RAJA MIAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 7 -9 -2001/11 -9 -2001 passed by the Sessions Judge, Bettiah (West Champa -ran) in sessions trial No. 73/92. The appellants, namely, Raja Mian, Sirajul Mian @ Sarajul Mian and Haroon Mian @ Fahim Mian were convicted under Sec. 366 -A, IPC and were sentenced to undergo RI for 5 years and they had to pay a fine of Rs. 2,000.00 each and in default, were directed to undergo RI for one year. Appellants were further convicted under Sec. 363, IPC and they were sentenced to undergo RI for 5 years and to pay a fine of Rs.

(2.) ,000.00 each and in default of payment of fine, they had to suffer RI for one year. The appellant, Raja Mian, was convicted under Sec. 376, IPC further and he was sentenced to undergo RI for 7 years and to pay a fine of Rs. 5,000.00 and in default of payment of fine, he had to undergo RI for 2 years. Out of these realised fine -amounts an amount of Rs. 5,000.00 was directed to be paid to the victim girl, Gulnar Khatoon. 2. The prosecution case was pro -jected through the written report of the informant, Azhar Mian (exhibit -2), father of the victim girl wherein he had alleged that on 16 -11 -1991, 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 -1991, 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 -991 before Sadar Bettiah police station which gave rise to this case.

(3.) THE prosecution had examined in all 7 witnesses, PW 7 was the IO of the case, PW 6 was the father of the victim. PW 5 was her mother, PW 4 was the so -called independent witness on whose evidence the appellant also relied for his defence. PW 3 was the doctor who examined the victim on 22 -12 -1991. PW 2 was victim herself and PW 1 was her sister aged about 10 years and she was examined on 26 -11 -1993. The evidence of the victim, her parents and/her sister PW 1, all, was to the effect that Gulnar was abducted or kidnapped from her house on 16 -11 -1991 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 where -after she was recovered by the police. The admitted case of the appellants, which I have referred to above, is in substance of the effect that Gulnar Khatoon was married to Raja Mian with her consent and she had left her house on 16 -11 - 1991. 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 Sec. 376, I.P.C.