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2007 DIGILAW 933 (JHR)

Padma Lochan Das v. State of Jharkhand

2007-12-14

D.G.R.PATNAIK

body2007
JUDGMENT D.G.R. Patnaik, J.-Challenge in this appeal by the appellants is made against the judgment of conviction dated 6.5.2000, whereby appellants were convicted by the 'Trial Court for the offence under Section 366A of the IPC and sentenced to undergo R.1.for five years. The appellant No. 2 Manoj Das @ Manoj Kumar Das has been convicted also for the offence under Section 376 of the IPC and sentenced to seven years imprisonment. 2. Case against the appellants was initiated on the basis of the FIR lodged by the informant Gulli Ram Mahato (PW7) alleging therein that on 21.2.1998 at about 2.00 PM his daughter Savita Kumari had gone to the house of her maternal uncle Santosh Mahato situated within Adityapur Police Station. The appellants visited the house of the girl's maternal uncle and on false representation that her father who had suffered road accident, had sent them to fetch her. The appellants induced the girl to leave her maternal uncle's house and to accompany them. The girl was later recovered and on the basis of revelations made by her, the further case of the prosecution is that instead of taking her to her father's house situated at village Dindali, the appellants took her to Telco on a motorcycle where she was confined in a room overnight and on the next morning, they alongwith the girl boarded a bus to Durgapur where they kept the girl for about a month and during this period, the appellant NO.2 Manoj Das had sexually abused her. He later brought the girl to Jadugora where after observing a formal ceremony of marriage with the girl. the appellant no.2 Manoj Das took her to his own house and continued to exploit her sexually. On the basis of the above information conveyed to him by his brother-in-law namely the maternal uncle of the girl the informant lodged the FIR at the police station on 22.2.1993 3. While denying the charges and pleading not guilty, the appellants in their defence, had contended that as a matter of fact, the girl was in love with Manoj Das (Appellant No.2) and she had voluntarily accompanied him and had allowed herself to be sexually exploited by him with whom she had solemnized her marriage. 4. At the trial. the prosecution had examined altogether nine witnesses including the prosecutrix, the doctor and the informant. 4. At the trial. the prosecution had examined altogether nine witnesses including the prosecutrix, the doctor and the informant. The investigating officer of the case has however not been examined. 5. Placing reliance upon the testimony of the prosecutrix and on the observation that on the date of occurrence, the victim girl was less than 18 years of age and believing the prosecution's case that the appellants had induced the girl to leave her maternal uncle's house on false representation with sole intention to subject her to alleged sexual intercourse with the appellant no. 2 Manoj Das, the Trial Court convicted all the three appellants for the offence under Section 366A of the IPC, but on the basis of the-same evidence, the Trial Court convicted the appellant no.3 Manoj Das also for the offence under Section 376 of the IPC. 6. Appellants have assailed the impugned judgment of conviction and sentence primarily on the ground that the Trial Court has committed grave error in failing to appreciate the evidences on record in proper perspective. Shri Kaushik Sarkhel, learned Counsel appearing for the appellants. while elaborating the grounds advanced by the appellants, submits that even from the evidences of the prosecutrix, it would be evident that the appellants and the prosecutrix were known to each other since long and the appellants were on visiting terms to the house of the prosecutrix and were known to her father and also to her maternal uncle from before and the girl was in love with the appellant no. 2 Manoj Das and she had voluntarily eloped with him from the house of her maternal uncle and accompanied him to Durgapur, Jadugora and other places and had voluntarily solemnized marriage with him accepting herself to be the lawfully wedded wife of the appellant no. 2 Manoj Das and she had voluntarily allowed Manoj Das the indulgence of sexual relationship with her. Learned Counsel explains that the fact that the girl had voluntarily accompanied her, would be evident from the own testimony of the prosecutrix where she admits that she did not raise any hue and cry nor offered any resistance, nor seek for any help even during her journey from Telco to Durgapur and from Durgapur to the temple at Jadugora and back to Durgapur, in course of her long association for about three months in the company of the appellant no. 2 Manoj Das. 2 Manoj Das. Learned Counsel explains further that the contention of the prosecutrix in her deposition that the appellants had threatened her with dire consequences by pointing dagger at her, is a definite improvement on her earlier testimony recorded' under Section 164 of the Cr. PC. Referring to the statements of the girl recorded both under Section 164 of the Cr. PC and at the trial, learned Counsel explains that the girl has categorically admitted that she was in love with the appellant no. 2 Manoj Das and still wants to live with him as she believes herself to be his lawfully wedded wife. Learned Counsel adds further that non-examination of the investigating officer has caused serious preju-dice to the appellants in their defence. Learned Counsel argues further that the age of the girl, as per the prosecution's case, was 17 years on the alleged date of occurrence, whereas in her deposition before the court below, the girl admits herself to be of 17 years of age and in any case, the girl had attained the age of majority which is reflected from her voluntary acts of eloping with the appellant no.2 Manoj Das, and consenting to the sexual indulgence with him and, therefore, none of the offences either under Section 366A or 376 of the IPC is made out against the appellants. 7. Controverting and refuting the entire grounds advanced by the appellants, counsel for the State argues that the girl's age, according to the medical evidence, was certainly below 18 years and on the basis of the evidences brought on record, it is always borne out that the appellants had induced the girl on false representation to leave her maternal uncle's house and had taken her alongwith them, where after she was subjected to sexual assault by one of the appellants and this clearly makes out the offence under Sections 366A and 376 of the IPC. Learned counsel adds further that from the testimony of the prosecutrix, it would transpire that she was sexually assaulted and exploited by the appellant no. 2 Manoj Das against her will and as a consequence-thereof. the girl had conceived and on the basis of the medical examination, which was conducted on 13.5.2000, the doctor had found the girl carrying pregnancy of 12 weeks. 8. 2 Manoj Das against her will and as a consequence-thereof. the girl had conceived and on the basis of the medical examination, which was conducted on 13.5.2000, the doctor had found the girl carrying pregnancy of 12 weeks. 8. PWS 1, 3 and 4 have confirmed the testimony of the prosecutrix (PW6) that in the afternoon of 21.2.1993, the appellants had visited the house of Santosh Mahato (PW2), maternal uncle of the prosecutrix and had represented before them that the father of the prosecutrix had suffered a road accident and they have been sent to fetch her. Upon such represent3.tions, the prosecutrix had left the house of her maternal uncle and members of the family of the maternal uncle had allowed her to leave their house. From the evidence of the informant, it transpires that the representation made by the appellants was not true since the father of the girl, namely PW7, did not suffer any accident whatsoever. The evidence of the prosecutrix read with the evidence of PW7 also confirms that after leaving the house of her maternal uncle, the girl did not reach her father's house and that, the appellants who had taken her alongwith them, did not reach her to her father's house. Rather, she was taken by the appellant no.1Padma Lochan Das on a motorcycle followed by the appellant no.2 Manoj Das and the appellant no. 3 Mali Ram Mahato to Telco where the girl spent a night in the company of the appellant no.2 Manoj Das. On the following day, both the appellants Padma Lochan Das and Manoj Das accompanied by the girl went to Durgapur and the girl was kept in a house where the appellant Manoj Das also stayed with her. 9. There appears some discrepancy in the testimony of the witnesses regarding the persons who had visited the house of the maternal uncle of the prosecutrix. In her statement recorded under Section 164 of the Cr. PC while tile prosecutrix claims that all the three appellants had visited her maternal uncle's house. but in her deposition, she maintains that it was Padma Lochan Das who had, visited the house of her maternal uncle and later, the remaining two appellants had followed her when she was being taken by appellant no.1Padma Lochan Das on his motorcycle to Telco. but in her deposition, she maintains that it was Padma Lochan Das who had, visited the house of her maternal uncle and later, the remaining two appellants had followed her when she was being taken by appellant no.1Padma Lochan Das on his motorcycle to Telco. The portion of the testimony of the prosecutrix wherein she narrates as to how she was taken by the appellants from her maternal uncle's house to Telco and from there to Durgapur and to Jadugora and back to Durgapur, is interesting and has significance. Though. claim of the prosecutrix is that the appellants took her alongwith them and that she had accompanied them against her will, but she also admits that throughout the journey to several places and during the entire period of about three months from the date of her departure from her maternal uncle's house, though she had opportunity to protest and free herself, but she never protested nor raised alarm, nor complained to the members living in the house at Durgapur or to the villagers who used to visit the pond at Durgapur where the girl used to go for her bath and for attending nature's call. The attempt made by her in her deposition at the trial to create an impression that she was under threats and duress exerted by the appellants, is not reliable, nor does it inspire confidence since she does not make any such allegation in her earlier statements recorded under Section 164 of the Cr. PC. Interestingly, in both her statements, she insists that she wants to live with Manoj Das whom she had married at the temple at Jadugora. On careful scrutiny of the testimony of the prosecutrix, and her conduct, the logical inference which can reasonably be drawn is that she had voluntarily accompanied the appellants from the house of her maternal uncle and had gone along with the appellant no. 2 Manoj Das to Durgapur out of her own free will and consent since admittedly, she was in love with him. She has voluntarily allowed herself to be married to the appellant no.2 Manoj Das and accepting him to be her husband, she had allowed herself to be sexually exploited by the appellant no. 2 Manoj Das. 2 Manoj Das to Durgapur out of her own free will and consent since admittedly, she was in love with him. She has voluntarily allowed herself to be married to the appellant no.2 Manoj Das and accepting him to be her husband, she had allowed herself to be sexually exploited by the appellant no. 2 Manoj Das. The contention of the learned Counsel for the appellants that the facts and circumstances of the case when seen in the background of the conduct of the prosecutrix, would suggest that she may have invited the appellants to the house of her maternal uncle to take her from the house on false representations and with the obvious intention that on hearing such representations, the members of the family of the girl's maternal uncle would allow her to leave their house, is not baseless. 10. As per the opinion of the doctor read with the report of medical examination of the girl, the age of the girl was 17 and 1/2 years on the date of her examination, suggesting thereby that on the alleged date of occurrence, she was just above 17 years of age. This assessment of the doctor finds confirmation from the girl's own admission of her age to be 20 years on the date of her deposition two years later. Giving margin of two years of age on the plus side, the age of the girl on the alleged date of occurrence can. be taken to be above 18 years. Apparently, the girl had attained the age of majority and was fully competent to understand the consequence of her own acts. The facts and circumstances as appearing from the evidence including the testimony of the prosecutrix amply suggest that she had voluntarily accompanied the appellants to live and share conjugal relation with the appellant no: 2 Manoj Das and after accepting him to be her husband, she had consented to the act of sexual indulgence with Manoj Das. In the light of the above facts and circumstances, it cannot be maintained that the appellants had abducted the prosecutrix against her will or on false inducement and neither can it be claimed. that she was subjected to sexual abuse against her consent. 11. In the light of the above facts and circumstances, it cannot be maintained that the appellants had abducted the prosecutrix against her will or on false inducement and neither can it be claimed. that she was subjected to sexual abuse against her consent. 11. The Trial Court has apparently ignored the above discussed vital facts as appearing in the evidence of the prosecutrix and other witnesses which go in favour of the appellants 'and in fact, supports the case of the appellants in their defence. The finding of guilt of the appellants by the Trial Court for the aforesaid offences, is apparently, not in consonance with the reasonable inference drawn from the evidences on record and cannot therefore be sustained. 12. For the reasons discussed above, I find merit in this appeal. Accordingly, this appeal is allowed. The impugned judgment of conviction and sentence, as im- posed by the Trial Court against the appellants, is set aside. Appellants are acquitted from the charges for the offence under Section 366A of the IPC. Since the appellants are on bail, they are absolved from the liability of their respective bail bonds.