Decided on March 12,2021

Sekh Magan Appellant
STATE OF BIHAR Respondents


BIRENDRA KUMAR,J. - (1.) The appellants, above named, faced trial in Sessions Trial No.1054 of 2010/785 of 2011, arising out of Kahalgaon (Rasalpur) P.S. Case No.57 of 2010, before the learned Additional Sessions Judge-I, Bhagalpur, for offences under Sections 366A and 376 of the Indian Penal Code. By the impugned judgment dated 31.01.2017 and sentence dated 08.02.2017 both the appellants were found guilty for offence under Section 366A of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.2000/-. In default of payment of fine the appellants were directed to undergo further two months imprisonment. Appellant Sheikh Magan was found guilty for offence under Section 376 of the Indian Penal Code also and was ordered to undergo rigorous imprisonment of seven years and to pay a fine of Rs.5,000/-. In default of payment of fine three months further imprisonment was ordered. Sentences against Sheikh Magan were ordered to run concurrently.
(2.) The prosecution case as disclosed in the written report of Md. Rahim, the father of the victim girl, is that on 10.02.2010 when the informant and his wife were not at the village home, co-villager Sheikh Magan and co-villager Md. Nisad (appellants herein) forcefully lifted to his daughter on a motorcycle. Co-villager Md. Kalim (PW 1) and Md. Ansar (PW 2) had witnessed the occurrence of kidnapping and on their protest against the act of the appellants, the appellants allegedly threatened them of dire consequences. The informant kept on searching the victim at his own level. Hence, the matter was reported to the police after delay of nine days i.e., on 19.02.2010.
(3.) On the basis of statement aforesaid the above mentioned P.S. case was registered and after investigation police submitted charge sheet. During trial prosecution examined altogether seven witnesses. PW 1 Md. Kalim and PW 2 Md. Ansar were declared hostile by the prosecution and attention of the witnesses aforesaid was drawn to their statement under Section 161 Cr.P.C. made before PW 6 Mahesh Kumar. However, attention of PW 6 was not drawn that PW 1 and PW 2 had made such statement before him. PW 3 Bibi Sahana is mother of the victim girl. She deposed that she got information about the occurrence of kidnapping of her daughter from PW 1 Md. Kalim and PW 2 Md. Ansar. Identical is the statement of PW 4 Md. Rahim, who is informant of this case and father of the victim girl. PW 3 and PW 4 are purely hearsay witnesses as they are not corroborated as to from whom they had heard about the occurrence inasmuch as neither PW 1 nor PW 2 stated that they had disclosed about kidnapping to PW 3 or PW 4 nor the victim (PW 5) has deposed that she had disclosed, about whatever happen against her, to her parents. Thus, the prosecution case is based on the sole testimony of PW 5 the victim girl. PW 6 Mahesh Kumar is Investigating Officer of the case and PW 7 Dr. Pusp Sudha had medically examined the victim. PW 6 supported the investigation done by him in a routine manner. PW 7 Dr. Pusp Sudha deposed that she did not find any sign of violence present in or outside the private parts of the victim. No foreign hair was noticed around the genital part or at the garment of the victim. The report of the pathological swab did not show the presence of any spermatozoa. According to the medical report submitted by some other doctor the age of the victim was below 18 years. The witness admitted that the victim was examined after five days of the occurrence. ;

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