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2006 DIGILAW 690 (JHR)

Charan Bodra v. State of Jharkhand

2006-06-12

D.P.SINGH

body2006
JUDGMENT By Court.- The appellant has preferred this appeal against the judgment and order of conviction dated 17.8.2000 passed by 2nd Additional Sessions Judge, Seraikella in Sessions Trial No. 188 of 1990 whereby and whereunder the appellant has been convicted under section 363 of the Indian Penal Code and has been sentented to undergo rigorous imprisonment for five years. 2. Brief facts leading to his conviction are that in the afternoon of 18.8.1989, the daughter, of the informant Turam Munda, Sita Kumari was playing with other children before her house situated in mauza Silpigaha, tola Dhemka, Gora, Thana Kharsawan. It is, further stated that the appellant Charan Bodra carried away the minor girl aged about 7 years towards forest on which alarm was raised by the mother of the girl. Thereafter villagers alongwith informant went in search of the girl and found her naked at the fringe of the forest. It is further alleged that the appellant fled away seeing the villagers. The informant brought back his daughter who did not complain of any sexual exploitation except that she was made naked by the appellant. Next day the villagers caught hold of the appellant and brought to police station where statement of the informant was recorded. Kharsawan Police registered Kharsawan P.S. Case No. 41 of 1989 under section 363/366A of the Indian Penal Code and investigated the case and finally submitted the charge-sheet under sections 363 and 366A of the Indian Penal Code against the appellant. The appellant has pleaded not guilty and claimed false prosecution. 3. The trial court after examining the witnesses on behalf of the prosecution acquitted the appellant from the charges under section 366A of the Indian Penal Code but found and held him guilty under section 363 of the Indian Penal Code and sentenced him to serve R.I. for five years. 4. The present appeal has been preferred on the ground that the trial court has misconstrued the fact on record. It is also asserted that there was no eye-witness of the occurrence. According to the learned counsel for the appellant, the investigation was perfunctory and conviction was made without any valid evidence on record. According to learned counsel, no eye witness has asserted that the appellant has carried away the victim. It is also asserted that there was no eye-witness of the occurrence. According to the learned counsel for the appellant, the investigation was perfunctory and conviction was made without any valid evidence on record. According to learned counsel, no eye witness has asserted that the appellant has carried away the victim. It was also asserted that the appellant has remained in custody for nearly seven months during the trial and one year after the conviction, therefore the appellant may be acquitted of the charges. 5. learned APP opposed this contention on the ground that the appellant was seen carrying away the minor girl and appellant fled away from the place where the girl was found standing naked. 6. I have carefully gone through the submissions and the materials available on the records. In the present case prosecution has alleged that the appellant has taken away the minor girl aged about seven years while she was playing outside her house towards forest where her undergarment was untied but in the meantime villagers reached and appellant was seen fleeing away. The main defence is that there was no eye-witness of the occurrence and false implication may be possible because he has failed to pay the fine imposed upon him by the villagers. The prosecution has examined altogether seven witnesses in support of the prosecution case out of which P.W. 6 is the victim Sita Kumari aged about eleven years at the time of her examination by the court on 13.8.1993. She has specifically mentioned that while she was playing alongwith other children, Charan Bodra came and carried her away towards forest on the plea that he will carry her to different good places. She has further asserted that her pant was untied but in the meantime her father and villagers came seeing which the appellant fled away. The learned counsel for the appellant has criticized the statement that she has admitted in cross-examination that she has stated what her father tutored her. In this context my attention was drawn towards the statement of P.W. 7, I.O. where he said vide para 6 that the victim has narrated the incident in HO language which was translated by the informant P.W. 5. It is common that schedule tribes who are not literate cannot speak in Hindi. In this context my attention was drawn towards the statement of P.W. 7, I.O. where he said vide para 6 that the victim has narrated the incident in HO language which was translated by the informant P.W. 5. It is common that schedule tribes who are not literate cannot speak in Hindi. It is also not unnatural that the victim being aged about seven years only, her father, P.W. 5 has translated the information in Hindi to the police. I do not find any material on record to disbelieve the version of the informant and his daughter regarding the incident connecting the appellant with the case. 7. My views are supported by the statement of PWs.1. 2 and 4 neighbors of the informant, who heard hue and cry raised by P.W. 3 and rushed towards the forest to find Sita Kumari standing naked while the appellant was fleeing away. The suggestion that he was falsely implicated in this case stand contradicted by the fact that the prosecution version does not disclose anything except that he has untied the pant and committed no sexual offence. The forest as per the evidence of the witnesses is hardly situated at a distance of 250-300 yards from the house of the informant and not that much far away that her cries could not be heard by the villagers. Further more, the schedule tribes people of remote areas normally do not lie or implicate falsely in such cases. The learned trial court has considered all these circumstances in the impugned judgment and considering the facts acquitted the appellant of the charges under section 366A of the Indian Penal Code but the fact remains that the minor child was forcibly taken away from the custody of her parents. 8. In such view of the fact, I do not find any material on record to differ with the finding of the learned trial court that the appellant has committed offence under section 363 of the Indian Penal Code. At this stage, learned counsel for the appellant submitted that since the appellant has already remained in custody for more than one and half years, the sentences may be modified. The learned APP has no objection to this suggestion. Having considered the fact on record, I find that ends of justice would be sufficiently served if the sentence of the appellant is modified to the period already undergone. The learned APP has no objection to this suggestion. Having considered the fact on record, I find that ends of justice would be sufficiently served if the sentence of the appellant is modified to the period already undergone. Accordingly this appeal is dismissed with modification of sentence to the period already undergone by him.