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PETITIONER: KULDEEP K. MAHATO

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT:       06/08/1998

BENCH: G.T. NANAVATI, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Kurdukar, J.      Ishwari Mahato  and Kuldip  Kumar Mahato were tried for offences punishable under Sections 363, 366 and 376 IPC.      The trial  court found that the evidence adduced by the prosecution  could   be  safely  accepted  as  truthful  and accordingly  by   its  judgment  and  order  dated  7.6.1996 convicted  Kuldip   mahato  -  the  appellant  for  offences punishable under sections 363, 366 and 376 IPC and sentenced him to  suffer rigorous imprisonment for five years on first two counts  and seven  years  on  third  count.  Substantive sentences were ordered to run concurrently. However, Ishwari Mahato was convicted under section 368 IPC and sentenced him to suffer rigorous imprisonment for five years.      Aggrieved by the judgment and order of conviction, both the accused  preferred an  appeal to  the High Court and the High Court  by its  judgment and  order dated  July 11, 1997 allowed the  appeal filed  by Ishwari mahato holding him not guilty and  acquitted him of the said charge. The conviction and  sentence  of  Kuldip  kumar  Mahato  for  the  offences punishable under  Sections 363,  366 and 376 IPC was upheld. It is  against these  concurrent  judgments  passed  by  the courts below,  the appellant - Kuldip kumar Mahato has filed this appeal.      It is  the case  of the  prosecution that on 11.2.93 at about 1.00  p.m. ,  Kiran Kumar - (P.W. 3) - prosecutrix was going to a bazar for purchasing bangles. Kuldip kumar Mahato on seeing  her, asked  her as to where she was going. In the meantime, a tempo came form the opposite direction which was stopped by  Kuldip Kumar Mahato - the appellant and forcibly made the prosecutrix to sit in the said tempo. After sitting in the  tempo, Kuldip  kumar  Mahato  showed  the  knife  to prosecutrix and  threatened her  to keep  quite. It  is then alleged that  they got down at Ramgarh and stayed there till 12.2.1993.      It is   then alleged by the prosecution that during the night of  12.2.1993, Kuldip  Kumar Mahato committed the rape on her  against her  will. On 13.2.93, the brother of Kuldip Kumar Mahato  came to the said village and brought them back to Maraikhud.  Appellant as well as prosecutrix are resident

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of the  same village  and in  fact house  o the appellant is quite close  to the house of prosecutrix. Both were known to each other well.      Kiran Kumari,  the prosecutrix narrated the incident to her father.  Thereupon, a complaint was lodged on 14.2.1993, pursuant to  which offence came to be registered against the appellant  and  the  acquitted  accused  for  the  aforesaid offences.      Kuldip Kumar Mahato denied the charge and claimed to be tried. We  need not  deal with the defence of Ishwari Mahato since he has been acquitted by the High Court. It is against this judgment  and order  of conviction  passed by  the High Court, the appellant after obtaining special leave has filed this Criminal Appeal.      The learned  counsel for  the appellant  contended that Dr.  Maya   shankar  Thakur(   P.W.  5)   who  examined  the prosecutrix admitted  during the  cross-examination that her age might  have been  between 17 and 18 years at the time of occurrence and  if a  margin of error of six months is taken into account, it must be held that the prosecutrix was above 18 on  the date  of occurence.  We are unable to accept this submission because  Dr. Maya  shankar Thakur-  (P.W. 2), had emphatically stated that the age of prosecutrix was below 18 years on the date of occurrence. Both the courts below found that the  age of prosecutrix was below 18 years. After going through the  evidence of Dr. Maya shankar (P.W. 5) and other material on  record, we are of the opinion that this finding needs no Interference.      Coming  to   the  conviction  of  the  appellant  under Sections 363  and 366 IPC, it was contended on behalf of the appellant that  the prosecutrix was the consenting party and she had  accompanied the  appellant of  her  own  will  and, therefore, the appellant of her own will and, therefore, the appellant cannot be convicted for the said offences.      As for  as conviction under Section 366 is concerned we find that  the evidence  of prosecutrix in the behalf is not conclusive.  her   evidence  does   not  indicate  that  the appellant had  kidnapped prosecutrix  with the  intention to marry with  her against her will or in order that she may be forced to  illicit intercourse.  These two vital ingredients for upholding  conviction under  Section 366  are not proved and,  therefore,  the  conviction  of  the  appellant  under Section 366 cannot be sustained.      Coming to  the conviction under Section 363 IPC, in our opinion, having  regard to the age of the prosecutrix on the date of occurrence being below 18 years as deposed to by Dr. Maya shankar  Thakur  (P.W. 2), it will have to be held that the prosecutrix  was a  minor on  the date of occurrence. If this be  so, we  will have  to examine  whether Kiran Kumari (P.W. 1)  was taken away from the lawful guardianship. Kiran Kumar (P.W.  1) has stated that the appellant had forced her to sit  in the  tempo and  thereafter at the point of dagger made her  to keep  quited, she was very much scared and lost senses for some time. In the meantime, tempo reached Ramgarh . On  this issue,  the defence  of the appellant is that she herself came  and sat  in the tempo and but the fact remains that the  appellant carried her to Ramgarh out of the lawful guardianship.  There   is  no   serious  dispute   that  the prosecutrix was  taken tempo to Ramgarh by the appellant. If this be  so, then offence of kidnapping under Section 363 is clearly made out against the appellant for which he has been rightly convicted for the said offence. There is no error in the  judgments   of  the  courts  below  in  convicting  the appellant under Section 363 IPC.      Then coming  to the  conviction of  the appellant under

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Section 376  IPC, although  both the  courts below have held after accepting  the evidence  of prosecutrix being truthful held that  the appellant has forcibly committed the rape, we are of  the opinion  that the  said fining is unsustainable. The prosecutrix  had sufficient  opportunity not only to run away from the house at Ramgarh but she could have also taken the help  of neighbours  from the  said village. The medical evidence of  Dr. Maya  shankar Thakur - P.W.2 also indicates that there were no injuries on the person of the prosecutrix including her private part. her entire conduct clearly shows that she  was a  consenting party  to the sexual intercourse and if  this be  so, the  conviction of  the appellant under Section 376  IPC   cannot be  sustained. there  is one  more additional factor  which we  must mention that it is not the case of  the  prosecutrix  that  she  was  put  in  physical restraint in  the house  at Ramgarh,  with  the  result  her movements were  restricted. This  circumstance also  goes to negative  the   case  of   forcible  intercourse   with  the prosecutrix by the appellant.      For the  forgoing reasons,  we partly allow the appeal. The conviction  of the  appellant for the offence punishable under Section 363 IPC is upheld. The conviction and sentence of the  appellant under Sections 366 and 376 IPC recorded by the courts below are quashed and set aside and the appellant is acquitted  of the  said offences.  The courts  below have awarded sentence of five years rigorous imprisonment for the offence punishable  under Section  363 IPC. If the appellant has undergone the said sentence, he be released forthwith.      The appeal  is partly  allowed and  dispose of  in  the above terms.