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2010 DIGILAW 602 (JHR)

Sunil Kumar v. State of Jharkhand

2010-05-14

D.K.SINHA

body2010
JUDGMENT D.K Sinha, J.- The instant Cr. Revision is directed against the order impugned dated 18.11.2009 passed by Shri S.K.Choudhary, Additional Sessions Judge, F.T.C.-I, Bokaro by which the prayer of the petitioners for their discharge under Section 227 Code of Criminal Procedure was dismissed in Sessions Trial No. 199 of 2008 arising out of C.P. Case No. 329 of 2007. 2. The prosecution story in short was that a complaint was filed by the Opposite Party NO.2 Dr. Moti Lal Singh before the C.J.M., Bokaro giving rise to C.P. Case No. 329 of 2007 stating therein that the petitioner No.2 Shiv Jatan Prasad @ Shiv Jatan Prasad was an employee at H.C.L., Bokaro and had been living with the members of his family at Jhopri Colony of Bokaro Steel Limited and the complainant O.P. No.2 was also living there in the same colony. It was alleged that the daughter of the complainant Renuka Kumari fell in love with the petitioner No.1 in the year 2001, who later on came in contact with each other very closely, The petitioner No.1-accused joined the military service in the year 2003 and for that his father i.e. petitioner No. 2 obtained loan of Rs. 10,000/- as his son was urgently in need of money to proceed for his joining. It was further alleged that the petitioner Sunil Kumar on the false assurance that he would marry with her developed bodily relationship with the daughter of the complainant namely Renuka Kumari at several occasions. It was alleged that whenever she insisted and pressurized him for marriage the petitioner Sunil Kumar used to subterfuge the matter on one pretext or another. Ultimately, when the petitioner No. 1 Sunil Kumar was asked by the complainant to marry his daughter,' he endorsed his father petitioner No. 2 that he had to take decision. Pursuant to such endorsement the complainant approached the Petitioner No. 2 but the latter demanded Rs.5 lakhs as dowry from the complainant O.P. No. 2 to finalize the marriage. It was stated that as the complainant was not financially sound as he had already taken voluntary retirement in the year 2003, expressed his inability to pay such a huge amount, as such the marriage could not be settled. It was stated that as the complainant was not financially sound as he had already taken voluntary retirement in the year 2003, expressed his inability to pay such a huge amount, as such the marriage could not be settled. The com-plainant alleged that the petitioners committed cheating by their conduct and that the petitioner No. 1 cohabited his daughter on the false assurance of marriage which could not be settled. The complaint petition was transferred to the S.D.J.M., Bokaro and after preliminary enquiry under Section 202 of the Code of Criminal Procedure, prima facie offence was found under Section 376 of the Indian Penal Code against the petitioner Sunil Kumar whereas offence under Section 3 of the Dowry Prohibition Act was found to be attracted against the petitioner No. 2 and accordingly summons were issued against both of them. 3. Learned Counsel Mr. Chhabra appearing on behalf of the petitioners submitted that the complainant in his statement recorded on solemn affirmation and the statement of the girl Renuka Kumari recorded during enquiry under Section 202 of the Code of Criminal Procedure would clearly reveal that Renuka Kumari had love affairs with the Petitioner No. 1 Sunil Kumar since 2001 and the parents of both the parties had full knowledge about their indulgence in love and sex. She admitted that bodily relationship between her and the petitioner No. 1 Sunil Kumar was established for the first time in the year 2003 which continued for long years without any protest from the family of either side. Though she stated in the Court that she was only 17 years when she first entered into sex with Sunil Kumar for the first time but such declaration of age could not be substantiated by any documentary evidence or any corroborative evidence nevertheless she was quite competent under law to take her own decision and to enter into sex willingly as she was above 16 years of age as such, the offence under Section 376 could not be attracted against the petitioner No. 1 Sunil Kumar for the reasons that Renuka Kumari was a competent party. 4. 4. The offence of rape is defined under Section 375 of the Indian Penal Code which speaks;- "A man is said to commit "rape" who, except in the case here-in-after excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions; sixthly-with or without her consent, when she is under 16 years of age." 5. Advancing his argument, learned Counsel Mr. Chhabra submitted that the allegation against the father Petitioner No.2 that he demanded money/dowry for the marriage was false and concocted. As a matter of fact, the entire allegation against the petitioners was motivated with the intention to pressurize the petitioners especially the petitioner NO.1 Sunil Kumar to marry the daughter of the complainant by all means and with such intention the false story was cooked up by implicating the petitioners. Even if it could be admitted that the daughter of the complainant had constant and regular sex with the petitioner Sunil Kumar, there was no medical evidence in support thereof either of bearing pregnancy or that her pregnancy was terminated for any reason whatsoever. The learned Additional Sessions Judge, F.T.C.I, Bokaro failed to appreciate this aspect and rejected the discharge petition of the petitioners without application of judicial mind, which needs interference of this Court by setting aside the impugned order. 6. A notice was sent to the O.P. No.2 but in spite of the service of notice the complainant O.P. NO.2 did not prefer to enter appearance in this Criminal Revision. 7. Mr. Md. Hatim, the learned A.P.P. opposed the contention raised on behalf of the petitioners and attracted the attention towards observation made by the learned Additional Sessions Judge while rejecting the petition of the petitioners for their discharge. The learned Additional Sessions Judge observed, "I have gone through the SA of the complainant and the enquiry witness i.e. victim girl recorded u/s 202 Cr.P.C. I have also perused the documents filed by both the parties. It appears that the complainant and the victim girl in her enquiry have supported the complaint. The victim girl has stated that she was studying in matriculation in 2002, their love affair was came to the knowledge of her parents and in 2003 the said Sunil Kumar joined in military service. It appears that the complainant and the victim girl in her enquiry have supported the complaint. The victim girl has stated that she was studying in matriculation in 2002, their love affair was came to the knowledge of her parents and in 2003 the said Sunil Kumar joined in military service. She has also said that in 2007 the father of Sunil Kumar came and demanded money for their marriage from her father and they refused to marry. In a Court question the victim girl has stated that Sunil Kumar first started sexual relation with her in 2003 when she was aged 17years. I have also gone through the copy of the admit card of matriculation board (B.S.E.B.) of the victim girl I find her date of birth as 4.1.88. Therefore, certain materials on the record to show that the victim girl was minor when the alleged physical relationship started by the accused Sunil Kumar with her. There is also material to show that some money was demanded for the marriage between Sunil Kumar and the daughter of the complainant". 8. However, the learned A.P.P. fairly conceded that the allegation of demand of dowry could not be corroborated. sufficiently during enquiry under Section 202 Code of Criminal Procedure. 9. Having regard to the facts. and circumstances of the case, I find that the learned Additional Sessions Judge, FTC.;I, Bokaro was justified in observing that at the first occasion of sex between the daughter of the complainant and the petitioner Sunil Kumar in the year 2003 the girl was definitely below 16 years of age as the date of birth of the girl was found to be recorded as on 4.1 .1988 in the admit card of the matriculation B.S.E.B. and such disclosure of the date of birth in the admit card based upon the admission register of the school where the girl was reading is of much relevance and shall prima facie prevail over any other evidence without prejudice. 10. 10. The learned Additional Sessions Judge was justified in rejecting the prayer for discharge of the petitioner Sunil Kumar from the proposed charge under Section 376 of the Indian Penal Code but under the facts and circumstances I do not find sufficient material to form an opinion that a prima facie case under Section 3 of the Dowry Prohibition Act was attracted against the petitioner No. 2 Shiv Jatan Prasad @ Shiv Jatan Prasad and hence this Criminal Revision is allowed in part, in so far as the prayer of the petitioner No.2 Shiv Jatan Prasad @ Shiv Jatan Prasad is concerned for his discharge, as such, the order impugned by which the prayer of the petitioner Shiv Jatan Prasad @ Shiv Jatan Prasad for his discharge was refused is set aside. Accordingly, Shiv Jatan Prasad @ Shiv Jatan Prasad is discharged in Sessions Trial No. 199 of 2008 arising out of C.P. Case No. 329 of 2007.