Patna High Court
Mst. Bhagia And Ors. vs State Of Bihar on 5 October, 1964
Equivalent citations: 1967CRILJ1240
JUDGMENT Anant Singh, J.
1. The five appellants were charged with kidnapping and under a separate charge, with abduction, both under Section 366, Indian Penal Code, and were found guilty of both the charges, the three male appellants have been awarded a sentence of five years rigorous imprisonment each and the two female appellants, one year's rigorous imprisonment each for kidnapping and no separate sentence has been passed for the offence of abduction.
2. Appellant Satyadeo Dubey and Kapildeo-Dubey are uterine brothers and Mt. Bhagia is their mother. Appellant Chandradeo Dubey is the husband of appellant Mt. Surji and these two appellants live in a separate house from the other appellants, although, Chandradeo Dubey is an uncle of Satyadeo and Kapildeo. They are all residents of mauza Chochahi Tole Batrolia within Paroo Police Station of the district of Muzaifarpur. The girl, said to have been kidnapped is Sumitra Devi (P. W. 14) and is said to have been minor on the date of alleged kidnapping on the 19th August, 1962, from a house situate in the same village where the appellants come from. Her father is Jagdhari Dubey (P.W. 13) and her mother is Champa Devi (P. W. 8) and her uncle is Bajdhari (P. W. 11). Mabeshwar (P. W. 1), a child aged about ten years, is her own brother. They all lived in the same house with the girl but her father, who was a constable at Patna at about the time of occurrence, was on leave for a few days. The girl (P. W. 14) was unmarried at the time of occurrence, though, she has since been given in marriage to one Kapildeo Pathak of a different village,
3. The prosecution case, briefly stated, is as follows : Between 11 and 12 noon of the 19th August, 1962, the girl (P. W. 14) and her brother (P. W. 1) were the only persona present in their house and other members were away for one reason or another of their own. The female appellants, who had been on visiting terms with the girl and the members of her family, went to her house during that interval and proposed to her to go to Muzaffarpur for seeing cinema. Immediately she entered into her room, prepared a bundle which contained her clothes, ornaments and some cash and came out, ready to go along with the two ladies. Mt. Surji held her bundle, Bhagia held her hand and along with them she went to "their angan" which was at a short distance from hers. The three male appellants were there. Appellant Satyadeo Dubey told her that he would marry her. The three male appellants also asked her to go to Muzaffarpur to see cinema. She told them that she would not marry and wanted to run away to her house but they did not allow her to go away. Showing a chhura, they threatened to kill her and, there, fore, she was not able to run away.
The three male appellants thus forcibly took her on foot and proceeded north. They reached mauza Karja wherefrom she was taken by a bus to Muzaffarpur by the three male appellants. At Muzaifarpur, they kept her in the house of one Bheodhari Singh in Mahalla Maripur and she was made to remain in their house for about 2 1/2 months. She has been kept under lock and not allowed to go out. After about a months the girl was taken by the three male appellants to Mohammadpur where she was kept in the house of one Benga Sahni for about one week. There also she was kept confined and was not allowed to move about or talk to anybody else. After about a week, the Sarpanch Sheonath Prasad Singh (P. W. 6) of Mohammadpur, having learnt about the concealment of the girl in the house of Benga Sahni, recovered her and, as desired by the girl, he reached her to her-parents' place.
4. A written report (Ext.1) about the kidnapping and abduction of the girl was made by her uncle (P. W. 11) at the Thana at Paroo, some 5 miles from the place of occurrence at 12 p. m. on the 19th August, 196, before the Assistant Sub-Inspector of Police, Suraj Kant Mishra (P. W. 19). He registered a case and proceeded with the investigation of it. He visited the house of the girl the same evening and examined a number of witnesses. He made enquiries about the girl and the appellants but. they were not to be found. He continued his search but they were not to be found. He continued his search but the girl was not traced. He submitted charge sheet on the nth November 1962 and is was thereafter that the girl was recovered on the 4th December, 1962, when she was taken to the thana and her statements were recorded. She was medically examined by Dr. (Miss) E. C. Agarwal (P. W 15) on the 8th December, 1962, at 4 p. m. According to the lady doctor, the girl was 17 years of age at that time the appellants were put on trial before the Additional Sessions Judge, after usual commitment enquiry.
5. The appellants pleaded innocence. It was said that the appellants were falsely implicated because of enmity with the members of the family of the girl. The girl was said to be major, being above 18 years of age and at one stage, it was suggested that with her consent appellant Satyadeo had even married her. It was further asserted that P. W. 11, uncle of the girl, and her mother were trying to dispose her of in marriage for money to an old man and, on that account, appellant Kapildeo, on the 15th August, 1962, had sent a telegram to the Collector of Muzaffarpur complaining that Sumitra Devi was being kept under confinement. A petition dated the 17th August, 1962, under Section 100 of the Code of Criminal Procedure was also said to have been filed by Kapildeo before the Subdivisional Officer of Muziffarpur with a prayer to rescue Sumitra. Devi from confinement. The people of the girl were annoyed with the appellants and, at about. 2 p. m. on the 18th August, 1962, there was even loot in the house of Kapildeo, during the course of which his mother was assaulted. A case of loot was filed at about 3 p. m. on the 19th August, 1962, by Kapildeo before the Deputy Superintendent of Police, as per Ext. A., in which P. Ws. 4, 9, 11 and 33 of this cape were among the accused.
(After discussing the evidence in the case (Para 6-9), the judgment proceeded :)
10. I cannot for a moment accept the story that the girl was first taken out of her house by the two ladies and then the three male appellants took her away. It is true that appellant Kapildeo wag, foe 2 to 8 days from before the date of occurrence, trying to get acme help for the girl on the plea that she was being kept confined by her people in her own house, but that would not necessarily indicate that the appellants jointly conspired and managed to take oat the girl openly by force,
11. The fact, however, seems to be that the girl had left her house, may be on the alleged date of occurrence but she left it without the knowledge of her parents, and it is possible that she was helped out by one of the appellants, for cannot persuade myself to believe that all the appellants could join hands to kindnap the girl and would be so defiant as to take her out openly by force, as I have already indicated, I say that the girl left her house either of her own accord or with the help of one of the appellants, because, according to the evidence of the Sarpanch of Mohammadpur, Sheonath Prasad Singh, (P. W. 6), be had recovered the girl from the house of Benga Sabni and had reached her to her house. There is no reason to disbelieve his evidence and, be it noted that he also did not claim to have seen any of the appellants at Benga's house with the girl.
12. The next question to be considered is whether the girl was taken away by any of the appellants or she had left her house of her own accord. Her story that she had been taken out by all the five appellants cannot be accepted. There is, however, material of the defence own showing that appellant Satyadeo professed to hive even married the girl with her consent, as she was 20 years of age, and had even taken a photograph along with her. An affidavit (Ext. B) dated the 28th August, 1962, was exhibited on behalf of the appellants. A joint photograph of appellant Satyadoo and the girl Sumitra Devi bearing the initial of a Magistrate Ist Class Shri H. Ahmad (Ext, B/b) was also put on the record on his behalf. They were proved by Suresh Kumar (D. W. 1) a karpardaz of a pleader, Mabendra Mohan Mishra. He said that the affidavit was sworn by Sumitra Devi in presence of the aforesaid Magistrate in his presence and that Sumitra Devi put her left thumb impression on it and that the Magistrate signed it (Ext. B/a).
He also proved the initial of the Magistrate (Ext. B/b) on the photograph, which appears to have been filed along with the affidavit. The girl was asked about the affidavit, and the photo-graph, and she denied having sworn in the affidavit, but admitted the photograph, adding that Satyadeo took her photo along with him sitting together, by force while they were in the house of Sheodhari Singh at Muzaffarpur. There is no reason to disbelieve the evidence of D. W. 1 who has proved the affidavit of Sumitra Devi and it is difficult to believe her evidence that she yielded to her photo being taken along with appellant Satyadeo under any pressure or force, as a mere look at the photo is enough to convince that it must have been taken with con. sent, otherwise, the pair could not give such a quiet pose,
13. Now the affidavit said that Sumitra Devi was of 20 years o£ age and that it was out of her own free will and consent that she married appellant Satyadeo. It may be noted here that although during the time of examination of the witness, it was being stressed on behalf of appellant Satyadeo by making suggestion to Sumitra Devi herself that she had married Satyadeo out her free will, but at the time of his examination under Section 342 of the Code of Criminal Procedure Satyadeo resiled from that position and said that he had not married her. It seems that he resiled from the position for certain apprehension that the girl, after all, might be found to be a minor. Be that at it may, it cannot be doubted that Sumitra rightly or wrongly professed to have married appellant Satyadeo and he also admitted the position by making a suggestion to that effect to the girl during her Cross-examination and by putting his joint photograph along with her, indicating, thereby, that, at one time, both professed to be a married couple. Since the girl and Satyadeo are agnatic relations, their marriage under the old Hindu law could not be legal, but this question is beside the point. Although under the Hindu traditions marriage among co-villagers is ill conceived, nevertheless, Satyadeo and Sumitra Devi seem to have thought of being united in wed lock against all conventions. Judging from the aforesaid affidavit and the photo-graph, there can be little doubt that Satyadeo was with the girl Sumitra Devi for sometime and was treating her as his lawfully married wife, although, actual marriage might not have been performed or any sexual intercourse had taken place among them, for the girl has not made any such allegation.
14. Now the question is, whether appellant Satyadeo by his aforesaid conduct could be guilty of kindnapping, for the case of abduction can by no means be established, because the girl seems to have been keeping out along with him out of her own consent and free will, otherwise, she could not have been kept away for several months without any protest from her. It becomes, therefore, pertinent, if the girl was minor below 18 years of age at about the time of occurrence. The learned Sessions Judge estimated the age of the girl on the date of her examination on the 13th May. 1963, as 17 years. She herself and her father (P.W. 13) gave her age as 15 years and her mother (P. W. 8) gave her age as 14 or 15 years at the time of trial. Since these witnesses are highly interested and they have not filed any documentary evidence, not even the horoscope of the girl, if any, to give the exact date of her birth, the Court's estimate might as well be without any sufficient basis. It, however, appears that the girl was examined by a lady doctor, Dr. (Miss) E. C. Agarwal on the 15th December, 1962. She also X'rayed the bone of the girl judging from different dates, the lady doctor was of the opinion that the age of the girl "appeared to be about 17 years,"
15. Mr. Satyanand Kumar, appearing for the appellants, has drawn my attention to the evidence of the lady doctor, wherein she has said that the girl had fourteen permanant teeth in each jaw with spacing for third molar in lower jaw. She has added that the spacing for the 3rd molar takes 2 or 3 or 4 months before 17th year, and the 3rd molar erupts after the age of 17 years and it is completed by the 26th year. Prom these, Mr. Satyanand Kumar argued that the spacing for the 3rd molar could have as well been some years after 17th year. The lady doctor further said that at the age of 18 in a female, there should be fusion of distal radious and that radious in the lower end of the girl was found fused and this could be between 16/- to is years of age. It was after taking into consideration all these factors, that the lady doctor fixed the age of the girl as 17 on the date of her examination, and I see no reason to doubt her estimate. Added with this, there is the evidence of the parents of the girl. Thus, her age must be found to have been below 18 years on the date of occurrence and, therefore she was a minor.
16. Although there is no reliable evidence that the girl was removed from the lawful custody of her guardian, even by appellant Satyadeo, there is, however, very reliable evidence in the affidavit and the photo, already referred to, of the fact that appellant Satyadeo after the girl was away from her parents was not only beeping company with her but had professed that they had been already married. The girl was away from her house obviously from the date when the first information report about her disappearance was lodged by P. W. 11 on the 19th August, 1962, and she could be traced on the 4th December, 1962, by P. W. 6. In between this period appellant Satyadeo kept company with her with the intention of marrying or having sexual inter-course with her It must be at his behest that the girl swore in the affidavit about her marriage with this appellant. Although the girl was married later to someone else, that would not take away the possibility that appellant Satyadeo and the girl had entered into some sort of marriage alliance. If a minor girl leaves even voluntarily or strays out of her house, the lawful guardianship continues. Also when a minor girl is enticed away by someone and then left, even then the lawful guardianship of her natural guardian continues. In any situation like the above, if some one, more so an acquaintance of the girl like Satyadeo, her villager, picks her up, not with a view to help her, but with the intention of marrying her or committing sexual intercourse, he will be guilty of kidnapping the girl from lawful guardianship. Appellant Satyadeo must, therefore, be found guilty of kidnap, ping. The charge of kidnapping and abduction against the other appellants, for the reasons already stated, must fail.
17. As to the sentence against appellant Satyadeo, it should be remembered that the girl was only technically minor and she must have gone away out of her own accord and joined appellant Satyadeo of her own tree will and, in that view of the matter, a lenient view in the matter of sentence may be taken. I would sentence appellant Satyadeo to suffer rigorous imprisonment for one year only.
18. In the result, the appeal of all the appellants. except Satyadeo Dubey, is allowed and their conviction and the sentence are set aside and they are discharged from their bail bonds. The appeal of appellant Satyadeo Dubey is dismissed, subject to the modification as indicated above.