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2001 DIGILAW 392 (JHR)

RAJU NAYAK ALIAS SURENDRA NAYAK v. THE STATE

2001-06-19

D.N.PRASAD

body2001
Judgment : DEOKI NANDAN PRASAD, J. ( 1 ) THE sole appellant preferred this appeal against the judgment dated 25-11-1995 and order of sentence dated 27-11-1995 passed by the Additional Judicial Commissioner, Ranchi in S. T. No. 163/1992/73/93 whereby and whereunder the appellant was convicted under Sections 363/365 of the Indian Penal Code and he was sentenced to undergo R. I. for four years under Section 365 of the Indian Penal Code and three years under Section 363 of the Indian Penal Code. However, both the sentences ordered to run concurrently. ( 2 ) THE prosecution case in brief as stated that in the morning of 25-5-1991 where the informant Chhedi Mistry was sleeping in the terrace of his house the appellant, Raju Nayak came to his house and enticed away his daughter Gayatri Kumari who is aged about 15 years old. When he came down from the terrace, his wife told him that the appellant had enticed away Gayatri Kumari and thereafter they started searching his daughter and they also went to the house of the appellant but she could not be traced. Ultimately the informant submitted a written report before the police station and the case under Sections 363 and 365a of the Indian Penal Code was registered. However the girl was recovered on the same day at about 7. 50 P. M. from the house of one Ramdeo Nayak, maternal uncle of the appellant situated at Bootymore at Ranchi. The girl was also examined by the doctor. The police investigated into the case and submitted charge-sheet against the appellant. ( 3 ) THE witnesses were examined. Having heard both parties and considered the evidence on record, the Sessions Judge convicted and sentenced the appellant in the manner as stated above. ( 4 ) MR. P. C. Roy, the learned counsel appearing on behalf of the appellant submitted that the learned Court below committed error in convicting the appellant without appreciating the evidence on the record. It is also submitted that there are contradictions in the evidence of P. Ws. and the appellant Raju Nayak was also not arrested from the place where Gayatri Kumari said to have been recovered as well as there is no document to show that Gayatri Kumari was actually recovered from the house of Ramdeo Nayak. It is also submitted that there are contradictions in the evidence of P. Ws. and the appellant Raju Nayak was also not arrested from the place where Gayatri Kumari said to have been recovered as well as there is no document to show that Gayatri Kumari was actually recovered from the house of Ramdeo Nayak. It is further submitted that the girl/victim is aged more than 18 years and she had actually accompanied with Raju the appellant willingly and therefore, the offence under Sections 365/366 of the Indian Penal Code is not made out as well as Gayatri Kumari admitted in her evidence that the appellant, Raju has not illtreated with her and the whole prosecution case is suspicious as such, the judgment of conviction and sentence passed by the trial Court is fit to be set-aside. ( 5 ) ON the other hand the learned A. P. P. contended before me that the victim girl claimed that the appellant had taken away her and she was also examined during trial and her statements under Section 164, Cr. P. C. was also recorded. ( 6 ) AT the very outset, it is to be noted that the victim girl was recovered on the same day and there was no sexual assault. It may further be noted that the appellant/accused was not present at the place from where the victim girl was recovered or seized. THUS, there is only evidence of P. W. 5 victim girl about taking her away from the possession of lawful guardian and that too has not been corroborated. It has to be seen as to whether she was taken out by deceitful means from the lawful guardianship of her parents by the appellant or she of her own accord had left the house of her parents and voluntarily accompanied the appellant. ( 7 ) AS many as seven witnesses have been examined from the side of the prosecution. Of whom P. W. 1 did not say anything. P. W. 2, Geeta Debi, the mother of the victim stated in her evidence that she had seen Raju, the appellant, when he was talking with her daughter. She does not say anything about kidnapping, P. W. 3 is hearsay witness and he had not seen Raju, appellant, taking away his sister. P. W. 4, father of the victim is also hearsay witness. She does not say anything about kidnapping, P. W. 3 is hearsay witness and he had not seen Raju, appellant, taking away his sister. P. W. 4, father of the victim is also hearsay witness. ( 8 ) P. W. 6 is the victim who stated that Raju came and knocked the door. Thereafter she opened the door. She further stated that she was taken away by Raju and two other boys by giving threat. She clearly stated that two other boys are not known to her. The Investigating Officer is also silent in his investigation about said two boys which itself creates much doubt about the actual incident. She cannot say from whose house at Bootymore she was recovered and Raju Nayak was not present at the relevant time. She also admitted to had appeared in the Matriculation examination. But surprisingly enough that no any document has been produced by the prosecution to substantiate the story of minority. ( 9 ) P. W. 6 is the doctor who examined the victim girl but no evidence of sexual intercourse found. The victim girl was found to be aged between 16 to 18 years. ( 10 ) P. W. 7 is the Investigating Officer. He admitted that he had not examined Ramdeo Nayak as well as Raju Nayak, the appellant was not present at the time of recovery of the girl as well as no recovery memo was prepared by him. Non-examination of Ramdeo Nayak by the Investigating Officer also falsifies the story of recovery of victim girl from his house. ( 11 ) HOWEVER, Ramdeo Nayak was examined as defence witness. According to him, Gayatri Kumari was not recovered from his house. No cogent evidence coming forward to say that the victim girl was actually recovered from the house of Ramdeo Nayak who imphatically denied in his evidence that she was recovered from his house. It is also clear that the doctor found the age of the victim girl between 16 to 18 years whereas the Court assessed her age to be 17 years. Apparently no document has been produced from the side of the prosecution in respect of the age of the victim girl. It is also clear that the doctor found the age of the victim girl between 16 to 18 years whereas the Court assessed her age to be 17 years. Apparently no document has been produced from the side of the prosecution in respect of the age of the victim girl. The sole accused Raju Nayak had entered into the room of the victim girl when she had opened the door which itself indicates that both are known from before and it has also come in evidence that both were in love from before. It is clear from the evidence of P. W. 5 that the victim girl had never raised any objection when she was going with the appellant/raju Nayak which proves also that she was consenting party and she had accompanied Raju at her own choice. ( 12 ) ORAL testimony of victim mother, brother and father is not only contradictory but also does not find any corroboration from any other source. Even at the time of alleged occurrence, she attained the age of discretion. ( 13 ) THE doctor opined about her age to be from 16 to 18 years. It is not disputed that there can be a variation in the age of account of climaty or hereditary factors. There can also be margin of two years from either side. Where there is a conflicting evidence as to the age, the benefit of uncertainty must go in favour of the accused/appellant. Thus, it can be held that the victim girl was aged about 18 years at the relevant time and she was major. It is manifest that the victim girl, Gayatri Kumari accompanied with the accused for such a long distance without raising any objection clarifying the episode that she was the consenting party. It is also not clear from where the victim girl was recovered by the police as there is no cogent evidence on this score when Ramdeo Nayak himself claimed in his evidence that the victim girl was not recovered from his house. ( 14 ) ALL the facts aforementioned taken together leave no doubt that the victim girl left her house with her own consent inasmuch as the Investigating Officer did not take pain to locate other two boys said to have faciliated the alleged kidnapping which also smacks about perfunctory investigation. ( 14 ) ALL the facts aforementioned taken together leave no doubt that the victim girl left her house with her own consent inasmuch as the Investigating Officer did not take pain to locate other two boys said to have faciliated the alleged kidnapping which also smacks about perfunctory investigation. Thus, apparently, there appears much suspicion about the prosecution case and for which the appellant/accused, Raju Nayak is entitled to get the benefit of doubt. ( 15 ) HAVING regard to the above facts and circumstances, coupled, with the evidence on records, I find that the prosecution has failed to establish the charges against the accused/appellant beyond all reasonable doubt. Thus, I find merit in this appeal which is accordingly allowed. The judgment of conviction and sentence passed by the Court below is hereby set-aside. The appellant is on bail and as such he is discharged from the liability of the bail bonds. Appeal allowed. --- *** --- .