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2006 DIGILAW 396 (JHR)

Raj Kumar Sao v. State Of Bihar (Now Jharkhand)

2006-04-19

DHANANJAY PRASAD SINGH

body2006
JUDGMENT D.P. Singh, J. 1. The sole appellant Raj Kumar Sao stands convicted for the offence under Sections 366(A) and 498(A) of the Indian Penal Code and sentenced to serve rigorous imprisonment for seven years and three years respectively by the 3 rd Additional Sessions Judge, Hazaribagh in Sessions Trial No. 194 of 1999. 2. Brief facts leading to his conviction are that the appellant was married with one Kaushalya Devi, the informant of this case, in the year 1996. However, immediately Kaushalya Devi was subjected to torture by the appellant and the appellant along with his family members started demanding Rs. 10,000/- as well as one motorcycle from her. When the informant, Kaushalya Devi, and her parents could not satisfy the demands, she was thrown out of her matrimonial house and left at her parents house. It is further stated that in the meantime, the appellant started to stay in the house of the uncle of the informant Kaushalya Devi and having illicit relation with Geeta Kumari, her cousin sister. According to her statement, in the night of 29 th November 1998, the appellant came to the house of the uncle of the informant and eloped with Geeta Kumar to get her married. This matter was reported to Pelawal Police Station at Katkamsandi in writing on 9.12.1998. On the same day, one written report was submitted to Pelawal Police by the father of said Geeta Kumari that the appellant has taken away his minor daughter with intention to marry without his consent. In both the reports, name of one co-accused Nirmal Sao was mentioned to have participated in the alleged elopement. 3. On the basis of written report, Kathamsandi Police Station Case No. 151 of 1998 was registered and the police started investigation to recover the said Geeta Kumari from the house of Raj Kumar Sao, the appellant. The police completed the investigation and finally submitted charge-sheet against the accused persons under Sections 363, 366(A), 494 and 498(A)/34 of the Indian Penal Code. The statement of the recovered girl Geeta Kumari was recorded under Section 164 of the Code of Criminal Procedure by Judicial Magistrate on 21.12.1998. The case was committed for trial to the Court of Sessions and the accused were tried after framing charge under above mentioned sections. They have pleaded not guilty and claimed to be innocent. The statement of the recovered girl Geeta Kumari was recorded under Section 164 of the Code of Criminal Procedure by Judicial Magistrate on 21.12.1998. The case was committed for trial to the Court of Sessions and the accused were tried after framing charge under above mentioned sections. They have pleaded not guilty and claimed to be innocent. The learned trial court after recording the evidences, examining the accused person under Section 313 of the Code of Criminal Procedure, found and held that the charge under Sections 363 and 494 of the Indian Penal Code were not made out However, he found that accused Nirmal Sao has not participated in any of the offence under Section 366A and 498A of the Indian Penal Code and acquitted him, but the appellant was held guilty for the offences mentioned above and sentenced to serve rigorous imprisonment for seven years and three years respectively of both the offences. 4. The present appeal has been preferred on the grounds that the learned trial court has wrongly held the appellant for torture and dowry demands, when there is no such evidence available on record. It is also asserted that the appellant has not committed any offence under Section 366A as per the statement of the victim Geeta Kumari, who was a major and has gone with him out of her free will. 5. Learned Counsel for the appellant further stressed that the prosecution story is two fold; one is that Kaushalya Devi was ill-treated for non- fulfillment of dowry demands for which evidence is not available on record. The other point which has been accepted by the learned trial court is that Geeta Kumari was taken away without consent of his father, who was minor, is also incorrect. The learned Counsel further submitted that from the evidence available on the record, no case is made out against him under Section 498A or under Section 366A of the Indian Penal Code. 6. Learned A.P.P. opposed the contention on the grounds that the appellant has ill-treated his legally married wife and eloped with her cousin sister Geeta Kumari with intention to marry her. It is also submitted that the girl, aged below 18 years, and her consent, if any, could not exonerate the appellant from the charges. 7. 6. Learned A.P.P. opposed the contention on the grounds that the appellant has ill-treated his legally married wife and eloped with her cousin sister Geeta Kumari with intention to marry her. It is also submitted that the girl, aged below 18 years, and her consent, if any, could not exonerate the appellant from the charges. 7. Learned Counsel for the appellant drew my attention towards the facts that for constituting the offence under Section 366A of the Indian Penal Code, Geeta Kumari should have been proved a minor. It is also asserted that even in her statement she has denied any sexual intercourse with her and prosecution has failed to prove that she was below 18 years, the benefit should go in favour of the appellants. Learned Counsel for the appellant further drew attention towards the fact that two written reports were lodged with Pelawal Police Station on the same day within twenty minutes and the first information does not disclose any offence under Section 366A of the Indian Penal Code vide Exts. 2 and 3. According to the learned Counsel for the appellant that, if the first information (Ext.3) is believed, the second written report (Ext.2) should not have been considered to initiate with the investigation by the police. The learned Counsel further pointed that in her statement before this Court P.W.1 Geeta Kumari specifically asserted that she has gone with the appellant out of her free will in the night of 29.11.1998. It has been pointed out that she has already compromised and she could not say what facts were recorded by the police and the Magistrate when she was examined by him before the trial of this case. Learned Counsel further pointed out that P.W.3, the father of the said Geeta Kumari has admitted in para-4 that the age of the girl was 17 years. Therefore, the appellant should not have been convicted under Section 366 A of the Indian Penal Code, Learned Counsel further pointed out that the offence under Section 498A of the Indian Penal Code could not be made out with the evidences of P.W.2 Kaushalya Devi, P.W.4 Gulab Sao, P.W.10 Sugani Devi and P.W. 11 Sundar Sao, The learned Counsel submitted that such allegations of dowry demand has been made, had not been mentioned in the frardbeyan vide Ext 3. However, during course of trial, this fact has been developed so it should not be relied upon. According to the learned Counsel for the appellant, this has happened as after thought by the informant and her parents just because the appellant has not taken care of Kaushalya Devi. 8. Learned Counsel further pointed that P.W. 4 Gulab Sao, P.W. 5 Dulari Devi and P.W. 6 Shambhu Kumar, have not supported the allegations made with the occurrence regarding the elopement with Geeta Kumari. P.W. 9 has been declared hostile. 9. I have gone through the materials available in the case. The consistent case of the prosecution vide Ext. 3 is that Kaushalya Devi was married with the appellant. It is also apparent on the record that the appellant went away with Geeta Kumari in November 1998, thereafter Kaushalya Devi lodged an information with Pelawar Police Station on the same day that he has taken away a minor girl with intention to marry. It is also apparent on the record that said Geeta Kumari was recovered from the house of appellant by the police. The statement of said Geeta Kumari has been recorded by the Judicial Magistrate on 21.12.1998 where she has supported the prosecution version that she was taken away by the appellant. During trial, said Geeta Kumari though denying that force was used in taking her away has admitted in her examination in chief that she went with the appellant with her free will and she was brought back with the help of police. P.W. 3, the father of Geeta Kumari has also supported her allegation in his examination in chief and stated that the girl was aged about 17 years, who has gone with the appellant without their consent. P.W.5 the mother of Geeta Kumari also stated that Geeta Kumari has gone with the appellant. P.W. 6, brother of Geeta Kumari also admitted that she has gone with the appellant. Therefore, this fact remains proved that Geeta Kumari has eloped with Raj Kumar Sao, the appellant, without the consent of her parents and she was taken away in various places at Madhya Pradesh etc. with only intention to marry. As such, the offence under Section 366A of the Indian Penal Code has been proved with the evidence available on the records. 10. with only intention to marry. As such, the offence under Section 366A of the Indian Penal Code has been proved with the evidence available on the records. 10. It is admitted fact that Kaushalya Devi was not properly treated by the appellant and not given due respect as his married wife. It is apparent on the record that since the marriage in the year 1996, she was being ill-treated. However, the story of demand of money and motorcycle etc. has not been mentioned in Ext.3, the fardbeyan given by the informant before the police. Though, later on, this story has been developed by the prosecution witnesses. The I.O. of this case has admitted in cross-examination that P.W.3 Kaushalya Devi, P.W.10 and P.W.11 have not stated before him that the appellant used to demand money and motorcycle in dowry. Accordingly, I find that the charge under Section 498A is not made out and this appeal deserves to be allowed to this extent. 11. Having considered the above mentioned facts and circumstances, I am of the opinion that the learned trial court has rightly found and held guilty Raj Kumar Sah, the appellant, for the offences under Section 366A of the Indian Penal Code of inducing Geeta Kumari to take her away from the legal guardianship of her parents with knowledge that she may be compelled or forced to marry with him. 11. At this stage, learned Counsel for the appellant submitted that the appellant has remained in custody for more than two years and two months during trial and he was released on bail by this Court in February 2001. Therefore, he has been sufficiently punished for the offence committed by him. In the facts that the victim Geeta Kumari and her parents have later on resiled from the investigation, a lenient view may be taken in this case. In view of the facts and circumstances of this case, I am of the opinion that the sentence awarded to the appellant by the learned lower court may be reduced to the period for two years. Accordingly, this appeal is disposed of. 12. The judgment and order passed by the learned trial court is partly affirmed with modification of the sentence to the period already undergone. The appellant stands discharged from the liability of his bail bonds.