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2015 DIGILAW 282 (JHR)

Patri v. State of Jharkhand

2015-02-20

RAVI NATH VERMA

body2015
Judgment In Sessions Case no. 11 of 2004 on the file of 5th Additional Sessions Judge, Fast Track Court No.-2, Godda, two persons namely Surnedra Mandal and Mostt. Patri Devi were placed on trial to answer the charges under Sections 366-A, 372 and 376/34 of Indian Penal Code. Accused Surendra Mandal was acquitted of the charges by the trial court and the remaining one accused Mostt. Patri was convicted under Section 366-A and 372 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of four years under Section 366-A as well as 372 of the Indian Penal Code and to pay fine of Rs.500/- (Five Hundred) on each count and in case of default of payment of fine to further undergo simple imprisonment for three months each for both sections. However, the sentences awarded were directed to run concurrently. 2. The brief facts leading to this appeal is that on the basis of the information given by Siya Devi before Officer-in-Charge Maharama Police Station, a formal F.I.R. was registered on 26.10.2003 on the allegation that her daughter Sukhiya Devi aged about 12 years had gone to her maternal grandfather’s house at village Bhagiya on 05.10.2003. On 08.10.2003, the husband of Sukhiya Devi also came there to meet her and requested the maternal grandfather-in-law to allow Sukhiya to go to her Sasural but Sukhiya was not ready and when the husband pressurized her, Sukhiya Devi took shelter in the neighbouring house of Lilo Mandal @ Lilua at about 12.00 a.m. It is also alleged that Lilo Mandal along with his mother Patri Devi, Lakshman Mandal, elder brother Sanatan Mandal and younger brother Surendra Mandal induced Sukhiya and thereafter Lilo Mandal took her to Simanpura and kept her in the house of Lakshman Mandal. When her father enquired from Patri Devi, she denied that Sukhiya ever came to her house. Even after hectic search, she could not be traced out. The informant further suspected that her daughter has been kidnapped by the accused persons including the present appellant with an intention to get her involved in illegal act. It appears from the record that though the occurrence, as alleged, took place on 08.10.2003 but the F.I.R. was lodged on 26.10.2003. 3. The Police after investigation submitted the charge sheet against the present appellant Mostt. It appears from the record that though the occurrence, as alleged, took place on 08.10.2003 but the F.I.R. was lodged on 26.10.2003. 3. The Police after investigation submitted the charge sheet against the present appellant Mostt. Patri and another accused Surendra Mandal and the investigation was kept pending against Lilo Mandal, Sanatan Mandal, Lakshman Mandal and wife of Lilo Mandal. The Court took cognizance of the offence and committed the case to the court of sessions for trial whereafter the charges against the appellant and another accused Surendra Mandal were framed as aforesaid. The defence, as it appears from the record, was complete denial of the accusation and that the accused is innocent and has not committed any offence as alleged. 4. In course of trial, prosecution examined altogether nine witnesses. Of them, the victim Sukhiya Devi has been examined as P.W. 6, informant Siya Devi as P.W. 3, Ritu Mandal as P.W.1, Kokai Mandal as P.W.2, Neva Devi as P.W. 4, Nisiya Devi as P.W. 5, the doctor, who had examined the victim as P.W.7, the Investigating Officer as P.W. 8 and P.W. 9 is a Judicial Officer, who had recorded the statement of the victim Sukhiya Devi Under Section 164 of Cr.P.C. 5. The trial Court on consideration of the evidence and materials on record convicted Mostt. Patri Devi and sentenced as aforesaid. 6. Assailing the findings recorded by the court below, the learned counsel appearing for the appellant submitted that there is no specific allegation against the appellant of any inducement to the victim girl with the intention that the girl would be forced or seduced to illicit intercourse with someone or that the accused knew that it was likely that she would be forced or seduced. It was also submitted that the existence of the specific intention or knowledge is most important element to constitute the offence under Section 366-A of I.P.C. and that even the victim girl has nowhere stated in her evidence that the appellant had misguided her or accompanied her to different places along with other accused persons. It was also submitted that the existence of the specific intention or knowledge is most important element to constitute the offence under Section 366-A of I.P.C. and that even the victim girl has nowhere stated in her evidence that the appellant had misguided her or accompanied her to different places along with other accused persons. As regard to the conviction of the appellant under Section 372 of the Indian Penal Code, learned counsel vehemently submitted that the words used in Section 372 of the Indian Penal Code import a complete making over possession of the minor to a person buying or hiring for sexual relationship and that there was an inordinate delay in lodging the F.I.R. and no plausible explanation has been given by the prosecution for the delay. Therefore, the learned trial court has committed a mistake on fact and law and the appellant deserves to be acquitted. 7. Contrary to the above submissions, learned A.P.P. submitted that there is sufficient evidence that the accused took away Sukhiya Devi out of her custody of the informant with a purpose of illicit sexual intercourse. Now, I would like to examine the evidence of the prosecution witness in the light of submissions of both the counsels. 8. P.W.1 is the brother of victim girl and his evidence is mainly based on what he has learnt from his maternal grandmother (Nani). The witness has stated that when he came back from Mandora Hat, his maternal grandmother (Nani) informed him that husband of Sukhiya Devi had come for her Vidai (farewell) but as she was minor and not inclined to go to her Sasural, she hide herself in the house of Lilo Mandal and when his Nani inquired from Mostt. Patri, the appellant, who is the mother of Lilo Mandal, she denied that Sukhiya Devi ever came to her house. The witness thereafter enquired from Surendra Mandal and Sanatan Mandal but they also denied that she had come to her house. They went on search of Sukhiya Devi and on the next day, the witness came to know that Lilo Mandal has kept Sukhiya Devi in the house of Lakshman Mandal of Simanpura and that Sukhiya was being taken by Lilo Mandal to Bara Hat and thereafter to Ghamsai and after 20 days, victim Sukhiya was recovered from Karamtola Station. 9. They went on search of Sukhiya Devi and on the next day, the witness came to know that Lilo Mandal has kept Sukhiya Devi in the house of Lakshman Mandal of Simanpura and that Sukhiya was being taken by Lilo Mandal to Bara Hat and thereafter to Ghamsai and after 20 days, victim Sukhiya was recovered from Karamtola Station. 9. P.W. 2, the maternal grandfather (Nana) of the victim Sukhiya, has also stated that when the husband of Sukhiya requested him to give Vidai (farewell) to Sukhiya, he denied on the ground that her parents are not here. Thereafter, he went to Madro Hatia and when came back in the evening, came to know that Sukhiya could not be traced since afternoon. The witness has further stated that Sukhiya had gone to the house of the accused but when he enquired from the accused persons they denied and thereafter he informed his daughter. The witness suspected the hands of the accused persons. 10. P.W. 3 Siya Devi, the informant, while reiterating her own case as in the first information report further confirmed that her daughter was recovered after a month and on enquiry from her she stated that she was taken to Simanpura and then to Barahat and Dhamsai and Lilua kept her at several places and snatched her ornaments. She had also informed her that Lilua had ravished her. 11. P.W. 4 Neva Devi has also affirmed that when, she enquired from the accused persons, they denied that Sukhiya had ever come to their house and further confirmed that Sukhiya was recovered after a month. In her cross-examination, the witness has stated that during search, she found that Patri and all family members were present in the house except Lilua @ Lilo Mandal. 12. P.W. 5 Nisiya Devi has reiterated the same facts as given by P.Ws. 1, 3 and 4. 13. Similarly, P.W. 6, the minor victim girl Sukhiya, has tried to make out a case that when her husband had given a proposal for her Vidai (farewell), Mostt. Patri was standing near her and thereafter she accompanied Patri to her house and at that time, all the accused persons were there. They all offered her food and warned her that if she remains here, her family members will send her to Sasural. Patri was standing near her and thereafter she accompanied Patri to her house and at that time, all the accused persons were there. They all offered her food and warned her that if she remains here, her family members will send her to Sasural. They promised to take her to her mother’s house and at about 2.00 P.M., she along with Patri, Sanatan and Lilua went to the house of Lakshman of Simanpura village, thereafter, except Lilua, all other accused persons came back and she stayed in the house of Lakshman in night. The witness has further stated that from village Simanpura, she along with Lilua boarded a bus and came to Dhamsai and again boarded another bus and thereafter came to railway station where they boarded a train. In the train, when she enquired from Lilua as to where they are going, he threatened her by showing a dagger and also threatened other co-passengers of the train and for complete two days, they remained in the train. Thereafter they went to the house of one Ompal and on way to the house of Ompal, Lilua had ravished her. She remained in the house of Ompal for 15-20 days and was doing house hold work. Whereafter Lilua left her alone at Karamtola station. 14. There is no reason not to accept the medical evidence and evidence of other witnesses that the girl was minor. The age of the victim girl has been assessed as 16 years by the doctor (P.W.7) but the doctor had not found any recent sign of sexual assault and any injury on the genital part. However, the doctor observed hymen admits two fingers but failed to give any definite opinion about recent sexual intercourse. Admittedly, the victim was a married girl. 15. I have no hesitation in concurring and observing that the victim girl Sukhiya Devi at the alleged date of occurrence was a minor below the 18 years of her age. Before I critically examine the evidences of prosecution witnesses, reference of Sections 366-A and 372 of the Indian Penal Code are necessary. Admittedly, the victim was a married girl. 15. I have no hesitation in concurring and observing that the victim girl Sukhiya Devi at the alleged date of occurrence was a minor below the 18 years of her age. Before I critically examine the evidences of prosecution witnesses, reference of Sections 366-A and 372 of the Indian Penal Code are necessary. Section 366-A of Indian Penal Code speaks as follows:- Section 366A.Procuration of minor girl.- Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine. For proving the charge under Section 366-A of Indian Penal Code, it is incumbent upon the prosecution to prove that the accused induced a minor girl to go from any place or to do an act with intent that such girl may be, or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person. The statement of victim Sukhiya Devi was also recorded under Section 164 of Cr.P.C. and in that statement also, she had almost stated, which she subsequently stated in her substantive evidence before the trial court. As regard to the charge under Section 372 of Indian Penal Code, a reference of that Section is also necessary for proper appreciation, which speaks as follows: Section 372. Selling minor for purposes of prostitution, etc.- Whoever sells, lets to hire, or otherwise disposes of any person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine. From perusal of the aforesaid provisions, it is clear that to constitute an offence under the above Section, it was necessary upon the prosecution to prove that the victim minor girl was either sold or let to hire for the purpose of prostitution, or illicit intercourse, or for any unlawful and immoral purpose. 16. After going through the evidence of prosecution witnesses, it appears that none of the witness including the victim girl has anywhere stated about the involvement of the present appellant in either selling the victim girl or letting her on hire for the purpose of prostitution or for other unlawful and immoral purposes. It also appears that no force was used either by the present appellant or by her family members in shifting of the victim girl from her village to the house of Lakshman in Simanpura. Even there is no evidence on the record to show that the appellant induced the victim girl to go from place to place or to do any act with the intent or knowledge as contemplated under Section 366-A of the Indian Penal Code. It further appears that all the witnesses including the informant have testified that it was Patri Devi, the appellant, and other accused at whose instance the victim girl went to the house of Lakshman Mandal but this evidence of the prosecution witnesses does not appear to be convincing. If the witnesses were aware of the above fact before her recovery then what prevented the informant and other witnesses to give this information to the police or to lodge a case in the police station immediately after her kidnapping rather inference can be drawn that the informant knowing well the involvement of the appellant waited for almost 18 days and only thereafter lodged the F.I.R. This leads this Court to the conclusion that the conduct of the informant in not giving information to the police is not natural and logical and the entire case and the story built up by the informant and her daughter, the victim girl P.W.6, seem to be improbable and unbelievable. I, therefore, set aside the conviction of the appellant Mostt. Patri Devi by giving her benefit of doubt. 17. In the result, the Criminal Appeal is, hereby, allowed and the appellant is acquitted, by giving her benefit of doubt and she is discharged from the liability of her bail bonds. Appeal allowed.