Judgment:
D.K. Sinha, J.
1. All the four appeals are taken up together arising out of common judgment of conviction and order of sentence passed by Shri P.P. Pandey, the learned Additional Sessions Judge, Deoghar in Sessions Case No. 127 of 2002/30 of 2002 arising out of Madhupur PS. Case No. 30 of 2002 whereby the appellants Shakha Yadav @ Indradeo Yadav (Cr. Appeal No. 746/03). Raj Kumar Yadav & Dilip Yadav (Cr. Appeal No. 841/03), Abhimanyu Rawani (Cr. Appeal No. 913/03) and Rakesh Kumar (Cr. Appeal No. 1090/03) were convicted under Section 366-A, IPC and sentenced to undergo rigorous imprisonment for 10 years and fine of Rs. 2,000/- each with default stipulation of two months imprisonment. The appellant Rakesh Kumar (Cr. Appeal No. 1090/03) was further convicted under Section 376, IPC and sentenced to undergo rigorous imprisonment for 10 years with fine of Rs. 5,000/- with default stipulation of imprisonment for a period of 5 months. Both the sentences in respect of the appellant Rakesh Kumar were directed to run concurrently.
2. The prosecution story in short was that the informant Lai Bahadur Singh (PW 7) in his written report (Ext. 1) presented before the Madhupur Police on 18.2.2002 at about 1.30 a.m. (night) narrated that his grand daughter Puja Kumari, daughter of Ganga Prasad had been living at her maternal home at Madhupur and pursuing her studies at Anchhi Devi Girls High School. He further narrated that Puja Kumari had proceeded on 17.2.2002 at about 10.00 a.m. to participate in 'Sarswatl Puja Celebration' at her school and when she did not return by 2/3 p.m. he alongwith others started searching her and in course thereof, one of her friends Sufi apprised the informant that the appellant Rakesh Kumar with his brother Raj Kumar with the help of Dilip Yadav and Shakha Yadav @ Indradeo Yadav in prosecution of criminal conspiracy and with the aid of Manorma Devi kidnapped Puja Kumari by taking her way to Deoghar in a 'Marutl' car and from there to Jasidih where they boarded Patna bound 8183 up train. Sufi admitted before the' informant that she had also accompanied them up-to Deoghar. Explaining the delay the informant narrated that as he had visited Deoghar in search of his grand daughter the case could not be lodged at earlier point of time. On the basis of the written report Madhupur P.S. Case No. 30 of 2002 (Ext.3) was drawn. The Investigating Officer arrested the accused and after investigation submitted charge-sheet against the appellants, pending investigation against the co-accused Manorma Devi and Sufi Kumari. After framing of charge under Section 376, IPC against the appellant Rakesh Kumar and under Sections 366-A/34, IPC against all the five appellants, they were put on trial. The appellants were examined and their statements were recorded under Section 313, CrPC in which the appellant Shakha Yadav @ Indradeo Yadav represented that he was falsely implicated on account of old enmity with the informant who had threatened to implicate him after his retirement and he succeeded in his mission by falsely implicating him. He further stated that a proceeding under Sections 144/145, CrPC was initiated against both of them. The defence of the other appellants in their statements under Section 313, CrPC was general and omnibus of their false implication. Yet, the appellant Rakesh Kumar defended in the different manner by stating that Puja herself wanted to elope with him and she threatened that he would be implicated in a case failing to accompany her and In that manner he admitted that he eloped with Puja Kumari.
3. Heard Mr. V.P. Singh, the learned Sr. Counsel on behalf for the appellants and Mr. Sanjay Kumar Srivastava, APP for the State.
4. Assailing the impugned judgment of conviction and order of sentence the learned Sr. Counsel Mr. Singh submitted that the prosecution failed to prove that Puja Kumari at the relevant time of alleged occurrence was a minor below 18 years of age so as to attract the charge under Section 366-A, IPC against the appellants herein which deals with prosecution of a minor girl. The informant PW 7 Lai Bahadur Singh testified that the age of Puja Kumari at the relevant time was only 13 years but the victim Puja Kumari in her petition dated 21.2.2002 before the Chief Judicial Magistrate, Deoghar while offering to deliver her statement under Section 164, CrPC disclosed her age to be 19 years only. Her age was assessed below 18 years by the Medical Board when she was examined on 26.2.2002. Mr. Singh exhorted that none of the members of the Medical Board was produced and examined on behalf of the prosecution in support of the assessment of the age of Puja Kumari and to prove the medical report and in that manner the appellants were denied the opportunity to cross-examine the Members of the Medical Board and to assail its finding contained In the certificate issued whereof. The Xerox copy of the school leaving certificate that was produced on behalf of the prosecution was in the nature of secondary evidence yet, it was marked exhibit-5 without its formal proof. In that manner the prosecution failed to prove that Puja Kumari was minor below 18 years of age.
5. On the other hand, the trial Court ignored the settled law that the margin of the error of 2 years may be considered either side while assessing the age of a girl and in the instant case the margin of error while considering the age of Puja Kumari should have been reckoned towards higher side and in that view of the matter her age was 20 years, quite competent to take decision on her own to marry with a boy to her choice who was none other then the appellant Rakesh Kumar, convicted under Sections 366-A/376, IPC on erroneous consideration. Mr. S.K. Shrivastava, APP by controverting the said contentions submitted that in her statement recorded under Section 164, CrPC (Ext.4) Puja Kumari disclosed her age to be 13 years as on 15th March, 2002 whereas her age was assessed about 14/15 years by the recording Judicial Magistrate. Similarly, the Medical Board which examined Puja Kumari on 26.2.2002 assessed her age below 18 years, based upon radiological test (Ext. 6).
6. Upon conscious consideration of the arguments of the parties and materials on record I find that Puja Kumari in her statement recorded under Section 164, CrPC disclosed her age to be 13 years. In her substantive evidence before the trial Court she testified her age to be 14 years as on 10th day of October, 2002 admitting that she was a student of class X. The school leaving certificate issued by Tilak Kala Middle School, Madhupur in favour of Puja Kumari was proved Ext. 5 by PW 10 Mithilesh Yadav who was the old student of the said school and he testified that the school leaving certificate was in the pen and signature of Shri Kushi Prasad Ram, the Headmaster of the said school. Yet, he admitted that the certificate was not prepared in his presence from the record. I find that the Xerox copy of the school leaving (transfer) certificate contained the date of birth of Puja Kumari being 15th September, 1988 and the Xerox copy of said certificate was substituted by the certified copy (Ext. 5). Similarly, the certificate issued by the Medical Board assessing the age of Puja Kumari below 18 years was marked Ext. 6 by the trial Court dispensing its formal proof under provisions of Section 294(3) of the Code of Criminal Procedure and was taken as the substantive piece of evidence. In view of the above materials and evidence on record I have no hesitation in concurring and observing that Puja Kumari on the alleged date of occurrence was a minor below 18 years of her age in respect of charge against all the appellants under Section 366, IPC.
7. Section 366-A deals with procuration of minor girl which speaks:
Procuration of minor girl.--Whoever, by any means whatsoever, 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.
8. For proving the charge under Section 366-A it Is Incumbent upon the prosecution to prove that the accused Induced a minor girl below 18 years of age, to go from any place or to do ah 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.
9. The statement of the victim Puja Kumari recorded under Section 164, CrPC as well as her substantive evidence before the trial Court are of much relevance. In her statement under Section 164, CrPC which was recorded on 15th March, 2002 Puja Kumari narrated that when she proceeded from her school after attending 'Sarswati Puja' on 17.2.2002 and came near the glass factory with her friend Sufi, in the meantime a Maruti Car came from her behind and the appellants Rakesh Yadav, Raj Kumar Yadav, Shakha Yadav @ Indradeo Yadav with Manorma Devi alighted from the vehicle and asked her to board. When she refused, she was forcibly taken in and her mouth was gagged by Rakesh by putting a handkerchief as a result of which she became unconscious. She regained her senses in the 'Baba temple' at Deoghar, surrounded by all the four persons and from there she was taken to Jasidlh and she boarded Patna bound Superfast train with Manorma Devi and Rakesh Yadav. She was ravished by the appellant Rakesh Yadav about 2-3 times in his house at Patna where she was abused and called upon by extending threat to deliver her statement in favour of the appellant Rakesh Kumar. She was taken away from Patna and brought to Deoghar Civil Court in a Maruti car where the Court remanded her and later on her custody was given to her parents. By corroborating her earlier statement the victim Puja Kumari in her substantive evidence she corroborated that when she arrived at the turning of glass factory with her close friend Sufi, a Maruti van came there and stopped near her and all the appellants Shakha Yadav @ Indradeo Yadav, Rakesh Yadav, Raj Kumar Yadav with Manorma Devi alighted from the vehicle and asked her to board the van. On the refusal there being made by her to board, the appellants forcibly took her inside the van and a handkerchief was put on her mouth by Rakesh Yadav as a result of which she became unconscious. She identified the appellant Dilip Yadav and a driver in the said vehicle and that her close friend Sufi also boarded. She regained her senses in the temple premises at Deoghar where she was terrorized by the appellants Shakha Yadav @ Indradeo Yadav and Raj Kumar Yadav and from there she was brought to railway platform of Jasidih Station where Manorma Devi and the appellant Rakesh Yadav took her to Patna by Superfast train and the other appellants returned back by the Maruti. Manorma Devi and the appellant Rakesh Yadav brought her to their home at Patna and confined her there from 17th to 20th and on all the four days according to Puja the appellant Rakesh Yadav committed rape on her forcibly by removing her garments and established bodily relation without her consent. By another Maruti van she was brought by Manorma Devi and Rakesh Yadav to Deoghar Court from where she was sent to remand home and ultimately her custody was given to her parents. She was interrogated by the police. She testified that at the time of the occurrence she was a student of class IX and that her date of birth was 15th September, 1988. She claimed to identify all the appellants. The witness was cross-examined at length as is evident from her testimony before the trial Court but the defence failed to disprove the veracity of her testimony on both the counts in relation to charges under Sections 366-A/34, IPC against all the appellants and separate charge under Section 376, IPC against the appellant Rakesh Kumar. Admittedly, the close friend of Puja Kumari, Sufi abstained from the witness box from the reasons best known to the prosecution who was an important witness to the occurrence as on querry by the informant she disclosed the occurrence as to under what manner and circumstances her friend Puja Kumari was kidnapped by the appellants with the aid of Manorma Devi and she admitted having accompanied Puja upto Jasidih railway station in the Maruti van and this fact was corroborated by Puja Kumari in both her statements. Nevertheless non-examination of Sufi Kumari before the trial Court will not adversely affect the prosecution case in view of the consistent evidence of Puja Kumari who stood to the test of her cross-examination, corroborated by the testimony of her parents, maternal uncles and the Informant maternal grand-father and the circumstances under which she was proceeded by the appellant Rakesh Kumar before the Civil Court, Deoghar and from there she was though sent to remand home but Rakesh Kumar was taken to Judicial custody.
10. The medical examined report issued by three members team of the Medical Board on examination of Puja Kumari after radiological test is of great importance and relevance as the corroborative piece of evidences for the charge against the appellant Rakesh Kumar under Section 376, IPC.
11. Puja Kumari was examined by the Medical Board consisting of three medical officers on 26.2.2002 at Sadar Hospital Deoghar. The Board observed as hereunder:
No injury on her body or private part. Even no stain on her clothes. On vaginal examination, old rupture of hymen was found which admitted two fingers easily. On the pathological test of vaginal swab, no living or dead spermatozoa was found. On X'ray, fusion of iliac was found incomplete from which her age was assessed below 18 years.' The report was signed by three Doctors being the Members of the Medical Board duly constituted on the requisition of the Madhupur police and the report was marked Ext. 6.
12. The occurrence as alleged took place on 17.2.2002 but Puja underwent medical examination (test) on 26.2.2002. However, old rupture of hymen as found in her examination stands as a corroborative piece of evidence in support of the allegation as testified by Puja Kumari before the trial Judge that she was ravished by the accused appellant Rakesh Kumar on all the four days during her confinement in his house at Patna and in that manner charge under Section 376, IPC against the appellant Rakesh Kumar is substantiated.
13. As regards charge under Section 366-A against all the appellants are concerned, the witnesses are consistent that the appellants by their active participation, forcibly kidnapped Puja Kumari, a minor girl below 18 years of age who was later on seduced to illicit intercourse with Rakesh Kumar which constituted an offence under Section 366-A, IPC as her custody was given to him against her will. This part of the substantive evidence rendered to a conclusive fact that the appellant Rakesh Kumar committed rape on a minor girl below 18 years against her will and I do not find any illegality or irregularity in the conviction of the appellant Rakesh Kumar for the charge under Section 376, IPC so as to call for intervention.
14. Mr. V.P. Singh, learned Senior Counsel for the appellants consistently argued that from her conduct and behaviour it can well be inferred that Puja was a consenting party who did not raise alarm right from Madhupur to Deoghar and from Deoghar to the platform of Jasidih railway station which used to be a very busy station, always crowded by the pilgrims but at no point of time Puja Kumari tried to attract the attention of bye-passers or the pilgrims at the railway station by raising alarm seeking their help. Even during train journey from Jasidih to Patna Jn. She never resisted or could draw the attention of co-passengers of the train that she was kidnapped being taken to Patna without her consent. As a matter of fact, she was a consenting party so she married to Rakesh Kumar without coercion, threat or promise with free will and therefore, the appellant Rakesh Kumar was erroneously convicted under Section 376, IPC.
15. Mr. Singh further submitted that the other appellants were falsely implicated in the instant case maliciously on account of old enmity and admittedly a proceeding under Sections 144/145, CrPC was initiated between the informant and the appellant Shakha Yadav @ Indradeo Yadav who was the own brother-in-law of the appellant Rakesh Kumar as well as the husband of Manorma Devi. As a matter of fact, the other appellants had nothing to do with the on going affairs between Rakesh Kumar and Puja Kumari which since long. After both the love birds performed their marriage at Patna, to create an evidence of marriage, the couple got a pair photograph snapped in the pose to the choice of Puja, as Rakesh Kumar was putting vermilion on the forehead of Puja with the case in her hand adoring the act with smile on her face. The pair photograph though was produced in the Court on behalf of the defence which was marked 'X' for identification, admittedly could not be proved.
16. Concluding his argument Mr. Singh submitted that the sentence awarded to the appellants for the charge under Sections 366-A/34, IPC was disproportionate to the gravity of the offence, if at all it was found proved against them, though there is no allegation against the driver of the Maruti Van the appellant Abhimanyu Rawani by Puja in any of her statements. In view of that conviction of the driver of Maruti Van i.e. the appellant Abhimanyu Rawani amounts to miscarriage of justice for want of specific allegation. Only by virtue of the fact that he was driving the van at the relevant time, his complicity cannot be inferred in absence of any specific evidence of meeting of his mind with the appellants.
17. In so far as sentencing part of the appellants are concerned Mr. Singh submitted that Puja Kumari has now been married and is leading a happy conjugal life with her husband with two children born to them. On the other hand her paramour appellant Rakesh Kumar is facing the ordeal of punishment of imprisonment since February 2002. The other appellants viz. Shakha Yadav @ Indradeo Yadav is the brother in law, whereas Raj Kumar Yadav and Dilip Yadav are closely associated to Rakesh Kumar who were detained in custody during trial after their arrestation on 19/20.2.2002 for substantial period, therefore, a lenient view may kindly be taken, he advanced alternative argument.
18. I am conscious of the detail arguments made for and on behalf of the appellants. Nevertheless, I find that the appellants failed to prove that Puja Kumari at the relevant time of occurrence was major above 18 years of age on 17.2,2002. Contrary to it the prosecution proved the fact conclusively that she was minor below 18 years of age at the relevant time, not competent under law to give consent. Even the consent of a kidnapped girl, below 18 years-of age, for her marriage is no consent. Even If the marriage solemnized with the free will of Puja Kumari has no relevance. The charges framed against the appellants have been discussed in the judgment Impugned in detail, based upon facts and application of relevant laws, accordingly, all the appellants were convicted under Section 366-A, IPC and separate conviction under Section 376, IPC against Rakesh Kumar and upon conscious consideration of the facts and. circumstances I do not find any material to interfere therein for their said conviction.
19. I further find that though the charges as proved against the appellants are of very serious in nature, but at the same time, I find reasonable ground for taking lenient view on the sentencing part considering that Puja Kumari has now been married and is leading a happy conjugal life with her husband and two children.
20. In the circumstances, modifying his sentence imposed by the trial Court, rigorous Imprisonment for seven years to the appellant Rakesh Kumar for conviction under Section 376, IPC and 3 years imprisonment under Section 366-A would certainly meet the ends of justice.
21. The other appellants viz. (1) Shakha Yadav @ Indradeo Yadav (2) Raj Kumar Yadav and (3) Dilip Yadav are, under circumstances, sentenced to the period already undergone by them for their conviction under Section 366-A, IPC. The appellant Shakha Yadav @ Indradeo Yadav is directed to be set at liberty at once. The other appellants Raj Kumar Yadav and Dilip Yadav are discharged from the liabilities of their bail bonds.
22. The appellant Abhimanyu Rawani, the driver of the Maruti Van is acquitted from his conviction under Section 366-A, IPC for the reasons stated. His bail bond stands discharged. With such modification in the sentence awarded to the appellants Rakesh Kumar, Shakha Yadav @ Indradeo Yadav, Raj Kumar and Dilip Yadav in the manner indicated above, all the three appealsiare dismissed as there being no merit.
23. However, the Criminal Appeal No. 913 of 2003 brought about by the appellant Abhimanyu Rawani is allowed.