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2010 DIGILAW 848 (JHR)

Sudashan Pal @ Ajay v. State of Jharkhand

2010-09-01

PRADEEP KUMAR

body2010
JUFGMENT This appeal is directed against the judgment of conviction dated29th August, 2002 and order of sentence dated 30th August, 2002passed by Shri Arun Kumar Roy, 3rdAdditional District and Sessions Judge, Dhanbad in Sessions Trial No. 211 of 2001, by which judgment he found the sole appellant guilty under Sections 36A and 376 of the Indian Penal Code and sentenced him to undergo R.I. for five years for offence under Section 366A of the Indian Penal Code and R.I. for seven years for offence under Section 376 of the Indian Penal Code. 2. It is submitted by the learned counsel for the appellant that it will appear from the evidences of P.Ws. 1 & 2 that the victim girl was going with the accused without any force and when she was produced before the Magistrate after her recovery then, her statement under Section 164 Cr.P.C., as Ext.-3, wherein she has sted that no rape was committed upon her. Learned counsel further submitted that it will also appear from 164 Cr.P.C. statement that the accused-appellant had given some medicine for making her\unconscious, but she has stated in Court that no medicine was given rather the accused-appellant offered a 'Laddu' as prashad of 26th January and after taking it, she became unconscious. When she regained sense, she found herself on a trekker on the way to Rajganj and as such the statement of the victim girl, is not reliable and the appellant should be acquitted. 3. On the other hand, learned counsel for the State has opposed the prayer and submitted that there is no contradiction in the case. The witnesses, namely, P.W.s. 1 & 2, who had seen the victim girl going alongwith the accused-appellant and they never stated that they saw her in unconscious position, naturally she was going back to her father's house alongwith accused. Moreover, in her statement under Section 164 Cr.P.C. as\ also in her statement in Court, the victim girl, who examined in Court as P.W. 4, has very clearly stated that while she was returning home from her mausi’s house the accused-appellant met her on her way and started following her. The accused-appellant had given her a Laddu on eating which, she became unconscious thereafter he had taken her to mama's house at Rajganj and as such he has rightly been convicted and it requires no interference by this Court. 4. The accused-appellant had given her a Laddu on eating which, she became unconscious thereafter he had taken her to mama's house at Rajganj and as such he has rightly been convicted and it requires no interference by this Court. 4. After hearing both the parties and going through the record, I find that the prosecution case was started on the basis of a Fardbeyan given by the victim's father, Hari Singh stating therein that on 26.1.2001 at about 5 P.M. in the evening his daughter, aged about 11 years, left the house for the house of her mausi at Bhowra, but she did not return back in the night, then he went to his brother-in-law's, Sager Singh's place and on inquiry at Bhowra, he came to know that his daughter has left for her home from Bhowra at 7.00 p.m. Thereafter, he started search for her and in course of search, they carne to know by P.W. 1, Koyla Khane that his daughter was seen with the appellant. They suspected in the F.I.R. that the said accused-appellant has enticed his daughter with bad intention. 5. On the basis of the said written report police registered a case under Section 366A of the Indian Penal Code being Jorapokhar P.S. Case No. 26/2001 and after investigation submitted charge sheet in the case. 6. Since, the case was exclusively triable by a Court of Sessions, subsequently the Chief Judicial Magistrate took cognizance of the case and the same was committed to the Court of Sessions and lastly the case was tried by 3rd Additional District & Sessions Judge as aforesaid, who found the appellant guilty. 7. It appears that in course of trial, the prosecution has examined 6 witnesses. P.W. 1, Koyla Khane. P.W. 2, Md. Haidar Ansari, P.W. 3, Hari Singh is the informant, P.W. 4, Meena Kumari, the victim girl, P.W. 5, Dr. Lali Pan and P.W. 6, Kansari Mandal. 8. P.W. 1, Koyla Khane, P.W. 2, Md. Haidar Ansari both have stated that on 26.1.2001 they had seen the victim Meena Kumari going with the accused-appellant. 9. P.W. 3, Hari Singh, who is the informant also stated that subsequently he was informed by the witness no. 1, Koyla Khane that he had seen his daughter going alongwith accused-appellant, Sudarshan Pal @ Ajay. Then, he lodged F.I.R. and subsequently the victim girl was recovered. 9. P.W. 3, Hari Singh, who is the informant also stated that subsequently he was informed by the witness no. 1, Koyla Khane that he had seen his daughter going alongwith accused-appellant, Sudarshan Pal @ Ajay. Then, he lodged F.I.R. and subsequently the victim girl was recovered. Then, he stated that his daughter was taken by the accused-appellant, Sudarshan Pal @ Ajay. He proved the F.I.R. as Ext.-2. He denied, in his cross-examination, that his daughter aged about 19 years. 10. P.W. 4, Meena Kumari, the victim girl stated in Court that at about 7 p.m. while she was returning from her mausi's house to her home then the accused-appellant, Sudarshan Pal @ Ajay met her on her way and started following her. The accused-appellant had given her a Laddu as Prasad of 26th January and on eating which she became unconscious. When she regained sense she found herself on a trekker. She wanted to go to her house, but the accused-appellant had taken her to his mama's house at Rajganj from the said trekker where she stayed with him in the night and his mama did allow them left in the next day to the house of her sister. Thereafter the accused-appellant took her to his elder sister's place at Bokaro where she stayed for one night. From Bokaro the accused-appellant took her to Bankura where she stayed in a hotel for 7-8 days and during the said period, she was committed rape. She further stated that the accused-appellant forcibly made her write 8-10 letters and on plain paper got her signature. Thereafter, the accused-appellant took her to his house where the doors were locked and nobody was present there, they were waiting outside the house and in the meantime police came and recovered her. She gave her statement to the police. She proved her signature as Ext.-3. She had not stated in her statement under Section 164 Cr.P.C. at para 8 that the accused-appellant committed rape upon her while she was with him at Bokaro. She also stated in the same paragraph in her statement under Section 164 Cr.P.C. that the accused-appellant had given some intoxicated substance whereupon she became unconscious. 11. P.W. 5, Dr. Lali Pan, who proved the Medical Report as Ext.-4. She stated that the girl was aged about 17 years. 12. She also stated in the same paragraph in her statement under Section 164 Cr.P.C. that the accused-appellant had given some intoxicated substance whereupon she became unconscious. 11. P.W. 5, Dr. Lali Pan, who proved the Medical Report as Ext.-4. She stated that the girl was aged about 17 years. 12. P.W. 6, Kansari Mandai is a formal witness, who has proved the formal F.I.R. 13. Thus, from the evidences, it is clear that all the witnesses supported the fact that the victim girl was kidnapped, but it is apparent from the Medical Report as also the evidence of her father P.W. 3 that the victim girl was a minor below 18 years of age. In that view of the matter, the conviction of the appellant under Section 366A of the Indian Penal Code is well founded. 14. However, since the victim girl never alleged in her statement under Section 164 Cr.P.C., which has been proved as Ext.-3, that no rape was committed upon her nor the other witnesses stated that she was raped by the accused-appellant. The doctor has also not stated anything about the commission of rape upon the victim girl. In that view of the matter, the conviction of the accused-appellant under Section 376 of the Indian Penal Code and sentence under Section 376 of the Indian Penal Code is set aside. 15. In the result. the appeal is allowed-in-part. 16. It appears from the record that the appellant was not granted bail and probably he has remained in custody for more than 5 years. 17. In that view of the matter, the trial court is directed to verify the same and issue a release order if he is in custody.