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Judgment
This appeal is directed against the judgment of conviction dated 22nd April, 2003 passed by Additional Sessions Judge- XI, Dhanbad in
Sessions Trial No.253 of 1997 under Section 366 of the Indian Penal Code against both the appellants and also under Section 376 of the Indian
Penal Code upon appellant no.1 and convicted them seven years rigorous imprisonment under Section 366 of the Indian Penal Code and fine of
Rs.1000/- each and in case of default further four months simple imprisonment. The appellant no.1 was also sentenced under Section 376 of the
Indian Penal Code to undergo rigorous imprisonment for eight years with fine of Rs.1000/- and in case of default further four months simple
imprisonment.
The short fact of the case is that complainant Suresh Chatterjee filed a complaint case registered as C.P. Case No.70 of 1997 stating therein
that he is a private tutor residing with his family members at Chirkunda, Dhanbad. The complainant amongst other children have a daughter
Nievedita Chatterjee aged about 16? years as her date of birth is 26.07.1980 who was studying in Smt. Gina Devi Modern School at Chirkunda.
The further case is that accused persons on 18.11.1996 kidnapped the daughter of complainant Nivedita Chatterjee while she was proceeding to
attend her school. The complainant immediately reported the matter to the local Police disclosing the names of accused persons as a kidnapper.
Accused no.1 Ram Briksha Nonia is working in Baramuri Project under Eastern Coal Field Ltd. and since the date of occurrence he is absconding
by taking sick leave. Both the accused persons are absconding since the date of occurrence and complainant has strong reasons to believe that his
daughter may be recovered from the native place of accused persons at village Bararee, Chakandara, District-Sheikhpura (Munger). The
complainant out of frustration due to inaction on the part of local Police made representation before the Superintendent of Police, Dhanbad vide
representation dated 03.12.1996 but no action was taken nor the daughter of complainant was recovered therefore, accused persons who have
deliberately kidnapped/abducted minor daughter of the petitioner and thereby liable to stand trial under Sections 363, 366A and 366 of the Indian
Penal Code with a prayer to pass necessary order taking cognizance of the offence against accused persons.
After examining the complainant on solemn affirmation and evidences of other witnesses, cognizance was taken against both accused persons
under Section 366A of the Indian Penal Code on 04.02.1997 and processes were ordered to be issued against them. On 28.02.1997, the victim
girl Nivedita Chatterjee appeared before the court and her statement under Section 164 of the Indian Penal Code was recorded in which the age
of the victim girl was assessed by the court as about 20 years. Thereafter, the case was committed to the court of Sessions and accordingly charge
was framed on 08.12.1998 upon both accused persons Ram Briksha Nonia and Ashok Kumar Chouhan under Section 366 of the Indian Penal
Code. During course of trial, charge under Section 376 of the Indian Penal Code was also framed against accused Ashok Kumar Chouhan on
10.03.2003.
On behalf of prosecution, altogether four witnesses were examined and complaint application was marked as Ext.1 while defence has examined
one witness and Ext. A to G were brought on record on behalf of defence. P.W.1 Kedar Yadav and P.W.2 Basudeo Rajak both stated that
Nivedita Chatterjee daughter of Suresh Chatterjee while she was going to school was kidnapped. Both were informed by Suresh Chatterjee and
they searched for the girl. Later on, they came to know that Ashok Chauhan have run away with Nivedita. After 2 - month they could know that
both married together and have a child also. Nivedita did not go to the father''s home but returned to the Ashok house. P.W.3 Nivedita Chatterjee
is the victim girl. Her age was assessed as 22 years and she had also stated her age as 21 years. She narrated about the incident while she was
going to school, Ram Briksha Chauhan came running and told her that his father met with an accident and her family members have already went to
hospital. For the moment, she became confused but trusting him as neighbor decided to go with him. After some distance, she saw Ashok Kumar
Chauhan was standing on the road. Ram Briksha instructed his son Ashok Kumar Chauhan to go with Nivedita and he will follow thereafter. Both
boarded on a bus. After some distance both got down form the bus. That place was unknown to her then she enquired about the hospital. Ashok
replied that hospital is in the nearby vicinity. Ashok took her to house which was in broken condition and not maintained. There he forcibly
committed rape upon her. He also told that if she will accompany her he would marry her. After that Ashok took her to the village against her will.
In the village she saw that Ram Briksha was already present there. They lived there for two days where Ashok assaulted and used to rape upon
her and did not allow to meet the neighbors of that village. All went to Bihar Sharif and her signature was forcibly taken on some papers. Later on,
she could know that it has been used in preparing marriage papers. She ran away from there with her child and came to her father''s house. The
child was born while she was living with Ashok, and the son is now aged about 4/5 years. She further stated that her statement was also recorded
by the Magistrate where she had stated that her marriage was performed with Ashok in Bihar Sharif court but those statements were given under
pressure because she wanted to live with her husband as she was pregnant. The child was born on 29.12.1998. After few days of birth of her child
she went to her father''s house. She also admitted that Ashok has also filed a case for restitution of conjugal right. She denied about the knowledge
that her father had demanded Rs.1,00,000/- from Ashok for her Bidai. During cross-examination, in Paragraph 16, this witness had admitted that
she wanted to live with her husband Ashok Chauhan if her guardian allows her to go with Ashok.
P.W.4 Suresh Chatterjee is complainant of this case and father of victim girl. He also narrated that while his daughter Nivedita was going to
school as she was studying in Class IX and at that time her age was 16 years, did not return from school then he informed the matter to the Police.
He could know from other persons that his daughter had disappeared with Ram Briksha Nonia. He also went to his house but neither Ram Briksha
Nonia nor Ashok Chauhan was present. On suspicion, he also visited his village where the villagers have informed him that the girl was brought
there. Since no action was taken by the Police then he filed a complaint case which was marked as Ext.1. On 26.02.1997, Ram Briksha brought
his daughter before the court but he could not talk with her. He could meet her after one year when she escaped from the house of accused
persons. She informed that Ashok Chauhan had committed rape upon her. He admitted that Ram Briksha Nonia was his neighbor. First time he
could know about the marriage of her daughter with Ashok Chauhan when he surrendered before the court. He also admitted that she has a son
from Ashok Chauhan. He also stated that her daughter has given statement before the Magistrate that she wanted to live with her husband but the
same was given under pressure. He also stated that in Paragraph 13 that if his daughter wants to go with her husband then he will not restrain her.
It is upon her to decide. He denied the suggestion about demand of Rupees One lakh from the accused persons as well as the marriage was
performed with the consent of Nivedita.
Sri Munder Prasad posted as Time Keeper of Baramuri O.C.P. was examined as Defence witness no.1 who was summoned to appear before
the court along with attendance register in which the attendance of employees of Baramuri Colliery were recorded from 15.11.1996 to
19.11.1996. He deposed that Ram Briksha Nonia was an employee in the said colliery and was present on his duty from 15.11.1996 to
19.11.1996. His attendance was recorded from 8 a.m. to 5 p.m. A certificate issued by the Manager, Baramuri Colliery was also marked as
Ext.C. On behalf of defence, several other exhibits Ext.A to Ext. G were brought on record. Amongst these, Ext.A is the statement of the victim
girl recorded under Section 164 Cr.P.C. Exhibit B is the certified copy of bail order passed in B.P. No. 343/97 by Sessions Judge, Dhanbad.
Exhibit-C is the certificate of duty. Exhibit D and D/1 are the entry in Attendance register of the colliery. Exhibit-E is the petition filed by the
complainant dated 11.06.1998. Exhibit-F is the certified copy of T.(Matrimonial) Suit No.129/98 and Exhibit-G is certified copy of Informatory
petition no.205/97 filed before the C.J.M., Dhanbad.
Counsel for the appellants assailed the conviction on the ground that appellant no.1 Ashok Kumar Chouhan was convicted under Sections 366
as well as 376 of the Indian Penal Code but the victim girl was major at the time of occurrence. Transfer certificate issued by the school showing
her date of birth was not exhibited nor any Medical examination of the victim girl was brought on record but her age was assessed by the
Magistrate as 20 years while recording her statement on 28.02.1997 under Section 164 Cr.P.C. (Ext.A) almost after three months after the
alleged occurrence committed on 18.11.1996. He further submitted that only oral evidences were brought on record regarding the age of the girl
either from the complainant side or by the defence. Neither any certificate issued by the school or school register nor any supporting documents
were produced by the complainant as per his averment in Paragraph 2 of the complaint petition that date of birth of the girl is 26.07.1980. He also
submitted that Ext.B which is certified copy of the bail order relating to Ashok Kumar Chauhan passed by Sessions Judge, Dhanbad in B.P.
No.343/97 (arising out of C.P. Case No.70/97) would reveal in Paragraph 3 which is quoted hereinbelow:-
The victim girl in her statement under Section 164 Cr.P.C. stated that she had married the petitioner with her consent and on her
own accord. Her age was estimated by the Magistrate to be 20 years. She was present in the court today and by appearance she did
look like 20 years old youth. She also stated before me that she had willfully and out of her own consent married the petitioner and
she was living with him as his wife and she was also pregnant at the moment.
The court below has also ignored Ext.E i.e. petition filed on behalf of complainant in S.T. No.253 of 1997 in which in Paragraph 11 it was
mentioned that the victim lady is ready to live with the accused persons if the accused persons file Security Bond before this learned court for the
security of future life of the victim lady as well as deposit money for maintenance of the future life of the victim lady and her new born baby. Ext. F
is certified copy of the application filed for restitution of conjugal rights under Section 9 of the Hindu Marriage Act before the court of Principal
Judge, Family Court, Dhanbad. Therefore, the girl has performed marriage with her own accord which is also mentioned not only in her statement
recorded under Section 164 Cr.P.C. but also in the order of the bail application passed by the Sessions Judge, Dhanbad. Even the victim girl has
stated that if the guardians allow her to go with the accused persons she is ready to live with them. The court below has not considered the
evidence of victim girl in its entirety. He further submitted that appellant Ram Briksha Nonia was all along present on duty on the alleged date of
occurrence which has been amply proved through the documentary evidence brought on record from the side of defence but the same was totally
ignored by the court below. Ext. C is certificate issued by the Manager, Eastern Coal Filed Ltd. and Ext.D/1 is attendance register of the Eastern
Coal Field Ltd. showing presence of the appellant therefore, story alleged in the complaint petition is not true.
The charges under Section 376 of the Indian Penal Code is also not proved against the appellant no.1 Ashok Kumar Chouhan as it was a
marriage on consent and she lived continuously with this appellant and a son was also born out of this relationship.
Counsel for the appellant relied on a decision of Eta Singh & Anr. With Mamta Singh Versus State of Bihar reported in 2002(3) East Cr C 52
(Jhr) in which it has been held that attendance register of the school is the most authentic document to satisfy the age of a person that was not
brought on record by the prosecution to show date of birth and to establish the fact that girl was minor below 18 years of age on the date of
occurrence.
Here in this case the date of birth is mentioned in the complaint application claiming that the same is recorded from the transfer certificate
issued by the said school but that certificate was never brought on record by the complainant. The victim girl is major and a consenting party then
ingredient of offence under Section 366 IPC is not proved beyond doubt. There is also unexplained abnormal delay in lodging the case which is
fatal and the appeal be allowed. This case amply covers instant case also as the victim girl was continuously residing with them and a son was also
born out of this relationship. The statement of girl and her father was also positive that if she is allowed, she will like to reside with appellant and
father also deposed that girl is free to decide to live as per her wish. Counsel also relied upon the decision of Azimuddin Shekh Versus State of
Jharkhand reported in 2007 (1) East Cr C 49 (Jhr) as well as Md. Khalil Versus State of Bihar reported in 2002(3) East Cr C 326 (Jhr), Binod
Kumar Rajak Versus State of Bihar reported in 2001(3) East Cr C 343 (Jhr). There is contradiction in the statement of victim girl. Lastly, he
submitted that court below also not considered the fact that out of this relationship a son has also born and the victim girl wants to live with the
husband.
Learned A.P.P. appearing on behalf of the State submitted that girl was studying in Class IX and her date of birth was mentoned in the
complaint petition 26.07.1980 so she was minor at the time of occurrence therefore her consent is not required under the law and the court below
has rightly held the appellant guilty under Section 366 IPC.
Considering the above pleadings of the parties and on perusal of the Lower Court Records as well as materials brought on record besides the
decisions cited hereinabove it appears that the age of the girl is not proved by any documentary evidence as the complainant has not brought on
record the school leaving certificate in which the date of birth was mentioned. The girl has stated her age as 20 years before the Magistrate who
have recorded her statement under Section 164 Cr.P.C.. Even the Sessions Judge observed that the girl appears to be of 20 years of age as she
was present in the court and stated that she had willfully and out of her own consent married the petitioner and was living with him as his wife and
was pregnant at the moment. Therefore, the girl has consistently admitted before the Magistrate as well as Sessions Judge about her consent for
marriage and she was assessed to be a major girl. The girl later on while deposing at the time of trial have changed her version and stated that
those statements were given under pressure. The conduct of girl is such that she herself appears to be confused. The complainant father as well as
the victim both deposed that if she is permitted, she will like to reside with the appellant and the father was also consenting to this idea of the girl. In
this situation, it cannot be held that the ingredients of offence under Section 366 of the Indian Penal Code have been proved beyond doubt. There
is also delay in lodging the case. The complainant has not brought on record the representation submitted before the Superintendent of Police,
Dhanbad dated 03.12.1996 as mentioned in Paragraph 7 of his complaint petition. The statement of the girl is varying from time to time and in
absence of determination about her minority, the charge under Sections 366 and 376 of the Indian Penal Code becomes doubtful. The appellant
has also filed a case for restitution of conjugal right which goes to show that the marriage was solemnized between the parties and during the period
when the girl was with the appellant no.1 she had not utilized any occasion during this period to attract sympathy of others so that she could be free
from the captivity of the appellants. The girl did not utilized two occasions while she was before the Magistrate at the time of recording of her
statement under Section 164 Cr.P.C. as well as before the Sessions Judge, Dhanbad that she may be allowed assistance in going back to the
house of her father. The evidence of the victim as well his father goes to show that they have no objection if the girl decide to remain with appellant
no.1. Therefore, in such circumstances the conviction made under Sections 366 and 376 of the Indian Penal Code are not proved beyond
reasonable doubts. The appellants deserve benefit of doubt.
In the result, judgment of conviction dated 22nd April, 2003 passed by Additional Sessions Judge-XI, Dhanbad in Sessions Trial No.253 of
1997 is hereby set aside. Since both the appellants are on bail, they are discharged from the liabilities of their respective bail bonds.