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2010 DIGILAW 129 (JHR)

Jai Kishore Sharma @ Jai v. State of Jharkhand

2010-01-27

PRADEEP KUMAR

body2010
JUDGMENT By Court.-Heard the learned counsel for the appellants and the learned counsel for the State. 2. The instant appeal is directed against the judgment of conviction and order of sentence dated 7.2.2001 passed in S.T. No. 158 of 1997 by Shri Kamala Prasad, 1st Additional Sessions Judge, Koderma, by which judgment he found the appellant guilty under Section 363 of the I.P.C. and sentenced him to undergo R.I for 3 years for the said offences. 3. It is submitted by learned counsel for the appellant that victim girl was not examined in this case and there was no direct evidence to prove that the appellant kidnapped the victim girl, in spite of that the learned trial Court found him guilty under Section 363 of the Indian Penal Code, which is bad in law and fit to be set aside. He has further argued that moreover the appellant has remained in custody for more than two and half year i.e. from January, 1996 to August 1998, which is sufficient punishment. As to whether, the other allegation of kidnapping for immaterial and illegal purposes, were not proved and also not proved the charges of rape against the appellant. 4. On the other hand, learned counsel for the State has opposed the prayer and submitted that although other charges were not proved, but prosecution has proved beyond reasonable doubts that the victim girl was kidnapped by the petitioner alongwith co-accused Santosh Sharma and as such, he has rightly been found guilty under Section 363 of the Indian Penal Code. 5. After hearing both the parties and going through the records, it appears that the prosecution case was started on the basis of fardbeyan given by the P.W. 4, Chandra Sekhar Pathak (informant), stating therein that on 12.1.1996 his daughter, Chhabi Rani had gone to her school, but she had not come back to the school till . evening. Then, he went to the C.D. School, but no one met him there. Then, he went to the house of her friend Pinky Kumari. Pinky Kumari told that Chhabi Rani had gone to take meal at 1.30 P.M. After that she did not come back to the school. She was searched. Umesh Sharma, Mahabir Sharma, Anil Malakar, Rajesh Poddar met him. Rajesh Poddar told that Santosh Sharma and Jay Kishore Sharma were seen at 2.30 P.M. with Chhabi Rani at Koderma. Pinky Kumari told that Chhabi Rani had gone to take meal at 1.30 P.M. After that she did not come back to the school. She was searched. Umesh Sharma, Mahabir Sharma, Anil Malakar, Rajesh Poddar met him. Rajesh Poddar told that Santosh Sharma and Jay Kishore Sharma were seen at 2.30 P.M. with Chhabi Rani at Koderma. They searched for her, then they met with Santosh Sharma, who told that this accused Jay Kishore Sharma had taken Chhabi Rani to Ranchi. Then, the police was informed and Santosh Sharma was handed over to the police. 6. On the basis of the said fardbeyan, police registered a case under Sections 366, 366A and 376 of the Indian Penal Code against Santosh Sharma and Jay Kishore Sharma and after investigation, police submitted charge-sheet in the case against both under Sections 366, 366A and 376 of the Indian Penal Code. Since, the case was exclusively triable by the Court of Sessions, learned Magistrate committed the case to the Court of Sessions and subsequently, the case was tried by learned 1st Additional Sessions Judge, Koderma, who found the appellant guilty under Section 363 of the Indian Penal Code and sentenced him as aforesaid. 7. It appears that in the course of the trial, the prosecution has examined as many as four witnesses. P.W. 1, Baleshwar Ram, Investigating Officer of the case. P.W. 2, Mahabir Sharma. P.W. 3, Shambhu Kumar. P.W. 4, Chandra Sekhar Pathak, the informant of the case. P.W. 1, Baleshwar Ram, Investigating Officer of the case, has proved written report which is marked as Ext.-1. He has deposed that he started investigation, subsequently, the victim girl was recovered from the house of Akhilesh Tiwary alongwith this accused Jay Kishore Sharma and they were arrested. He also recorded the statement of victim girl under Section 164 of the Cr.P.C. Thereafter, he submitted charge-sheet of the case. P.W. 2, Mahabir Sharma, is formal witness. He stated nothing about the case. P.W. 3, Shambhu Kumar, only stated that he was informed by one Rajesh Poddar that Chhabi Rani was kidnapped by Santosh Sharma and Jay Kishore Sharma, but he had not seen the accused taking away the victim girl. P.W. 4, Chandra Sekhar Pathak (informant), supported the prosecution case and stated that on 12.1.1996 his daughter, Chhabi Rani had gone to her school, but she did not come back to the school till evening. P.W. 4, Chandra Sekhar Pathak (informant), supported the prosecution case and stated that on 12.1.1996 his daughter, Chhabi Rani had gone to her school, but she did not come back to the school till evening. Then, he went to the C.D. School, but no one met him there. Then, he went to the house of her friend Pinky Kumari. Pinky Kumari told that Chhabi Rani had gone to take meal at 1.30 P.M. After that she did not come back to the school. She was searched. Umesh Sharma, Mahabir Sharma,• Anil Malakar, Rajesh Poddar met him. Rajesh Poddar told that Santosh Sharma and Jay Kishore Sharma were seen at 2.30 P.M. with Chhabi Rani at Koderma. During search they met Santosh Sharma, who told that this accused Jay Kishore Sharma had taken Chhabi Rani to Ranchi. Then, the police was informed and Santosh Sharma was handed over to the police. Ext.-1/1 was proved by this witness. In his cross-examination he has deposed that Chhabi Rani was married after the occurrence and she is in her Sasural. He further admitted that he and Jay Kishore Sharma's family lived in the same house at Telaiya. He had given a written note to the police, which was given by Santosh Sharma. After that Chhabi Rani was recovered from the house of the brother-in-law of this accused and at that time this accused, Jay Kishore Sharma was also present there. Thereafter, the victim girl and this accused were arrested by the police. 8. Thus, it appears that this witness, Rajesh Poddar, who told the informant that he had seen Santosh Sharma and Jay Kishore Sharma with the victim girl (Chhabi Rani) at 2.30 P.M. in Koderma, was not examined. Further, from the evidence of the Investigating Officer P.W. 1 and the informant P.W. 4, it is not clear that the victim girl was kidnapped by Jay Kishore Sharma, since, she was recovered from the brother-in- law's house of this accused in his presence. 9. In that view of the matter, the conviction under Section 363 of the Indian Penal Code does not require any interference by this Court and the same is confirmed. However, it seems that the appellant had cordial relation with his family and his daughter. 9. In that view of the matter, the conviction under Section 363 of the Indian Penal Code does not require any interference by this Court and the same is confirmed. However, it seems that the appellant had cordial relation with his family and his daughter. In that view of the matter, his sentence of three years is altered to the period of two and half years, which has already been undergone by him during trial and appeal. 10. With the aforesaid alteration in the sentence, this appeal is dismissed. Since, the appellant is on bail, he is released from the bondage of bail.