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2006 DIGILAW 565 (JHR)

SWAYAMBAR SINGH MUNDA v. STATE OF JHARKHAND

2006-05-08

D.P.SINGH

body2006
Judgment : ( 1 ) THIS appeal is directed against the judgment of conviction and sentence dated 13/12/2000 passed in Sessions trial No. 86 of 1998, whereby and where-under the learned 2nd Additional Sessions judge, Seraikella held all the appellants guilty under Section 366 (A) IPC and convicted and sentenced them to undergo RI for seven years. ( 2 ) THE brief facts leading to this appeal are that in the evening of 6th October, 1997 lakhimani Kumari, daughter of the informant, was getting the water for her buffaloes from the canal situated in Mauja kutum, P. S. Ichagarh, district Singhbhum west, when appellant Swayambar Singh munda forcibly took her away to his house situated in the same village. According to the informant, the girl tried to raise alarm but she was gagged. The incident was seen by a small girl Bati, who ran to the informant and gave the details, after which the informant along with his wife, PW 5, went to the house of the appellants and tried to rescue their daughter but appellant Kalinath singh Munda pushed them aside and asked the appellant Swayambar Singh Munda to bring the gun. It is further stated that they confined the victim inside the house, which was seen by the villagers but none came to their help. It is further stated that in the morning PWs 2 and 3 Ranjit Singh Munda and Bharat Singh Munda informed the informant that while they were returning from the fields in the night at about 10-11 P. M. , they saw all the appellants carrying the daughter of the informant away. The informant further stated that the incident took place because six months earlier his son has taken away the sister of appellant swayambar Singh Munda and got married. Therefore, the present case. ( 3 ) THIS matter was recorded by Ichagarh police station at about 5. 30 P. M. on 7th October, 1997 and a case under Section 366a IPC was registered against 13 persons. The police investigated the case and as the girl was recovered after about 40 days, the police finally submitted charge sheet against all the appellants. The case was committed for trial by the court of sessions, where all of them were charged, to which they pleaded not guilty. The police investigated the case and as the girl was recovered after about 40 days, the police finally submitted charge sheet against all the appellants. The case was committed for trial by the court of sessions, where all of them were charged, to which they pleaded not guilty. The trial court after examining the witnesses, has found and held the appellants guilty for the offences and sentenced them to serve RI for seven years. ( 4 ) THE present appeal has been preferred on the ground that the learned lower court has committed a mistake of fact on record and law. According to this memo of appeal, the entire prosecution story is not believable. It is further submitted that the charge itself was framed for vague offences and three of the appellants were aged above 60 years. According to this memo of appeal, appellant No. 6, Chaitan Singh Munda has not been attributed for any participation in the alleged offence and further more the appellant No. 8, bhdhu Napit and appellant No. 12, radhakista Singh Minda were aged above 60 years. The memo of appeal further mentions that the conviction was made on the basis of interested evidence. It is further asserted that the victim was not carried away and she had gone herself with appellant Swayambar Singh munda. It is further mentioned that the ingredients of Section 366a IPC have not been made out from the evidence, as there was no allegation that Lakhimani was subjected to any illicit intercourse or forced to such acts by the appellants. Therefore, the learned lower court has committed a mistake of fact and law and the appellants deserve to be acquitted. ( 5 ) THE learned APR opposed this contention on the ground that there is sufficient evidence that the accused persons forcibly took away the minor girl out of custody of the informant with purpose of illicit sexual intercourse. ( 6 ) I have gone through the evidence available in the lower court records and the points stressed by the learned counsel for the appellants. The prosecution version is that in the evening of 6th October, 1997 lakhimani was forcibly taken away by appellant Swayambar Singh Munda. The only eye witness of the occurrence is PW 1, Bati Kumari, who has been declared hostile because she asserted that she does not know anything about the occurrence. The prosecution version is that in the evening of 6th October, 1997 lakhimani was forcibly taken away by appellant Swayambar Singh Munda. The only eye witness of the occurrence is PW 1, Bati Kumari, who has been declared hostile because she asserted that she does not know anything about the occurrence. The evidence of PWs 2 and 3 Ranjit Singh Munda and bhagat Singh Munda mentions that they saw all the appellants taking Lakhimani out of the village at about 10-11 P. M. in the night. In this context the statement of PW 8, Bhoju pater is that when he got the information next day in the morning, he approached the police. Out of these two witnesses, PW 3 has admitted that the informant was his uncle but he did protest while Lakhimani was being carried away by the appellants. It is further admitted, vide para 3, that he did not inform the villagers and the informant in the night itself. According to him, the night was dark and he saw the appellants. While PW 2, his friend has supported PW 3. The conduct of these two witnesses does not appear probable when they did not inform the informant regarding the incident in the night itself. ( 7 ) IN this context the statements of PW5, gauri Pator, PW 7, Kamla Mundain and pw 8, Bhoju Pator, who have got the information in the evening itself, appear to be contradicted. PW 5 Gauri has asserted that when she went along with her husband to rescue Lakhimani she was pushed aside and thereafter they came back to their house and preferred not to. inform the villagers or the choukidar as well as the police regarding the incident. These three witnesses have tried to conceal the fact that they knew that sister of Swayambar Singh was taken away by their son. According to PW 5, she went alone to the house of the appellants, while pw 8 asserted that he went with this witness to the house of appellants but appellants Swayambar did not allow Lakhimani to come with them. These witnesses also admitted that Runia was sister of Swayambar but they did not say whether Runia has married with their son Lakhicharan or not. PW 6, Kamla Mundain, sister of the victim, also denied any knowledge that her brother lakhicharan has forcibly married the sister of Swayambar Singh Munda. These witnesses also admitted that Runia was sister of Swayambar but they did not say whether Runia has married with their son Lakhicharan or not. PW 6, Kamla Mundain, sister of the victim, also denied any knowledge that her brother lakhicharan has forcibly married the sister of Swayambar Singh Munda. ( 8 ) THE defence version is that Swayambar singh Munda has been implicated falsely in this case just because Shankar has forcibly taken away his sister. I find from the averments made in the fard beyan itself that story may be correct. The informant in his fard beyan before the police has asserted in last paragraph that Swayambar Singh munda was announcing to marry with the sister of Lakhicharan Patar. who has carried away his sister. So far the evidence of these three witnesses Is concerned regarding taking away Lakimani during the night, they are hearsay, as they got this Information from PWs 2 and 3. Those two witnesses have not been found reliable because of their conduct as already discussed by me in the forgoing paragraphs. ( 9 ) PW 6 has formally proved the signature on FIR as Ext. 1. I. O. in this case has not been examined. PW 9 is the doctor, who examined Lakhimanl on 28-11-1997. The doctor has found the victim about 17 years of age without any sign of rape etc. on her body, vide Ext. 2. The purpose for which the victim is said to have been abducted, has not been supported by the victim herself. ( 10 ) LAKHIMANL is PW 4, who supported that she was taken away forcibly by swayambar Singh Munda in the evening of 6th October, 1997. She has not alleged that she was subjected to any sexual exploitation. According to her version, she was kept in two places confined for 18 days each. Thereafter she met her father at Seralkella and was brought to her house. She further admitted, vide para 3, that when Swayambar singh Munda caught hold of her hand, she went without any protest in the house of the appellants. She further asserted, vide para 4, that her father came to the house of appellant swayambar Singh Munda and at that time no other appellants were present. She further admitted, vide para 3, that when Swayambar singh Munda caught hold of her hand, she went without any protest in the house of the appellants. She further asserted, vide para 4, that her father came to the house of appellant swayambar Singh Munda and at that time no other appellants were present. Though she denied that she has gone with the appellant Swayambar Singh Munda out of her own will, she has not stated clearly whether her brother has fled away with the sister of the appellants. The learned lower court has disbelieved the story of any sexual exploitation. ( 11 ) I have carefully considered this aspect in view of specific averments made by the counsel for the appellants that because of the fact that son of the informant was involved in kidnapping of the sister of the appellant Swayambar Singh Munda , this false case was lodged. The prosecution version that Lakhimani was forcibly abducted by appellant Swayambar Singh Munda and later on taken away to different places by other appellants seems improbable, in view of the fact that when Informant got the opportunity to lodge information with the police or the villagers that his daughter has been abducted, he preferred not to inform the villagers or the police regarding the incident rather he waited till next evening to inform the police. It is further found that the abduction if any committed by appellant swayambar Singh Munda, no other appellant has participated. It appears that appellant No. 6, Chaitan, appellant No. 8, budhu, appellant No. 10. Kalinath and appellant no. 12, Radhakrist are aged above 60 years. The statement of PWs 2 and 3 has been found not reliable, which involved the other appellants in the offence of abduction. ( 12 ) HAVING regard to the above mentioned facts and circumstances, 1 find and hold that the prosecution could not establish the involvement of the appellants in the alleged offences under Section 366a IPC beyond all reasonable doubts. ( 13 ) IN the result, this appeal deserves and is accordingly allowed. The impugned judgment and order of conviction dated 13/12/2000 is hereby set aside, The appellants on bail are discharged from the liability of their bail bonds. Appeal allowed, --- *** --- .