TENGAR MIYAN @ RAZA AZAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE solitary appellant Tengar Miyan @ Raza Azad was convicted for the offence under Section 366 IPC and was directed to suffer rigorous imprisonment for five years as also to pay a fine of Rs.1,000/ -, else to suffer rigorous imprisonment for further period of six months.

(2.) P .W.5 Thag Sah filed a written report after 20 -21 days of the disappearance of Jyoti Kumari claiming that she was his daughter and she was found missing on 09.10.1998 from his house at

(3.) IT appears admitted by P.W.3 in her evidence that Jyoti Kumari was very much residing in her house but she was never produced for her evidence. The doctor was also not produced and, as such, what was the age of the lady which was determined medically was also not allowed to come on the record. The suggestion of the defence that the lady was major, i.e., more than 18 years of age, on the day of occurrence was there and on consideration of the evidence of the witnesses what appears is that there was purposeful concealment of the age of the lady probably to ensure non -application of the provision of law appropriately to the facts of the case. It has been admitted by P.W.5, the informant of the case that Jyoti Kumari had filed an application before the Sub Divisional Magistrate, Siwan stating that she was a step daughter of P.W.5 and the man was of bad character who wished to establish physical relationship with the girl and that was the reason that she had left the house of P.W.5 out of her own volition. If this admitted fact was the reason probably for which the lady had left the house of P.Ws.3 and 5 out of her own free will, then the elements of 'taking away or being enticed away' which are necessary ingredients of an offence under Section 366A IPC cannot be said to be constituted on facts. I have already noted that there was systematic, purposeful attempt by the prosecution witnesses not to allow the age of the victim to come on record. The prosecution also appears guilty of making that attempt as it had withheld not only Jyoti Kumari who was lying very much in the custody of P.Ws.3 and 5 but had also withheld the doctor who could have been produced to testify as to what was the age of Jyoti Kumari. A particular date was suggested to P.W.6 as the date which was entered in the school records. In absence of any rebuttal evidence being brought by the prosecution, the Court has to presume that there could be a probability that the girl Jyoti Kumari was born on 18.08.1978 and further that the prosecution had neither produced the victim Jyoti Kumari or the doctor only because their evidence could have established that Jyoti Kumari was above 18 years of age on the date of occurrence. This adverse inference drawn by me against the prosecution itself is sufficient to disprove the charges for which the appellant had been found guilty of committing the offence.