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Judgment
S.N. Pathak, J.—This appeal is a rected against the judgment dated 7.9.2001/11.9.2001 passed by the Sessions Judge, Bettiah (West Champaran) in sessions trial No. 73/ 92. The Appellants, namely Raja Mian, Sirajul Mian @ Sarajul Mian and Haroon Mian @ Fahim Mian were convicted u/s 366A IPC and were sentenced to undergo Rl for 5 years and they had to pay fine of Rs. 2,000/- each and in dafault, were directed to undergo Rl for one year. Appellants were further convicted u/s 363 IPC and they were sentenced to undergo RI for 5 years and to pay a fine of Rs. 2,000/- each and in default of pay-ment of fine, they had to suffer Rl for one year. The Appellant, Raja Mian, was convicted u/s 376 IPC further and he was sentenced to undergo Rl for 7 years and to pay a fine of Rs. 5,000/- and in default of payment of fine, he had to undergo Rl for 2 years. Out of these real-: ised fine-amounts an amount of Rs, 5,000/-was directed to be paid to the victim girl, Gulnar Khatoon.
The prosecution case was projected through the written report of the informant, Azhar Mian (exhibit 2), father of the victim girl wherein he had alleged that on 16.11.91, he and his wife were away to Bettiah at the house of their Bahnoi for some work, At his house in his village, Pakhnaha Bazar, the victim Gulnar Khatoon and his younger sons were present. When the informant returned from Bettiah on 17.11.91, he learnt from his two sons and his neighbours Mohamadin as also from his daughter Ashnu Khatoon and Ashma Khatoon that tailor master, namely Raja Mian who was having a tailoring shop near his house had appeared at his house with his brothers Sirajul and Haroon and they had enticed away his daughter Gulnar Khatoon. She was carried on a jeep bearing registration No. BR-22-T-0819. The informant searched for his daughter at so many places and ultimately having no trace of her, filed the report dated 28.11.91 be-fore Sadar Bettiah police station which gave rise to this case.
The accused-Appellants had taken up the defence of false implication and their positive case, through the suggestions to the P. Ws. as also through two D. Ws. and through some letters (exhibit B series) and through Exhibit C, was that Gulnar Khatoon was in love with Raja Mian and she had voluntarily left her house in the Company of Raja Mian. She voluntarily consented to her marriage with her para-mour on 19.12.91 and affidavit was also sworn by Gulnar Khatoon endorsing her marriage with Raja Mian.
The prosecution had examined in all 7 witnesses, P.W. 7 was the IO of the case, P.W. 6 was the father of the victim, P.W. 5 was her mother, P.W. 4 was the so called independent witness on whose evidence the Appellant also relied for his defence. P.W. 3 was the doctor who examined the victim on 22.12.91. P.W. 2 was victim herself and P.W. 1 was her sister aged about 10 years and she was examined on 26.11.93. The evidence of the victim, her parents and/her sister P.W. 1, all was to the effect that Gulnar was abducted or kidnapped from her house on 16.11.91 at 8 p.m. in the night by the Appellants and subsequently, Raja Mian committed criminal assault upon her and kept her confined for a month and odd whereafter she was recovered by the police. The admitted case of the Appellants, which I have referred to above, is in substance to the effect that Gulnar Khatoon was married to Raja Mian with her consent and she had left her house on 16.11.91 out of her own sweet free will and she was a major, above 16 years of her age and, therefore, she was capable of giving consent for marriage. So even if the Appellant, Raja Mian was having carnal connection with her, that act shall not and cannot come under the mischief of Section 376 IPC.
Thus, it is an established and rather admitted fact that the girl had left her house on 16.11.91 in the company of Raja Mian and subsequently, she was living with him and ultimately, she was recovered by the police. The physical connection of the accused-Raja Mian, with victim Gulnar, was also well admitted. So the only question to be decided on the basis of the evidence by both the parties was whether Gulnar Khatoon was kidnapped by Raja Mian and forced into illegal marriage and whether there was carnal knowledge of her by Raja Mian.
The circumstances which are, therefore, apparent on the face of the record would clearly point out to the fact the Raja Mian had carnal knowledge of Gulnar Khatoon and she was living with him throughout from 16.11.91 upto 20.12.91 when she was recovered by the police. So, it was for the accused-Appellant, Raja Mian, to establish that the girl was in love with him and that had left her house in his company with her sweet free will and that she had consented to marry him. The Appellants banked on certain letters allegedly written by her (exhibit B series) as also on the Nikahnama (exhibit C) to establish their case of love marriage, Exhibit B series are letters written in illegible Hindi language in Deonagri script and certain dates which are gleaned from those letters indicate that they were written between October and November, 1991 on various dates. Some dates were consecutive dates. P.W. 2 who was examined in court although owned those letters to be written by her, but she alleged that the letters were dictated to her at the house of Raja Mian and under coercion. In substance, she alleged that she was forced to write those letters. How these letters allegedly addressed to Raja Mian were reached to her paramour, through what medium-whether by post or through any messenger.... was not explained by the evidence on record. Since the letters were produced by the accused from their own custody during the cross-examination of Gulnar Khatoon, it was incumbent upon on the part of the accused to lead evidence as to at what intervals these letters were written and on what date and how they were reached to the accused-Appellants. There is no evidence in this behalf. The consecutive dates one after other, would also indicate that letters were certainly mainpulated or manufactured in order to show bonafide of the letters and in order to show that Gulnar Khatoon, was, of course, writing letters to her paramour, but it does not stand to reason as to why a fiancee would write letters on one date and then again address another letter, without waiting for reply on the next date. It, therefore, follows that accused-Appellants failed in their manoeuvre to lend genuineness to the afore-said letters. The contents of all those letters do not exactly refer to amorous relationship between Raja and Gulnar, rather there are various other matters also referred to in those letters. I am, therefore, of the opinion that these letters were not sufficient and positive to show that there was, of course, amorous relationship between Raja and Gulnar so much so that the victim would leave her house in the company of her paramour just to get into a consenting marriage. Suggestions were given to the P. Ws. whether Manir Khan wanted to marry the victim, Gulnar, and since she was not ready to marry him case was filed at his instance. Such a specific suggestion was given to P.W. 2 as also to P.W. 5, Najma Khatoon, the victim''s mother. Allsuggestions to the effect that the girl in question was not willing to marry Manir were denied. It is therefore not understandable how she would file a false case at his instance. Her mother and isther also denied the suggestion that they had any intention to marry their daughter to Manir and that they had filed a false case at the instance of Manir.
Another circumstance that was referred to by the Appellants lawyer justry-ing his contention that the victim Gulnar had left her house in the company of Raj and his brothers was to the effect that admittedly as per evidence of P. Ws. house of the informant was surrounded by various other houses of his villagers and was in the market. Moreover, the victim was carried from one place to the other and lastly, when she was being brought home after marriage, to the house of Raja In his village, she had passed through her own village and still she had neither raised any alarm nor attempted to get herself relased from her alleged paramour. In this connection, it is to be noted that P.W. 2 Gulnar had stated at para 29 of her evidence that she had cried out when she was being carried away from her house, but no body came to her rescue. So far her inability to raise alarm on way in her trek from her house to various places where she was carried and even in the court premises where she had allegedly sworn affidavit, I am of the opinion that it is a matter of common knowledge that once a girl falls in the company of un-scrupulous persons, she is reluctant to raise hue and cry on account of diffidence and psychological set back. It depends upon boldness and courage of the individual girls to make hue and cry when she is going from one place to the other. I am, therefore, of the opinion that not much significance can be attatched to the afore-said aspect of the case.
As far as the evidence regarding Nikahnama and affidavit (exhibits C and A series) is concerned, it is to be noted that P.W. 2 specifically stated that she had not given any consent to Raja nor she knew Sagir Mian, Moulvi. Once she had denied the consent, it was for the accused-Appellants to prove by positive evidence the alleged consent of the marriage. Exhibit C was concerned Nikhanama which refers to marriage of Gulnar and Raja on 19.11.91. If this Nikhanama was the document prepared having reference to Nikah performed by D.W. 2, Moulvi Sagir Alam, between the victim and Raja Mian that was a final document to confirm the marriage between the couple. Therefore, I am unable to un-derstand why the accused-Appellants thought it necessary to net an affidavit from Gulnar Khatoon certifying this marriage (exhibit A). This affidavit was sworn before Notary Public, Bettiah, and Gulnar put her signature on the same (exhibit A). The contents of this affidavit show that this Nikhanama as performed in village Barkurwa in presence of father of Gulnar, Md. Raja and Ors. (Para 3 of the affidavit). If such a Nikah was performed in presence of P.W. 6, the victim''s father, it is not understandable why the father would thereafter come out to deny the aforesaid marriage. It was suggested to him that he wanted to make some money from Raja and, therefore, he backed out from the aforesaid marriage. This suggestion to P.W. 6 was neither here nor there nor it carried any truth because once a father marries his daughter, I do not think he would like to spoil the life of his daughter denying such a marriage. The witnesses who witnessed the affidavit were not examined by the accused-Appellants. So, I am of the opinion that neither Nikhanama, exhibit C and the affidavit, exhibit A series were the documents which were worthy of reliance.
Appellants lawyer pur forward a further spirited plea that since the victim girl was married and she had left her house being in love with Raja who had sexual cohabitation with her, no offence u/s 376 IPC would be attracted. In this connection, the age of the victim is the most relevant fact. The informant gave her age at the time of alleged kidnapping as 16 years and in court also, victim gave her age as 16 years. But pertinent question is, of course, what was the age of the victim when she had left her house. Since she had alleged forced marriage and forced sexual assault upon her and so her denial would shift the onus upon the accused to prove that he had consensual sex with her or that he had sex after valid marriage. The doctor, who examined the victim on 22.12.91, stated in his evidence that the victim had 15 teeth in each of the lower upper jaws but, the injury report (exhibit I) shows that Gulnar had 14 teeth in upper jaw and 15 teeth in lower jaw. Of course, her breast was developed and other female characters were also developed. Her vagina admitted two fingers. Hymen was old ruptured. The aforesaid characteristic of her female organs were quite natural in the circumstance in which she was placed. She was allegedly kept confined by the accused-Appellants for a month and odd and during the course of which he was having sex with her. So finding of old ruptured hymen and private parts admitting two fingers was quite natural, carrying not much importance. The pertinent question is as to what was her age. For an offence u/s 366A or even 363 IPC, a girl must be under 18 years of age. Her parents gave her age to be of 16 years. A girl of 16 years normally developed all her female characters and, therefore, I am to refer to the evidence of P.W. 3, in this connection, who said that the age of the girl was between 18 to 19 years. P.W. 3 fixed the age of the girl at the aforesaid year on the basis of x-ray plate of the pelvis of the girl, which he had examined, but neither the injury report of the doctor (exhibit 1) nor his deposition showed that he had himself directed the girl to be x-rayed for ossification test nor there was any evidence on record that the police had issued any requisition for ossification test of the victim. P.W. 2, Gulnar Khatoon, at para 33 said that on 11.12.91 Raja Mian had carried her to the doctor named Mulka where she was x-rayed in the Janta x-ray clinic. It, therefore, appears that P.W. 3 fixed the age of the girl on the basis of x-ray conducted under the superivisn of accused-Appellant Raja Mian on 11.12.91. Therefore, it is not understandable as to what prompted Raja Mian to take the victim to Mukia Mian. According to his case his wife went to a doctor for her x-ray. It is, therefore, apparent that Raja Mian was conscious of his guilt and so he wanted to obtain fraudulent report regarding the age of the victim. So no reliance could be placed on the concerned x-ray plate on the basis of which P.W. 3 fixed the age of the victim at 18 to 19 years. The bonafides of the P.W. 3 was also not above board when he had relied on x-ray report without any requisition from the police or his own direction of ossification test of the victim I also fail to understand why the doctor failed to establish the age of the victim on the basis of clinical test which he could easily do on the basis of the development of her teeth or other physical features. So evidence of P.W. 3 as regards the age of the victim was also suspect. P.W. 5, mother of the victim, was examined on 4.6.94 and she gave her age as 40 years. She had said in her deposition that 5 years after her marriage, she gave birth to a daughter who died and thereafter Gulnar was bom. Of course, P. Ws. 5 and 6 both failed to give exact period of their marriage and exact year of the birth of Gulnar, but taking into consideration the aforesaid set of circum-stances, I do not think the accused-Appellants were able to prove that the victim had attained the age of 18 years when she left her house on 16.11.91. Therefore, I am of the opinion that if she was abducted of kidnapped from her house without the con-sent of her guardian, the offence under Sections 366A and 363 IPC would be complete and her evidence is that she was forcibly taken away from her house. There was no escape from the aforesaid finding regarding the guilt of the accused-Appellants because the circumstances did not indicate that she had voluntarily left her house in the company of her paramour. Of course, a muslim girl can give consent to her marriage on attaining puberty. But the question was whether she had given consent for such marriage. The victim denied the fact and the circumstances which I have referred to above, specifically affidavit and Nikahnama, do not suggest that the alleged marriage with Raja Mian was contracted with her consent or with the consent of her father and specifically in his presence. As far as carnal connection of accused-Raja Mian with Gulnar, it was argued before me that there was no allegation by the victim that before marriage on 19.11.91 Raja Mian had any sex with her. In this connection, the statement of P.W. 2 in chief is clear to the effect that accused used to have illegal connection with her. This statement was a general statement and it did not refer to period either before 19.11.91 or after that. So she was very much alleging forced sex on the part of the accused-Raja Mian upon her.
From the aforesaid elaborate discussion upon the eyidence and circumstances on reocrd, it is clear that the Appellants had, of course, committed an offence under Sections 363, 366A and 376 IPC simplicter by Raja Mian. The sentences awarded by the trial court were directed to run concurrently. So maximum imprisonment which the Appellant would suffer is 5 years or 7 years Rl which, in my opinion was not so severe as to call for any interference, in such a case of social evil prevailing in the society.
In the result, this appeal is dismissed.