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2007 DIGILAW 276 (JHR)

Kamal Singh v. State of Jharkhand

2007-04-09

D.P.SINGH

body2007
JUDGMENT By Court.-Sole appellant Kamal Singh stands convicted for the offence punishable under Section 364/34 of the Indian Penal code and sentenced to serve rigorous imprisonment for seven years, by the Additional Sessions Judge, Fast Track Court No.2, East Singhbhum, Jamshedpur in Sessions Trial No. 74 of 1997. 2. Brief facts leading to this appeal are that informant Shakuntala Mahto was getting paddy seeds uprooted in the morning of 29.7.1996 when Lakhi Mahto and Sheo Shankar Mahto, known criminals of the area, arrived there and took her away forcibly. The informant was threatened to be killed by both the named accused, dragged towards forest and in spite of her raising alarms, no one came to her rescue. Thereafter the informant was subjected to rape by both of them in the forest and lastly brought to the house of the appellant situated in Mauza-Tunguru, Police Station-Patamada. According to informant, the appellant was asked by both of them to keep the lady who was only eye witness of the murder of her husband committed by them to be killed later on. She further asserted that the appellant thereafter brought chicken for both of them and fed them. In the meantime, police alongwith villagers arrived at the house of the appellant at about 5.00 P.M. Thereafter both accused persons fled away leaving her in the house of the appellant. The appellant was accordingly arrested and brought to Police Station. The informant asserted that Lakhi Mahto and Sheo Shankar Mahto have taken her in the house of the appellant because the police has conduced raid upon their house in connection with murder of her husband and the appellant has helped them by confining her inside his house. 3. Mango police registered Mango (M.G.M.) Police Station Case No. 167 of 1996 under Sections 364134 of the Indian Penal Code against the three named accused persons. The police investigated the case and finally submitted charge-sheet against the appellant alongwith Sheo Shankar Mahto showing Lakhi Mahto absconder. Their case was committed to the Court of Sessions where they were charged under Sections 364, 376 and 216 of the Indian Penal Code. However, the learned trial court after examining the witnesses found and held the appellant alongwith Shea Shankar Mahto guilty under Sections 364/34 of the Indian Penal Code and sentenced them to serve rigorous imprisonment for seven years. However, the learned trial court after examining the witnesses found and held the appellant alongwith Shea Shankar Mahto guilty under Sections 364/34 of the Indian Penal Code and sentenced them to serve rigorous imprisonment for seven years. It has further found and held guilty accused Sheo Shankar Mahto under section 376 of the Indian Penal Code and sentenced him to serve rigorous imprisonment of seven years on both counts separately. 4. The present appeal has been preferred only by the appellant as Sheo Shankar Mahto has remained in custody throughout. The main points raised in this memo of appeal are that the learned trial court has committed mistake by holding the appellant guilty under Section 364/34 of the Indian Penal Code. It is asserted that kidnapping of the informant was done by Sheo Shankar Mahto and Lakhi Mahto and the appellant has not played any part in that commission of kidnapping. It is also asserted that when the informant was recovered from the house of the appellant, she was found sitting at the verandah. Therefore, the question of confinement does not arise. According to Mr. A.K. Kashyap, learned counsel appearing on behalf of the appellant, the witnesses have not supported the prosecution case and even the informant has not alleged anything against the appellant in this connection. Therefore, the conviction of the appellant under Sections 364/34 of the Indian Penal Code is not maintainable and deserves to be set aside. 5. Learned A.P.P. for the State opposed these contentions that submits that when the informant was recovered from the house of the appellant, the confinement of the informant is proved. 6. I have gone through the lower court records in connection with submissions made above. It is undisputed facts on record that in the evening of 29.1.1996, police arrived at the house of the appellant from where Shakuntala Mahto, wife of late Khagan Mahto was recovered even her fardbeyan was made before tile police in the house of other appellant at 5.30 P.M. This fact has been supported by all witnesses. P.W.1 has asserted that two persons abducted the informant from the fields and villagers went in search of the informant to recover her in the house of the appellant at village Tunguru. P.W 2 Amulya Mahto has also supported this fact. P.W.1 has asserted that two persons abducted the informant from the fields and villagers went in search of the informant to recover her in the house of the appellant at village Tunguru. P.W 2 Amulya Mahto has also supported this fact. P.W 3 the victim herself admitted that she was brought to the house of this appellant and confined therein wherefrom she was recovered by police and witnesses. She has further asserted that fifteen days ago her husband was killed by Sheo Shankar Mahto and Lakhi Mahto alongwith Subash Mahto. During cross-examination, this witness has been suggested that she was of loose character and remained in the house of the appellant on her own. However, during cross-examination, defence has not disputed this fact that she was recovered from the house of this appellant. 7. P.W.4, son of the informant, was suggested that P.W.3 was of loose character. P.W.5, P.W.6, P.W.7, P.W.8, P.W.9, and P.W.10 have been declared hostile by the prosecution. However, P.W.11, the investigating officer of this case, has asserted that when he got information that a lady has been abducted, he went in search of her and arrived at village Tunguru to recover the lady from the house of the appellant. According to him, the informant was kept confined in the house of the appellant by Sheo Shankar Mahto and Lakhi Mahto. P.W.12, is the doctor, but the appellant is not alleged to have committed rape on the informant. 8. The evidence available on records also do not show that appellant Kamal Singh was a party in commission of the offence under Section 364 of the Indian Penal Code as the victim was dragged from the fields by co-convict Sheo Shankar Mahto as well as non-tried accused Lakhi Mahto in the early morning of 29.7.1996. As such, the prosecution has not been able to bring on record that in actual commission of kidnapping, this appellant has taken part. I have gone through the impugned judgment by which this appellant has been convicted for offence under Section 364/34 of the Indian Penal Code on the grounds that the victim was recovered from the house of the appellant vide paragraphs-22 and 23. The reasons enumerated by the learned court below appears to be not proper merely because Shakuntala Mahto was confined in his house by the police. The reasons enumerated by the learned court below appears to be not proper merely because Shakuntala Mahto was confined in his house by the police. The victim herself has stated caotegorically that both the accused persons have brought her in the house where, they have confined her. As such, I find and hold that the conviction of appellant under Section 364/34 of the Indian Penal Code cannot be sustained. Accordingly, the order of conviction of appellant for offence under Section 364/34 of the Indian Penal Code is hereby set aside. 9. However, it has been proved beyond doubts that Shakuntala Mahto was recovered from his house by the police in the evening of 29.7.1996. It has also come on record that the appellant knew fully that co-convict Sheo Shankar Mahto and Lakhi Mahto have brought the lady after kidnapping her for illegal purpose. The appellant therefore, is found to have committed an offence under section 342 of the Indian Penal Code confining Shakuntala Mahto in his house, an offence for which he must suffer. The materials on record do not show that the appellant has got criminal antecedent. In the facts and circumstances stated above, I find that the ends of justice would be served properly if the appellant is sentenced to serve rigorous imprisonment for one year. Accordingly, this appeal is dismissed with modification of conviction and sentence. The bail bonds of the appellant are cancelled and he is directed to surrender before the court below to surrender (sic) the sentence within four weeks, failing which the trial court shall take all coercive steps for his arrest.