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Baijnath Sao vs State Of Bihar on 27 March, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.353 of 2003
Arising Out of PS.Case No. -null Year- null Thana -null District- AURANGABAD

Baijnath Sao, Son of Late Bhola Sao, Resident of Village – Obra, P.S. – Obra,
District – Aurangabad.

…. …. Appellant/s
Versus
State of Bihar
…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Krishna Prasad Singh, Sr. Advoate
Mrs. Meena Singh, Adv.

Mr. J. Upadhyay, Adv.

For the Respondent/s : Mr. Binod Bihari Singh, A.P.P.

CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
ORAL JUDGMENT
Date: 27-03-2018

This appeal is directed against the judgment of conviction dated

28-06-2003 and order of sentence dated 30.06.2003, passed by Sri

Umeshwar Nath, the then 5th Additional Sessions Judge, Aurangabad

in Sessions Trial No. 221/1997, 50/2003 by which the sole appellant

Baijnath Sao was convicted under Sections 363, 366A, 376 and 379

of the Indian Penal Code (hereinafter referred to as the “IPC”) and

was sentenced to undergo R.I. for seven years under Section 363 IPC,

R.I. for ten years under Section 366A of IPC, R.I. for ten years under

Section 376 IPC and R.I. for two years under Section 379 of the IPC.

All the sentences were directed to run concurrently.

2. Prosecution case as per the fardbeyan of informant Deyanand

Devedi recorded by the officer-in-charge Obra Police Station, in short
Patna High Court CR. APP (SJ) No.353 of 2003 dt.27-03-2018

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is that twenty days prior at about 7. A.M., daughter of the informant

went to purchase some domestic articles from the shop of appellant

Baijnath Sao but she did not return, thereafter, informant went to the

shop of appellant Baijnath Sao but he found that the shop was closed

and the appellant and daughter of the informant was also not available

there. Then the informant searched his daughter and accused at the

place of his relatives and also at the place of relatives of the appellant

but he did not find them. It is further alleged that appellant Baijnath

Sao was married person and the informant believed that the appellant

Baijnath Sao has enticed away his minor daughter

3. On the basis of the aforesaid statement of informant Obra P.S.

Case No. 106/1996 was registered.

4. Police after investigation submitted charge-sheet. Cognizance

of the offence was taken and the case was committed to the court of

Sessions, which ultimately came to the file of Sri Umeshwar Nath, the

then 5th Additional Sessions Judge, Aurangabad, for trial and disposal.

5. Charges were framed under Sections 363, 366A, 376 and 406

of the IPC.

6. To substantiate the charges, prosecution examined altogether

eleven witnesses, out of which P.W. 1 Siyaram Dubey and P.W. 2

Rajdeo Dubey appears to be hearsay witness, P.W. 3 – Deyanand

Divide is the informant and father of victim girl, P.W. 4 – Basanti
Patna High Court CR. APP (SJ) No.353 of 2003 dt.27-03-2018

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Devi, mother of victim girl, P.W. 5 – Sandhya Kumari, victim girl,

P.W. 6- Subhash Chand, the then Judicial Magistrate, who recorded

the statement of victim girl under Section 164 Cr.P.C., P.W. 7 – Lalsa

Sinha and P.W. 8 – Pushpa Thakur are the doctors, who examined the

victim girl and assessed her age between 14 to 16 years and also

stated that the victim was carrying a pregnancy of 28 to 32 weeks,

P.W. 9 – Braj Kishor Tiwary, a hearsay witness, P.W. 10 – Mahendra

Singh, a witness of seizure list -cum- production, which is marked as

Ext. 4 and P.W. 11 – is a formal witness, who proved the formal

F.I.R.

7. On conclusion of trial, the Trial Court has convicted the

appellant under Sections 363, 366A, 376 and 379 and sentenced him

in the manner as stated above.

8. Contention of learned counsel for the appellant is that the

evidence itself shows that the alleged victim girl was a consenting

party and had gone with the appellant out of her own sweet will and

was residing with the appellant and though it is stated by the

witnesses that the girl was aged about 14 years but doctor has found

her age between 14 to 16 years and if principle of plus minus two

years is applied, then the victim girl would be major at the time

occurrence. Further submission of learned counsel for the appellant is

that in this case, no charge has been framed under Section 379 of the
Patna High Court CR. APP (SJ) No.353 of 2003 dt.27-03-2018

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IPC and charge was framed under Section 406 of the IPC but the Trial

Court has convicted the appellant also under Section 379 of the IPC

and in absence of charge conviction of appellant under Section 379 of

the IPC is bad in law.

9. On the other hand, learned counsel for the respondent – State

supported the finding of guilt recorded by the Trial Court and has

submitted that the girl was minor at the time of alleged occurrence

and even if it is believed that the girl was a consenting party but the

consent of minor is of no value in the eye of law and evidence of P.W.

4 Basanti Devi also shows that earlier also, the victim girl was raped

by the said Baijnath Sao in the shop as she was carrying a pregnancy

of 28 to 32 weeks and further the evidence of victim girl also shows

that she was enticed away by the appellant and was raped, as such,

there is no infirmity in the impugned judgment of Trial Court and

conviction of appellant under Sections 363, 366A, 376 and 379 of the

IPC is just and proper.

10. In the background of rival contentions of the parties, on perusal

of the evidence of witnesses, it appears that P.W. 1 and P.W. 2 are the

hearsay witnesses. P.W. 3 is the informant in this case and he has

supported the case of prosecution in his evidence in court also and has

disclosed that appellant has enticed away his minor daughter, while

she had gone to purchase some domestic articles. Evidence further
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disclosed that the appellant and the girl was recovered from Dhanbad

from the house of the relative of the appellant and, thereafter, the girl

was brought back and after recording her evidence, she was handed

over to this witness and girl disclosed him that the appellant has taken

away her and he had done wrong act with her. P.W. 5 is the victim

girl in this case and she has stated in her evidence that she was going

to the house of her Mausi and in the way appellant Baijnath Sao met

her and taken her with himself on the plea that he will take her to her

Mousi’s house, thereafter, he brought her to Dhanbad to the house of

his sister and there he committed rape on her and also threatened her.

This witness has been cross-examined at length but there is nothing in

her evidence to doubt the credibility of her testimony. P.W. 4 is the

mother of informant and she too has supported the case of

prosecution. P.W. 6 is the doctor, who recorded the statement of

victim under Section 164 Cr.P.C. P.W. 7 and P.W. 8 are the doctors,

who examined the victim girl and their evidence disclosed that the girl

was carrying a pregnancy of 28 to 32 weeks and further appears from

their evidence that the age of girl was assessed at 14 to 16 years. P.W.

10 is the seizure list -cum- production and P.W. 11 is the formal

witness, who proved the F.I.R.

11. On consideration of entire evidence available on record, it

appears that there are consistent and cogent evidence available on
Patna High Court CR. APP (SJ) No.353 of 2003 dt.27-03-2018

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record to show that the appellant enticed away the minor daughter of

the informant and took her to the house of his sister at Dhanbad and

committed rape on her and they both were recovered from the house

of the sister of appellant from Dhanbad. Though a plea has been taken

that the girl was consenting party, however, as she was minor at the

time of occurrence, the consent of minor is of no value in the eye of

law. As such the conviction of appellant under Section 363, 366A and

376 of the IPC appears to be just and proper and the same is hereby

affirmed.

12. So far conviction of appellant under Section 379 of the IPC is

concerned, it appears that in this case no charge was framed under

Section 379 of the IPC and as such the conviction of appellant under

Section 379 of the IPC does not appear to be sustainable in the eye of

law and the same is hereby set aside.

15. A submission has been made by learned counsel for the

appellant that appellant has already remained in custody for seven

years during trial and maximum sentence is ten years and occurrence

is of the year 1996 and twenty two years have elapsed since the date

of occurrence and, therefore, a lenient view may be taken and the

period of sentenced may be reduced to a period already undergone by

him in judicial custody.

13. Considering the facts and circumstances and the submission of
Patna High Court CR. APP (SJ) No.353 of 2003 dt.27-03-2018

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learned counsel for the appellant, the sentence of appellant is reduced

to the R.I. for seven years in each count and all the sentences shall run

concurrently. Appellant shall also be entitled for benefit of setting off

the period of sentence already undergone by him in judicial custody in

accordance with law.

14 With the above modification in sentence, this appeal is

dismissed.

(Vinod Kumar Sinha, J)

sunil/-

AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 30.03.2018
Transmission 30.03.2018
Date

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