against the appellants under Section 366(A) and 376 Indian Penal Code.
Patna High Court CR. APP (SJ) No.669 of 2013 dt.25-05-2017 -3- Cognizance of the offences has been taken and the case was committed to the Court of Sessions, which ultimately came for trial before Shri Binay Kumar Sinha, learned 3rd Additional Sessions Judge, Begusarai.
In this case charges were framed against both the appellants under Sections 366 (A)/34 and 376/34 of Indian Penal Code and after the Trial they have been convicted under Sections 366 (A)/34 and 376/34 Indian Penal Code and were sentenced as stated above.
Being aggrieved by the judgment and order, the present appeal has been preferred by the appellants.
The main contention of the appellants for assailing the judgment and order is that they have falsely been implicated in this case in the backdrop of land dispute and as a matter of fact no occurrence as alleged has taken place and both the girls were major at the time of alleged occurrence and had gone with the appellants out of their own sweet will to marry with the appellants. However, later on this false and concocted case has been lodged against the appellants. It has also been argued on behalf of the appellants that so far charge under Section 376/34 Indian Penal Code is concerned, the Doctor P.W. 9, who examined both the victim girls, had not Patna High Court CR. APP (SJ) No.669 of 2013 dt.25-05-2017 -4- found any sign of rape on the person of the victim girls. Further, it has been submitted that there are vital contradictions between the statements of P.W. 1 and P.W. 2, both the victim girls. It has also been argued that the evidence contained in para - 24 of the cross- examination, of P.W. 1, shows that both the victim girls were deboarded at the gate of Temple, where both the girls raised hulla and on hulla, local people assembled there and police was informed and till the police reached there, the people remained there with the victim girls. It has also been argued that this statement clearly falsify the story of rape and even the evidence of I.O. P.W. 8, clearly shows that he did not inspect the alleged place of rape. Further his evidence also shows that neither the clothes worn by the victim girls were recovered/seized nor the same was sent for examination and all these facts clearly signify the falsity of prosecution case. It has further been argued that even the charge under Section 366A is not attracted in this case as the evidence of P.W. 10, Doctor, Arun Kumar, who was member of the Medical Board, clearly shows that the age of the girls were between 18 to
20. Evidence of victim girls further shows that when they were taken to Temple, no hulla was raised by them and this indicates the falsity and manufactured story of abduction and rape at the instance Patna High Court CR. APP (SJ) No.669 of 2013 dt.25-05-2017 -5- of family members due to animosity on account of land dispute. It has thus been argued that prosecution case is full of falsity and learned Trial Court without applying his judicial mind has passed the judgment and conviction, which is perverse.
On the other hand, learned counsel for the State has submitted that P.W. 1 and P.W. 2, who are the victim girls in this case have categorically stated about their abduction by the appellants on the false plea that the mother of P.W. 1, has met with an accident and, thereafter, they brought them to a Temple and behind the Temple, they forcibly committed rape with them. The aforesaid evidences of P.W. 1 and P.W. 2 finds further corroboration from their statement recorded under Section 164 Cr.P.C., which is Ext. 1/1 and 2. Learned counsel for the State further argued that no doubt medical evidence does not corroborate the prosecution story of rape, however, there are various judgments of the Hon'ble Apex Court that in case medical evidence does not corroborate the ocular evidence, the ocular evidence will prevail. Hence the conviction of appellants under Section 366A/34 and 376/34 are just and proper and does not require any interference.
In the aforesaid background of the fact, let me to examine the evidence of prosecution witnesses. On behalf of the prosecution Patna High Court CR. APP (SJ) No.669 of 2013 dt.25-05-2017 -6- as many as 11 witnesses have been examined and they are: P.W. 1, Sangeeta Kumari (victim girl), P.W. 2 Sinku Kumari (victim girl) P.W. 3 Bipin Das, the uncle of the victim girl Sangeeta Kumari, P.W. 4 Wakil Das, the father of the victim Sangeeta, P.W. 5, Lila Devi, the mother of the victim girl Sangeeta, P.W. 6, Raj Kumari Devi, mother of the victim girl Sinku Kumari (informant of this case), P.W. 7, Sanjay Kumar, the Judicial Magistrate, who recorded the statements of the girl under Section 164 Cr.P.C., P.W. 8, Sanjeet Kumar, the I.O. of this case, P.W. 9, Dr Kamni Rai, the lady Doctor, who examined both the victim girls, P.W. 10, Dr. Arun Kumar, the Doctor and member of Medical Board, who examined the victim girls to assess their age and P.W. 11 Murli Dhar Mochi, the teacher of Primary School, who has proved the entry of admission register in respect of admission of Sangeeta.
Apart from above evidence, following documents have been admitted into evidence and they are; Ext. 1, signature of Sangeeta (P.W. 1) on her statement recorded under Section 164 Cr. P.C. , Ext. 1/1, the writing and signature on the statement under Section 164 Cr.P.C of Sangeeta Kumari, (P.W. 1), Ext. 2, the writing and signature of Sinku Kumari (P.W. 2) on statement recorded under Section 164 Cr.P.C., Ext. 3, the writing and Patna High Court CR. APP (SJ) No.669 of 2013 dt.25-05-2017 -7- signature of Ramashish Pathak, the then headmaster of the school on the school admission register, Ext. 4, writing and signature of Shri Ramashish Pathak, headmaster on T.C. no. 68/11 dated 11.04.2008.
On behalf of the defence also, one witness has been examined. As per evidence of D.W. 1 and from the trend of cross- examination, it appears that the defence of appellants is that they have falsely been implicated in this case on the backdrop of land dispute and no such occurrence as alleged has taken place. Defence case is one of total denial and of false implication.
P.W. 6, Raj Kumari Devi, the informant -cum-mother of victim girl Sinku Kumari, in her evidence in chief disclosed that four years back, her daughter Sinku Kumari and daughter of Lila Devi, Sangeeta Kumari had gone to Panchveer Bazar for purchasing some cosmetic items and till 5.00 P.M. to 6.00 P.M. they did not return back, she learnt from whisperings of mothers of appellants that the appellants have taken them away with themselves. It also appears from her evidence in chief that next day at about 8. A.M. to 9. A.M., she went to police station and filed the written report. Her evidence in chief also discloses that Sinku Kumari, was aged about 15 years and Sangeeta Kumari was aged Patna High Court CR. APP (SJ) No.669 of 2013 dt.25-05-2017 -8- about 14 years and they have been enticed by the appellants with a purpose of performing marriage with them and to commit some wrong. She has further disclosed that the Daroga Ji had come to Panchveer Bazaar along with her and Lila Devi and came to know that the accused persons have taken away the victim girls towards Raghunathpur Temple and, thereafter, they went towards the Raghunathpur Temple. It also appears from her evidence in chief that near the said Raghunathpur Temple, both the victim girls Sangeeta Kumari and Sinku Kumari were found and when the appellants tried to flee away, Daroga Ji caught them. Further it also appears from her evidence that Sinku Kumari informed her that Suraj has committed wrong with her and Babloo committed wrong with Sangeeta Kumari. This witness has been cross-examined at length, in her cross-examination at para -20, she has stated that at Raghunathpur both the victim girls were found in Temple but appellants were not present there and both the girls were sitting alone and the pujari of the temple was also not present there and at that place four to five persons were there. Her evidence in para - 21 shows that they came to Shivchanderpur, where appellants were apprehended. This witness has been given a suggestion that no such kidnapping was made and she has deposed falsely. Patna High Court CR. APP (SJ) No.669 of 2013 dt.25-05-2017 -9- P.W. 5, Lila Devi, the mother of Sangeeta Kumari, has deposed that the victim girls had gone to Panchveer Bazar to purchase some cosmetic items and when they did not return, they went to search for them and later on came to know that appellants enticed them away for the purpose of performing marriage with them. Her evidence further shows that she at 8 or 9 O'clock in the morning, informed the police about the incident and returned back. Her evidence in chief shows that victims were recovered from Raghunathpur and Sangeeta Kumari informed her that she was taken by the appellant, Babloo with an intention to marry. In her cross-m examination, she has stated that P.W. 1 and P.W. 2 were found at Raghunathpur Temple where, they were sitting alone and four -five villagers were present there. Both the appellants were caught at Shivchanderpur. She has also denied the suggestion put to her that no kidnapping had taken place and she has deposed falsely. Her evidence in para - 14 further disclosed that Sangeeta Kumari and Sinku Kumari were not recovered at the place but again she has stated that they have been recovered at that place and in para -15 of her cross-examination, she had stated that the appellants were arrested along with the victim girls and her evidence also disclosed that the victim girls were recovered at Raghunathpur Temple. A Patna High Court CR. APP (SJ) No.669 of 2013 dt.25-05-2017
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suggestion has also been given to this witness that appellants have falsely been implicated in this case due to land dispute.
From the testimonies of P.W. 6 and P.W. 5, it appears that on their written report, this case was lodged. They had stated about abduction of victim girls by the appellants, but they were not the eye witness of the occurrence. P.W. 5, has stated nothing about rape, even disclosed by victim girls. P.W. 5 has deposed in her cross-examination that both the victim girls and appellants were caught at Raghunathpur Temple whereas P.W. 6 has stated that both the victim girls were found in Raghunathpur Temple and appellants were caught by the police.
P.W. 1 and 2 are the victim girls of this case. P.W. 1, in her evidence in chief has stated that she along with P.W. 2, had gone to Panchveer Bazar on 18.06.2011 at 3.00 P.M. to purchase some cosmetic items, appellants met there and appellant Babloo told that her mother was ill and they would take them to her mother and thereafter she along with Sangeeta Kumari and appellants boarded a Tempo to go to Khagaria Hospital, but appellants got down from Tempo near Raghunathpur Temple and she then asked about her mother. It also appears from her evidence that the appellants Babloo told her that he would marry her and forcibly Patna High Court CR. APP (SJ) No.669 of 2013 dt.25-05-2017
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committed wrong with her behind the temple. It further appears that on hulla people assembled and caught the appellants. It also appears that on hulla people assembled and called the police. Her evidence in para - 2 of cross examination shows that the appellants are her neighbours and her evidence in para -6, further shows that she is a married lady. In her cross-examination, she has stated that appellants have stated about accident of her mother and they have forcibly asked them to come along with themselves. Her cross- examination in para 22 further shows that when they reached near Raghunathpur Temple about 4 to 5 P.M., she did not raise any hulla. Her evidence in para- 24 of cross-examination is somewhat strange as she has deposed that on their hulla so many people assembled there but again she has stated, that after lapse of much time people reached there. She further deposed that the people informed the police but the police did not apprehend the appellants. In para -25 of her cross-examination, she categorically stated that police reached there before sunset and in para -27, it appears that the police brought the victim girls to police station along with appellants. This statement of P.W. 1, is quite contrary to the prosecution version that next day i.e. on 19.06.2011, police found the victim girls at Raghunathpur Temple and caught the appellants Patna High Court CR. APP (SJ) No.669 of 2013 dt.25-05-2017
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at Shivchanderpur, which is far away from the Raghunathpur Temple, In para -38, she has stated that she did not see the face of Tempo driver nor she can say whether he was „kala or gora‟ . This statement of her creates a doubt as she is hiding something. In para -33, this witness has further asserted that at Raghunathpur Temple people assembled and after seeing the people, appellants began to flee away and the police then caught them.
From the above statement of P.W. 1 (victim girl), it clearly appears that appellants brought them to Raghunathpur Temple and on alarm raised by the victim girls, people assembled there and called the police and appellants were then brought to police station. This version of P.W. 1, itself falsify the very story of rape against the appellants against their will.
P.W. 2 Sinku Devi is the other victim girl of this case and she has also supported the prosecution case that appellants enticed them away on the pretext that mother of Sangeeta Kumari (P.W. 1) was ill and brought them to Raghunathpur Temple by a Jeep, which is contrary to the statement of P.W. 1 as P.W. 1, in her evidence has submitted that they were brought at the temple by a Tempo . Her evidence further shows that the appellants committed rape with them behind the Temple. Her evidence in chief also shows that in Patna High Court CR. APP (SJ) No.669 of 2013 dt.25-05-2017
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morning some persons came with police near Raghunathpur Temple and appellants tried to flee away but were caught by the police and brought to Sahebpur Kamal Police Station. Her evidence also shows that their statements have been recorded in the court. Her cross examination in para 14 to 18 further disclosed that from Panchveer Bazar to Raghunathpu, they did not raise hulla and she along with Sangeeta Kumari raised hulla at Temple in the next morning and on hulla, people assembled there. She has also stated in para -20 that there was blood stain on her salwar and there was sperm also on her salwar. Her cross-examination in para -24 further shows that there was blood and sperm around her vagina. She has also stated that rape was committed forcibly. Her statement in para
-29 further shows that the appellants were apprehended along with them at Raghunathpur Temple.
On careful consideration of evidence of P.W. 1 and P.W. 2 (victim girls), it clearly appears that they materially contradict the evidence of each other not only on the point of abduction but also on the point of commission of rape.
P.W. 9, Doctor Kamini Rai examined the victim girls on 20.06.2011 at Sadar Hospital, Begusarai, and she has categorically stated in her evidence in chief that she had found no injury on any Patna High Court CR. APP (SJ) No.669 of 2013 dt.25-05-2017
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part of the body including front and back of the victim girls and further opined that no evidence of rape was found on the person of the victim girls. She further deposed that no siemenal stain on genetelis at thigh, hymen intact, no external injury on genetelis. The vagina swab taken and no spermatozoa found in pathological examination. This witness has further proved the medical report of both the victim girls.
P.W. 3 Bipin Kumar Das, is the uncle of victim girl Sangeeta Kumari and P.W. 4, is his father, they have also supported the prosecution story regarding abduction and recovery of victim girls and also regarding commission of rape on the victim girls by the appellants but on perusal of their evidences, it clearly appears that they are only hear-say witnesses.
Prosecution story as per F.I.R is that the victim girls were minor and aged about 15 years and 14 years respectively, at the time of alleged occurrence and the prosecution has also examined P.W. 11, a teacher of the school, who brought the admission register, which has been proved as Ext. 3 and Transfer Certificate (T.C.) as Ext. 4 of victim Sangeeta Kumari to show that her date of birth was 14.08.1998, which was entered in the year 2005 in order to show that she was minor.
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Further P.W. 10, who is also a Doctor and one of the Members of Medical Board, who examined the victim girls has stated his evidence on the basis of photocopy of the report and on the basis of X-ray radiology that the age of P.W. 2, Sinku Kumari was between 18 to 20 years and the age of P.W. 1, Sangeeta Kumari in between 19 to 21 years. However, as original report has not been brought on record and proved in this case as such the Trial Court has not considered the aforesaid evidence. It is a well established principle that prosecution has to prove its case and here the prosecution has come with a case that both the girls were minor at the time of occurrence. It is incumbent upon the prosecution to prove its case beyond all reasonable doubts. Since the report of Medical Board regarding the assessment of age of victim girls has not been brought on record, whereas P.W. 10, the Doctor has stated in his evidence that as per X-ray and radiological test, the victim girls were not minor, as such not bringing the medical report naturally caused serious prejudice to the appellants and in that situation benefit will surely go to the appellants.
P.W. 7 is the Judicial Magistrate, who has recorded the statement of victim girls under Section 164 Cr.P.C. and proved the same as Ext. 1/1 and 2. Further in his cross examination, this Patna High Court CR. APP (SJ) No.669 of 2013 dt.25-05-2017
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witness has stated that the victim girl Sinku Kumari has told him that occurrence took place in the evening and on her hulla people assembled and called the police.
From the discussion as made above and on consideration of evidences of all the prosecution witnesses, it is clear that P.W. 3 to 6 are not the eye witness of the alleged occurrence rather they are only hearsay witnesses. Both the victim girls i.e. P.W. 1 and P.W. 2, are only the witnesses of the occurrence and on close scrutiny o their testimonies, it appears that they are quite inconsistent to each other in their evidence. According to P.W. 1, they reach at Raghunathpur Temple, they raised hulla and on hulla, local people assembled and they called the police and on the same police brought both the victim girls and appellants to police station. As such the evidence of P.W. 1, completely falsify the story of rape by the appellants behind the temple.
In this case charge has been framed against the appellants for committing rape on Sangeeta Kumari and Sinku Kumari in the evening behind the temple in furtherance of their common object, however, there is no prosecution story that both the appellants have committed rape on both the victim girls and the evidences also does not disclose such fact. If evidence of P.W.1 is to be believed then Patna High Court CR. APP (SJ) No.669 of 2013 dt.25-05-2017
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no rape was committed as this witness has categorically stated that they reached at Raghunathpur Temple, they raised alarm then local people assembled there and they called the police, thereafter, the police took into custody both the appellants and brought them along with victim girls to police station. Hence the evidence of P.W. 1 is to be believed, the question of rape does not arise as the appellants were arrested soon after their arrival at Raghunathpur Temple and this also find support from the medical report, which unambiguously shows that no sign of rape was found on either of the victim girls On totality of the facts as discussed hereinabove, it clearly reveals that the prosecution has utterly failed to prove the charge under Section 376 against the appellants beyond all reasonable doubts.
The appellants were also charged under Section 366A Indian Penal Code and Section 366A provides that:-
"Procuration of minor girl.--Whoever, by any means whatso- ever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.]"
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As such one of the ingredients for conviction under Section 366A is that victim must be a minor under the age of 18 years. Further abduction has been defined under Section 362 Indian Penal Code, which reads as under:-
"Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person."
In the present case, though prosecution has come with a story that both the victim girls were minor at the time of occurrence and the same has also been stated by all the prosecution witnesses and they have also brought school transfer certificate and admission register of victim, Sangeeta Kumari (P.W. 1), showing that her date of birth was 14.08.1998 on 2005 and it has been argued that they were minor at the time of alleged occurrence, however, both the victim girls were examined by a Medical Board for assessment of their age and the Doctor, Arun Kumar (P.W. 10) has deposed that after going through the radiological report and other fact, the age of victim Sangeet was found to be between 18 to years and the age of victim Sinku Kumari was found between 19 to 21 years. No doubt, report of the medical board has not been brought on the record but the latches is on the part of the prosecution and for that defence is entitled for benefit, as such, so far the claim of the prosecution that Patna High Court CR. APP (SJ) No.669 of 2013 dt.25-05-2017
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they were minor, appears to be not free from reasonable doubts.
Once the prosecution has failed to prove that the victim girls were minor at the time of alleged occurrence, automatically, the appellants cannot be convicted under Section 366A.
However, in the present case, there are sufficient cogent and reliable materials available on record to suggest that the victim girls were enticed away by the appellants on the ground that mother of the victim Sangeeta Kumari, was ill, as such, they accompanied the appellants and on that plea they took them to Raghunathpur Temple with an intention to marry with them. No doubt, there is some discrepancies in between the evidence of P.W. 1 and P.W. 2 as P.W. 1 has deposed that they had been taken to Temple by a Tempo, whereas P.W. 2 has deposed that they had been taken to temple by a Jeep. However, the facts remained that the victim girls were recovered at Raghunathpur Temple and the appellants were also arrested, as such, even if there is discrepancy and contradiction in the evidence of victim girls regarding the use of vehicle, They cannot falsify the cogent and reliable evidence available on record that victim girls were enticed away by the appellants on the false plea that mother of victim girl, Sangeeta Kumari, was ill and taken them to Raghunathpur Temple with an intention to marry with Patna High Court CR. APP (SJ) No.669 of 2013 dt.25-05-2017
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them.
The provision of Section 366 provides as follows:-
"Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; 1[and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid].
Thus, it is clear that any person abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, he will be convicted under Section 366 Indian Penal Code and abduction has been defined as stated earlier that includes abduction by any deceitful means.
In the present case, there are enough materials to show that the victim girls had been taken away on the plea that mother of P.W. 1, Sangeeta Kumari, was ill, no doubt the appellants had not been Patna High Court CR. APP (SJ) No.669 of 2013 dt.25-05-2017
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charged in this case under Section 366 Indian Penal Code and they have been charged under Section 366A Indian Penal Code as follows:-
First- That you on or about the 18th day of June 2011 at 3.00 P.M. at Hajipur Tola, Village - Pachvir Market, P.S. Sahebpur Kamal, Dist - Begusarai; in furtherance of common intention of you all kidnapped or induced Sinku Kumari and Sangeeta Kumari (both are minor girl under the age of eighteen years) to from her house with intent that the said Sinku Kumari and Sangeeta Kumari may be or knowing that it is likely that the said Sinku Kumari and Sangeeta Kumari will be forced to illicit - intercourse with Suraj Kumar and babloo Kumar and that they have committed an offence punishable under Section 366A/34 Indian Penal Code.
It further appears from perusal of record that following questions were put to the appellant Babloo Kumar, under Section 313, Cr.P.C. :-
iz0% D;k vkius xokgksa dk C;ku lquk ?
m0% th gkWa iz% vkdds fo:/k vkjksi ,oa lk{; gS fd vkius fnukad 18-06-2011 dks 03 cts vijkgu xzke iapohj Vksyk] Fkkuk lk0 deky ftyk & csxqljk; esa vU; vfHk;qDr lqjt dqekj ds lkFk feydj ukokfyx laxhrk dqekjh ,oa flaxq dqekjh dks cgyk Qqlyk dj "kknh ds fu;r ls vigj.k dj fy;k vkSj xzke j?kqukFkiqj] Fkkuk lk0 deky Patna High Court CR. APP (SJ) No.669 of 2013 dt.25-05-2017
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ftyk & csxqljk; esa eafnj ds ihNs laxhrk dqekjh ds lkFk cykRdkj fd;kA bl laca/k esa vkidks D;k dguk gSA m0% th ugha iz0% lQkbZ esa D;k dguk gSA m0& funks'k gSaA Further following questions were put to appellant -Suraj Kumar, under Section 313 Cr.P.C.
iz0% D;k vkius xokgksa dk C;ku lquk ?
m0% th gkWa iz% vkids fo:/k vkjksi ,oa lk{; gS fd vkius fnukad 18-06-2011 dks 03 cts vijkgu xzke iapohj Vksyk] Fkkuk lk0 deky ftyk & csxqljk; esa vU; vfHk;qDr ccyw dqekj ds lkFk feydj ukokfyx fladq dqekjh ,oa laxhrk dqekjh dks cgyk Qqlyk dj "kknh ds fu;r ls vigj.k dj fy;k vkSj xzke j?kqukFkiqj] Fkkuk lk0 deky ftyk & csxqljk; esa eafnj ds ihNs fladq dqekjh ds lkFk cykRdkj fd;kA bl laca/k esa vkidks D;k dguk gSA m0% th ugha iz0% lQkbZ esa D;k dguk gSA m0& funks'k gSaA From perusal of the aforesaid charge, it appears that all ingredients of Section 366/34 Indian Penal Code has been there against the appellants in the charge framed under Section 366A/34 Indian Penal Code as stated above. It also appears that in the statement also they have been clearly asked to explain about Patna High Court CR. APP (SJ) No.669 of 2013 dt.25-05-2017
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abduction with an intention to marry with them. Hence, appellants were aware of the ingredients of the charge under Section 366A/34 Indian Penal Code also and they have also been given a chance to explain their defence.
As per Section 464 Cr.P.C., it is possible for appellate court to convict an accused for an offence for which no charge was framed unless the court was of the opinion that a failure of justice would in fact, occasion. The failure of justice has occasioned, shall be judged from the fact that as to whether the accused was aware of the basic ingredients of the offence for which, he has been convicted and whether main facts established against him were explained to him and whether he got a fair chance to defend himself.
In the present case as discussed above, all the ingredients of Section 366 Indian Penal Code has been there in the charge under Section 366A Indian Penal Code and the appellants have also been given a chance under Section 313 Cr.P.C. to defend themselves.
In view of the discussions made above, so far conviction and sentence of the appellants under Section 376/34 Indian Penal Code is concerned, the same is hereby, set aside and so far conviction of appellants under Section 366A/34 Indian Penal Code is concerned, the same is converted to a conviction under Section 366/34 Indian Penal Code and order of sentence passed by the learned Trial Court shall Patna High Court CR. APP (SJ) No.669 of 2013 dt.25-05-2017
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remain intact. The period of custody already undergone by the appellants shall be set off under Section 428 Cr.P.C.
With the above modification in conviction and sentence, this appeal is partly allowed.
(Vinod Kumar Sinha, J) sunil/-
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