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Bhontu Das @ Bichhu Das vs The State Of Bihar on 10 October, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.119 of 2013
Arising Out of PS.Case No. -146 Year- 2010 Thana -SHUBHGANJ District- BANKA

Bhontu Das @ Bichhu Das, son of Late Suro Das, resident of Village Chamelichak
(Kasba), Police Station Shambhuganj, District Banka. …. …. Appellant.

Versus
The State of Bihar. …. …. Respondent.

Appearance :

For the Appellant : Md. Najmul Hoda, Advocate.
For the Respondent : Mr. Binod Bihari Singh, A.P.P.

CORAM: HONOURABLE MR. JUSTICE PRAKASH CHANDRA JAISWAL
ORAL JUDGMENT
Date: 10-10-2018

Heard learned counsel for the appellant as well as

learned APP for the State on this Criminal Appeal.

2. This criminal appeal has been preferred against the

judgment and order of conviction dated 19.12.2012 and order

of sentence dated 21.12.2012 passed by the Ad hoc

Additional Sessions Judge-IV, Banka in Sessions Trial No.

121 of 2011, arising out of Shambhuganj P.S. Case No.146 of

2010, whereby the learned trial Court convicted the accused

Bhontu Das alias Bichhu Das under Sections 366-A and 376

of the Indian Penal Code and sentenced him to undergo

rigorous imprisonment for 7 years and also slapped him with a

fine of Rs.5,000/- and in case of default of payment of fine to

further undergo R.I. for six months under Section 366-A IPC

and also sentenced him to undergo R.I. for 10 years and

slapped him with a fine of Rs.10,000/- and in case of default
Patna High Court CR. APP (SJ) No.119 of 2013 dt.10-10-2018

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of payment of fine to further undergo R.I. for one year under

Section 376 IPC.

3. The factual matrix of the case is that Shambhuganj

P.S. Case No.146 of 2010 was instituted under Section 366-

A/34 of the IPC against Nand Kishore Das and Bhontu Das on

the basis of written report of one Gena Das with the allegation

in succinct that he resides in Delhi in connection with his

work. On 29.10.2010 at 8 PM his wife informed him on his

mobile that his daughter, Kajal Kumari aged about 13 years

was missing since 6 PM on the said date. On the said

information, he arrived at his house on 01.11.2010 and made

search of his daughter. In course of search, Shashi Kumar

Singh, Navin Prasad Singh and others divulged him that they

had seen Nand Kishore Das and Bhontu Das taking his

daughter, Kajal Kumari on 29.10.2010 at 6 PM. He also learnt

that his daughter has been kidnapped by the aforesaid persons

with intent to perform marriage showing the accused.

4. The aforesaid case was investigated by the police

and on conclusion of the investigation, I.O. submitted

chargesheet against the accused Bhontu Das under Sections

366-A and 376 of the Indian Penal Code showing the accused

Nand Kishore Das as not sent up.

Patna High Court CR. APP (SJ) No.119 of 2013 dt.10-10-2018

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5. On receiving the chargesheet and the case diary

and perusing the same, the learned Magistrate took

cognizance of the offence against the accused and committed

the case to the Court of Sessions and on transfer finally the

case came in seisin of the Ad hoc Additional Sessions Judge-

IV, Banka for trial.

6. Charge against the accused Bhontu Das was

framed under Sections 366-A and 376 of the Indian Penal

Code. Charge was read over and explained to the accused by

the Court to which he pleaded not guilty and claimed to be

tried.

7. To substantiate its case, in ocular evidence, the

prosecution has examined altogether seven prosecution

witnesses, namely, Navin Prasad Singh as P.W.-1, Shashi

Kumar Singh as P.W.-2, Jitendra Kumar Das as P.W.-3,

Manorma Devi @ Dhaniya Devi as P.W.-4, victim Kajal

Kumari as P.W.-5, informant Gena Das as P.W.-6 and Dr.

Indu Bala Prasad, who has examined the victim, as P.W.-7.

Out of the aforesaid witnesses P.Ws.1 2 turned hostile. In

documentary evidence the prosecution has filed and proved

some documents including the statement of the victim

recorded under Section 164 Cr.P.C.

Patna High Court CR. APP (SJ) No.119 of 2013 dt.10-10-2018

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8. The statement of the accused was recorded under

Section 313 of the Code of Criminal procedure. The case of

the defence is complete denial of the occurrence claiming

himself to be innocent. The accused has neither adduced any

ocular nor documentary evidence in buttress of his case.

9. After hearing the parties and perusing the record,

the learned trial Court passed the impugned judgment and

order of conviction and sentence as detailed in the earlier

paragraph.

10. Being aggrieved and dissatisfied with the

aforesaid judgment and order of conviction and sentence, the

convict has preferred the present Criminal Appeal.

11. The point for consideration in this case is, as to

whether the prosecution has been able to bring home the

charge levelled against the appellant beyond all reasonable

doubts or not.

12. It is submitted by the learned counsel for the

appellant that the learned Trial Court while recording the

statement of the victim has assessed her age as 18 years which

goes to suggest that the victim was major at the time of

occurrence. It is further submitted that victim was major and

she had herself eloped with the appellant and lived with him
Patna High Court CR. APP (SJ) No.119 of 2013 dt.10-10-2018

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out of her sweet will. It is a case of love affair. It is further

submitted that as per the account of the victim she was kept

by the appellant in the house of Shambhu Das but the said

Shambhu Das has not been examined by the prosecution. It is

also submitted that as per the prosecution case the informant

got knowledge of kidnapping of his daughter from Navin

Prasad Singh and Shashi Kumar Singh and others but the said

Navin Prasad Singh and Shashi Kumar Singh examined by the

prosecution in this case as P.W.1 and P.W.2 respectively have

turned hostile and no other person has been examined by the

prosecution in corroboration of the aforesaid case. It is further

submitted that as per the account of Jitendra Kumar Das

(P.W.3) he got knowledge of the kidnapping of his sister from

Nageshwar Das but the aforesaid Nageshwar Das has not been

examined by the prosecution. Jitendra Kumar Das (P.W.3),

Manorma Devi @ Dhaniya Devi (P.W.4) and the informant

Gena Das (P.W.5), father of the victim are not the eye

witnesses of the kidnapping of the victim by the appellant. Dr.

Indu Bala Prasad (P.W.7) who has examined the victim has

not found any sign of rape and spermatozoa in the vaginal

swab of the victim. Hence, the ocular evidence does not stand

corroborated by the medical evidence. Thus, the prosecution
Patna High Court CR. APP (SJ) No.119 of 2013 dt.10-10-2018

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has utterly and miserably failed to substantiate the prosecution

case by adducing consistent, trustworthy and reliable ocular

and documentary evidence. Hence, the aforesaid judgment

and order of conviction and sentence passed against the

appellant is liable to be set aside and the appellant is entitled

to be acquitted of the charge levelled against him.

13. On the other hand, learned APP advocating the

correctness and validity of the impugned judgment and order

of conviction and sentence, submitted that the victim in her

statement under Section 164 Cr.P.C. and the statement given

before the trial Court has substantiated the offence of

kidnapping by the appellant and committing rape against her

by him for 14 days. Other witnesses, namely, P.Ws.2, 3, 4 and

6 have also corroborated the occurrence of kidnapping of the

victim by the appellant and the learned trial Court correctly

appreciating the facts and evidence on record has rightly

passed the impugned judgment and order of conviction and

sentence, which is liable to be upheld and this appeal is shorn

of merit and is liable to be dismissed.

14. From perusal of the record, it appears that to

substantiate its case the prosecution has examined 6

material witnesses in the case. Out of the aforesaid witnesses
Patna High Court CR. APP (SJ) No.119 of 2013 dt.10-10-2018

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Navin Prasad Singh (P.W.1) and Shashi Kumar Singh (P.W.2)

have turned hostile, while P.W.3-Jintendra Kumar Das

happens to be brother, Manorma Devi @ Dhaniya Devi

(P.W.4) happens to be mother, the informant Gena Das

(P.W.6) happens to be father of the victim and P.W.5-Kajal

Kumari is the victim herself.

15. Jitendra Kumar Das-P.W.3 has stated in his

examination-in-chief that at the time of occurrence, he was in

field along with his mother while his sister, Kajal Kumari was

cooking food inside the house and when they regressed to the

house they did not find Kajal in the house. During the course

of search after half an hour, he learnt that Nand Kishore Das

and Bhontu Das (appellant) have kidnapped his sister with an

intent to perform marriage with her. In para-4 of his cross-

examination, he has stated that he had not seen his sister

proceeding with the accused persons rather Nagehswar Das

had divulged him the factum of witnessing the girl proceeding

with Nand Kishore Das and Bhontu Das 10 minutes earlier.

The aforesaid statement of P.W.3 indicates that he does not

happen to be eye witness of kidnapping of the victim rather

has given statement on the premise of the disclosure of the

aforesaid occurrence of kidnapping of victim by the appellant
Patna High Court CR. APP (SJ) No.119 of 2013 dt.10-10-2018

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to him by Nageshwar Das. But the aforesaid Nageshwar Das

has not been examined by the prosecution in corroboration of

the aforesaid statement of P.W.3. Thus the aforesaid statement

of P.W.3 remains uncorroborated and for want of

corroboration aforesaid statement of P.W.-3 is not admissible

in evidence even as hearsay witness of the case.

16. Manorma Devi @ Dhaniya Devi-P.W.4 has

stated in her examination-in-chief that at the time of

occurrence she had gone to the field and when she regressed

from the field she did not find her daughter in the house.

During course of search she learnt that Nand Kishore Das and

Bhontu Das had kidnapped her daughter to perform marriage

with her. In para-4 of her cross-examination, she has stated

that she learnt about kidnapping of her daughter by the

accused persons 4-5 days later. But she has not disclosed the

name and identity of the source of information. From perusal

of the aforesaid testimony of P.W.4, it appears that she also

does not happen to be eye witness of the kidnapping of the

victim by the appellant.

17. Gena Das-P.W.6, who happens to be informant

of the case, also does not happen to be eye witness of

kidnapping of his daughter. As in para-1 of his examination-
Patna High Court CR. APP (SJ) No.119 of 2013 dt.10-10-2018

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in-chief he has stated that he learnt about kidnapping of his

daughter by the accused persons during course of search from

the people of Jagatpur but barring P.Ws.1 2 none else has

been examined by the prosecution in corroboration of the

aforesaid statement of the informant and moreover P.Ws.1

2 have turned hostile. Thus for want of corroboration

aforesaid statement of the informant is not admissible in

evidence even as a hearsay witness.

18. From perusal of the testimony of the aforesaid

three witnesses, it appears that they also do not happen to be

eye witnesses of committing rape against the victim by the

appellant. Thus, the only witness left to be examined is victim

Kajal Kumari-P.W.5. From perusal of testimony of P.W.-5 it

appears that she has stated in her examination-in-chief that on

the date of occurrence she was in her house and Nand Kishore

Das and Bhontu Das arrived at her house at around 7 PM and

asked her to accompany them to Sultanganj to receive her

father who had arrived there from Delhi and took her to

Bairiya Diyara and they kept her there for 14 days and Bhontu

Das committed rape against her forcibly for 14 days and after

14 days her father went there and took her to P.S. Shahkund

and from there to P.S. Shambhuganj and from there she went
Patna High Court CR. APP (SJ) No.119 of 2013 dt.10-10-2018

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to the Banka Court where her statement was recorded.

Thereafter, she went to the hospital at Banka. In para-3 of her

examination-in-chief, she has further stated that Bhontu Das

had committed rape against her. In para-5 of her cross-

examination she has stated that Nand Kishore Das had left

them at Bairiya Diyara. In para-5 of her cross-examination,

she has further stated that Bhontu Das is her brother in

relation so she had accompanied him. He used to pay visit to

her house oftenly since two years before the occurrence. In

Diyara he had kept her in the house of Shambhu Das. The

victim was subjected to cross-examination but nothing

convincing and cogent have been elicited in her cross-

examination having potential to rule out or create any doubt

about the sanctity of the aforesaid testimony of the victim.

Thus the aforesaid testimony of victim appears to be wholly

reliable and unblemished.

19. From perusal of the statement of the victim

recorded under Section 164 Cr.P.C., marked as Ext.1, it

appears that the aforesaid testimony of the victim also stand

corroborated by the aforesaid statement recorded under

Section 164 Cr.P.C. as in the said statement she has stated that

only Bhontu Das took her to Bairiya Diyara forcibly. Her
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mother had gone to field at the time of occurrence. Bhontu

Das came to her and asked her to accompany him to receive

her father to Sultanganj who had arrived from Delhi. He took

her from her house on 29.10.2010 and kept her with him for

14 days and established sexual cohabitation with her during

the aforesaid period. Thus from perusal of the testimony of

the victim it appears that she was taken away by the appellant

on the pretext of receiving her father at Sultangaj who had

arrived there from Delhi on the date of occurrence and he took

her to Bairiya Diyara and kept her there for 14 days and

committed rape against her during the aforesaid period.

20. From perusal of the medical examination report

and evidence of Dr. Indu Bala Prasad-P.W.7, it appears that

on examination of person of the victim the doctor has found

her hymen old ruptured. The aforesaid testimony and

statement of the victim recorded under Section 164 Cr.P.C.

and the medical evidence conjointly goes to substantiate the

case of kidnapping of the victim and committing rape against

her by the appellant.

21. From perusal of the record, it appears that the

Trial Court, while recording statement of the victim during

the course of trial, has assessed her age as 18 years but the
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aforesaid statement of the victim was recorded on 17.10.2011

while the occurrence is of around one year back i.e. of

29.10.2010. Hence, as per the aforesaid statement itself the

victim appears to be minor at the time of occurrence.

Moreover, the learned Magistrate, while recording the

statement of victim under Section 164 Cr.P.C. has assessed

her age as 13 years on 20.11.2010 and the doctor who has

examined the victim on 18.11.2010, has assessed the age of

the victim below 18 years. The aforesaid evidence of the

prosecution cumulatively indicates that the victim was minor

at the time of occurrence.

22. Though the said Shambhu Das in whose house the

victim was kept by the appellant for 14 days has not been

examined by the prosecution, but, in view of the aforesaid

ocular and documentary evidence of the prosecution, non

examination of the said Shambhu Das in the case, in my

considered opinion, is not going to shatter the prosecution

case by any stretch of imagination.

23. Though the doctor has not found any

spermatozoa in the vaginal swab of the victim but the said

aspect of the case, in my considered opinion, is not going to

affect the merit of the case and having potential to rule out the
Patna High Court CR. APP (SJ) No.119 of 2013 dt.10-10-2018

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committing of rape against the victim as as per the victims

account the appellant had kidnapped the victim on 29.10.2010

and kept her with him for 14 days i.e. till 11.11.2010 and the

victim was recovered and examined on 18.11.2010 i.e. after

seven days, so the possibility of spermatozoa in the vaginal

swab of the victim is very bleak as by that time the semen etc.

might have been washed out from the body by urination.

24. As the victim was minor and she was not

kidnapped by the appellant knowing that it is likely that she

will be, forced or seduced to illicit intercourse with another

person, no case under Section 366-A IPC is made out.

However, as the victim was minor and was taken away from

lawful guardianship of her mother by the appellant, without

consent of her guardian, the offence under Section 363 IPC is

made out against him.

25. In view of the aforesaid facts and circumstances

of the case I find and hold that the prosecution has succeeded

to substantiate the offence of kidnapping of minor daughter of

the appellant and committing rape against her by the

informant by adducing consistent, trustworthy and reliable

evidence. Hence, the appellant is convicted under Section 363

IPC instead of 366-A IPC besides 376 IPC.

Patna High Court CR. APP (SJ) No.119 of 2013 dt.10-10-2018

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26. As the occurrence is of 2010 and the appellant

has been facing the rigor of trial for a considerable period of 8

years and victim has been given marriage and is residing at

Kolkata happily and the appellant happens to be aged about

23 years at the time of occurrence, hence considering the facts

and circumstances of the case, the sentence of the appellant

under Section 376 IPC is reduced to seven years.

27. Accordingly this appeal is dismissed with the

aforesaid modification in Section under which the appellant

has been convicted and the sentence as detailed hereinabove.

(Prakash Chandra Jaiswal, J.)

Trivedi/-

AFR/NAFR AFR
CAV DATE NA
Uploading Date 16.10.2018
Transmission 16.10.2018
Date

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