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2018 DIGILAW 2687 (JHR)

Rajesh Nayak v. State Of Jharkhand

2018-12-07

KAILASH PRASAD DEO

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JUDGMENT Kailash Prasad Deo, J. - Heard, learned Amicus Curiae, Mr. Ashutosh Kumar Singh and learned counsel for the State, Mr. Sanjay Kumar Pandey, learned Additional Public Prosecutor. 2. The instant criminal appeal is directed against the judgment of conviction, dated 28.01.2004 and order of sentence, dated 30.01.2004, passed by learned Additional Sessions Judge, Fast Track Court-VII, East Singhbhum, Jamshedpur, in Sessions Trial No.424 of 1995, whereby the sole appellant has been convicted for the offence committed and punishable under Sections 363 and 376 of the Indian Penal Code and awarded rigorous imprisonment for four years with a fine of Rs.1000/- for the offence committed and punishable under Section 363 of the Indian Penal Code and rigorous imprisonment for seven years with a fine of Rs.1000/- for the offence committed and punishable under Section 376 of the Indian Penal Code, in case of default in payment of fine under each head, to undergo further rigorous imprisonment for two months. All the sentences are directed to run concurrently. 3. The prosecution case is based upon the fardbeyan of Sakuntla Devi (P.W.-3), recorded by Sub-inspector of police, Sunil Pathak officer-in-charge, Sitaramdera police station at 12:00 hours on 16.05.1995 at Garib Nagar, wherein the informant has stated, that she has been residing in Garib Nagar Basti alongwith her family, having two sons and two daughters. It is further stated that informant went to the house of her neighbour in the night of 05.04.1995, leaving behind her children, who were watching television. After some time informant''s youngest daughter, Kiran Kumari came there to call the informant. The informant returned with her youngest daughter and found that her eldest daughter Rewati Kumari (victim) was not present in the house. The informant made a search but could not locate her and during search it has been found that two sets of Salwar suit are also missing, which belongs to Rewati Kumari. Again on the next day, the informant started searching her elder daughter, Rewati Kumari and after hectic search it was found that neighbour, Rajesh Nayak was also missing from his house, from the same night. On enquiry, from the mother and wife of Rajesh Nayak the informant got suspicion that Rajesh Nayak has enticed her daughter, Rewati Kumari. Again on the next day, the informant started searching her elder daughter, Rewati Kumari and after hectic search it was found that neighbour, Rajesh Nayak was also missing from his house, from the same night. On enquiry, from the mother and wife of Rajesh Nayak the informant got suspicion that Rajesh Nayak has enticed her daughter, Rewati Kumari. The informant has further stated, that she got information that Rajesh Nayak has enticed her daughter, Rewati Kumari, aged about 15 years with bad intention and residing in flat in Kadma area alongwith the victim. 4. On the basis of fardbeyan, police has instituted Sitaramdera P.S. Case No. 26 of 1995, dated 16.05.1995, under Sections 363/366A of the Indian Penal Code. During investigation, the victim was recovered on same day i.e. 16.05.1995 alongwith accused/appellant, Rajesh Nayak and her statement was also recorded under Section 164 Cr.P.C. 5. After investigation, the police has submitted charge sheet vide charge sheet no.25 of 1995, dated 27.06.1995, under Sections 363/366(A)/376 of the Indian Penal Code, against the sole accused person. 6. The cognizance of the offence has been taken vide order dated 03.07.1995 and the case has been committed to the court of sessions vide order dated 31.08.1995. 7. The charge has been framed against the accused/appellant, Rajesh Nayak under Sections 366A/376 of the Indian Penal Code, on 17.11.1995, to which the accused/appellant has pleaded his innocence and thus, he was put under trial. 8. The prosecution, to prove its case, has examined altogether ten witnesses and also exhibited a number of documentary evidence up to exhibit-3. Rewati Kumari, victim of the case, has been examined as P.W.-1, Kiran Kumari, sister of the victim and daughter of the informant, has been examined as P.W.-2, Sakuntla Devi, mother of the victim and informant of the case, has been examined as P.W.-3, Ram Krisna Singh, investigating officer of the case, has been examined as P.W.-4. Panchu Rajak, Deepak Samad and Jyoti Lal, have been examined as P.W.-5, P.W.-6 and P.W.-7 respectively and have been declared hostile by the prosecution. Dr. Vinita Sahay, Medical Officer, has been examined as P.W.-8, Devdas Menan and Shila Devi, have been examined as P.W.-9 and P.W.-10 and have also been declared hostile by the prosecution. Panchu Rajak, Deepak Samad and Jyoti Lal, have been examined as P.W.-5, P.W.-6 and P.W.-7 respectively and have been declared hostile by the prosecution. Dr. Vinita Sahay, Medical Officer, has been examined as P.W.-8, Devdas Menan and Shila Devi, have been examined as P.W.-9 and P.W.-10 and have also been declared hostile by the prosecution. Fardbeyan of the informant has been proved and marked as exhibit-1, formal First Information Report has been proved and marked as exhibit-2 and injury report of the victim has been proved and marked as exhibit-3. 9. After closure of the prosecution evidence, the statement of the appellant has been recorded under section 313 Cr.P.C., on 20.01.2004, to which the appellant has denied the evidence levelled against him and stated that he is innocent and has been falsely implicated in this case. But no defence witness or documentary evidence has been adduced on behalf of defence. 10. After hearing the learned counsel for the parties and on perusal of materials available on record, the learned trial court has passed the impugned judgment of conviction and order of sentence against the appellant under Sections 363/376 of the Indian Penal Code but acquitted the appellant from the charge under Section 366A of the Indian Penal Code. 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 same. 11. Heard, learned Amicus Curiae, Mr. Ashutosh Kumar Singh. Learned Amicus Curiae has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned Amicus Curiae has submitted, that victim is a major girl, as the medical officer has assessed her age as 16-17 years. Learned Amicus Curiae has submitted, that for constituting an offence under Section 363 of the Indian Penal Code, the victim must be under the age of 18 years. Learned Amicus Curiae has submitted, that kidnapping is of two kinds, which has been defined under Section 359 of the Indian Penal Code and kidnapping from lawful guardianship has been defined under Section 361 of the Indian Penal Code, which reads as follows:- 361. Learned Amicus Curiae has submitted, that kidnapping is of two kinds, which has been defined under Section 359 of the Indian Penal Code and kidnapping from lawful guardianship has been defined under Section 361 of the Indian Penal Code, which reads as follows:- 361. Kidnapping from lawful guardianship- Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. Explanation- The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person. And punishment under Section 363 of the Indian Penal Code, reads as follows:- 363. Punishment for kidnapping- Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Learned Amicus Curiae has relied upon a judgment as reported in Phoola Versus State of Rajasthan , (1991) Supp2 SCC 475. Learned Amicus Curiae has submitted, that victim remained with appellant for more than one month and 10 days and was taken openly to different places but she has never made any protest even once despite opportunity to do so. Learned Amicus Curiae has buttressed his argument relying upon the evidence of P.W.-1, Rewati Kumari, victim of the case by referring paragraph 2 of her examination-inchief, where the victim has stated that accused was going ahead and she was following her. Learned Amicus Curiae has submitted, that the evidence of the prosecutrix is unreliable as she has subsequently alleged that accused appellant has done wrong thing with her. Learned Amicus Curiae has also relied upon a judgment as reported in State of Rajasthan Versus Babu Meena , (2013) 4 SCC 206 . Learned Amicus Curiae has further submitted, that out of ten prosecution witnesses, five prosecution witnesses namely, Panchu Rajak, P.W.-5, Deepak Samad, P.W.-6, Jyoti Lal, P.W.-7, Devdas Menan, P.W.-9 and Shila Devi, P.W.10, have not supported the prosecution case and they have been declared hostile by the prosecution. Learned Amicus Curiae has further submitted, that out of ten prosecution witnesses, five prosecution witnesses namely, Panchu Rajak, P.W.-5, Deepak Samad, P.W.-6, Jyoti Lal, P.W.-7, Devdas Menan, P.W.-9 and Shila Devi, P.W.10, have not supported the prosecution case and they have been declared hostile by the prosecution. Learned Amicus Curiae has further submitted, that entire case revolves around, the evidence of Rewati Kumari (P.W.-1) victim of the case, Kiran Kumari (P.W.-2), sister of the victim and daughter of the informant and Sakuntla Devi (P.W.-3), informant of the case and mother of the victim. The evidence of Dr. Vinita Sahay (P.W.-8) also belies the allegation of the victim, Rewati Kumari (P.W.-1) against the appellant, so far commission of rape is concerned as the doctor has categorically opined that no definite opinion about rape can be given and assessed the age of the victim between 16-17 years. The doctor has not found local injury or any foreign body nor external injury upon the victim. Learned Amicus Curiae has thus submitted, that in view of age of the victim, which is on the basis of assessment made by the doctor, which is subject to plus-minus two years, in favour of the appellant, victim may be considered to be a major girl and thus appellant may be acquitted of the charge under Sections 363/376 of the Indian Penal Code. Learned Amicus Curiae has also relied upon a judgment as reported in Sadashiv Ramarao Hadbe Versus State of Maharashtra and another , (2006) 10 SCC 92 as version given by the prosecutorix is unsupported by the medical evidence and the surrounding circumstances belie the case of prosecution. Learned Amicus Curiae has thus submitted, that impugned judgment of conviction and order of sentence is fit to be set aside. 12. Heard, Mr. Sanjay Kumar Pandey, learned Additional Public Prosecutor appearing for the State. Learned counsel for the State has submitted, that on the basis of fardbeyan of the informant, Sakuntla Devi (P.W.-3), mother of the victim, case has been instituted though after a delay of one month and ten days as nobody in the society will inform the police about missing of his or her unmarried daughter, aged about 15 years. Learned counsel for the State has submitted, that on the basis of fardbeyan of the informant, Sakuntla Devi (P.W.-3), mother of the victim, case has been instituted though after a delay of one month and ten days as nobody in the society will inform the police about missing of his or her unmarried daughter, aged about 15 years. Firstly, the natural course of guardian of such victim girl is to trace out the girl so that matter may not spread in the society otherwise they will face difficulties in arranging the marriage of the victim and when the informant was not in a position to recover her girl, she has informed the police rightly and the victim, Rewati Kumari (P.W.-1) was recovered from the possession of appellant, Rajesh Nayak on the same day. The medical examination of the victim was conducted on the very next day by the Dr. Vinita Sahay, P.W.-8 and the injury report of the victim has been proved and marked as exhibit-3, which shows age of the victim between 16 to 17 years, Hymen torn, old tear, as such the statement given by the victim regarding sexual assault made upon her (bad thing), is sufficient for convicting the accused/appellant, Rajesh Nayak under Section 376 of the Indian Penal Code. Learned counsel for the State has further submitted, that out of ten prosecution witnesses, five have been declared hostile by the prosecution but missing girl has been recovered with the appellant, Rajesh Nayak is not under dispute and the same has been corroborated by the investigating officer, Ram Krisna Singh (P.W.-4), who has stated the same in paragraph 3 of his examination-in-chief. Learned counsel for the State has further submitted, that after finding the case to be true, the investigating officer, Ram Krisna Singh (P.W.-4) has submitted chargesheet against the accused, Rajesh Nayak and the same has also been corroborated by the medical evidence exhibit-3, proved by P.W.-8, Dr. Vinita Sahay, who has found the Hymen torn, old tear. Learned counsel for the State has submitted, that Section 363 of the Indian Penal Code is also made out against the appellant as the victim was forcibly taken under threat and there is direct statement of the victim in this regard. Vinita Sahay, who has found the Hymen torn, old tear. Learned counsel for the State has submitted, that Section 363 of the Indian Penal Code is also made out against the appellant as the victim was forcibly taken under threat and there is direct statement of the victim in this regard. Learned counsel for the State has tried to distinguish the judgment relied upon by learned Amicus Curiae and has submitted that, the judgment as reported in Phoola Versus State of Rajasthan , (1991) Supp2 SCC 475 is not applicable in this case as victim was not taken openly to different places rather the victim was taken under threat in a Tempo and kept confined for five days in a room and thereafter she was taken to the house of maternal aunt of the appellant, as such the facts of Phoola Versus State of Rajasthan (Supra) is not applicable. Learned counsel for the State has further submitted, that the judgment as reported in Sadashiv Ramarao Hadbe Versus State of Maharashtra and another , (2006) 10 SCC 92 is also distinguishable from this case. The Hon''ble Supreme Court has taken view that in rape case, conviction on the sole testimony of prosecutrix is sustainable but in that case version given by the prosecutrix is unsupported by the medical evidence and the surrounding circumstance belies the case set up by her. There were many persons in the clinic and it is highly improbable that the appellant would have sexually assaulted her, when several persons were present in near vicinity and it is also highly improbable that the prosecutrix could not make any noise or get out of the room without being assaulted by the doctor and she was an able-bodied person of twenty years of age with ordinary physique, but in the present case no such circumstance exist. Learned counsel for the State has submitted, that victim was taken in Tempo under threat, as such she has not raised any brawl under fear. Subsequently the victim was confined in a room for five days and sexually assaulted by the accused/appellant, Rajesh Nayak. Later on, the victim was taken by the accused/appellant to Ranchi in a bus and subsequently, returned to the house of his maternal aunt. Subsequently the victim was confined in a room for five days and sexually assaulted by the accused/appellant, Rajesh Nayak. Later on, the victim was taken by the accused/appellant to Ranchi in a bus and subsequently, returned to the house of his maternal aunt. During her cross-examination, the victim was not crossexamined by the defence, to dispel the fact that victim had chance of raising brawl in the public bus, which was full of passengers but did not raise brawl. Learned counsel for the State has submitted, that a minor girl, who was kidnapped and confined for such a long period was not able to raise brawl because of trauma, she has suffered. Learned counsel for the State has submitted, that the judgment of Sadashiv Ramarao Hadbe Versus State of Maharashtra and another (Supra) is distinguishable from the fact of the present case. Learned counsel for the State has submitted, that the judgment reported in the case of State of Rajasthan Versus Babu Meena , (2013) 4 SCC 206 is also not applicable in the present case as it was appeal preferred by the State against the judgment of acquittal passed by High Court. The Principal laid down for interfering in a case of judgment of acquittal is different as the Hon''ble Apex Court has held that if two views are possible and the court has taken another view by acquitting the accused, though both views are possible, the appellate court cannot take other views for convicting the appellant. Under aforesaid circumstances, learned counsel for the State has submitted, that fact of those cases are distinguishable from the fact of the present case, where the learned trial court has convicted the appellant. Learned counsel for the State thus submitted that impugned judgment of conviction and order of sentence does not warrant interference by this Hon''ble Court. 13. Heard, learned Amicus Curiae, Mr. Ashutosh Kumar Singh and learned counsel for the State, Mr. Sanjay Kumar Pandey, learned Additional Public Prosecutor and perused the record i.e. First Information Report, framing of charge, evidence of ten prosecution witnesses, three prosecution exhibits, the statement of the appellant recorded under section 313 Cr.P.C. as well as impugned judgment of conviction and order of sentence. Ashutosh Kumar Singh and learned counsel for the State, Mr. Sanjay Kumar Pandey, learned Additional Public Prosecutor and perused the record i.e. First Information Report, framing of charge, evidence of ten prosecution witnesses, three prosecution exhibits, the statement of the appellant recorded under section 313 Cr.P.C. as well as impugned judgment of conviction and order of sentence. This court has minutely scrutinized the evidence of the prosecution witnesses, P.W.-2, Kiran Kumari, sister of the victim and P.W.-3, Sakuntla Devi, mother of the victim and informant of the case and the statement of the victim, Rewati Kumari (P.W.-1) and compared the same with exhibit-3 and the evidence of P.W.-8, Dr. Vinita Sahay and P.W.-4, Ram Krisna Singh, investigating officer of the case. There are no material contradictions in the prosecution case. This Court has also perused the statement of the victim recorded under Section 164 Cr.P.C. on 06.06.1995, where she has also alleged about forceful kidnapping by the appellant and subsequently, sexual assault by the appellant. It is true that brothers of the victim and husband of the informant have not been examined in this case and other prosecution witnesses, have not supported the case of the prosecution and thus, they were declared hostile by the prosecution. The judgment relied by the learned Amicus Curiae has been rightly distinguished by the learned counsel for the State on facts, as such the same are not applicable in the present case. It is a case where the victim, a minor girl less than eighteen years has been kidnapped by the appellant under threat taken her on a Tempo, confined her in a room for five days and sexually assaulted her. The offence charged under Sections 366A and 376 has been rightly considered by the learned trial court under the provisions of Section 222 Cr.P.C. for convicting the appellant under Sections 363 and 376 of the Indian Penal Code. From the evidence, it appears that defence has cross-examined the witnesses at length but nothing has been elucidated to dispel the prosecution case. The appellant has not stated anything in his statement under Section 313 Cr.P.C., so far consent of the victim or age of the victim is concerned. From the evidence, it appears that defence has cross-examined the witnesses at length but nothing has been elucidated to dispel the prosecution case. The appellant has not stated anything in his statement under Section 313 Cr.P.C., so far consent of the victim or age of the victim is concerned. Under the aforesaid circumstances, this Court is of the opinion that delay in lodging the First Information Report is also not fatal for prosecution case as every parent will try to search his or her daughter, who is missing before making it widespread in the society, inviting a threat and hurdle in arranging/solemnizing marriage of his or her daughter, who is victim of the case. 14. Under the aforesaid circumstances, this Court is of the opinion that the learned trial court has rightly convicted the appellant under Sections 363 and 376 of the Indian Penal Code, which is hereby upheld and affirmed. 15. In the result, the instant criminal appeal is dismissed. 16. The appellant, who is on bail, his bail bonds is hereby cancelled. 17. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action. 18. The State Government is directed to pay victim compensation to the daughter of informant, Sakuntla Devi. The Deputy Commissioner, East Singhbhum, Jamshedpur and Secretary, Jharkhand State Legal Services Authority are directed to look into the matter and release the victim compensation to the victim and the Deputy Commissioner, East Singhbhum, shall also take suitable steps for employment of the lady, in accordance with rule and report of the same may be sent before the Secretary, Jharkhand State Legal Services Authority. 19. Before parting with the judgment, this Court appreciates the assistance rendered by learned Amicus Curiae, Mr. Ashutosh Kumar Singh, Advocate in disposal of the criminal appeal. The Secretary, Jharkhand Legal Services Authority is directed to release the legal admissible remuneration to learned Amicus Curiae, Mr. Ashutosh Kumar Singh, Advocate, within four weeks from the date of production of certified copy of this order.