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Judgment
The sole appellant Dilip Paswan has been found guilty
for an offence punishable under Section 366 IPC and sentenced to
undergo rigorous imprisonment for 7 years, fine of Rs. 5,000/- and in
default thereof, to undergo rigorous imprisonment for six months
additionally, under Section 376 IPC directed to undergo rigorous
imprisonment for 8 years, fine of Rs. 5,000/- and in default thereof, to
undergo rigorous imprisonment for six months additionally, with a
further direction to run the sentences concurrently by the Additional
Sessions Judge- III, Katihar in S.T. No. 26 of 2014 vide judgment of
conviction dated 29.06.2015 and order of sentence dated 30.06.2015.
P.W.-6 Sunil Kumar Bharti @ Guddu Kumar Paswan
had filed a written report on 19.07.2013 disclosing therein that his
younger sister Pinki Kumari, a student of class-Xth, aged about 15
years, had gone to purchase Chocolate and Biscuits for her niece but
did not return back. He made hectic search but in vain. He shown
suspicion against Dilip Paswan, Sanju Paswan and his brother-in-law,
who used to loiter around his house even in night. The informant
enquired the reason from them but they refused to answer.
Furthermore, it has been narrated that Dilip Paswan had abused him
several times on telephone bearing SIM No. 9852633855.
On the basis of the aforesaid written report, Town P.S.
Case No. 363 of 2013 was registered under Sections 363 and 366-A of
the Indian Penal Code and investigation was taken up. During the
course thereof, the victim was recovered, her statement under Section
164 Cr.P.C. was recorded, she was medically examined and after
collecting relevant materials, I.O. filed charge-sheet by way of
concluding investigation facilitating the trial which ultimately
concluded in conviction of the appellant, hence this appeal.
Defence case as is evident from mode of cross
examination as well as statement recorded under Section 313 of the
Cr.P.C. is that of complete denial of charges.
Furthermore, specific plea has been taken on behalf of
the appellant that the victim entered into nuptial knot with the
appellant out of free will and so, she happens to be his legally married
wife. To substantiate the same, a letter (Exhibit-B) has been made as
exhibit on his behalf.
In order to substantiate its case, prosecution hasd
examined altogether seven witnesses, out of whom, PW-1 is Dr.
Laxmi Sen, PW-2 is Baleshwar Paswan, PW-3 is Sita Devi, PW-4 is
Ravi Kumar, PW-5 is Pinki Kumari, PW-6 is the informant, Sunil
Kumar Bharti and PW-7 is Shanku Tuddu.
Prosecution had also exhibited medical report as Exhibit-
1, signature of victim on statement recorded under Section 164
Cr.P.C. as Exhibit-2, statement recorded under Section 164 Cr.P.C. as
exhibit 2/1, Fardbeyan as Exhibit 3, formal F.I.R. as Exhibit-4,
endorsement over the written report as Exhibit-5, registration of the
case over written report as Exhibit-5/1. As stated above, the defence
had also exhibited statement recorded under Section 164 Cr.P.C. as
Exhibit-A and the letter having in the pen of victim as Exhibit-B, but
not even a single witness has been examined.
Learned counsel for the appellant has submitted that the
instant prosecution happens to be unwarranted in the background of
the fact that the victim was the consenting party and she joined hands
with appellant under her own sweet will without any coercion,
allurement and enticement, threat which is itself apparent from her
evidence. Furthermore, with regard to status of the victim, PW-5, it
has been submitted that PW-1, Doctor had estimated her age in
between 18-19 years and on account thereof, on the alleged date of
occurrence she was major. That being so, the appellant would not
have been convicted and sentenced, with regard to the occurrence so
alleged.
Further more, it has also been submitted that victim was
very much conscious with regard to her own activity which, she
controverted during the course of her evidence on the pressure
mounted upon her by her family members and that happens to be
reason behind, keeping mum with regard to a letter during her
examination-in-chief, written by her addressed to her family members
which PW-5 was confronted (Exhibit-B) whereupon, she disclosed
that aforesaid letter was forcibly got written by the appellant while she
was under captive. Therefore, considering the majority of the victim
as well as being a consenting party, the judgment of conviction and
sentence impugned is fit to be set aside.
In an alternative, it has also been submitted that though
there happens to be some sort of lapses at the end of appellant while
cross examining the victim, PW-5, with regard to her identity as
major though, under Para-5 of cross examination, she was cross-
examined on other aspect whereunder, she had disclosed her status as
a student of class Xth. In the aforesaid background, even considering
the fact that she was aged about 15 years approaching majority as per
prosecution version itself, and further perceiving conduct of the
victim being submissive, whereupon a lenient view could be taken as
for the last 2 years and 9 months appellant happens to be under
custody.
On the other hand, while supporting the findings
recorded by the learned trial court, it has been submitted by the
learned Addl. P.P. that all aspects have been considered by the learned
lower court while recording the finding of guilt against the appellant
and for that he has rightly been sentenced, that being so, the judgment
impugned does not require any sort of interference.
The prosecution still insist upon old methodology for
ascertainment of the age irrespective of direction having been issued
by the Hon''ble Apex Court repeatedly in the case of Jarnail Singh
Vs. State of Haryana reported in 2013 Criminal Law Journal page
3976, as well as in the case of State of Madhya Pradesh Vs. Anoop
Singh (2015) 7 SCC 773. That being so, instead of asking for medical
examination for the purpose of ascertainment of the age, the
prosecution would have taken recourse to procure the date of birth
having entered in the admission register of the school which, in the
present case, has not been complied with. In the aforesaid
background, it is evident that the prosecution acted in contravention of
the direction having been given by the Hon''ble Apex Court. Now its
repercussion is to be seen in the background of finding of PW-1 who
opined the age of the victim in between 18-19 years. From the
evidence of all the witnesses including that of victim, it is evident that
they are consistent over the status of the victim that at the time of
occurrence she was student of class Xth. It is also apparent that
parents of the victim, who have been examined as PW-2 (Baleshwar
Paswan) and PW-3 (Sita Devi) have disclosed the victim to be aged
about 15 years. It is further evident that neither victim, PW-5, has
been cross examined with regard to her age nor she was suggested at
the end of the appellant that she was major at the time of so alleged
occurrence and further, joined hands with the appellant out of her own
sweet will which, she was capable being a major and in likewise
manner, age of victim having disclosed by the PW-2 as well as PW-3
(parents) having 15 years of age has also not been challenged and on
that score, the estimation of age having made at the end of PW-1 who
happens to be gynecologist could not conclusively be relied upon .
That has got a bearing in the background of the fact that appellant, as
is evident, remained under company of the victim for such duration
and so, might have been aware with the age of the victim, which
prevented the appellant to challenge the victim as well as her parents
on that score. Had there been even by way of suggestion the
estimation of age recorded by PW-1 would have nay hearing.
Therefore, the finding with regard to victim by PW-1, is not at all
found of any relevance,
So far material part of evidence is concerned, other
witnesses have stated that victim, PW-5 was taken away by the
appellant, but they did not claim to be an eye witness. So, in the facts
and circumstances of the case, it is PW-5, the victim who could be
identified as sole witness of kidnapping and rape by the appellant so
alleged. She during her examination-in-chief had categorically stated
the event of kidnapping and rape by the appellant which she was
under captive but from cross-examination it is very much clear that
her movement along with appellant from place to place has been
properly detailed during course of which she was raped but, having
much more opportunity to raise an alarm to protect herself from
clutches of the appellant, even having her presence at public places
which she neither opted, in spite of the fact that there was no threat at
the end of appellant indicates otherwise than whatever been alleged,
and further suggest that she was at least a consenting party. However,
such consent is to be seen in the background of status of victim, PW-
As the finding recorded by PW-1 regarding her age has been
negativated identifying the victim to be minor, then in that event her
consent has got no identity in the eye of law, as perceived in Clause
VI of Section 376 IPC as well as under Section 366-A of the IPC,
acknowledging the age as 18 years for that purpose.
That being so, the finding recorded by the learned lower
court did not attract inference, more particularly, in the background of
the fact that at para-32, during course of cross examination, the victim
had disclosed that the appellant was married since before, and in the
aforesaid background the activity of appellant was highly disastrous
whereunder he ruined life of a minor overpowering her emotion,
whereupon attracts no sympathetic approach relating to sentence, save
and except modification of the finding from Section 366 IPC to under
Section 366-A of the I.P.C maintaining the quantum of sentence so
inflicted by the learned court under both heads.
Appeal is dismissed. Appellant is under custody. He will
remain till saturation remaining part of his sentence.