The State of Bihar vs Mr. Virendra Kumar

PRESENT HON’BLE MR. JUSTICE MANDHATA SINGH J U D G M E N T Mandhata Singh, J.

1. F.I.R. initiated on written application of one Md. Arif, in brief, is that house of Poshan Sahni, Sukan Sahni, Bihari Sahni and others are situated in side of informant’s house. Jitendra Paswan, Dhana Paswan, Md. Junaid and others were in habit to come there for toddy, liquor and ganja. On 23.09.2003 with common intention or in a conspiracy at about 8.00 pm. took away his 12 years minor sister after alluring her. Her sister was bearing ornaments of more than Rs. 3000/-. She was searched Patna High Court CR. APP (SJ) No.265 of 2009 dt.25-01-2012 2 hither and thither and in that continuation, he was informed that accused no.4 to 6 had kept her secretly. They are committing rape upon her or intending to involve to have illicit relation with some persons. Accused persons were also away from their house and did not return till filing of the case. Earlier also informant’s mother had watched accused persons talking with his sister.

2. After concluding the trial, appellants no. 1, 2 and 3 are convicted for the offence under Sections 363/34 and 366A/34 of the I.P.C. along with Section 376 read with Section 120B of the I.P.C., while appellant no.4 Jitendra Paswan is convicted for the offence under Section 376 of the I.P.C.

3. In all 9 witnesses are examined in the case. They are P.W.1 Rajendra Rai, P.W.2 Md. Najim, P.W.3 Ishmail, P.W.4 Md. Muslim, P.W.5 Chandtara Khatoon, P.W.6 Sahnaj Khatun, P.W.7 Sami Khatun, victim of the case, P.W.8 Md. Arif, informant of the case and P.W.9 Satish Kumar, I.O. of the case.

4. Finding corroboration of the incident by the witnesses including victim, sentence is pressed only for sympathy to minimize to any extent with submission that no offence under Section 376 read with Section 120B of the I.P.C. is made out against appellants no.1, 2 and 3. On this point, submission of learned counsel for the appellants is Patna High Court CR. APP (SJ) No.265 of 2009 dt.25-01-2012 3 that victim was kidnapped by all the accused persons and rape was committed upon her by Jitendra Paswan along with Maithu Sahni, Bihari Sahni and Md. Junaid but Maithu Sahni, Bihari Sahni and Md. Junaid are not appellants in this case. Section 120B of the I.P.C. is conspiracy to commit any crime including falling under section 376 of the I.P.C. Section 366A of the I.P.C. is kidnapping of a minor girl with intention that such girl may be forced or seduced to illicit intercourse with another persons.

5. So, in my view, also if once liability is fixed for kidnapping of a minor girl for the above purpose may not be added with conspiracy of the act of similar nature. In the instant case, three of the appellants are convicted for the offence under Section 376 read with Section 120B of the I.P.C. which is not liable to be sustained.

6. For the offence under Section 376 of the I.P.C., there is provision for minimum punishment of 7 years and in the instant case, appellant no.4 is convicted for the offence under Section 376 of the I.P.C. and rest under section 376 read with section 120B of the I.P.C. In absence of adequate and special reasoning as in instant case 7 years may not be minimized. Now, appellants no. 1, 2 and 3 are exonerated from the liability of Section 376 read with Section 120B of the I.P.C. So there is scope to minimize their sentence to any extent even to the period undergone. Patna High Court CR. APP (SJ) No.265 of 2009 dt.25-01-2012 4

7. For sympathy and leniency on the point of sentence, submission of learned counsel for the appellants is that no harm was caused to the victim even was taken to different places in day time nor any alarm was made on her behalf. In her statement under Section 164 of Cr. P.C., she (victim) did not level any allegation against any of the appellants though that is not proved nor attention has been drawn on the relevant portion. Doctor also is not examined in the case as she was examined by no Doctor. To me it appears that weakness of the defence lawyer has worked more in conviction of the appellants for the offence under Sections 376 and 366 A of the I.P.C. Anyhow, that is taken for liberal view only which easily can be taken.

8. With the observations made above, evidence on record and circumstance of the case, this Criminal Appeal is partly allowed on the point of conviction that of the appellants no.1, 2 and 3 for the offence under Section 376 read with Section 120B of the I.P.C. is set aside and rest of the conviction for all the accused-appellants passed by the 1st Addl. Sessions Judge, Sitamarhi in S. Tr. No. 14 of 2004 is hereby affirmed. Minimum punishment for rape upon a girl above 12 years is 7 years. So, the sentence is minimized to 7 years for appellant no.4 and to others namely appellant nos. 1 to 3 to the period undergone.

9. It is made clear that Poshan Sahni Patna High Court CR. APP (SJ) No.265 of 2009 dt.25-01-2012 5 remained in custody from 29.09.2003 to 07.05.2004, Sukan Sahni from 30.09.2003 to 07.05.2004, Dhana Paswan from

03.10.2003 to 11.03.2004 and Jitendra Pawan

03.10.2003 to 22.07.2006 and appellant no.1 Posal Sahni, 2 Sukan Sahni and 4 Jitendra Paswan remained in custody from 18.03.2009 to 25.01.2012 and appellant no.3 Dhana Paswan remained in custody from 18.03.2009 to 08.04.2009.

10. Appellants no. 1, 2 and 3 shall stand discharged from their liabilities of respective bail bonds.

11. Appellant no.1 Poshan Sahni and appellant no.2 Sukan Sahni are in custody. They are directed to be released forthwith, if not wanted in any other case. Appellant no.3 Dhana Sahani is already on bail.

12. Appellant no. 4 is directed to serve the punishment (sentence) for a period of 7 years.

13. Let copy of this judgment along with lower Court records be sent to the Trial Court immediately. (Mandhata Singh, J.) Patna High Court, Patna. 25th January, 2012. Shailendra Bhushan Pd. N.A.F.R.