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Pappu Singh & Anr vs State Of Bihar on 31 July, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.465 of 2003
Arising Out of PS.Case No. -null Year- null Thana -null District- KATIHAR

1. Pappu Singh, son of Shree Satrughan Singh

2. Jagpatia Devi, wife of Late Brahmdeo Singh (since dead), resident of Sant
Colony (Nepali Tola), P.S. and District Katihar
…. …. Appellants
Versus
The State of Bihar
…. …. Respondent

Appearance :

For the Appellant/s : Mr. Ramanand Poddar, Advocate
For the Respondent/s : Mr. Bipin Kumar, APP

CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
ORAL JUDGMENT
Date: 31-07-2018

Appellant No.1 has been convicted under Sections 363,

366A and 376 of the Indian Penal Code and sentenced to undergo

rigorous imprisonment for three years and seven years respectively

under Sections 363 and 366A IPC and also sentenced to rigorous

imprisonment for 10 years under Section 376 IPC and appellant No.2

has been convicted under Sections 363 and 366A IPC and sentenced

to undergo rigorous imprisonment for three years under Section 363

IPC, further sentenced to undergo rigorous imprisonment for seven

years under Section 366A IPC and all the sentences were directed to

run concurrently vide judgment of conviction dated 28.8.2003 and

order of sentence dated 30.8.2003 passed by Sri Bidhu Bhushan

Pathak, the then 2nd Additional Sessions Judge, Katihar in Sessions

Trial No. 227 of 1997.

2. During pendency of this appeal, appellant No.2 Jagpatia
Patna High Court CR. APP (SJ) No.465 of 2003 dt.31-07-2018

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Devi has died and, as such the appeal against appellant No.2 stood

abated vide order dated 12.4.2018.

3. Prosecution case as per complaint petition lodged by PW 6

Badal Das before the court of the Chief Judicial Magistrate, Katihar,

in short, is that on 20.2.1997 when he came to his house he did not

found his daughter Tusi Kumari, aged about 13-14 years and he came

to know from his younger daughter that appellant Pappu Singh had

taken her forcibly to show the cinema. It has further been alleged that

when she did not return till night he went to police station and filed

complaint stating that accused persons had kidnapped his daughter

and police had asked him to search his daughter. The aforesaid

complaint petition was sent for registration of FIR under Section

156(3) Cr.P.C. and on that basis, case has been registered on 9.3.1997

against Pappu Singh, Savitri Devi and Most. Jagpatiya Devi.

4. After investigation police submitted charge sheet and

accordingly cognizance was taken and after commitment the case

traveled to the file of Sri Bidhu Bhushan Pathak, the then 2 nd

Additional Sessions Judge, Katihar for trial and disposal.

5. Charges were framed in this case against the appellants

under Sections 363, 366A IPC and further charge was framed against

appellant Pappu Singh under Section 376 IPC.

6. In order to substantiate its case, the prosecution has

examined altogether 10 witnesses, they are PW 1 Ganeshi Uraon, PW
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2 Subhash Singh, PW 3 Permanand Singh, PW 4 Sitaram Rishi, PW 5

Dr. Mrs. Neelam Manish, PW 6 Badal Das, informant, PW 7 Rakesh

Kumar Yadav, S.I. who has recovered the victim girl, PW 8 Urmila

Das, wife of informant, PW 9 Tusi Kumar, victim and PW 10 Ganga

Dayal Prasad, I.O. From perusal of evidence it appears that I.O. has

recovered the girl from the house of Md. Salim on 12.4.1997 from

Drivertola and at that time Jagpatia Devi was also there.

7. PW 1 is a witness on the point that he had seen the

appellant and his father along with Tusi Kumari in bus and she was

sitting in between them but his evidence shows that he did not enquire

from them as to where they were going. PW 2 is said to be neighbour

of the informant and his evidence disclosed that he had seen Tusi

Kumari going along with Jagpatia Devi on 20.2.1997 at 6 P.M. in

rickshaw and in another rickshaw he saw father of appellant

Shatrughan Singh but his evidence also did not disclose as to whether

he enquired about them as to where they were going and a suggestion

was given to him that Tusi Kumari eloped with his brother Hira Singh

but he has denied the suggestion. PW 3 is father of PW 2 and his

evidence disclosed that he had seen Jagpatia Devi along with Tusi

Kumari on rickshaw and Shatrughan Singh was in another rickshaw.

His evidence also disclosed in cross examination that he did not know

as to whether there was love affair between Pappu Kumar and Tusi

Kumari and as to whether there was talk of marriage between them
Patna High Court CR. APP (SJ) No.465 of 2003 dt.31-07-2018

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and evidence of PWs 2 and 3 shows that informant was living in the

house of Shatrughan Singh, father of appellant Pappu Singh, as tenant.

Evidence of PW 4 disclosed that he came to know that Tusi Kumari

had fled away along with Pappu Singh but this witness has not been

declared hostile. PW 6 is informant himself and he has stated that on

20.2.1997 at 6 P.M. he did not find his daughter and he came to know

that Pappu Singh had taken her to show cinema and on enquiry from

mother of Pappu Singh about his daughter, she showed her ignorance.

His evidence further disclosed that Subhash Singh told him that he

had seen Tusi Kumari along with Jagpatiya going on a rickshaw and

his daughter was recovered after one month 22 days and he also

disclosed that Jagpatiya Devi had taken her away on bus stand and

Tusi Kumari was boarded in a bus in which Pappu Singh was sitting

and Shatrughan Singh also went with them and from Purnea Tusi

Kumari was taken away to Delhi and she was subjected to rape by

Pappu there in a hotel and from there she was taken to Ludhiyana and

thereafter they came to Katihar. In his evidence this witness has not

disclosed the age of the girl, rather from his cross examination it

appears that her younger daughter was aged about 12 years and he

showed his ignorance that that the girl was found at the age between

17-25 years during medical examination. In his cross examination he

has stated that he did not know that for the occurrence of the same day

Subhash Kumar Singh (PW 2) had lodged a case before the court of
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the Chief Judicial Magistrate. This witness has also stated that he was

tenant in the house of Shatrughan Singh.

8. PW 7 is on the point of recovery of Tusi Kumari. PW 8 is

mother of the victim girl and she is not an eye-witness to the

occurrence and she has also stated that Tusi Kumari was taken by

appellant No.2. Her statement also shows that Tusi Kumari used to

sleep in the house of Jagpatiya. Her evidence further disclosed that

Tusi had studied up to VII standard. PW 9, the victim girl, has stated

that she was taken by Jagpatiya Devi and Shavitri Devi to bus stand

and Pappu Singh on the point of knife got her boarded in the bus and

they both also boarded in the bus and they have taken her to Purnea

and from there they had gone to Delhi, stayed in a hotel where Pappu

had committed rape on her and thereafter she was taken in a rented

house where also she was subjected to rape. She on production of

letters (Exts A-A/11) has stated that letters were written by her. Her

evidence in cross examination disclosed that Baldeo Munsi and

Jagpatiya Devi had brought her to Katihar and from Katihar Railway

Station they had taken her to the house of Baldeo Munsi.

9. PW 5 is Doctor in this case, who had examined the girl

and her medical dental report shows that 28 teeth present, X-ray was

not done as X-ray plate was not available at Sadar Hospital, therefore

opinion regarding the age was reserved. Her evidence further

disclosed that she was habitual in sexual intercourse and in her cross
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examination she has stated that third molar teeth appears between the

age of 17 to 25 years.

10. Defence of the accused is that there was love affair

between appellant Pappu Singh and Tusi Kumari and she had gone on

her own sweet will and married with Pappu Singh and in support of its

contention defence had produced letters purported to have written by

Tusi Kumari as Exts. A-A/11.

11. Learned trial court on conclusion of trial has convicted

the appellants under Sections 363, 366A and 376 IPC and sentenced

them as stated above.

12. Learned counsel for the appellant has assailed the

judgment on the ground that whole prosecution case clearly shows

that there was love affair between appellant Pappu Singh and Tusi

Kumari and Exts. A to A/11 have been identified by the victim Tusi

Kumari in her evidence and medical report shows that she was major

at the time of occurrence and opinion of doctor was that she was

habitual in sexual intercourse, as such the conviction under Sections

363, 366A and 376 IPC is not sustainable in the eye of law. Further

submission is that there is delay of four days in lodging the complaint

petition and the complainant in his evidence disclosed that witnesses

had seen Tusi Kumari going along with Jagpatiya Devi and Pappu

Singh and father of Pappu Singh and that also creates doubt about the

prosecution case and in spite of the aforesaid inconsistencies learned
Patna High Court CR. APP (SJ) No.465 of 2003 dt.31-07-2018

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trial court has convicted the appellant under Section 376 and other

sections of the Indian Penal Code.

13. On the other hand, learned counsel for the State has

supported the judgment of conviction on the ground that PW 9 is the

victim in this case and she has supported the prosecution case that she

was forcibly taken by the appellant at different places and was

subjected to rape and aforesaid evidence has been corroborated by her

statement recorded under Section 164 Cr.P.C. and she was minor and

as such the conviction of the appellant under Sections 363, 366A and

376 IPC is just and proper and does not require any interference by

this Court.

14. Having heard both sides and from the discussions made

above it appears that admittedly occurrence took place on 20.2.1997.

However, complaint petition was filed on 24.2.1997 and case was

registered on 9.3.1997. The evidence further disclosed that informant

was knowing well that victim girl was taken by Pappu Singh and his

grandmother but in spite of that no step was taken for lodging FIR.

Further it appears that PW 1 claims to have seen the victim along with

appellant Pappu Singh and his father but evidence does not disclose

that as to whether he enquired as to where they were going and

similarly PWs 2 and 3 claim to have seen Jagpatiya Devi along with

Tusi Kumari but they had also not enquired about Tusi Kumari as to

where they were going. Admittedly informant was tenant of
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Shatrughan Singh, father of appellant Pappu Singh and in such a

situation, there is evidence that they saw victim going along with

Jagpatiya Devi does not inspire confidence, as it is natural conduct of

the witnesses to enquire from the victim, as to where she is going. On

the other hand, the evidence of PW 9, who is victim girl in this case,

disclosed that letters were written by her and she had proved the same

as Exts. A to A/11 and she had also identified her photographs along

with Pappu Singh and in such a situation, possibility of love affair

between victim and Pappu Singh cannot be ruled out. Moreover,

conduct of the victim that she had traveled along with appellant to

Purnea, Delhi, Ludhiana and there is nothing in her evidence that she

raised alarm or tried to inform people about her kidnapping, rather

evidence of PW 9 shows that she was brought back with Jagpatiya

Devi and Baldeo Munsi and they had brought her from Ludhiana to

Katihar and she was recovered from the house of Md. Salim. Md.

Salim has also not been examined in this case. For conviction under

Section 366A IPC prosecution has to prove that she was minor at the

time of alleged kidnapping, rather evidence of Doctor suggests that

she was aged 17-25 years. Evidence of witness shows that she studied

up to VII standard but no document has been brought on record to

prove that she was minor. It is needless to say that prosecution has to

prove its case beyond all reasonable doubts. The prosecution has not

brought any clinching evidence to prove that she was minor, rather
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conduct of the girl shows that she had written several letters to

appellant Pappu Singh, which will appear from Exts. A to A/11,

which she recognized, and that shows that she was consensual along

with going to appellant Pappu Singh, she appears to be major and all

the circumstances create doubt about prosecution case and in such a

situation the appellant is entitled to benefit of doubt.

15. Considering the discussions made above, to my opinion,

the appellant is entitled to benefit of doubt in this case.

16. Accordingly, this appeal is allowed and the impugned

judgment of conviction and order of sentence are set aside. As the

appellant is on bail, he is directed to be discharged from the liabilities

of his bail bond.

(Vinod Kumar Sinha, J)

spal/-

AFR/NAFR
CAV DATE
Uploading Date 07.08.2018
Transmission 07.08.2018
Date

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