Patna High Court
Vinay Ram vs State Of Bihar on 12 January, 2010
Author: Dharnidhar Jha
Bench: Dharnidhar Jha, Rakesh Kumar
CRIMINAL APPEAL No.684 OF 2004(DB)
With
CRIMINAL APPEL NO. 715 OF 2004 (DB
*********
Against the judgment and order of conviction and sentence dated
27th July, 2004/29th July, 2004 passed by Dr. Syed Akhtar Uddin,
Additional District and Sessions Judge F.T.C. II, Sitamarhi.
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1. Nandu Mandal, son of late Siya Saran Mandal
2. Yogendra Mandal alias Manu Mandal alias Bhanu Mandal, son
of late Chulai Mandal, both residents of village - Mahesh
Farakpur, P.S. Runni Saidpur, District - Sitamarhi
......... Appellants in Cr. Appeal 684/2004
Vinay Ram ......... Appellant in Cr. Appeal 715/2004
Versus
State of Bihar .........Respondents in both the Appeals.
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For the Appellants : Sri Vinay Kirti Singh, Advocate
For the Respondents : Sri Ashwani Kumar Sinha, APP
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PRESENT
THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA
&
THE HON'BLE SHRI JUSTICE RAKESH KUMAR
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Dharnidhar Jha
&
Rakesh Kumar, JJ. The two appeals have been preferred by the appellants to
question the propriety and correctness of the judgment and order of
conviction and sentence passed against them by the learned Presiding
Officer-cum-Additional Sessions Judge, F.T.C. II, Sitamarhi in Sessions
Trial No. 87 of 1998 / 55 of 2004 (G.R. No. 263 of 1997). By the
aforesaid judgment, rendered by the above noted court on 27th July, 2004,
the appellants were found guilty of having committed offence under
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sections 366A and 376 of the Indian Penal Code and were directed to
suffer rigorous imprisonment for life under section 376 of the Indian Penal
Code. They were further directed to suffer simple imprisonment for five
years as also to pay a fine of rupees five thousand each for their conviction
under section 366A of the Indian Penal Code. It was directed that if the
appellants defaulted in paying up the fine, they shall have to serve further
sentence of simple imprisonment for six months.
2. The prosecution case is contained in the fard-e-beyan of Ram
Chandra Sah, P.W. 4, in which he alleged that the wife of his grand son,
Goni Sah, named, Ram Kumari had gone out of the house for attending to
the call of nature and when she did not come back, he set out on search of
her in the village and came to know from one Kishori Sah, P.W. 1 that
while he was coming back after attending to the call of nature, he found
that appellant Nandu Mandal, his wife Kaushlaya Devi along with Laxmi
Mandal (not put on trial) and appellant Rakesh Mandal were
accompanying the lady and they all were going towards west of the
village. P.W. 4 further alleged that Kaushalya Devi, wife of appellant
Nandu Mandal, visited his house very often and used to talk to the victim
Raj Kumari, the wife of his grand son, and as such, they all had taken or
enticed her away.
3. The fard-e-beyan of P.W. 4 was recorded by P.W. 5 Parmeshwar
Prasad Singh, at the house of the witness and sent it to Runnisaidpur
police station for registering a case and himself took up the investigation.
He inspected the place of occurrence, recorded the statement of witnesses
and handed over the charge of investigation on 29.4.1997 to the Officer
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Incharge of the police station namely, C. D. Sharma, who does not appear
examined in the case.
4. However, it is evidently clear that the victim Raj Kumari Devi,
P.W. 3, was recovered and she was examined by P.W. 6, Dr. Sudha Jha,
who found the victim aged about seventeen years, as may appear from the
evidence of the doctor aforesaid. It may further be recorded that witnesses
have supported the allegations and the victim had also supported the story
of herself being taken away and as such, the appellants were sent up for
trial.
5. It is true that some of the appellants were not named in the FIR,
like, appellant Yogendra Mahto alias Manu Mandal alias Bhanu Mandal
and Vinay Ram. On consideration of the evidence of the witnesses, the
court below came to a finding that there was sufficient material to
substantiate the charges under section 366A of the Indian Penal Code
against all the accused persons and further that they had also committed
rape upon the victim during her confinement by the appellants.
6. The defence of the appellants, as may appear from the suggestion
given to the victim, P.W. 3 Raj Kumari Devi in paragraph 30 of her
evidence, was that she had made false accusation against the appellants
and the fact of the matter was that she herself went out of the house with
the appellant and married appellant Vinay Ram out of her own sweet will.
It was further suggested to P.W. 3 that because for some reasons
appellants Nandu Mandal, Yogendra Mandal alias Manu Mandal alias
Bhanu Mandal and Rakesh Mandal had socially boycotted the family
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members of the prosecutrix, so they had been falsely implicated out of that
grudge.
7. During the course of hearing of the present appeal, it was contended
that the lady who was aged 17 years, had reached the age of discretion and
was already married to a person. The circumstances appearing from the
evidence may indicate that she was a willing partner who had gone out of
her matrimonial house at her sweet will to elope with one of the appellants
and probably under social and family pressure, she changed her mind and
made accusation of being forcibly taken away or enticed away and
thereafter being ravished and ultimately was sold to appellant Vinay Ram.
It was contended that the evidence of P.W. 4, Ram Chandra Sah, may also
indicate that it was a simple case of elopement as he appears stating to the
court in his evidence in paragraph 7 that he went to the house of the
parents of the prosecutrix to convey about the elopement of the victim. It
was contended that the evidence of the witness in the same paragraph
further indicates, as is indicated by the evidence of prosecutrix also, that it
could never be a case of forcibly taking away or enticing away the lady
inasmuch as the lady had left her matrimonial house after having dressed
up fully by putting on all her ornaments. It was contended that the places
where she claims being confined by the appellants, were the surrounding
villages of the village of the prosecutrix and she was being moved from
one village to the other but was not raising any cry or alarm or
complaining to any person with whom she was making contacts during
that course as to what had happened to her or what acts had been
committed by the appellants. It was contended, as such, that the learned
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Judge ought not to have, under the facts of the case, convicted the
appellants.
8. Learned Additional Public Prosecutor Sri Ashwani Kumar Sinha
has been fair in conceding that the circumstances appearing in the case
clearly make out a case of the prosecutrix eloping voluntarily from her
house and the material does not support the conviction of the appellants.
9. We have considered the evidence of the witnesses, specially of PWs
3 and 4, namely, Raj Kumari Devi and Ram Chandra Sah. The prosecutrix
has stated that she was taken away by the accused persons when she had
gone out of her house for attending to the call of nature and was confined
at different places in the houses of different persons, when ultimately she
was sold for Rs.4000/ to appellant Vinay Ram. She has stated that she was
subjugated at gun point to be raped. It is admitted by the prosecutrix that
while going to attend the call of nature, she had dressed up quite well, so
much so, that she had put on all her ornaments as per description in her
evidence. She has stated in paragraph 9 of her evidence that whenever she
went out to attend the call of nature, she did not go with any additional
clothes except she had already put on her person, but what we find is that
when she went to attend the call of nature on the day of occurrence, she
had put on all her ornaments what were in her possession though she has
admitted that she never put on her ornaments on other days when she went
out to attend to the call of nature. When we read the evidence of P.W. 4,
the informant Ram Chandra Sah, who happens to be the grand father of
the husband of the prosecutrix, and from whose lawful guardianship the
lady is said to be taken or enticed away, what he has stated is that he
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found that the prosecutrix had eloped and, as such, he went to the house of
the father of the prosecutrix to inform them that she had fled away and
further while running away from the house, she had taken all the seven
ornaments of hers. The very evidence defies the reason and logic that a
lady would be going to attend the call of nature with additional clothes
and all her ornaments which, she never put on on similar occasions on
other days. The very statement of P.W.4 that she had fled away, clearly
indicates that she voluntarily left the house of her husband.
10. The difference between „taking away‟ and voluntarily going out
with an accused was considered by the Supreme Court of India in the case
of S. Varadarajan V. State of Madras reported in AIR 1965 Supreme
Court 942. The discussion is available in paragraph 9 of the report and we
are tempted to reproduce that particular part of the judgment of the Apex
Court which reads as under:
"It must, however, be borne in mind that there is a distinction
between "taking" and allowing a minor to accompany a person. The
two expressions are not synonymous though we would like to guard
ourselves from laying down that in no conceivable circumstances
can the two be regarded as meaning the same thing for the purposes
of S. 361 of the Indian Penal Code. We would limit ourselves to a
case like the present where the minor alleged to have been taken by
the accused person left her father‟s protection knowing and having
capacity to know the full import of what she was doing voluntarily
joins the accused person. In such a case we do not think that the
accused can be said to have taken her away from the keeping of her
lawful guardian. Something more has to be shown in a case of this
kind and that is some kind of inducement held out by the accused
person or an active participation by him in the formation of the
intention of the minor to leave the house of the guardian."
11. The same judgment may indicate that if there is voluntariliness in
the evidence of the prosecutrix about going out of her house herself, then
it cannot be a case of taking away or enticing away and it could be simply
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a case of elopement or voluntarily going out of one‟s guardianship. We
have referred to some of the important evidences available on record of
some of the important witnesses like the informant of the case under
whose guardianship the prosecutrix was residing and we have very clearly
pointed out as to how the evidence indicates that the lady had run away
from her house.
12. The other circumstances which we cull out of the evidence are that
the lady while being moved out allegedly by the appellants, was still being
kept in the vicinity of the village of her matrimonial place. It has come in
the evidence of P.Ws 3 and 4 also that she was being kept at some
unknown place in the house of some unknown persons. It was not that she
was being kept confined at a lonely and abandoned place, inaccessible to
human soul, rather, she was being hosted by some of the families who
were relatives of the appellants. Unless the lady had willingly
accompanied the appellants to those places, it would not have been
possible for any of the appellants to confine her or keep her at such places
of their own relatives, so much so that one such place was the parental
house of one of the appellants‟ wife. She could have very well told to the
family members of those house or the persons of the neighbourhood of the
family as to what had been done to her by the appellants. She did not
protest. She went with the appellants to another place and she again lived
there and did not protest. These facts raise an ordinary presumption that
the lady was a willing partner of the appellant while being moved from
one place to the other and, as such, the element of taking away or enticing
away the lady from her guardianship appears not established.
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13. In view of the above findings which emerge from the ordinary
consideration of the evidence, we find that the most important ingredient
of the section 366A of the Indian Penal Code is not established and, as
such, the conviction of the appellants under that particular provision of the
Penal Code, appears to us, out right erroneous.
14. As regards the conviction of the appellants under section 376 of the
Indian Penal Code, it is true that the lady had leveled allegations of being
raped by the appellants and has stated that she was raped at gun point. We
are simply not persuaded by the evidence of the lady that it could have
happened without her consent, the reasons we have already assigned that
the incidents of rape on all occasions were committed by one appellant or
the other in the house of some persons unknown to her but known to any
of the appellants. What appears to us is that firstly, it would have been
impossible without the consent of the prosecutrix to commit such an act at
an unknown place, amidst unknown surroundings. Secondly, if the
appellants were putting pressure or threatening the lady by showing guns,
there was no hindrance in the lady to cry out to the whole world to tell
them as to what had been done to her. The very conduct of the lady in
keeping mum and moving further from one particular place to the other
convinces us that she was a complete consenting party. The cross-
examination of the lady is extensive and that evidence leads to no other
inference than what we have presently drawn. In view of the above
inference and on discussion of evidence, we are convinced that conviction
of the appellants under section 376 of the Indian Penal Code also cannot
be sustained.
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14. In the result, the conviction of the appellants and sentence passed
against each of them is hereby set aside. They are acquitted. The two
appeals are allowed. All the appellants are on bail except appellant
Yogendra Mandal alias Manu Mandal alias Bhanu Mandal who was also
on bail but his bail bond was cancelled by this court by order dated
9.5.2007. He shall be released forthwith if not wanted in any other case.
Other appellants who are on bail, stand discharged of the responsibility of their respective bail bonds.
(Dharnidhar Jha, J.) (Rakesh Kumar, J.) Patna High Court, The 12th January, 2010 NAFR/Anil/