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2003 DIGILAW 983 (JHR)

Sita Ram Sah v. State Of Jharkhand

2003-08-12

VISHNUDEO NARAYAN

body2003
ORDER Vishnudeo Narayan, J. 1. This appeal has been preferred by the sole appellant named above against the impugned judgment and order dated 18.1.2003 passed in Sessions Case No. 218 of 2002 by Shri Ram Babu Gupta, Additional Sessions Judge, Fast Track Court No. II, Deoghar whereby and whereunder he has found the appellant guilty for the offence punishable under Section 366A/34 of the Indian Penal Code and has convicted him and sentenced him to undergo RI for eight years and to pay a fine of Rs. 20,000/- and in default thereof to undergo simple imprisonment for one year and out of the fine amount 60% of it shall go to the complainant, i.e., father of the victim. 2. The prosecution case has arisen on the basis of the complaint petition (Ext. 2) lodged on 24.8.2001 against the appellant beside one co-accused Arjun Yadav by PW 1 Bhim Sah, the father of Sarli Kumari aged about 13 years who is the victim of this case before the Court of Chief Judicial Magistrate, Deoghar regarding the occurrence which is said to have taken place on 12.9.2000 and it continued till 14.8.2001. 3. The prosecution case, in brief, is that Sarli Kumari is the daughter of the complainant and she is aged about 13 years and on the day of the occurrence at about 12.00 Oclock in the day she had gone for natures call near Kuria Bandh in village Rohini, P.S. Jasidih, District Deoghar and appellant came there all of a sudden and poured some dusty material on her face as a result of which she became drowsy and lost her control and she was then lifted by the appellant and boarded on his bicycle and the appellant took her on his bicycle and in the mid way she has lost her consciousness. It is alleged that said Sarli Kumari regained her consciousness and found herself in an unknown house where she started crying and she was intimidated to be done to death by a person of that house if she continues to cry and insists for going back to her parents house and in course of time she learnt that the name of the said person is Arjun Yadav of village Mahadeo Nagar near Jalebia More and who had also tried several times to sexually assault her but she used to save her by raising hue and cry and in that course said Arjun Yadav had told her that the appellant had sold her to him for heavy money and on some day she will be forced to have sexual intercourse with him and, thereafter, she shall be sold to some other persons for the same purpose. It is also alleged that Arjun Yadav who is the co-accused in this case has assured her that he would sexually assault her after some period and till then she was engaged in watching the grazing of his cattle. The prosecution case further is that a week ago when she was watching the grazing of the cattle in an open place she found a crowd of "Bol Bam" passing through and thinking that they are going to Deoghar she silently-slipped away from that place and mixed herself in that crowd and she reached Deoghar on the same day from where she reached to the house of her sister Savita Devi resident of Mohalla Karnibad, District Deoghar and from there she was brought to her parents house at Rohini by PW 2, Mahesh Sah, the husband of her sister where she has narrated the incident to her father, PW 1, the complainant and on the basis of her narration, PW 1, the complainant has lodged this complaint petition before the Court of CJM, Deoghar. 4. The appellant has pleaded not guilty to the charge levelled against him and he claims himself to be innocent and to have committed no offence and that he has been falsely implicated in this case at the instance of the complainant who had enmity existing and alive with his agnate Ashok Sah who happens to be the son-in-law of this appellant. 5. The prosecution has examined, in all, four witnesses to substantiate its case. 5. The prosecution has examined, in all, four witnesses to substantiate its case. PW 1, Bhim Shah is the complainant of this case and the father of the alleged victim girl, namely, Sarli Kumari. PW 3 Mohni Devi @ Mahvani Devi is the wife of the complainant and PW 2, Mahesh Sah is the husband of the daughter of the complainant. PW 4, Bir Bal Kumar is a formal witness who has proved the complaint petition and the petition dated 19.12.2001, 8.2.2002 and 6.4.2002 filed in this case before the Court of CJM which are Ext. 2/A, Ext. 3/A and Ext. 4. No oral and documentary evidence has been brought on the evidence on behalf of the appellant. 6. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that there is no iota of legal evidence on the record even to connect or implicate the appellant in the occurrence in question and it is a case of practically no evidence that this appellant has committed the alleged offence and the learned Court below has committed a manifest error in scrutinizing the evidence on the record in proper perspective and has gravely erred in coming to the finding of the guilt of the appellant and the impugned judgment is not only perverse rather it gives an impression that the learned Court below is unable to understand the cardinal principle of criminal law. It has also been submitted that Sarli Kumari, the alleged victim of this case has not been examined to support the prosecution case and the victim in a case of kidnapping is the most competent witness regarding the occurrence in question and her non-examination gives a death nail to the prosecution case and the explanation as submitted by the complainant that she has been re-kidnapped by this appellant is palpably false in view of the fact that the complainant for the reasons best known to him has not instituted any case in respect thereof and the victim Sarli Kumari has been deliberately withheld in this case and as such an adverse inference has been drawn against the prosecution case. It has also been submitted that there is no iota of legal evidence to substantiate the fact that Sarli Kumar aforesaid is a minor girl and she has been sexually assaulted by the co-accused as alleged. It has also been submitted that there is no iota of legal evidence to substantiate the fact that Sarli Kumar aforesaid is a minor girl and she has been sexually assaulted by the co-accused as alleged. It has also been submitted that the occurrence is said to have taken place on 12.9.2000 and this complaint petition has been lodged before this Court on 24.8.2001 and there is no cogent explanation at all on the record to explain the said inordinate delay in instituting the case against the appellant and, therefore, the complaint petition is the result of an after thought due to consultation and deliberation. All the witnesses are hearsay witnesses in this case and their evidence has no relevancy at all due to the non-examination of Sarli Kumari aforesaid. It has also been submitted that Sarli Kumari on her return after about 11 months of the occurrence have also not been examined by any doctor for the reasons best known to the complainant. Lastly it has been contended that the alleged victim girl was not known to the appellant from before and there was no reason for her to identify the appellant and there is averment in the complaint petition that she has learnt the name of the appellant from co-accused Arjun Yadav and in this view of the matter the evidence of the hearsay witnesses about the complicity of this appellant in the occurrence in question is equally inadmissible and in this view of the matter there is no legal evidence at all to substantiate the prosecution case and the learned Court below has committed an error in relying upon the statement of the victim girl recorded under Section 202 of the Code of Criminal Procedure in course of her enquiry and the statement under Section 202 of the Code of Criminal Procedure is inadmissible in evidence in view of the fact that there is no scope for the appellant to cross-examine a witness in the enquiry under Section 202 of the Code of Criminal Procedure. Viewed thus, the impugned judgment suffers with mani-fest illegalities and cannot be sustained. 7. Viewed thus, the impugned judgment suffers with mani-fest illegalities and cannot be sustained. 7. The learned counsel for the informant has submitted that the complainant had gone to the police station for lodging the case regarding the occurrence but the police did not record the case in respect thereof and when the victim returned to her house, again the complainant had gone to the police station for filing the case which was again not registered and finding no way out he had filed the complaint case and, therefore, there is reasonable explanation regarding the delay in question. It has further been contended that Sarli Kuamri could not figure as a witness in this case in view of the fact that she has been re-kidnapped by the accused person. Lastly it has been contended that Sarli Kumari was a minor girl and evidence of PWs 1, 2 and 3, however, supports the prosecution case and as such there is no illegality in the impugned judgment. The learned APP. adopts the submission aforesaid. 8. It will admit of no doubt that the appellant is a resident of village Patardih, 3 kms. away from the village Rohini of PW 1, the complainant. The daughter of the appellant stands wedded with Ashok Sah the agnate of the complainant and said Ashok Sah resides in Rohini village. There is also no denying the fact that the daughter of the complainant stands married with Mitia who is the agnate of the appellant and said Mitia reside in village Patardih. The averments made in Ext. 4 corroborates the aforesaid fact regarding Ashok Sah. It also gives an inkling of the fact there is enmity existing and alive between Ashok Sah aforesaid and the complainant. Therefore, in this background of existence of enmity the evidence of PWs 1, 2 and 3 have to be scanned with due care and caution. It is pertinent to mention at the very outset that the evidence of the victim girl is very relevant in a case of kidnapping as she is herself the ocular witness of the occurrence as well as subject of torture by diverse means. According to the prosecution case she is said to have been kidnapped by Sita Ram Sah on 12.9.2000 and the petition of complaint avers regarding the manner in which she has been kidnapped. PW 1, the complainant is not an ocular witness. According to the prosecution case she is said to have been kidnapped by Sita Ram Sah on 12.9.2000 and the petition of complaint avers regarding the manner in which she has been kidnapped. PW 1, the complainant is not an ocular witness. Similar is the case with PW 2 and PW 3 and they all have learnt about the manner of the occurrence regarding the kidnapping of Sarli Kumari as well as the disclosure of the name of the appellant in kidnapping her. The evidence of PW 1, PW 2 and PW 3 does not give even an inkling of the fact that Sarli Kumari was known to and acquainted with the appellant. She claims to have learnt the name of the appellant by co-accused Arjun Yadav in course of her confinement in his house at village Mahadevnagar near Jalebia More and this fact has been averred in para 6 of the complaint petition. It is the settled proposition of law that the statement of the co-accused implicating any person as accused in his statement has no legal value and the said statement cannot be used against the said accused to implicate him in the case. Sarli Kumari has not taken oath in this case. The explanation brought on the record for her non- examination is highly unbelievable and unacceptable. Therefore, the prosecution case suffers with inherent lacunae of unimpeachable character and on this score alone the prosecution case is fit to be thrown drawing an adverse inference against the authenticity of the prosecution case. It is equally relevant to mention here that Sarli Kumari claims to have returned after 11 months of the occurrence and during that period she is said to be living in the house of co- accused Arjun Yadav at village Mahadevnagar in the District of Banka and she was allotted with the work of getting the cattle grazed and to look after the cattle meaning thereby that she had access outside the house of co-accused Arjun Yadav for that purpose and during that period she was not kept under fetters. Therefore, she had an opportunity to flee away earlier from there in course of getting the cattle grazed. Therefore, she had an opportunity to flee away earlier from there in course of getting the cattle grazed. Therefore, the case of the complainant that Sarli Kumar got an opportunity at the time in the month of Shravan to mix within the crowd of "Bol Bam" to escape from there is nothing but figment of imagination on the part of the complainant to provide an explanation as to why any case was not lodged earlier. Therefore, in the facts and circumstances of this case the entire prosecution case is highly improbable and it is nothing but the figment of the imagination of the complainant for the reasons that he had animus against Ashok Sah, the son-in-law of the appellant. Therefore, the delay in setting the law in motion against the appellant is not at all satisfactorily explained which gives an impression that the complaint petition is the result of after thought and there is embellishment therein due to consultation and deliberation of the complainant with his family members and this aspect of the matter is equally a lacunae of the prosecution case. Furthermore Sarli Kumari has not been examined by any doctor. There is no medical evidence on the record regarding her age for coming to the finding of fact that she was minor on the day of the occurrence besides the fact as to whether she has been ravished during her eleven months stay in the house of co-accused Arjun Yadav. This aspect of the matter also goes against the authenticity of the prosecution case and casts a "cloud of suspicion to the very warp and woof of the prosecution case. And last but not the least the learned Court below has committed a manifest error which is very much apparent on the face of the record. The error committed by the learned Court below is that he has relied upon the statement Sarli Kumari recorded in course of enquiry under Section 202 of the Code of Criminal Procedure for coming to the finding of the guilt of the appellant. It is the settled principle of law that the statement under Section 202 of the Code of Criminal Procedure is not tested on the alter of cross examination. It is the settled principle of law that the statement under Section 202 of the Code of Criminal Procedure is not tested on the alter of cross examination. Law does not provide any opportunity to the accused/appellant to test the statement of a witness recorded under Section 202 of the Code of Criminal Procedure as the accused/appellant has no locus standi at that stage. Therefore, relying upon the statement of Sarli Kumari recorded under Section 202 of the Code of Criminal Procedure making the basis of conviction of the appellant by the learned Court below is illegal and unwarranted and this gives an impression that the learned Court below lacks basic tenets of the criminal jurisprudence. To sum up there is no iota of legal evidence on the record at all even to connect or implicate the appellant in this case. There is also no circumstantial evidence on the record also to give an inkling of the fact that the appellant was party in her kidnapping and therefore, the learned Court below has committed a manifest error in coming to the finding of the guilt of the appellant. I, therefore, see substance in the contention of the learned counsel for the appellant. It is, therefore, evident from the discussion above that the impugned judgment suffers with illegality and it cannot be sustained. 9. There is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment and order of the learned Court below is hereby set aside. The appellant is found not guilty and he is, accordingly, acquitted. Let the appellant be set free forthwith if not wanted in any other case.