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2006 DIGILAW 471 (JHR)

SIDHANT MAHTO v. STATE OF JHARKHAND

2006-04-25

D.P.SINGH

body2006
Judgment : ( 1 ) THE sole appellant sidhant Mahto stands convicted for the offence under Section 366-A of the Indian penal Code and sentenced to serve rigorous imprisonment for three years and to pay a fine of Rs. 1000/- in default thereof to undergo simple imprisonment for fifteen days by the Additional Judicial Commissioner, khunti (Ranchi) in Sessions Trial No. 341 of 1993. ( 2 ) BRIEFLY stated the facts leading to his conviction are that in the morning of 3rd april, 1991, two minor daughters of informant dhanesh Prasad Jaiswal of village-Sonahatu, P. S.- Sonahatu, District- Ranchi, went (out) of their house to ease themselves. Further stated that when his girls did not return, an information was lodged with the police regarding this occurrence. The informant further tried to search his daughters and informed nearby villages regarding this occurrence. On 5-4-1991, the informant was informed by one Dilip Manjhi of village-Manjhidih that he has seen the appellant going with two girls towards village Rahe at about 4. 00 p. m. Accordingly, the informant went to village Sataki where the villagers have kept the two girls and the appellant in the evening of 5th April, 1991. The matter was reported to Sonahatu Police on which sonahatu Police Station Case No. 191 of 1991 was registered. ( 3 ) THE police investigated the case and finally submitted charge-sheet against the appellant under Section 366a of the Indian penal Code. The case was committed to the court of Session for trial where charge was framed against the appellant on 13-8-1998. The appellant pleaded not guilty and claimed to be falsely implicated in this case. He further pleaded that the girls have went themselves with him and he has no intention to take them out of their legal guardianship for any illegal purposes. The trial Court after examining the witnesses found and held him guilty under Section 366a of the Indian penal Code and accordingly, sentenced him to serve rigorous imprisonment for three years. 3a. The present appeal has been preferred on the grounds that the learned lower court has committed mistake of fact and law. It is further asserted that non-examination of said Dilip Manjhi and the Investigating Officer has prejudiced the defence. According to this memo of appeal in absence of examination of the one victim and in the circumstances where they were recovered together, makes the entire story improbable. It is further asserted that non-examination of said Dilip Manjhi and the Investigating Officer has prejudiced the defence. According to this memo of appeal in absence of examination of the one victim and in the circumstances where they were recovered together, makes the entire story improbable. The memo of appeal further mentioned that the independent witnesses i. e. P. W. 4, P. W. 5 and P. W. 6 having been declared hostile and non-examination of the I. O. makes the story of the prosecution doubtful. As such, the order of conviction is liable to be set aside. ( 4 ) THE learned counsel for the appellant contended these points before this Court and submitted that the appellant has remained in custody for nearly six months. Learned counsel for the appellant drew my attention towards the statement of informant Dhanesh prasad Jaiswal that the girls were reported to be missing in the afternoon of 3rd April, 1991, when they did not return till night. Next day, he went in their search where Dilip manjhi of village Manjhidih informed him that he has seen the appellant along with the girls last evening. He further found that the appellant was confined in village Sataki where two girls had also been kept safely by the villagers. Accordingly, the appellant along with the girls were brought to sonahatu P. S. where his statement has been recorded. According to the lear. ned counsel that the said girl Mona Kumari was again kidnapped as admitted by the informant vide paragraph Nos. 9 and 10 of his statement. Therefore, the story of abduction by the appellant should not have been relied upon. He further drew my attention towards the admissionof P. W. 2, mother of the girls, that the witnesses does not know the present address of his daughter Mona Kumari where she was married or resided vide Paragraph-7 of her examination. Similarly my attention was drawn towards the statement of p. W. 3 Guriya Kumari, the second girl who is alleged to have been kidnapped with Mona kumari. According to this witness, the appellant has given them some Prasad, after which they went along with him for the whole day and when they were kept in village sataki by the villagers, informed their father. According to this witness, the appellant has given them some Prasad, after which they went along with him for the whole day and when they were kept in village sataki by the villagers, informed their father. This witness though aged about 14 years on the date of the examination on 30-3-1999 might be only six years of age on the date of occurrence. She has denied that both of them have gone out of their house on their free will. Learned counsel further submitted that the independent witnesses of village have not supported the prosecution version and claimed ignorance. Therefore, there is no independent witness to have seen the alleged occurrence. ( 5 ) MY attention was further drawn towards the statement of defence witness that the daughters of the informant were of loose character and living with a person of her choice. It was contended strenuously that in such circumstances where there is no eye witness of the occurrence, mere alleged recovery of the alleged girls from village Sataki where the accused is said to have been arrested by the villagers cannot be made a ground for his conviction. Learned counsel further criticized the impugned judgment for relying upon the statement of the interested witnesses. According to the learned counsel, absence of Dilip Manjhi who is said to have been informed to the informant regarding the appellant going with the girls and later on, recovery of the girls from village sataki in absence of any witness to support that fact, the appellant deserves to be acquitted. ( 6 ) LEARNED A. P. P. for the State opposed the contention on the grounds that the recovery of the girls was proved from village sataki with the arrest of the appellant by villagers. It was further contended that the girls having immediately been examined by the Police and the villagers have supported the prosecution version, the conviction may be confirmed. ( 7 ) ON careful consideration of the evidence available on the record and the arguments advanced on behalf of the appellant, i find that the prosecution has examined only three witnesses in support of their case. P. W. 3, is one of the victims, who is said to be aged about six years when the alleged occurrence took place. P. W. 1 and P. W. 2 are the parents of the victims. P. W. 3, is one of the victims, who is said to be aged about six years when the alleged occurrence took place. P. W. 1 and P. W. 2 are the parents of the victims. Their case is that the girls went missing in the afternoon of 3rd April, 1991 and they were recovered in the afternoon of 5th April, 1991 when they got information from Dilip Manjhi in village sataki. Said Dilip Manjhi has not been examined neither the villagers of village Sataki as P. W. 3, P. W. 4 and P. W. 5 have supported the prosecution story. According to these three witnesses, they had no information about any occurrence neither they have been examined by the Police. The absence of Dilip manjhi has not been explained properly. The investigating Officer of this case has also not been examined, so the attention of the investigating Officer could not be drawn re sulting in prejudice the prosecution case. As such, the present prosecution story squarely depend/rests upon the evidence of these three witnesses. The recovery of the girls from possession of appellant in absence of any witness of village Sataki becomes doubtful. The statement of P. W. 1 and P. W. 2, the parents of Mona Kumari, also creates a reasonable doubt of their conduct when they cannot say where their daughters were residing at the moment when they were examined in the Court. It appears that their conduct was to conceal something from trial court. The learned lower Court has relied upon the statement of P. W. 3 made before the Judicial Magistrate under Section 164 of the Code of Criminal Procedure. However, i do not find that the said statement under section 164 of the Code of Criminal Procedure has been brought on record by examining the judicial Magistrate who recorded her statement. The learned lower Court has further mentioned vide Para-12 that in the circumstances where the appellant was found and arrested by villagers of village sataki, the prosecution has been able to prove that the minor girls were taken out of their legal guardianship and accordingly held him guilty. However, I find that it is difficult to agree with the view of learned lower Court in the facts where no villagers of village Sataki as well as non-examination of Dilip Manjhi creates a reasonable doubt in the prosecution story. However, I find that it is difficult to agree with the view of learned lower Court in the facts where no villagers of village Sataki as well as non-examination of Dilip Manjhi creates a reasonable doubt in the prosecution story. Presence of the appellant with the girls at village Sataki and their arrest by the Police itself becomes doubtful in absence of any such witness supporting it and the Investigating Officer. The trial Court has, therefore, relied upon some circumstances, which is not on record. ( 8 ) IN the facts and circumstances discussed above, wherein the prosecution has failed to examine the material witnesses, conviction could not be affirmed on circumstances alleged. I, therefore, find and held that the order of conviction passed by the learned lower Court against the appellant cannot be affirmed. Accordingly, his conviction deserves to be set aside. ( 9 ) IN the result, I find and held that the present appeal has got merit and be allowed. The judgment of the trial Court is hereby set aside. The appellant is,discharged from the liability of his bail bonds. Appeal allowed. --- *** --- .