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2018 DIGILAW 1262 (JHR)

Palav Mandal v. State of Jharkhand

2018-06-19

ANIL KUMAR CHOUDHARY

body2018
JUDGMENT : ANIL KUMAR CHOUDHARY, J. 1. Heard the parties. This appeal has been preferred by the appellant being aggrieved by the judgment of conviction dated 16.12.2005 and order of sentence dated 19.12.2005 passed by the learned 5th Additional Sessions Judge, East Singhbhum, Jamshedpur in Sessions Trial No. 234 of 2005 whereby and whereunder, the appellant has been held guilty for the offences punishable under Section 366A of the IPC and under Section 363 of the IPC and sentenced to undergo R1 for eight years for the offence punishable under Section 366A of the IPC and R1 for five years for the offence punishable under Section 363 of the IPC. 2. The brief facts of this case as mentioned in the written report of the father of the victim of the case is that on 25.12.2004 at 5.00 P.M., the victim had gone to the house of her neighbor to attend cultural program and as the victim did not return to her house, the informant started to search for her. The informant came to know that the victim had left the house of the neighbor at about 6.00 P.M. The informant also came to know that the co-accused Rakesh Kumar Rai with intention to marry the minor victim girl has taken her away by enticing her and the occurrence took place in between the house of the informant and the house of his neighbor, Deepu Mukherjee, to whose house the victim had gone to attend a cultural programme. It is alleged in the written report that the co-accused Rakesh Kumar Rai was found roaming near the house of the informant. In course of search of his daughter, the informant went to the house of the co-accused Rakesh Kumar Rai and from there he came to know that Rakesh Kumar Rai was also missing. During the course of search, the informant came to know that the accused-appellant Palav Mandal has helped the co-accused Rakesh Kumar Rai in committing the said offence. It has also been mentioned in the FIR that the informant was busy in search of his daughter, hence, there was delay in lodging the report basing upon which, the police registered Parsudih (Sundarnagar) P.S. Case No. 166 of 2004 and took up investigation. Upon completion of the investigation, police submitted the charge-sheet. It has also been mentioned in the FIR that the informant was busy in search of his daughter, hence, there was delay in lodging the report basing upon which, the police registered Parsudih (Sundarnagar) P.S. Case No. 166 of 2004 and took up investigation. Upon completion of the investigation, police submitted the charge-sheet. The case was committed to the Court of Session and charges for the offences punishable under Section 363/34 and 366A/34 of IPC were framed against the accused-appellant by learned Additional Sessions Judge, F.T.C.-II, Jamshedpur on 12th August, 2005 and upon the accused person pleading not guilty to the charge, he was put to trial. 3. In course of trial, the prosecution altogether examined eight witnesses besides proving the documents but no evidence was produced on behalf of the accused persons. Out of eight witnesses examined by the prosecution, P.W.7-the victim girl is the only witness who has personal knowledge about the occurrence. 4. P.W.7-the victim has stated that on 25.12.2005, she had gone to her friend's house along with the younger sister-Jyoti Gupta. The programme was concluded at about 6.00 P.M. After conclusion of the program, the P.W.7 went to drop her friend-Seema Pal, whose house in the same colony. While P.W.7 was returning to her house, in the by-lane, near the house of Dr. Choudhary, the co-accused Rakesh Kumar Rai and the accused-appellant Palav Mandal were standing there. The co-accused Rakesh Kumar Rai caught hold of P.W.7 and told her to come along with him, when P.W.7 raised alarm, her mouth was gagged by the co-accused and he threatened P.W.7 that if she does not come along with him, he will murder her parents. Thereafter, the co-accused took P.W.7 to Mango bus stand in the motorcycle of the accused-appellant-Palav Mandal and then the accused-appellant left after dropping them in the bus stand. On the next day, the co-accused took P.W.7 to Dumrao and from Dumrao Rakesh Kumar Rai took P.W.7 by train to the house of his sister at Bhadoi and Rakesh Kumar Rai committed rape forcibly upon P.W.7 in the house of his sister and kept P.W.7 locked in the house. On the next day, the co-accused took P.W.7 to Dumrao and from Dumrao Rakesh Kumar Rai took P.W.7 by train to the house of his sister at Bhadoi and Rakesh Kumar Rai committed rape forcibly upon P.W.7 in the house of his sister and kept P.W.7 locked in the house. On the next day at night, the father of Rakesh Kumar Rai reached there and in the next morning at about 6.00 A.M. the father of Rakesh Kumar Rai, his sister and brother-in-law took P.W.7 to a temple and Rakesh Kumar Rai forcibly solemnized marriage with P.W.7 and forcibly put vermillion on her head. Thereafter, the father of the co-accused Rakesh Kumar Rai brought P.W.7 and the co-accused to Jamshedpur and police apprehended the co-accused Rakesh Kumai Rai from his house and took him and P.W.7 to police station. P.W.7 identified the appellant-accused Palav Mandal who was present in the Court. In her cross-examination, P.W.7 has stated that after conclusions of the programme, she told her younger sister to go to her house and keep the gate open and she will come after dropping her friend Seema at her house. In paragraph-7 of her cross-examination, P.W.7 has stated that she met the co-accused Rakesh Kumar Rai on the by-lane near the house of Dr. Choudhary and the co-accused Rakesh Kumar Rai took her from there. She cannot say that to what distance the co-accused Rakesh Kumar Rai took her from there. P.W.7 did not know the name of accused-appellant Palav Mandal at the time of the occurrence, though she had seen Palav Mandal many times before the occurrence. The accused-appellant Palav Mandal returned from Mango bus stand and after reaching the bus stand, immediately co-accused Rakesh Kumar Rai made P.W.7 sit in the bus. Other passengers were also sitting in that bus. P.W.7 did not disclose anybody that the co-accused Rakesh Kumar Rai was forcibly taking her by enticing her. The bus stopped near Dumrao Railway Station. At the time of purchasing train ticket, the co-accused Rakesh Kumar Rai was also catching hold of P.W.7. At that time also, she did not disclose anybody about the co-accused Rakesh Kumar Rai taking her. She was made senseless and she was unable to understand where co-accused Rakesh Kumar Rai was taking her. The bus stopped near Dumrao Railway Station. At the time of purchasing train ticket, the co-accused Rakesh Kumar Rai was also catching hold of P.W.7. At that time also, she did not disclose anybody about the co-accused Rakesh Kumar Rai taking her. She was made senseless and she was unable to understand where co-accused Rakesh Kumar Rai was taking her. In the house of the sister of co-accused Rakesh Kumar Rai at Bhadoi, the sister of the co-accused Rakesh Kumar Rai and his brother-in-law and children were staying. P.W.7 stayed there for two days in the house of the sister of the co-accused Rakesh Kumar Rai. After the occurrence, she met her parents for the first time at M.G.M. Hospital, Jamshedpur when her check-up was going on at about 12.30 P.M. on 29.12.2005. Police recorded statement of P.W.7 but did not record what was stated by P.W.7. P.W.7 stated before the police that on the date of occurrence, the accused-appellant and co-accused Rakesh Kumar Rai were standing in the by-lane near the house of Dr. Choudhary and the co-accused Rakesh Kumar Rai took her by lifting her and told her to come along with him and when she raised alarm, co-accused Rakesh Kumar Rai pressed her mouth and threatened her that he will kill her parents if she does not come along with him. 5. P.W.1-Kanhai Lal Ganguly has stated that he heard that on 25.12.2004 the victim P.W.7 was missing from her house and on 29.12.2004, she was found along with her kidnapper at Sundernagar Police Station. Later on, he came to know that the accused-appellant took P.W.7 and her kidnapper in his motorcycle. In his cross-examination, he has stated that he has deposed whatever he has heard. 6. P.W.2-Rina Gupta is the mother of the victim. She has stated that on 25.12.2004, the victim had gone to attend a party but she did not return. P.W.2 searched for P.W.7. The co-accused Rakesh Kumar Rai was also not present in his house. P.W.7 has eloped with the co-accused Rakesh Kumar Rai. The appellant-accused helped the co-accused Rakesh Kumar Rai in taking P.W.7 away. P.W.2 identified the accused-appellant. In her cross-examination, P.W.2 stated that her daughter told about the occurrence to her. P.W.7 was recovered after the four days of the occurrence. 7. P.W.3-Rana Rai has stated that he does not know anything about the occurrence. 8. The appellant-accused helped the co-accused Rakesh Kumar Rai in taking P.W.7 away. P.W.2 identified the accused-appellant. In her cross-examination, P.W.2 stated that her daughter told about the occurrence to her. P.W.7 was recovered after the four days of the occurrence. 7. P.W.3-Rana Rai has stated that he does not know anything about the occurrence. 8. P.W.4-Subhash Behra was tendered for cross-examination. 9. P.W.5-Chandra Mohan Prasad has stated that the co-accused Rakesh Kumar Rai has taken away P.W.7. P.W.5 is the grandfather of the victim by relation. Palav Mandal helped the co-accused Rakesh Kumar Rai in the said occurrence. In his cross-examination, P.W.5 has stated that he has deposed only hearsay matter. 10. P.W.6-Bhuneshwar Prasad is the informant of the case and the father of the victim (P.W.7). P.W.6 has stated that the occurrence took place on 25.12.2004 between 5 to 6 P.M. P.W.7 aged about thirteen years had gone to the house of her friend to attend a cultural programme, but P.W.7 did not return from there. P.W.2 had seen the co-accused Rakesh Kumar loitering near their house. P.W.6 went to the house of the co-accused Rakesh Kumar Rai and found that the co-accused Rakesh Kumar Rai was also not present in his house. On enquiry, P.W.6 came to know that the co-accused Rakesh Kumar Rai has eloped with P.W.7 with an intention to marry P.W.7. The accused-appellant has helped the co-accused Rakesh Kumar Rai in taking P.W.7 after enticing her. The occurrence took place in between the house of Deepu Mukherjee and the informant. He identified the accused-appellant Palav Mandal in the Court. On being proved by him, the written report has been marked as Exhibit-2. In his cross-examination, P.W.6 has stated that on 25.12.2004 itself, he came to know that Rakesh has taken away P.W.7 by enticing her with the help of the accused-appellant-Palav Mandal. Bhuna Singh informed P.W.6 about the same but P.W.6 did not fully believe the same, hence, he did not intimate the police on that day. 11. P.W.8-Naresh Gahaloth is the Investigating Officer of the case. He has stated that on 28.12.2004, the written report of the informant was received in the police station. On being proved by him, the forwarding endorsement on the written report has been marked as Exhibit-3, the endorsement regarding registration of the FIR has been marked as Exhibit-4 and the formal FIR has been marked as Exhibit-5. He has stated that on 28.12.2004, the written report of the informant was received in the police station. On being proved by him, the forwarding endorsement on the written report has been marked as Exhibit-3, the endorsement regarding registration of the FIR has been marked as Exhibit-4 and the formal FIR has been marked as Exhibit-5. He has also stated about the investigation done by him in the case. He has described the place of occurrence which is at the distance of 300 yards from the east of the mill area of Sundernagar. The by-lane between the house of Guddu and Dr. Choudhary, leads to the Kingdom Hotel situated in the north. At the place, on the date and time of occurrence, the co-accused Rakesh Kumar Rai called P.W.7 and from there, they went near the Kingdom Hotel by walking and from the back side of the grill factory of Munna, they sat on the motorcycle. Police arrested the co-accused Rakesh Kumar Rai from Sundernagar Chowk and P.W.7 was also found there. In his cross-examination in paragraph 8, he has stated that he took up the investigation at 11.00 A.M. on 28.12.2004 but again said that he has not mentioned the time of the taking up of the investigation in the case diary. P.W.6 did not state before P.W.8 that Bhuna Singh told him that accused-appellant was going along with the co-accused Rakesh Kumar Rai and P.W.7. P.W.7 in her statement has not mentioned the name of Palav Mandal before the police but stated about Mandal. P.W.7 did not state before P.W.8 that on the date of occurrence, the accused-appellant was along the co-accused Rakesh Kumar Rai near the house of Dr. Choudhary and also did not state before P.W.8 that the co-accused Rakesh Gupta took her by lifting. P.W.7 submitted a written application to the police that Rakesh told her that if she does not accompany him, he will kill her parents. In that written application, P.W.7 did not disclose the name of the accused-appellant of this appeal-Palav Mandal. 12. After closure of the evidence of the prosecution, the statement under Section 313 Cr.P.C. of the appellant-accused was recorded wherein he denied the circumstances appearing in evidence against him. 13. Taking into consideration the evidence available in the record, learned court below convicted and sentenced the accused-appellant as already indicated above. 14. Mrs. 12. After closure of the evidence of the prosecution, the statement under Section 313 Cr.P.C. of the appellant-accused was recorded wherein he denied the circumstances appearing in evidence against him. 13. Taking into consideration the evidence available in the record, learned court below convicted and sentenced the accused-appellant as already indicated above. 14. Mrs. J. Mazumdar, the learned counsel for the appellant, submitted that there was an inordinate delay of three days in lodging the FIR hence this FIR has lost its spontaneity. It was further submitted that though the FIR has been lodged after delay, but it has not been mentioned by the informant in the FIR regarding the source of his knowledge about the involvement of the accused-appellant in the alleged offence. It was further submitted by learned counsel for the appellant that though there is allegation of rape upon P.W.7, yet the sister of the co-accused Rakesh Kumar Rai or any of the family member, in whose house the alleged occurrence took place has not been arraigned as accused persons. Learned counsel further submitted that there is absolutely no evidence in the record that the accused-appellant was having knowledge that the victim was being taken away by the co-accused Rakesh after enticing her. It was further submitted that the testimony of P.W.7 is full of variations and also she has changed her testimony from time to time. In her first statement, before the police or immediately thereafter, she did not disclose about the involvement of the accused-appellant in aiding the co-accused Rakesh Kumar Rai in taking her by enticing her and she implicated the accused-appellant for the first time during the trial. Hence, it is submitted that the testimony of sole witness of the case having personnel knowledge about the occurrence do not inspire confidence. It is further submitted by learned counsel for the appellant that as per the case of the prosecution, the informant did not meet P.W.7 after the occurrence before lodging the FIR. Hence, it is submitted that the testimony of sole witness of the case having personnel knowledge about the occurrence do not inspire confidence. It is further submitted by learned counsel for the appellant that as per the case of the prosecution, the informant did not meet P.W.7 after the occurrence before lodging the FIR. Bhuna Singh from whom the informant for the first time, came to know about the involvement of the accused-appellant and who as per the statement of P.W.6 was independent eyewitness to the occurrence and therefore, an important witness of the prosecution case was neither cited as a witness in the charge-sheet nor was he examined as a witness in the case, hence, it is submitted that this is a fit case, where the accused-appellant be acquitted by giving him the benefit of doubt. 15. Learned Addl. P.P. on the other hand defended the impugned judgment and submitted that P.W.7 has categorically stated about the involvement of the accused-appellant in furtherance of common intention with the co-accused Rakesh Kumar Rai in taking her after enticing her and hence, learned court below having rightly convicted and sentenced the accused-appellant, this appeal being without any merit be dismissed. 16. Having heard learned counsels for the parties and going through the materials in the record, I find that none of the witnesses examined in this case except P.W.7 has any personnel knowledge about the involvement of the accused-appellant in the offence involved in this case. There is discrepancy in the evidence of the P.W.7 vis-a-vis the written report as well as her statement recorded by the police under Section 161 Cr.P.C. As stated by P.W.8 in paragraph-10 of his deposition, she did not mention the name of Palav Mandal-the accused-appellant in this case to the P.W.8. Though in her examination-in-chief, she has stated that Palav Mandal was standing with the co-accused Rakesh Kumar Rai when she returned after dropping her friend Seema and there the co-accused Rakesh Kumar Rai caught hold of her but in her cross-examination, she told a different story. In paragraph-7 of her cross-examination, she stated that the co-accused Rakesh Kumar Rai first met her in by-lane near the house of Dr. In paragraph-7 of her cross-examination, she stated that the co-accused Rakesh Kumar Rai first met her in by-lane near the house of Dr. Choudhary and took her to a distance but she could not say how far the co-accused Rakesh Kumar Rai took her and later on, she further improvised her statement in her cross-examination by stating that the co-accused Rakesh Kumar Rai took her by lifting, so this implies that Palav Mandal was not present at the by-lane along with the co-accused Rakesh Kumar Rai who allegedly caught hold of P.W.7. This fact is also corroborated by the Investigating Officer in paragraph 4 of his deposition wherein he has stated that the co-accused Rakesh Kumar Rai and P.W.7 walked to a distance and thereafter they went on the motorcycle of Palav Mandal. Further there are a number of discrepancies going to the root of the case. P.W.7 for the first time disclosed the name of this accused-appellant in Court but did not disclose his name to the Investigating Officer in her statement made before him. Though, there was delay in lodging the FIR and in paragraph 5 of the deposition, P.W.6-the informant has categorically stated that on 25.12.2004 in the evening, he came to know that the co-accused Rakesh Kumar Rai with the help of Palav Mandal had taken away his daughter is the reason assigned for the delay in lodging the FIR, appears to be not convincing. Without any plausible reason, the informant, who is the father of the victim, has withheld the vital information that from whom he came to know that Palav Mandal was involved in this case and it is unbelievable that he forgot such an important information within a span of three days when he had ample time to recollect all the information as the FIR had not been immediately lodged after the knowledge of the occurrence by the informant. There is discrepancy regarding the place from where the co-accused Rakesh Kumar Rai and P.W.7 were apprehended by the police as P.W.7 stated that it was from the house of the father of the co-accused Rakesh Kumar Rai and P.W.8-the Investigating Officer stated that it was from Sundernagar Chowk. There is discrepancy regarding the place from where the co-accused Rakesh Kumar Rai and P.W.7 were apprehended by the police as P.W.7 stated that it was from the house of the father of the co-accused Rakesh Kumar Rai and P.W.8-the Investigating Officer stated that it was from Sundernagar Chowk. Keeping in view the aforesaid discrepancies in the evidence as well as in the absence of any evidence that the accused-appellant-Palav Mandal was having any knowledge that the co-accused Rakesh Kumar Rai was taking the minor girl after enticing her, in my considered opinion, this is a fit case, where the accused-appellant be acquitted of both the charges framed against him under Sections 363 and 366A IPC. Hence, the impugned judgment of conviction dated 16.12.2005 and order of sentence dated 19.12.2005 passed by the learned 5th Additional Sessions Judge, East Singhbhum, Jamshedpur in Sessions Trial No. 234 of 2005 being not sustainable in law is set aside and the accused-appellant Palav Mandal is acquitted of the charges. 17. Perusal of the record reveals that the appellant is in custody since 8.6.2018. In view of his acquittal he is directed to be released from custody and be set at liberty forthwith, if his detention is not required in any other case. 18. Let a copy of this Judgment be sent to the learned court below forthwith. In result, this appeal is allowed.