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2018 DIGILAW 2061 (JHR)

Sanjay Mandal v. State Of Jharkhand

2018-09-12

KAILASH PRASAD DEO

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JUDGMENT Kailash Prasad Deo, J. - Heard, learned counsel for the appellant, Mr. Aman Shekhar, assisted by Mr. S.S. Choudhary, Advocates and Mrs. Vandana Bharti, learned Additional Public Prosecutor appearing for the State. 2. The instant criminal appeal is directed against the judgment of conviction, dated 24.07.2004 and order of sentence, dated 26.07.2004, passed by learned Additional Sessions Judge, (Fast Track Court), Sahibganj, in Sessions Case No. 51 of 2003, T.R. No.24 of 2003, whereby the sole appellant has been convicted for the offence committed and punishable under Section 365 of the Indian Penal Code and awarded rigorous imprisonment for four years. The period already undergone will be set off under Section 428 Cr.P.C., 1973 3. The prosecution case is based upon fardbeyan of Sumitra Devi (P.W.-6), recorded by Sub-Inspector of police, Pankaj Kumar Jha, Officer-in-charge of Sahibganj (M) police station on 24.11.2002 at Sahibganj (M), police station at 15:30 hours, where the informant has alleged, that yesterday on 23.11.2002 (Saturday) her daughter Rabita Kumari, aged about 15 years went to her School, Koderjanna High School, studying in class-IX, at 07:30 A.M. When her niece Kiran Kumari returned to home from her school and daughter of the informant did not return, then the informant started searching her daughter-Rabita Kumari. Subsequently the son of the informant, Arvind Kumar, disclosed before her, that when Rabita Kumari left her house for school, at that time co-villager, Sanjay Mandal also went behind her. It was subsequently found that Sanjay Mandal is also missing from his house for the whole day and returned at around 8:00 P.M. The informant has asked Sanjay Mandal about her daughter, but Sanjay Mandal did not give any reply. The informant has claimed, that Sanjay Mandal has abducted her minor daughter with intention to solemnize marriage with her. 4. On the basis of fardbeyan police instituted Sahibganj (M) P.S. Case No. 144 of 2002, dated 24.11.2002, under Section 366A of the Indian Penal Code. 5. After investigation, the police submitted charge sheet vide charge sheet no.07 of 2003, dated 18.02.2003, under Section 366A of the Indian Penal Code, against the sole accused person. 6. The cognizance of the offence has been taken vide order dated 19.02.2003 and the case has been committed to the court of sessions vide order dated 21.03.2003. 7. 5. After investigation, the police submitted charge sheet vide charge sheet no.07 of 2003, dated 18.02.2003, under Section 366A of the Indian Penal Code, against the sole accused person. 6. The cognizance of the offence has been taken vide order dated 19.02.2003 and the case has been committed to the court of sessions vide order dated 21.03.2003. 7. The charge has been framed against the appellant under Sections 366A of the Indian Penal Code, on 20.06.2003, to which the accused person has pleaded his innocence and thus, he was put under trial. 8. The prosecution, to prove its case, has examined altogether nine witnesses and also adduced a number of documentary evidence as exhibits up to exhibit-5. P.W.-1 is Sunita Prasad, Doctor, who has proved the injury report, P.W.-2 is Arbind Kumar, brother of the victim, P.W.-3 is Raghunath Singh, father of the victim, P.W.-4 is Nand Kishore Singh, another brother of the victim, P.W.-5 is Md. Abdul Karim, in-charge Headmaster of Koderjanna High School , P.W.- 6 is Sumitra Devi, informant of the case and the mother of the victim, P.W.-7 is Ravita Kumari, victim of the case, P.W.-8 is Pankaj Kumar Jha, the first investigating officer of the case and P.W.-9 is Ganga Dayal Choudhary, second investigating officer of the case. Prosecution has also proved the injury report of the victim issued by Dr. Sunita Prasad (P.W.-1), which has been marked as exhibit-1, Nand Kishore Singh (P.W.-4), has proved the signature of his mother, Sumitra Devi (P.W.-6), on the fardbeyan, which has been marked as exhibit-2, Md. Abdul Karim (P.W.-5), has proved the signature and handwriting of the Assistant teacher, on the receipt, which has been marked as exhibit-3, Pankaj Kumar Jha (P.W.- 8), has proved the writing and signature of the then officer-incharge, Nageshwar Prasad Singh, on the formal first information report, which has been marked as exhibit-4, Ganga Dayal Choudhary (P.W.-9), has proved the receipt of requisition for date of birth of victim from the Principal, Koderjanna High School, which has been marked as exhibit-5. 9. After closure of the prosecution evidence, the statement of the accused/appellant has been recorded under section 313 Cr.P.C., 1973 on 16.01.2004, where accused/appellant has denied about the occurrence. Defence has examined six witnesses but has not adduced any documentary evidence. 9. After closure of the prosecution evidence, the statement of the accused/appellant has been recorded under section 313 Cr.P.C., 1973 on 16.01.2004, where accused/appellant has denied about the occurrence. Defence has examined six witnesses but has not adduced any documentary evidence. Hardeo Mandal, has been examined as D.W.-1, Bhagawati Saran, has been examined as D.W.-2, Gun Sagar Rajak, has been examined as D.W.-3, Singeshwar Mandal, has been examined as D.W.-4, Sheo Devi Mandal, has been examined as D.W.-5 and Mahesh Mandal, has been examined as D.W.-6. 10. After hearing the learned counsel for the parties and on perusal of material available on record, the learned trial court has passed the impugned judgment of conviction and order of sentence against the appellant under Section 365 of the Indian Penal Code, although the charged has been framed under Section 366A of the Indian Penal Code, as Section 366A of the Indian Penal Code is a graver section and as such conviction has been passed under less section, in view of section 222 Cr.P.C., 1973 by the learned trial court. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellant has preferred the present criminal appeal before this Hon''ble Court, assailing the impugned judgment of conviction and order of sentence. 11. Heard, learned counsel for the appellant Mr. Aman Shekhar, assisted by Mr. S.S. Choudhary, Advocates. Learned counsel for the appellant has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law as there are material contradictions in the evidence of the prosecution witnesses. Learned counsel for the appellant has further submitted, that no charge has been framed under Section 365 of the Indian Penal Code, rather the charge has been framed under Section 366A of the Indian Penal Code, but the learned trial court has convicted the appellant under Section 365 of the Indian Penal Code. The learned counsel for the appellant has further submitted, that it is a case of love and affairs between the victim, Rabita Kumari and the appellant, Sanjay Mandal but subsequently, Rabita Kumari, has alleged against the appellant under duress of her parent and learned trial court without scrutinizing the same, convicted the appellant under section 365 of the Indian Penal Code. Learned counsel for the appellant has further submitted, that there are contradictions in the evidence of the prosecution witnesses and as such, learned trial court ought to have acquitted the appellant of the charge and conviction under Section 365 of the Indian Penal Code. Learned counsel for the appellant has further submitted, that father of the victim Raghunath Singh (P.W. 3), has been declared hostile by the prosecution. 12. Heard, Mrs. Vandana Bharti, learned Additional Public Prosecutor appearing for the State. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence has been passed on the basis of material available on record and the learned trial court has rightly convicted the appellant under Section 365 of the Indian Penal Code. Though charge has been framed in a graver section i.e. under Section 366A of the Indian Penal Code, but in view of the provisions contained in Section 222 Cr.P.C., 1973 the learned trial court has rightly convicted the appellant under Section 365 of the Indian Penal Code. Learned counsel for the State has further submitted, that Doctor Sunita Kumari, who has examined the victim, Rabita Kumari on 26.11.2002 has proved the injury report, which has been marked as exhibit-1. This witness has categorically stated, that no injury was found anywhere on the body of the victim including her private parts nor any tenderness or injury found in or around her private parts. Arbind Kumar, brother of victim, has been examined as P.W.-2, this witness has supported the prosecution case. Similar is the statement of P.W.-4 Nand Kishore Singh, another brother of the victim, who has proved the signature of his mother, Sumitra Devi (P.W.-6) on the fardbeyan and the same has been marked as exhibit-2, both the witnesses have been cross-examined by the defence in length but nothing has been elucidated to disbelieve the prosecution case. Md. Abdul Karim, in-charge, Headmaster of Kadderjana High School, has been examined as P.W.-5, who has proved the signature and handwriting of the then Assistant Teacher on the receipt regarding age, which has been proved and marked as exhibit-3. Sumitra Devi, informant of the case and mother of the victim, has been examined as P.W.-6. This witness has supported the fardbeyan recorded by the police, which has been proved and marked as exhibit-2. Sumitra Devi, informant of the case and mother of the victim, has been examined as P.W.-6. This witness has supported the fardbeyan recorded by the police, which has been proved and marked as exhibit-2. Rabita Kumari, victim of the case has been examined as P.W.-7, this witness has stated that, while she was going to school, Sanjay Mandal came near her and threatened her with pistol to come behind him, otherwise he will kill her by firing and thereafter she went behind Sanjay Mandal to Karamtola Railway Station from there she was taken to Pirpaity by train and from Pirpaity by bus to Barahat and again Sanjay Mandal brought her to Pirpaity and by train to Karamtola Railway Station and subsequently, brought her in his house and kept in a room. This witness has further stated, that her mother came thrice to the house of the appellant but she was not allowed to talk to her mother and on the next day, she was again taken to the Karmtola Railway Station by Sanjay Mandal, where the police in presence of her mother caught hold Sanjay Mandal and recovered the victim and thereafter, she was brought to the police station. This witness has admitted during crossexamination, that the house of Sanjay Mandal is situated in front of the house of the informant. This witness has stated that she has followed Sanjay Mandal under the fear of pistol. This witness has been cross-examined by the defence, but nothing has been elucidated to disbelieve the prosecution case. Pankaj Kumar Jha, S.I., who has recorded the fardbeyan of the victim, has proved the writing and signature of the then, officer-incharge, on the formal first information report, which has been proved and marked as exhibit-4. This witness has stated that accused was arrested. The house of the accused and the informant was situated at distance of 15-20 meters, when this witness made a search in the house of the appellant, at that time mother and wife of the appellant were also present in the house. Ganga Dayal Choudhary, is the second investigating officer of the case and has been examined as P.W.-9, who has proved the receipt issued by Incharge Headmaster, Koderjanna High School, which has been proved and marked as exhibit-5 and submitted charge-sheet. Ganga Dayal Choudhary, is the second investigating officer of the case and has been examined as P.W.-9, who has proved the receipt issued by Incharge Headmaster, Koderjanna High School, which has been proved and marked as exhibit-5 and submitted charge-sheet. Learned counsel for the state has further submitted, that the evidence of prosecution witnesses are consistent to each other and there is no material contradiction to disbelieve the prosecution case, although, the prosecution witnesses have been examined by the defence at length but nothing has been elucidated to disbelieve the prosecution case. It is a case, where appellant being a married man had entice a minor girl and as such, the learned trial court has rightly convicted the appellant under Section 365 of the Indian Penal Code. 13. After hearing the learned counsel for the appellant, Mr. Aman Shekhar, assisted by Mr. S.S. Choudhary, Advocates and learned counsel for the State, Mrs. Vandana Bharti, Additional Public Prosecutor and from perusal of the record i.e. first information report, framing of charge, evidence of nine prosecution witnesses, five prosecution exhibits, the statement of the appellant recorded under section 313 Cr.P.C., 1973 and six witnesses examined on behalf of defence, this court has scrutinized the evidence brought on record. As per the evidence adduced by the Rabita Kumari (P.W.-7), victim of the case, the appellant has kidnapped her at threat of pistol and taken away to his house and thereafter brought her to the railway station. The victim was recovered by the police from the railway station where the appellant was also there. Considering the above submissions of the parties, this court is of the opinion, that the conviction of the appellant under Section 365 of the Indian Penal Code, is justified, as passed by the learned trial court. The impugned judgment of conviction and order of sentence is hereby upheld and affirmed. The appellant who has served the sentence of approximately one year and considering the nature of allegation and an appellant being a married man, this court is inclined to modify the sentence awarded by learned trial court i.e. rigorous imprisonment for four years to the period already undergone by the appellant. As sufficiently punished by remaining in custody for approximately one year but with a fine of Rs. As sufficiently punished by remaining in custody for approximately one year but with a fine of Rs. 25,000/- payable to "Chief Minister''s Distress Relief Fund (Account No. 67319948232, State Bank of India, City Branch, Thiruvananthapuram, having IFSC: SBIN0070028 / SWIFT Code SBININBBT08)", within a period of eight weeks from today, failing which the appellant shall serve a period of rigorous imprisonment for two years. The learned trial court will not take any legal steps against the appellant for six weeks from today but if the amount is not being deposited in the Chief Minister''s Distress Relief Fund as stated above, failing which the learned trial court is directed to take all coercive methods for procurement of the attendance of the appellant to serve out the rest of the sentence. 14. The appellant, who is on bail, his bail bonds is hereby cancelled to comply with the order passed by this Hon''ble Court and after depositing the amount, the appellant will file an affidavit before the learned trial court annexing the receipt of deposit of the said amount in the Chief Minister''s Distress Relief Fund as stated above. If the appellant is not inclined to deposit the said amount, the appellant will serve a sentence of rigorous imprisonment for two years, instead of rigorous imprisonment for four years as awarded by the learned trial court. 15. In the result, the instant criminal appeal is dismissed with modification in sentence. 16. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.