RAGHUBAR CHAUDHARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal, by the sole appellant, has been preferred against the judgment and order of conviction dated 30th September, 1989 passed in Sessions Trial No 130 of 1989 by the Sessions Judge, Siwan. By the aforesaid judgment, the appellant has been held guilty of offence punishable under Sections 363, 366 and 376 of Indian Penal Code (IPC). In respect of offence under Section 363, IPC no separate sentence has been awarded as in respect of offence under Section 366 IPC, petitioner has been awarded to undergo rigorous imprisonment (RI) for ten years. For offence under Section 376 IPC, he has been sentenced to RI for life and the sentences are to run concurrently. This appeal has been on our list for more than a month and we find that there is no representation on behalf of the appellant. We have ourselves gone through the records which have been received in this Court from the trial Court and have been assisted by the learned State Counsel.

(2.) The prosecution case is based on the Fardbayan of Suresh Pandey (PW 4), the informant and the father of the alleged victim girl as given by him to the Officer-in-charge, Siwan Mufassil Police Station (PS) in writing. This Fardbayan was given on 09.03.1989, inter alia, alleging that on 06.03.1989 in his village Chakra, a Mahashivratri Mela was held which is quite crowded. His daughter Buchi Kumari aged about 15 years had gone there. She did not return in the evening, as such, family members started searching. In course of search, it revealed that his son and other daughter had seen Buchi Kumari talking with the appellant Raghubar Chaudhary near their house. They were known to each other. They searched the house of Raghubar Chaudhary where neither the girl was found nor Raghubar Chaudhary was found but allegedly they met the brother of Raghubar Chaudhary, namely, Kishore Chaudhary who is said to have said that a mistake had been committed but the girl would return. They waited for two days. When the girl has not returned, they were lodging the case alleging that Raghubar Chaudhary, the appellant had, with wrong intentions, kidnapped his minor daughter. On basis of this Fardbayan, which is Exhibit-1, police registered a case under Sections 363, 366A, 372, IPC. It appears that by 2 am on 10.03.1989 from the house of one Kamta Chaudhary in village Atwa, Buchi Kumari, the victim girl was recovered as per recovery memo which is Exhibit 4. Kamta Chaudhary is the uncle (phupha) of the appellant. Soon thereafter at about 10 am on 10.03.1989, the undergarment of the victim girl was seized as per Exhibit 4/1. On 10.03.1989 itself at 4 pm, Buchi Kumari was produced for medical examination which report was prepared by Dr Shanti Mishra, Medical Officer (PW 6) at the Sadar Hospital, Siwan and the report is Exhibit 2. In the report, it is noticed that she is about 17 to 18 years and has ruptured hymen because of sexual intercourse. Upon completion of investigation, police submitted chargesheet under Sections 363 and 366A, IPC but apparently, the learned Magistrate has taken cognizance of offence punishable under Section 376 of IPC as well and, accordingly, committed the case to Court of Session for trial. It may be noticed here that chargesheet was filed not only against the appellant but against his brother Nawal Kishore Chaudhary as well. Charges were then framed in respect of the appellant under Section 376, IPC and Sections 363 and 366, IPC whereas against Nawal Kishore Chaudhary, charges were framed under Sections 363, 366A, IPC alone. After trial, Nawal Kishore Chaudhary has been acquitted giving benefit of doubt whereas, as noticed above, Raghubar Chaudhary, the appellant has been convicted.

(3.) In course of trial, the prosecution has examined 7 witnesses in order to establish the charge. Munni Kumari (PW 1) is another daughter of the informant. She has merely been tendered. PW 2 is Sandip Kumar Pandey, the son of the informant. The only material thing that he has deposed is that in the morning of 06.03.1989, he had seen Buchi Kumari, the victim and the appellant meeting and talking together. PW 3 is Gayanti Devi, the wife of the informant being the mother of the victim girl. She has also deposed that the victim girl was familiar with Raghubar Chaudhary to whose house being in the neighbourhood, she used to go at times. PW 4 is Suresh Pandey, the informant. In his deposition also he has stated that the victim girl had gone to the Mahashivratri Mela but not returned in the evening. They started searching. His son and the other daughter told the informant that they had seen her talking with the appellant in the morning. They then went to the house of Raghubar Chaudhary where it is deposed that his elder brother stated that Raghubar Chaudhary had committed a mistake but the girl would be restored. When the girl did not turn up, they filed the case in which the girl was recovered. He admits that after recovery, statement of girl under Section 164 of Criminal Procedure Code (CrPC) was recorded. The next witness is the victim herself that is PW 5 being Buchi Kumari.