Anil Kumar Sah v. The State of Bihar

Patna High Court CR. APP (SJ) No.380 of 2001 dt.12-12-2013 door neighbour. He also used to offer her food etc. and thereafter induced her to establish sexual relationship but she never agreed. He then assured her of marriage and established sexual relationship with her on account of which she became pregnant. When she told the Appellant about her condition, he refused to get married and instead told her to get abortion and took her to medicine shop where she was administered some medicines due to which she became unconscious. When she regained consciousness, she found herself in a room where Appellant Nos. 1 and 2 were present. She was kept there for a few days and then brought back home. When she told her parents about the entire conditions, she was taken to the Police Station where the First Information Report was given but the police refused to record the statement and hence a Complaint was filed which was sent under Section 156 (3) Cr. P.c. to the police at which the present First Information Report was instituted.

3. The defence of the Appellants was of false implication on account of land dispute between the Appellant No.1 and the father of the Informant.

4. During trial, the prosecution examined eight witnesses. PW 1, Raj Kishore Singh, stated that on the night of 04.11.1995, he saw the Appellant Nos. 1 and 2 pressing Appellant No.3 to administer medicines to the victim. In his cross-examination, he stated that he had not been Patna High Court CR. APP (SJ) No.380 of 2001 dt.12-12-2013 examined by the Investigating Officer but only before the Dy. Superintendent of Police a month later. His attention was drawn to the said statement that he had not told the Dy. Superintendent of Police that the Appellants were talking about administering medicines for causing abortion. It, thus, appears that his evidence is of no value.

5. PW 2, Dhodhai Mandal, stated that on 04.11.1996 while he was in the market, the Appellants were talking about administering medicines to the victim. His attention was drawn to the earlier statement to the effect that he had not stated before the police that the appellants were stating that the medicines be administered for abortion. Also that he had learnt about the occurrence from Vijay Singh. He further stated that he knew that the victim was pregnant since 6-7 months of the incident but he had not reported the matter to Mukhiya or any one.

6. PW 3, Vijay Singh, stated that while he was crossing the medicine shop, he saw the victim screaming and the Appellants were standing there giving injection to her. He stated that immediately he went and informed the Dy. Superintendent of Police upon which he came but by then the victim and the accused persons had disappeared. He stated that the Investigating Officer and Dy. Superintendent of Police had come immediately on his reporting and that he had given his statement to them. However, that statement has not been brought on record. Patna High Court CR. APP (SJ) No.380 of 2001 dt.12-12-2013

7. PW 4, Bechan Das, is the father of the victim and is hearsay on the point of occurrence. His attention was drawn to the earlier statement that he had not stated before the police that his wife had told him that the Appellant No.1 used to come often to his house and he had established physical relationship with the victim or that his wife had told him about the entire occurrence.

8. PW 5, Ghurni Devi, is the mother of the victim, who stated that Appellant No.1 used to come frequently to his house and her daughter had become pregnant on account of him. Thereafter, the Appellant Nos. 1 and 2 took her daughter to the shop of Appellant No.3 and got her injected on account of which she aborted. Her attention was also drawn to the earlier statement that she had not stated before the Investigating Officer that Appellant Nos. 1 and 2 had taken her daughter to the shop of the Appellant No.3 where she had been administered some medicines on account of which she had aborted. She also stated that she had learnt that her daughter had become pregnant about 2-3 months before the institution of the present case.

9. PW 6, Phulo Devi, is the victim, who stated that Appellant No.1 used to frequently come to her house despite her resistance and used to establish sexual relationship with her on account of which she became pregnant. Thereafter, Appellant No.1 told her to get aborted but she refused at which he assured that he would keep her as wife. Patna High Court CR. APP (SJ) No.380 of 2001 dt.12-12-2013 However, he did not do so and one day he forcibly took her to the shop of the Appellant No.3 where she was given injection on account of which she became unconscious. Later on, she saw herself in the house of relative of the Appellant No.1. She went back to her house and the present case was instituted. Her attention was also drawn to the earlier statement that she had not stated that the Appellant No.1 used to frequently come to her house to which she had resisted. On all material points, her attention has been drawn.

10. PW 7, Upendra Paswan, was the Investigating Officer who stated that on 04.11.1995 he initiated the investigation. He categorically stated that the victim had never told him that Appellant No.1 used to forcibly come to her house and established relationship and used to threaten her that he was the son of Sarpanch and she could not do anything. The evidence of PW 2 on the point of having witnessed the victim of administering the medicine is also falsified by the Investigating Officer.

11. PW 8, Jeewach Das, is a formal witness, who had proved the First Information Report.

12. On going through the evidence of the witnesses enumerated above, I find that notable in the First Information Report itself the age of the girl has been mentioned as 14-15 years, but her age could not be ascertained as to whether she had attained the age of consent. In absence Patna High Court CR. APP (SJ) No.380 of 2001 dt.12-12-2013 of any positive evidence that the victim was not below 16 years of age, it would be highly unsafe to maintain conviction of the Appellant No.1 under Section 376 Indian Penal Code. Further, the fact that she had been kidnapped is also not proved through any positive evidence thus not satisfying the ingredients of Section 366 Indian Penal Code. In absence of medical evidence in support, the present case under Section 313 Indian Penal Code also fails. Hence, I would be of the opinion that the prosecution has not succeeded in proving the case beyond all reasonable doubt.

13. Thus, giving benefit of doubt to the Appellants, they are acquitted of their respective charges under Sections 313, 366, 376 Indian Penal Code and are also discharged from the liabilities of their respective bail bonds. The judgment and order of conviction dated 27th/28th September, 2001, passed by the 2nd Additional Sessions Judge, Madhubani, in Sessions Trial No.205 of 1998 is hereby set aside.

14. The appeal stands allowed. (Anjana Prakash, J) Patna High Court, Patna. NAFR JA/-