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2006 DIGILAW 1068 (JHR)

UPENDRA RAJAK v. STATE OF JHARKHAND

2006-08-14

R.R.PRASAD

body2006
Judgment : R. R. PRASAD, J. ( 1 ) THE sole Appellant upendra Rajak was put on trial to face charge under Section 366 of the Indian Penal Code on the allegation that he enticed away Kaushalya kumari (P. W. 1) a girl below 18 years of age for the purpose of marrying her. The Trial Court having found the Appellant guilty convicted him under Section 366 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for six years and to pay fine to the tune of Rs. 5000 and in default of making payment to undergo simple imprisonment for three months. ( 2 ) THE fact of the case is that Om Prakash rajak, the informant (P. W. 6) lodged the case alleging therein that on 4th March, 2004, his daughter Kaushalya Kumari had been to school and while she was on way to school, the appellant enticed her away and on enquiry being made, he came to know that Upendra rajak has kept her in his house. After the institution of the case against the Appellant, the matter was taken up for investigation by the investigating Officer, Satyadeo Singh, P. W. 7, who, on getting information that Upendra Rajak is at village Patharia with the victim, came over there along with police party found the appellant as well as the victim waiting for bus at the bus stand and arrested the Appellant and also took the victim girl in his custody and sent her for medical examination, and, on getting requisition Dr. R. S. Vandana, P. W. 2 examined her. On examination, she found the victim to be aged about 17 years. However, she did not find any spermatozoa in the vaginal swab. Doctor issued medical report opining therein that no definite opinion about the rape can be given. The said medical report has been marked as Ext. 2. Thereafter the Investigating Officer got the statement of victim girl recorded under Section 164 of the Code of Criminal Procedure wherein she stated that she had fallen in love with the appellant Upendra Rajak and, therefore, she expressed her desire before her father that she intends to marry him which enraged him and in clear terms her father said that in no way she can marry the Appellant. Thereafter, she left her home on 4th March, 2004, with her own wishes and came to bus stand, took the vehicle and came to Itkhori where she met the appellant and proposed to marry him. But the appellant showed his reluctance on the plea that he is handicapped and will not be able to take care of her. But on her insistence, he agreed to marry her and both of them came to a temple where they got married and then also completed formalities of marriage in Court and then came to the matrimonial home from where she informed about it to her parents. ( 3 ) AFTER completion of the investigation, police submitted chargesheet against the appellant under Section 366 of the Indian Penal code and, accordingly, cognizance of the offence was taken and in due course when the case was committed to the Court of sessions, charges were framed to which Appellant pleaded not guilty and claimed to be tried. ( 4 ) IN course of trial the prosecution in order to prove his case examined altogether eight witnesses, of them P. W. 1 Kaushalya Kumari, the victim girl did testify that when she fell in love with the Appellant, she expressed her desire to his father, Om Prakash Rajak, P. W. 6 that she has been intending to marry the appellant but her father did not agree to that proposal and therefore, she by herself left her home for coming to the place of Appellant and when she reached Itkhori Chauk, she met the appellant. This witness was declared hostile by the prosecution, P. W. 3, Sachidra Nath Sinha is the Judicial Magistrate, 1st Class, Hazaribagh, who had recorded the statement of thevictim girl under Section 164 of the Code of Criminal procedure. P. W. 4 Baijnath Prasad Mehta has deposed that when the victim girl did not return home he along with others searched for her, but did not succeed to locate her. Subsequently, he came to know that victim had been seen with the Appellant. Similar are the statements of P. W. 5 Purnima Devi, mother of the victim and P. W. 6, Om Prakash Rajak, Father of the victim. Certain letters said to have been written by the Appellant had also been adduced in evidence on behalf of the prosecution. ( 5 ) LEARNED Sessions Judge after taking into consideration those letters, Ext. Similar are the statements of P. W. 5 Purnima Devi, mother of the victim and P. W. 6, Om Prakash Rajak, Father of the victim. Certain letters said to have been written by the Appellant had also been adduced in evidence on behalf of the prosecution. ( 5 ) LEARNED Sessions Judge after taking into consideration those letters, Ext. 6 series which were written by the Appellant to the victim, while the victim was at remand home did hold that the Appellant did allure the victim in such a way that the victim jumped all the norms of the civilized society and married the appellant, who happens to be none other than her Maternal uncle and thus it is evident that the Appellant did marry the victim after she was allured by the Appellant to marry her and as such he is guilty for an offence under Section 366, of the Indian Penal Code. Consequently, the Sessions Judge passed the order of conviction and sentence as aforesaid. ( 6 ) BEING aggrieved with that, the Appellant has preferred this appeal. ( 7 ) LEARNED Counsel appearing for the appellant submitted that this is a case where there has been absolutely no evidence that this appellant did induce the victim in any manner to marry him, rather it is the evidence of the victim, P. W. 1, who can be said to be the only material witness that she with her own wishes came to the Appellant when her father did not allow her to get married with the Appellant. But still the Trial Court convicted and sentenced the Appellant and hence the judgment and order is quite illegal and is fit to be set aside. ( 8 ) LEARNED Counsel appearing for the appellant submitted that the Appellant, who is admittedly handicapped is unable to move on his both legs without there being any support, is not expected to take away the girl with him and that apart the statement made by the victim p. W. 1 in her evidence and also under Section 164 of the Code of Criminal Procedure that she came to the place of Appellant with her own accord, finding of guilt recorded by the Trial court is beyond any comprehension and as such the impugned Order is fit to be set aside. ( 9 ) HEARD learned Counsel appearing for the state. ( 9 ) HEARD learned Counsel appearing for the state. ( 10 ) ADMITTEDLY, the Appellant is handicapped and is unable to move on his legs without there being any support and that the victim girl at the time of occurrence was aged about 17 years. In this background, the evidence of p. W. 1 carries much importance. It is her evidence that she had fallen in love with the appellant and, therefore, when she expressed her desire before her father that she intends to marry the Appellant, her father became angry and conveyed her that if she would stick to her decision, she will be done to death and, therefore, she herself left home and came to the Appellant and married him. P. W. 1 though has been declared hostile by the prosecution but her evidence gets corroboration by the statement made by her earlier under Section 164 of the Code of Criminal Procedure. ( 11 ) IN these circumstances, it is to be considered as to whether the charge levelled under Section 366 of the Indian Penal Code against the Appellant gets proved or not. For proving the charge under Section 366 of the indian Penal Code following ingredients must be established. (i) that she was kidnapped or abducted from the custody of her lawful guardian, and (ii) that she was kidnapped or abducted with the intention of compelling her to marry any person against her will or in order that she may be forced or seduced to illicit sexual intercourse. The offence of kidnapping from the lawful guardian is defined under Section 361 of the indian Penal Code, which reads as under: whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. Thus, I see that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. Thus, I see that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. ( 12 ) HERE in the instant case, it is found from the evidence of P. W. 1 that she with her own wishes left the house of her father and came to the village of the Appellant. There has been absolutely no evidence that P. W. 1 made the appellant to accompany her by administering any threat to her or by any blandishment. On the contrary, it is the evidence of P. W. 1 that appellant did not take her anywhere to marry her, rather she herself came to him for marrying him. This piece of evidence is quite consistent with the earlier statement made under Section 164 of the Code of Criminal Procedure. In these circumstances, in absence of any other evidence inference could not be drawn that the Appellant was responsible of taking away P. W. 1 out of the keeping of her father. However, the Trial court on the basis of sentiment expressed by the Appellant in his letters (Ext. 6) to P. W. 1 written after the occurrence while P. W. 1 had been kept at Nan Niketan did presume that the appellant must have allured P. W. 1 to come out of the guardianship of her father so that she marry him. The approach of learned Judge, in the facts and circumstances of the case, cannot by any standard be said to be as justified when the prosecution is bound to establish the fact that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. I have already stated that there has been no evidence that P. W. 1 was taken or enticed away by the appellant out of the keeping of a lawful guardian. Learned Judge while holding the appellant guilty got himself swayed by wrong notion that P. W. 1 married to her own maternal uncle, but it is not the fact, rather the Appellant happens to be brother-in-law of the uncle of p. W. 1. Learned Judge while holding the appellant guilty got himself swayed by wrong notion that P. W. 1 married to her own maternal uncle, but it is not the fact, rather the Appellant happens to be brother-in-law of the uncle of p. W. 1. ( 13 ) IN these circumstances, I do find that prosecution has failed palpably to establish the charge under Section 366 of the Indian Penal code and hence the Order of conviction and sentence passed by the Court below against the Appellant is hereby set aside and he is acquitted of the charges levelled against him. Consequently, he is discharged from the liability of the bail bonds. ( 14 ) IN the result, this appeal is allowed. Appeal allowed. --- *** --- .