Md. Allauddin vs State of Bihar on 11 April, 2014

Patna High CourtMd. Allauddin vs State Of Bihar on 11 April, 2014 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.124 of 1996===========================================================

Razi Ahmad, son of late Md. Alijan, resident of Village-Dhaka Ram Chandra, P.O. & P.S.-Dhaka,Dist.-East Champaran.

.... .... Appellant VersusState of Bihar .... .... Respondent

=========================================================== WithC r i m i n a l A p p e a l ( S J ) N o . 1 6 5 o f 1 9 9 6=========================================================== Md.Allauddin, son of Idris Mian, resident of Village-Dhaka Ramchandra, P.O. & P.S.-Dhaka, Dist.-EastChamparan.

.... .... Appellant VersusState of Bihar .... .... Respondent

=========================================================== Appearance :

(In CR. APP (SJ) No. 124 of 1996) For the Appellant : Smt. Meena Singh, Amicus Curiae For theRespondent : Sri Sujit Kumar Singh, A.P.P. (In CR. APP (SJ) No. 165 of 1996) For the Appellant :Smt. Meena Singh, Amicus Curiae For the Respondent : Sri Sujit Kumar Singh, A.P.P.=========================================================== CORAM:HONOURABLE SRI JUSTICE DHARNIDHAR JHA ORAL JUDGMENT Date: 11-04-2014 The twoappeals arise out of judgment dated 3.6.1996 passed by learned 3rd Additional Sessions Judge, EastChamparan at Motihari in Sessions Trial No.138 of 1985, by which the learned Judge held appellantRazi Ahmad guilty of committing offence under Section 363 of the Indian Penal Code and appellantMd. Allauddin guilty of committing offences under Sections 366 and 376 of the Indian Penal Code.The two appellants were heard under Section 235 Cr.P.C. on 4.6.1996 and while appellant RaziAhmad was directed to Patna High Court CR. APP (SJ) No.124 of 1996 dt.11-04-2014 serve rigorousimprisonment for two years for being convicted under Section 363 of the Indian Penal Code,appellant Md. Allauddin was handed down a sentence of rigorous imprisonment for five years underSection 366 I.P.C. and rigorous imprisonment for seven years under Section 376 I.P.C.

2. As appears from the evidence of the prosecution case, the victim of the offence, examined asP.W.3, was the daughter of P.W.1, namely, Maimunisha Khatoon, whose husband, Md. Hadis Khan,was residing most of the times in the year in West Bengal. P.W. 1 resided at her house at villageBabhna Tola with P.W.3, her daughter, who appears admitted to some Madarsa. Accused Md.Allauddin was a Hafiz- one who had mastered the study of Quran and had got it by heart- and hehad been engaged to impart tuition to P.W.3. The appellant Md. Allauddin used to come, as appears

Md. Allauddin vs State Of Bihar on 11 April, 2014

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from the evidence, to the house of P.W.1 and P.W.3 to impart tuition to the victim every evening. Hehad come as usual on 9.2.1984 also for teaching his pupil, P.W.3.

3. The allegation is that the mother of P.W.3, i.e., P.W.1 had gone into a neighbours house leavingher daughter and appellant Md. Allauddin together in her house, the two, i.e., the victim and Md.Alluddin disappeared from there. The mother of the victim, P.W.1, came back to find the two havingdisappeared and on Patna High Court CR. APP (SJ) No.124 of 1996 dt.11-04-2014 search she couldnot find out her daughter. She informed her brother, Md. Zulfikar Ali, P.W.2, who also made asearch for the girl, P.W.3, and not finding her and coming to know that it was appellant Md.Allauddin, who had taken or enticed away P.W.3, lodged the written report Ext.-5 on the basis ofwhich Ext.-2, the First Information Report of the case, was drawn.

4. The Investigating Officer was not examined and the case-diary has been put into evidence byexamining a formal witness, namely, P.W.5, Bal Mukund Pandey. It appears from the evidence ofP.W.3, which fact does not appear controverted, that the victim was taken to different places andlastly to village Amwa, somewhere in Nepal and P.W.2, Zulfikar Ali along with the police of Nepaland of the State of Bihar went to that village and recovered the lady on 21.7.1984, as appears fromthe seizure-cum-recovery memo (Ext.-3) tendered in evidence by the same prosecution witnessP.W.5. P.W.3 was brought back to East Champaran at Motihari, where she was medically examinedby Dr. (Mrs.) C.K.Verma, P.W.4, on 23.7.1984 at 11.30 A.M. P.W.3, the victim, was again producedbefore the Judicial Magistrate for recording her statement. Ext.-A, the statement of the victim, wasrecorded on the same day, i.e., on 23.7.1984. After closure of the investigation, the two appellantswere sent-up for their trial and that ended up in the impugned judgment. Patna High Court CR. APP(SJ) No.124 of 1996 dt.11-04-2014

5. It appears that six witnesses were examined by the prosecution in support of its case and afterconsidering the same, the two appellants were convicted and sentenced as pointed out at the veryoutset.

6. Smt. Meena Singh, the learned Amicus Curiae appearing for the appellants submitted that in spiteof Md. Allauddin, the appellant, being named in the First Information Report, the other appellant,Razi Ahmad, was not named and it appears that his name appeared for the first time in thestatement of the victim under Section 164 Cr.P.C. Submission was that the Doctor had found heraged about 14 years, but the prosecution appears guilty of suppressing some material evidence onthe age of the victim. Undisputedly, she was enrolled in a Madarsa for prosecuting her studies andthat authentic evidence was not produced. Submission was that if three years were to be added up tothe estimated age of 14 years, the lady was crossing the threshold of 16 years as regards the offenceof rape and may be said to be a person who had also approached the age of discretion of 18 yearsand in that view the offences under Section 366 and 376 may be found not established.

7. On the other hand the learned counsel for the State has submitted that the age of 14 years of thevictim was a material evidence as regards the conviction of the appellants and there was no PatnaHigh Court CR. APP (SJ) No.124 of 1996 dt.11-04-2014 need of interference by this Court with theimpugned judgment.



8. It does not appear disputed that P.W.3 had either gone in the company of Md. Allauddin or hadbeen taken away by him, may be that appellant Md. Allauddin had enticed her away. The victim inher evidence had stated that she went out of her house to the bus stand by a rickshaw to catch a busfor going to Pachpakri, where she stayed in the house of a person, where she was sexually assault.From there the two came to Chainpur Bangla and from there by train they reached Muzaffarpur andfrom Muzaffarpur they traveled to Purshotimpur and stayed in the house of one Iftekhar Mian. Thistravel consumed four days and as per the ladys evidence, appellant Md. Allauddin was continuouslywith her and sexually assaulted her. The travel of the lady was extended up to Delhi, where they hadrented out a house and were living together and what did the lady state was that wherever andwhenever the appellant, Md. Allauddin, was asked by anyone about the relationship between himand the victim, he would claim that the lady was her cousin, being the daughter of his maternaluncle. The lady remained in the company of appellant Md. Allauddin right from 9.2.1984 up to21.7.1984, i.e., for more than five months and it hardly requires to be pointed out that they hadphysical relationship between them.

9. While considering the evidence of P.W.3 I could not Patna High Court CR. APP (SJ) No.124 of1996 dt.11-04-2014 find out that indeed the lady was really opposing the acts of being sexuallyexploited, rather appears moving with the appellant Md. Allauddin from one place to the otherprobably to evade being caught and recovered and further being restored to her parental custody.This element itself indicates that she was a consenting party and further that it might not be a caseof kidnapping or abduction rather it might be a case of simple elopement of a girl with a man of herliking.

10. Then the question is as to whether the age of 14 years could be the deciding factor as regards thecommission of the offence under Section 376 I.P.C. and thereafter the offence under Section 366I.P.C. also. The prevailing judicial view, right from Jaya Mala v. Home Secretary, Government of Jand K, [(1982) 2 SCC 538], that while considering the age of a person, whose age has been medicallydetermined, the Court should add up three years to the medically determined age. Adding up threeyears to 14 years, as was the testified age of P.W.3 by P.W.4, Dr. Smt. C.K.Verma, the age of thevictim comes to 17 years and the fact which I have just noticed regarding the sojourn of the victimwith appellant Md. Alluaddin does not leave any room to take a different view that she was not onlya consenting party but was moving with the appellant with her heart and mind both, having decidedto remain in company of the Patna High Court CR. APP (SJ) No.124 of 1996 dt.11-04-2014appellant. In that view of the matter, the offence under Section 376 I.P.C. appears not attracted tothe facts of the case.

11. So far as the conviction of the appellant, Md. Alluaddin, under Section 366 I.P.C. is concerned,the Court refers to the case of Varadarajan v. State of Madras, (A.I.R. 1965 SC 942), in which theSupreme Court was making a distinction between the acts of taking away or enticing away a girl ofbelow 18 years and an act of mere elopement of a girl. Paragraph 9 of the judgment is relevant forthe purpose and I am tempted to quote that particular paragraph:

"9. It must, however, be borne in mind that there is a distinction between "taking"and allowing a minor to accompany a person. The two expressions are not



synonymous though we would like to guard ourselves from laying down that in noconceivable circumstances can the two be regarded as meaning the same thing for thepurposes of Section 361 of the Indian Penal Code. We would limit ourselves to a caselike the present where the minor alleged to have been taken by the accused personleft her father's protection knowing and having capacity to know the full import ofwhat she was doing voluntarily joins the accused person. In such a case we do notthink that the accused can be said to have taken her away from the keeping of herlawful guardian. Something more has to be shown in a case Patna High Court CR.APP (SJ) No.124 of 1996 dt.11-04-2014 of this kind and that is some kind ofinducement held out by the accused person or an active participation by him in theformation of the intention of the minor to leave the house of the guardian."

12. As may appear from the observations of the Supreme Court that even if a minor was eloping witha person irrespective of the age of the minor it could not be an offence of either of kidnapping or ofabduction because the two important ingredients constituting the offence either of kidnapping orabduction are not available in such cases. Taking away presupposes removing a minor or a lady orany person by some use of force, whereas enticing away indicates as if the person kidnapped orabducted, had been tricked into going with a man who had either kidnapped or abducted the person.In such a situation, the prosecution is required to bring evidence on record which could establish theelements either of taking away or of enticing away. If the facts of the case indicated that P.W.3, thevictim of the offence, was neither taken away nor was enticed away and in fact had, out of her ownfree will, moved out of the keeping of her lawful guardianship or from her parents house, then nooffence of kidnapping or abduction could be made out, even if the girl was below 18 years of age. Butwhat I want to emphasize is that age is not material in such cases. What is the main Patna HighCourt CR. APP (SJ) No.124 of 1996 dt.11-04-2014 material ingredient of an offence of kidnapping orabduction is either of the two elements i.e. taking away or enticing away so as to removing the minorout of the keeping of her lawful guardianship. I have already noted, after having noticed theevidence of the victim, that it was not a case either of taking away or of enticing away; it ratherappeared a case of willingly stepping out of the parental care and guardianship by P.W.3 so as tomoving with appellant Md. Allauddin from one place to the other to many places and residing withhim by her mind, soul and body. This could not, as such, be a case under Section 366 I.P.C.Accordingly, I find that the conviction of appellant Md. Allauddin for an offence under Section 366I.P.C. also appears not justified under the facts of the case.

13. It was rightly pointed out that appellant Razi Ahmad, the appellant of the other appeal, was notnamed in the First Information Report. But that could not be the solitary ground for considering hiscase for acquittal. In a case of kidnapping or abduction, an accused may not be named in the FirstInformation Report and it may be that on taking up the investigation, materials are collected so as toestablishing or reasonably indicating the participation of one or many persons in commission of theoffence. Viewing the facts from that angle it may be correct to rule out the argument that appellantRazi Ahmad was not named in the First Patna High Court CR. APP (SJ) No.124 of 1996dt.11-04-2014 Information Report. However, he was definitely named by the victim in her 164statement and what was stated by her was that when she had reached the bus stand by a rickshawwith appellant Md. Allauddin, he was found there and after appellant Md. Allauddin and the victim



had boarded the bus, appellant Razi Ahmad came back from the bus stand. Thus, what appears isthat Razi Ahmad did not even board the bus. On the very strength of the evidence of P.W.3, thevictim, he had not gone either to the house of her parents to take her out or bring her out of herlawful guardianship or had given any blandishment-to borrow the word from Varadarajan(supra)-to the victim so as to bring her out of the precincts of her parents house and, thus, to takeher away from the keeping of her lawful guardianship. In that view of the state of evidence, it is verydifficult to uphold and justify the conviction of appellant Razi Ahmad under Section 363 I.P.C. Hedoes not appear to have contributed towards the commission of any offence.

14. Thus, what appears from the above discussion of the evidence and the inferences arisingtherefrom, in the opinion of this Court, it was not a case in which the two appellants would havebeen convicted and sentenced. On the facts of the case, it was a case where the appellants shouldhave been acquitted and accordingly, the two appeals are allowed by setting aside the judgment ofconviction Patna High Court CR. APP (SJ) No.124 of 1996 dt.11-04-2014 and order of sentencepassed upon them. The appellants are acquitted of the charges, they had been found guilty of. Theappellants are on bail. They shall stand discharged from the liabilities of their respective bonds.

15. Smt. Meena Singh has made it possible for this Court to render this judgment after assisting it ata very short notice. It is hereby directed that Smt. Singh be paid one fee each for argument each ofthe two appeals while assisting the Court and for that purpose let the copies of the first and lastpages be made available to Smt. Singh.

(Dharnidhar Jha, J) A.F.R.

Pawan/-

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Md. Allauddin vs State of Bihar on 11 April, 2014

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