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Md. Mahfooj Ansari vs State Of Bihar (Now Jharkhand) on 6 February, 2004

Jharkhand High Court
Md. Mahfooj Ansari vs State Of Bihar (Now Jharkhand) on 6 February, 2004
Equivalent citations: 2005 CriLJ 1771, 2004 (2) JCR 66 Jhr
Author: V Narayan
Bench: V Narayan


JUDGMENT

Vishnudeo Narayan, J.

1. This appeal at the instance of the appellant stands directed against the impugned judgment and order dated 19.09.1998 and 22.09.1998 respectively passed in Sessions Trial No. 80 of 1991 by Sri Raj Narain Prasad Singh, 1st Additional Sessions Judge, Dhanbad whereby and whereunder he was found guilty for the offence punishable under Section 366 of the Indian Penal Code and he was convicted and sentenced to undergo rigorous imprisonment for seven years.

2. The prosecution case has arisen on the basis of fardbeyan (Ext. 5) of informant PW 1, Dasrath Pandit, the father of Sunita Kumari @ Munia, aged about 17 years, said to be the victim of kidnapping in this case, recorded by Shri K.N. Verma, Deputy Superintendent of Police (P)-cum-Officer-in-charge, Jharia P.S on 02.10.1990 at 10.00 hours at his residence situate at Industry Colliery of Bharat Coking Coal Limited, P.S. Jharia District Dhanbad regarding the occurrence which is said to have taken place on 01.10.1990 at 15.00 hours at the said Industry Colliery (Tikiapara) and a case was instituted against the appellant by drawing of a formal FIR (Ext. 4).

3. The prosecution case, in brief, is that informant is an employee of Putki Colliery of Bharat Coking Coal Limited having his official residence in the colliery quarters at Industry Colliery and he returned to his residence at 17.00 hours from his colliery on 01.10.1990 and found her mother weeping and her wife PW 7, Munna Devi @ Dulla Devi and her daughter, PW 2, Sunita Kumari were not found in the house and on query he was told by her mother that PW 2, Sunita Kumari, aged about 17 years had gone to nature’s call at 15.00 hours on 01.10.1990 and since then she is traceless and PW 7, Munna Devi @ Dulla Devi had gone in search of her. It is alleged that the informant had also made hectic search to trace out her daughter but in vain and it transpired in course of search at 18.00 hours that the appellant who is resident of the said Industry Colliery aged about 21 years is also traceless from his house since 15.00 hours on 01.10-1990 and, thereafter, he went to the house of appellant and learned from his father Abbas Ansari that said appellant is traceless from that very time. The prosecution case further is that the appellant has kidnapped Sunita Kumari, a minor married girl after inducing her with Intention to solemnize his marriage with her against her Will as well as to seduce her for illicit inter course. It is also alleged that Sunita Kumari had taken away with her two “sari” one of green colour and the other of blue colour.

4. The appellant has pleaded not guilty to the charge levelled against him and he claims himself to be innocent and to have committed no offence and he has been falsely implicated in this case and PW 2, Sunita Kumari has voluntarily out of her sweet will had gone with him being fed up of the cruel treatment meted to her by her parent, who had come to know regarding existence of love affairs between her and this appellant and it is she, who had compelled him to accompany her to go outside somewhere else.

5. The prosecution has examined nine witnesses to substantive its case PW 2 Sunita Kumari @ Munia is said to be the alleged victim of kidnapping in this case PW 1 informant Dasrath Pandit, PW 7 Dulla Devi and PW 3 Narendra Kumar are father, mother and brother respectively of PW 2 and they are all hearsay witnesses. PW 6, Jabbar Mian, a resident of Industry Colliery, has turned hostile, whereas PW 4, Md. Abbas has been tendered by the prosecution. PW 5, Manish Kishore Kumar, the Surpanchi resident of the said colliery is also a hearsay witness. PW 8, Dr. Dipendra Nagi has examined PW 2, Sunita Kumari on 07.10.1990 at 14.05 hours after her recovery on 06.10.1990 from the company of the appellant at Bastacola, Jharia and his report per his pen is Ext. 3 in this case Ext. 1 is the signature of the informant on Jardbeyan (Ext. 5) and Ext. 2 is the signature of PW 2 on her statement recorded under Section 164 of the Code of Criminal Procedure. PW 9, Binod Kumar Singh is the Investigating Officer of this case. No oral and documentary evidence has been brought on the record on behalf of the defence.

6. Relying upon the testimony of PW 2 read with the evidence of PW 9, regarding recovery of PW 2, Sunita Kumari from the custody of the appellant corroborated by hearsay evidence of PWs 1. 7 and 3, the learned Court below came to the finding of the guilt of the appellant and convicted and sentenced him as stated above.

7. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that PW 2, Sunita Kumari is a major girl above 18 years and she has voluntarily left her house compelling the appellant to accompany her and she had taken two “sari” also with her which clearly indicates that appellant has not kidnapped or abducted her for any object as envisaged under Section 366 of the Indian Penal Code and she being a married woman had love affairs with the appellant and this love affairs became known to her parents and she was subjected to cruelty by them which led her to leave her house. It has also been submitted that as per the averment made in the Jardbeyan, her age is 17 years though it has been found by the medical witness erroneously to be 16 years and while going away she has neither put any resistance nor raised any alarms and it shows that she was a willing party to go with the accused as per her own accord. It has also been submitted that one can take judicial notice that the margin of error in the age ascertained by Radiological examination is two years on either side and as such the finding of the learned Court below that PW 2 was below 18 years of age is erroneous. In support of his contention reliance ha been placed upon the ratio of the case of Jaya Mala v. Home Secretary, Government of Jammu and Kashmir and Ors., AIR 1982 SC 1297 and Shyam and Anr. v. State of Maharashtra, AIR 1995 SC 2169. It has further been contented that there is no iota of evidence on the record to suggest that the appellant has ever induced PW 2, Sunita Kumari with intent that she may be compelled to solemnize her marriage with the appellant or in order that she may be forced or seduced to illicit inter course and the aforesaid facts having not been established by cogent evidence on the record, no offence under Section 366 of the Indian Penal Code is made out. The medical witness also does not establish the fact that during the period of her sojourn, PW 2, Sunita Kumari was subjected to sexual inter course. It has also been contended that leaving the house of her father by Sunita Kumari with two “sari” as averred in the fardbeyan and corroborated by PW 1 in his evidence on oath demolishes the fact of kidnapping or abduction of Sunita Kumari by the appellant in the manner as alleged in the Jardbeyan. It has also been contended that PW 1, the informant, has made a report regarding the occurrence on 02.10.1990 at Jharia Police Station and his First Information Report was recorded and he has put his signature thereon and, thereafter, the Jardbeyan (Ext. 5) has come into existence having been recorded at his house by the Deputy Superintendent of Police on that very day at 10.00 hours but the statement of the informant which was earlier recorded at the police station has been deliberately suppressed in this case and in this view of the matter fardbeyan (Ext. 5) which is the basis of the prosecution case suffers with infirmity and is hit by Section 162 of the Code of Criminal Procedure. It has been contended that the statement of PW 2, Sunita Kumari as well as of the appellant recorded under Section 164 of the Code of Criminal Procedure is not a substantive evidence and such statement can be used either for corroboration or contradiction and learned Court below has committed a material illegality on relying upon the said statement for coming to the finding of the guilt of the appellant which vitiates the impugned judgment. Lastly it has been contended that the learned Court below did not at all meticulously consider the facts, circumstances and materials on record and has erred gravely in coming to the finding of the guilt of the appellant and as such the impugned judgment is unsustainable.

8. Refuting the contention aforesaid, it has been submitted by the learned APP that PW 2, Sunita Kumari was a woman under 18 years of age and she has been induced by the appellant and taken by him to different places in his company and said Sunita Kumari was also recovered in course of investigation by the police from Bastacola with the appellant and Sunita Kumari has supported the factum of her kidnapping by the appellant in her evidence and in this view of the matter the prosecution case stands established and there is no illegality in the Impugned judgment.

9. It is pertinent to mention at the very outset that Sunita Kumari who was married in 1985, was living since then in the quarter at Industry Colliery allotted to her father and her Duragaman (second marriage) has not so far been performed. The house of the appellant is situated in front of the house of the informant in the said Industry Colliery. It has been averred in the fardbeyan (Ext. 5) that Sunita Kumari was aged 17 years at the time of the occurrence. On her recovery from the custody of the appellant on 06.10.1990 at Bastacola, she was medically examined by PW 8 Dr. Dipendra Nagi on 07.10.1990 at 14.05 hours. The medical witness has deposed that she did not find any external injury on her person and on her private parts. She has further deposed that hymen of Sunita Kumari reveals old rupture and there was also no injury on her introits. She has also deposed that no spermatozoa dead or alive, has been found in her vaginal swab and the medical witness has totally ruled out the possibility of having sexual inter course between Sunita Kumari and the appellant during the relevant period. The medical witness has further deposed that Sunita Kumari was 4.7 inches tall with 28 teeth and as per Radiological report she appears 16 years old Ext. 3 is the report of medical witness and it appears from the X-Ray report vide X-Ray film No. 576 that an epiphysis of her iliac crest has appeared but fusion has not yet stared and an epiphysis of lower end of radius, ulna and metacarpals have started fusing but fusion has not yet been completed and fusion line is distinct. The finding of age of PW 2, Sunita Kumari being 16 years by the medical witness appears to be primarily based on the X-Ray report read with existence of eruption of 28 permanent teeth. The estimation of age from the teeth by noting the number and position of teeth erupted and with X-Ray examination with some amount of certainty is possible up to 17 to 20 years of age and beyond that it is merely a guess work. Third molars teeth which are six in number erupt between the age group of 17 to 25 years. In this case four “third molars” teeth have not so far erupted in case of Sunita Kumari on the date of her examination and the fusion of the epiphysis of her iliac crest has not yet started. As per Modi’s Medical Jurisprudence and Toxicology, crest of iliac appears at the age of 14 and its fusion starts between the age of 17 to 19. Medical jurisprudence aforesaid further reveals that distal end of ulna appears between age of 8 to 10 while its fusion in case of female starts at the age of 17. Therefore, the finding of the medical witness in view of the radiological report as per Ext. 2 appears to be well founded and I have no hesitation to come to the finding that PW 2, Sunita Kumari was a woman under 18 years of age on the date of the occurrence. The ratio of the case of Jaya Mala (supra) is of no help to the appellant in the facts and circumstances of the case at hand. The consent of a woman under the age of 18 years is no consent under the law. Let us now advert to the evidence on record. It is pertinent to mention here at the very outset that for constituting an offence under Section 366 of the Indian Penal Code Kidnapping or abduction of a woman under 18 years of age must be with intent that she may be compelled to marry any person against her Will or in order that she may be forced or seduced to illicit inter course. The most important witness in such a case is generally the kidnapped woman herself. PW 2, Sunita Kumari has deposed that she had gone for nature’s call at 15.00 hours on 01.10.1990 and when she was returning to her house, the appellant met and told her that her father has met with an accident and asked her to accompany him and at this she accompanied the appellant and in the way three friends of appellant came there, She further deposed that in the way the appellant slapped her and told her to go with him intimidating her by showing a dragger failing which she and her entire family shall be eliminated and out of fear she accompanied the appellant and from Simla Bahal the appellant boarded a tempo with her for Putki and from there they came to Dhanbad Railway Station where they boarded a train. Her evidence is further to the effect that she does not know the name of the place where she was taken by the appellant but she was kept there in the house of the relative of the appellant for two days. She has further deposed that appellant wanted to solemnize his marriage with her. She has also deposed that after staying there for two days she was brought back to Dhanbad by the appellant and while coming to her house with him the police apprehended her and brought her to the police station. In paragraph 6 of her cross-examination she has denied the suggestion of the appellant that she has gone with the appellant for sight seeing and the appellant has not kidnapped her. PW 7 has deposed that she had made hectic search of Sunita Kumari when she did not return after nature’s call and, thereafter, she narrated the incident to her husband, PW 1 when he returned from duty. She has also deposed that after five days of the occurrence Sunita Kumari was recovered from the custody of the appellant by the police. PW 1, the father of Sunita Kumari has, deposed that when he came to his residence at 17.00 hours on the day of the occurrence after performing his duty in the colliery, his wife told him that Sunita Kumari is traceless since 15.00 hours and he made search for her and in course of search it transpired that the appellant is also traceless from his house from that very hour which gave reasonable suspicion to him that the appellant has induced Sunita Kumari and has taken her away with him with intention to solemnize his marriage with her.

He has further deposed that Sunita Kumari has also taken away two “sari” with her. PWs 3 and 5 have also supported the testimony, of PW 1 as hearsay witnesses. Much emphasis was put on the evidence of PW 1 which is to the effect that Sunita Kumari had taken away two “sari” with her and this evidence is sufficient in itself to establish the fact that Sunita Kumari was not kidnapped by the appellant, rather she has voluntarily left her house and accompanied the appellant for going with him due to love affairs between them and on torture perpetrated on her by her parent who came to know of the said love affairs. I see no substance in this contention for the reason that the said two “sari” alleged to have been taken by her have not been found with her when PW 2 Sunita Kumari was recovered. There is no whisper in respect thereof in the testimony of Investigating Officer, who has recovered Sunita Kumari at Bastacola from the custody of the appellant. There is also no evidence on the record to show that there was any love affair between Sunita Kumari and the appellant though they were close neighbour. Therefore, the defence version, in the facts and circumstances of the case, does not appear to be natural and probable. It is, therefore, established from the evidence of PW 2, Sunita Kumari that she has been taken away by the appellant on false pretext that her father had met with an accident and, thereafter, she was intimidated to accompany the appellant as per his dictates. I have already stated above that Sunita Kumari was a woman within 18 years of age and in this view of the matter her removal on false pretext by the appellant from lawful guardianship of the informant amounts to her kidnapping. Ratio of the case of Shyam and another (supra) is of no help to the appellant in the facts and circumstances of the case in view of the fact that out of fear and intimidation she did not put up any struggle and raise alarms while she was being taken away by the appellant. There is no infirmity in the statement recorded under Section 313 of the Code of Criminal Procedure of the appellant and all the circumstances emanating in the evidence of the prosecution witnesses have been put to the appellant in course of his examination under Section 313 of the Cr PC. PW 1 has deposed that on the following day of the occurrence i.e. on 02.10.1990 he has reported regarding the occurrence in the Jharia PS where his statement was recorded which was read over to him and he has put his signature thereon. In para 6 of his cross-examination he has deposed that he had personally gone to Jharia PS to inform the police regarding the occurrence. PW 1, the informant has not stated that the recording of his report in Jharia PS was earlier in time to that of his fardbeyan which was recorded at his residence on 02.10.1990 at 10.00 hours. The IO in his evidence has also not deposed regarding recording of the report of the informant prior to the recording of his fardbeyan at his residence in Industries Colony. In view of the facts aforesaid it cannot be said that fardbeyan (Ext. 5) which is the basis of this prosecution case is hit by Section 162 of the Cr. PC 1, therefore, see no substance in the contention of the learned counsel of the appellant in respect thereof. It is true that the learned Court below has also relied upon the statement of the appellant recorded under Section 164 of the Code of Criminal Procedure for coming to the guilt of the appellant. This is an illegality on the part of the learned Court below. There is sufficient legal evidence on the record as per the testimony of PW 2, Sunita Kumari read with PWs 7, 1 and 3 to establish kidnapping of Sunita Kumari by the appellant even if the statement under Section 164 of the Code of Criminal Procedure of Sunita Kumari is excluded in the facts and cir cumstances of the case. I see ring of truth in the evidence of PW 2, Sunita Kumari which substantiates the prosecution case beyond all reasonable doubts and I see no reason to disagree with the finding of the guilt of the appellant arrived at by the learned Court below requiring an inter ference therein.

10. There is no merit in the appeal and it fails. The impugned judgment of the learned Court below is hereby affirmed. The appeal is dismissed. The bail bond of the appellant is hereby cancelled and he is directed to surrender before the learned Court below to serve out the sentence. Learned Court below is also directed to take all coercive steps in accordance with law to apprehend the appellant for serving out the sentence.

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