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2010 DIGILAW 321 (JHR)

Pappu Rajak v. State of Jharkhand

2010-03-12

PRADEEP KUMAR

body2010
Order By Court.-The appeal is directed against the judgment of conviction dated 9.1.2002 and order of sentence dated 15.1.2002 passed by Sri Jagarnath Mishra, Additional 3essions Judge, Pakur in Sessions Trial No. 7 of 1996, by which judgment he found the appellant guilty under Section 376 of the Indian Penal Code and sentenced him to undergo R.I. for 7 years and also found him guilty under Section 366A of the Indian Penal Code and sentenced him to undergo R.I. for 5 years. However, both the sentences shall run concurrently. 2. It is submitted by the learned counsel for the appellant that it will appear from the prosecution case as also from the evidence of the prosecutrix, who was examined as P.W. 4 stated that she stayed at Behrampur (Bengal) with the appellant, Pappu Rajak for about four months and raised no 'Hullah' or no complaint to anybody and she even made an application for her marriage before the Registrar of Marriage, Behrampur (Bengal) and as such it is a case where she has consented as she lived with him as wife and husband, hence the conviction of the appellant is bad in law and fit to be set aside. . 3. On the other hand, learned counsel for the State has opposed the prayer and submitted that it will appear from the statement of the' witnesses as also the fact as stated by the informant and age assessed by the Court that on the date of occurrence the victim girl was a minor girl aged about 14-15 years and as such consent of a minor has got no value and the appellant under wrong influence abducted her and committed rape upon her and as such the accused-appellant has rightly been convicted and it requires no interference by this Court. 4. After hearing both the parties and going through the record it appears that the prosecution case was started on the basis of a written report given by the informant-Abhi Lal Burman stating therein that his daughter was a student of Rani Jyotiyarmay High School, Pakur in Class-VI 11th and the accused-appellant, Pappu Rajak, who works as a washerman used to visit his house regularly. On the date of occurrence i.e. on 9.5.95 in the morning, the accused-appellant, Pappu Rajak had come to collect clothes and at that time, his daughter was leaving for her school whereupon the accused-appellant, Pappu Rajak said that he will go with her to fetch her school and left with her, but his daughter did not return in the evening. Then, he inquired about his daughter and came to know that the accused-appellant, Pappu Rajak was also absconding from his house. Thereafter, he made search for his daughter in the neighbourhood, but could not trace out. Then, he lodged a written report to the police on 11.5.95. 5. On the basis of the said report police registered a case under Section 366A of the Indian Penal. Code and after investigation submitted charge-sheet under Section 366A of the Indian Penal Code and 376/34 of the Indian Penal Code against the accused-appellant, Pappu Rajak and his brother-in-law, Sadhna Rajak. 6. Since, the case was exclusively triable by a Court of Sessions and learned Chief Judicial Magistrate after taking cognizance committed the case to the Court of Sessions and subsequently the case was transferred to the Court of Additional Sessions Judge, Pakur, who tried the case and after trial acquitted the co-accused, Sadhna Rajak, but the learned Sessions Judge found the accused-appellant, Pappu Rajak guilty and convicted him as aforesaid. 7. It appears that in course of trial the prosecution has examined 6 witnesses. P.W. 1 ,Krishna Kumar Berman, P.W. 2, Ajit Kumar Jaiswal, P.W. 3, Abhilal Berman, P.W. 4, Tannu Berman, P.W. 5, Rajesh Pandey and P.W. 6, Raghu Nath MandaI. 8. P.W. 1, Krishna Kumar Berman, who is a cousin brother, stated that on the date of occurrence i.e. on 9.5.1995 his cousin sister, Tannu Berman had gone to school and when she did not return then his uncle started searching her at about 12 P.M. in the afternoon. He went to the house of his uncle and saw that they were weeping and uncle had gone in search of his cousin sister, Tannu Berman. They also stated that the accused-appellant, Pappu Rajak had came in the morning for taking clothes and he left with her when she was going to her school, but his daughter did not return in the evening then, they also went to the house of the accused-appellant, Pappu Rajak. They also stated that the accused-appellant, Pappu Rajak had came in the morning for taking clothes and he left with her when she was going to her school, but his daughter did not return in the evening then, they also went to the house of the accused-appellant, Pappu Rajak. Subsequently, they received a notice from Behrampur (Bengal) that the accused-appellant, Pappu Rajak and his daughter, Tannu Berman had applied for marriage. Then, they went to Behrampur (Bengal) and made an inquiry in the house of Sadhna Rajak-brother-in-Iaw of accused-appellant, Pappu Rajak. On inquiry, sister of accused-appellant said that she knows nothing about his daughter, Tannu Berman.On further inquiry in the B.T. College they came to' know that Sadhna Rajak had helped him in abducting his sister. Subsequently, the police recovered his daughter, Tannu Berman from the possession of accused-appellant, Pappu Rajak. He further stated that at the time of occurrence, Tannu Rajak was aged about eleven and half years only. He identified the accused-appellant, Pappu Rajak in Court. In his cross-examination, he further stated that after receiving a notice from Behrampur (Bengal) they went to the Behrampur (Bengal) Police Station and gave his statement before Dy. S.P. He further admitted that on 9.5.95 they made no information to the police station rather they searched for Tannu Berman in the relatives house and thereafter informed the police on 11.5.95 that since they were searching for his daughter, Tannu Berman in different houses. He also stated that some of his relatives' houses are also at Behrampur (Bengal). He further stated that there was no relation with accused-appellant, Pappu Rajak and their family members except that he was a washerrnan. 9. P.W. 2, Ajit Kumar Jaiswal only stated that that Tannu Berman was aged about 13-14 years girl and he was informed by Abhilal Berman that his daughter Tannu Berman has not returned from her school. Then, he also went in search of his daughter with him. After two days Abhilal Berman told that the accused-appellant, Pappu Rajak had came to his house in the morning and his daughter Tannu Berman had left with him for school since he said that he will go with her to her school. Subsequently, she was recovered by the police from the possession of the accu3ed-appellant, Pappu Rajak. He identified the accused-appellant, Pappu Rajak in Court. 10. Subsequently, she was recovered by the police from the possession of the accu3ed-appellant, Pappu Rajak. He identified the accused-appellant, Pappu Rajak in Court. 10. P.W. 3, Abhilal Berman is father of the victim girl, stated that on 9.5.95 in the morning at 6 P.M. the occurrence took place the accused-appellant, Pappu Rajak had come to his house for taking clothes and his daughter, who was a student of Rani Jyotiyarmay High School, Pakur in Class-VIIIth was going to her school then the accused-appellant, Pappu Rajak said that he will take her to the school. Then he left with her, but she did not return from her school then the informant started inquiry about her and in the evening he went to the house of accused-appellant, Pappu Rajak, but the Pappu Rajak was not present in his house. Then, he inquired about Tannu Berman in the houses of her relatives, but she could not trace out then, on 11.5.95 he gave a written report to the police. Subsequently, a notice was received from Registry Office of Behrampur (Bengal) that his daughoter, Tannu Berman and accused-appellant, Pappu Rajak had applied for marriage. Then, they went to Behrampur (Bengal).Sister of the accused also lives in Behrampur (Bengal), but he had no information about the presence of his daughter. Subsequently, his daughter was recovered from the possession of accused appellant, Pappu Rajak. In his cross-examination, he stated that Sadhna Rajak is brother-in-law of accused-appellant, Pappu Rajak and at the time of occurrence his daughter was aged about 13 years. He further stated at para 5, in his cross-examination, that his daughter was leaving for her school then the accused-appellant had came to his house -and offered he will fetch her to school. 11. P.W. 4, Tannu Berman stated in Court that on the date of occurrence at about 6 a.m. in the morning when she was getting ready to go to her school then the accused-appellant, Pappu Rajak had came to her house to collect clothes for washing and he offered that he will take her school then he left with her. She further stated that he offered her laddu and after taking laddu she got intoxicated. He wanted to take her to Behrampur (Bengal), but she refused. She further stated that he offered her laddu and after taking laddu she got intoxicated. He wanted to take her to Behrampur (Bengal), but she refused. Thereafter, by force he took her to Behrampur (Bengal) and kept her in the house of Sadhna Rajak-brother-in-law of the accused-appellant Pappu Rajak and committed rape upon her and gave threats that he will commit her murder if she will object or disclose to anybody. Subsequently, the police recover her and she was medically examined. She identified the accused-appellant, Pappu Rajak in Court. In her cross-examination, she stated that she was under intoxication of laddu for whole day. She had also given some statement to the Magistrate under the said influence. She does not remember any statement as given to the Magistrate and she refused that she had stated before the Magistrate that she was aged about 17 and half years and she herself came with Pappu Rajak to Behrampur (Bengal) and applied for marriage. She had stated to the Investigating Officer in a statement also that Pappu Rajak had given her laddu and under intoxication he had taken her to Behrampur (Bengal). She also stated in her cross-examination that she was kept for about 4 months at Behrampur (Bengal) by force during which period she never went out of the house. 12. P.W. 6, Raghu Nath Mandai is a formal witness, who has proved the formal F.I.R. 13. P.W. 5, Rajesh Pandey is a hostile witness. 14. Thus, from the evidences, it appears that the victim girl, 'Who was a minor aged about 13 years as per the statement of her father-P.W. 3 and when she was examined in Court on 12th May, 99 then she stated that her age to be 15 years and the court also found her to be 16 years. In that view of the matter, admittedly the victim' girl was a minor girl and the accused-appellant, Pappu Rajak abducted her by force after giving laddu and subsequently kept her under his influEmce and as such the plea of the learned counsel that the victim girl left the house out of her own will and she stayed with him at Bramhapur (West Bengal), has got no relevancy since she was a minor and there is no value of her consent. The accused-appellant, Pappu Rajak, who is a washerman had come on the date of occurrence at the early hour when she was going out of the house to school and accompanied his daughter. He offered laddu and after taking laddu she was under intoxication. Thereafter he abducted her and took her to Bramhapur and kept her in the house of his brother-in-law, Sadhna Rajak and as such he has committed the offence. 15. Learned counsel has relied in a decision of the learned Single Judge reported in [2009(3) East. CLC. 22(Pat.) where it has been held that if a minor girl is kidnapped and she does not raise hullah while crossing different places then it is difficult to believe the kidnapping of the girl by the accused. But in the instant case since, admittedly, the minor girl was under intoxication of laddu, the facts of the said case does not apply to this case. 16. I find no merit in the appeal, the same is accordingly dismissed. 17. The appellant is on bail. His bail bond is cancelled and the learned trial court is directed to issue non-bailable warrant of arrest for serving out of the sentences.