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2022 DIGILAW 160 (JHR)

Ram Nawal Prasad v. State of Jharkhand

2022-02-10

NAVNEET KUMAR

body2022
JUDGMENT : The case was heard through video conferencing. None of the parties found any flaws with audibility/visibility during the course of hearing the matter. 2. This appeal is preferred against the Judgment of Conviction dated 13.08.2004 and order of sentence dated 18.08.2004 passed by the learned Additional District & Sessions Judge, FTC No. III, Bokaro, in S.T. No.372 of 2003, arising out of B.S. City P.S. Case No.112 of 2003, corresponding to G.R. no.450 of 2003, whereby and where under, both the appellants namely Ram Nawal Prasad and Lalan Prasad (died during the pendency of this Appeal) were convicted under section 363 and 366 of IPC read with section 34 of IPC and further they were sentenced to undergo R.I. for 3 years under Section 363 of IPC and R.I. for 5 years for the offence under Section 366 of IPC read with Section 34 of IPC and both the sentences were directed to run concurrently. 3. Briefly stated the prosecution case was initiated by the victim aged about 15 years herself daughter of Ashok Kumar Singh, and in her written statement she disclosed that on 29.05.2003, while she was alone in her house, one Sunil Kumar Prasad including his father Ram Nawal Prasad and Sanjay Kumar Panday came to his house at about 12.00 AM, at the day hour. They forcibly told her to move with them and as such the said Sunil Kumar Prasad, after gagging her mouth by clothes abducted her and took her with him in the tracker of one Lalan Prasad to Chas where she was kept in a hut. It has further been stated that the accused persons allegedly assaulted her and forced her to write on the plain paper that she had solemnized marriage with Sunil Kumar Prasad on her own sweet will and she had no concern with her parents and accordingly out of fear she wrote on the paper and thereafter the said Sunil Prasad told her to bring money from her parents to take her to their home town in U.P. Thereafter on that very tracker was she was taken at B.S.L.L.H. more (crossing) and from where she managed to escape and reached at her house safely on 31.05.2003 and reported the entire episode with her parents and thereafter gave this written report to the police. 4. 4. On the basis of the written report lodged by the victim Rekha Kumari, an FIR against the appellants along with Sunil Kumar Prasad and Sanjay Kumar Panday were lodged vide B.S. City P.S. Case No.112 of 2003, corresponding to G.R. no.450 of 2003 for the offence punishable u/s 366-A/34 of IPC and investigation was taken up and after investigation, the police submitted the charge-sheet in this case against these two appellants showing the rest two accused persons namely Sunil kumar Prasad and Sanjay Kumar Pandey absconder and the learned court of Magistrate split up the record of said absconder accused persons and cognizance of the offence was taken against these two appellants and the case was committed to the Court of Sessions. The accused persons denied the allegations made against them and pleaded not guilty to the charge explained to them and after trial, the learned court below passed the impugned judgment of conviction and order of sentence, which is under challenge in this appeal. 5. Heard learned defence counsel Mr. R.C.P. Sah appearing on behalf of the appellants and learned A.P.P. Mrs. Vandana Bharti appearing on behalf of the State. 6. Assailing the impugned judgment of conviction and order of sentence, learned defence counsel contended that the conviction and sentence passed by the learned trial court is contrary to the fact and circumstance of the case and contrary to the settled principle of law and learned court below failed to appreciate the vital omission and commissions in the depositions of PWs and as such, the impugned judgment of conviction and order of sentence passed by the Court below is fit to be set-aside. The learned defence counsel appearing on behalf of the appellants contended that none of the witnesses supported the case of the prosecution including the victim P.W.3,her father P.W.2 and her mother P.W.3 who clearly stated that having come to know that the appellants were innocent and due to misunderstanding the case was instituted, they entered into compromise and hence the appellants are innocent and all these facts have not been taken into consideration by the learned court below and passed the impugned judgment of conviction and order of sentence without application of judicial mind which is bad in law and fit to be set aside 7. On the other hand the learned A.P.P. appearing on behalf of the State vehemently opposed the contentions raised on behalf of the appellants. Learned A.P.P. has pointed out specifically para 23 and 24 of the Judgment, by which, learned court below has analyzed that these were the appellants, who were involved in the commission of the offence, despite the fact that the victim and her parents had entered into a compromise and refused to recognize the accused appellants, who were involved in the commission of offence despite their presence in the Court and therefore the appreciation of the facts by the learned court below is very cogent and therefore both the accused persons have been rightly held guilty for the offence punishable under Sections 363 and 366 of IPC and awarded the sentence and accordingly there is no merit in the appeal and it is fit to be dismissed being devoid of any merit. Appraisal & Findings 8. It is found that in order to substantiate the prosecution case, altogether seven witnesses have been examined. PW – 1 is Dr. Jai Narayan Srivastava, who on 3.06.2003 had examined the victim. Ashok Kumar Singh (PW – 2) is stated to be the father of the victim, (PW -3) happens to be the victim herself, while Manju Devi (PW – 4) is the mother of the victim herself, Somnath Tiwari and Akhilesh Singh have been examined as PW – 5 & 6. The last material witness is the I.O. of the case namely Rajeshwar Prasad (PW-7). 9. PW – 1 is Dr. Jai Narain Srivastava, who had medically examined the victim in order to determine the age of the victim on 03.06.2003. He deposed that different kind X-Rays of the victim were conducted after after examining the X-Ray result; this witness observed and proved the report, which has been marked as Ext.1. From perusal of the medical examination report Ext-1, it is found that the following X-Ray had been conducted : I. Pelvis AP II. Right knee A.P. lateral III. Right Ankle A.P. lateral IV. From perusal of the medical examination report Ext-1, it is found that the following X-Ray had been conducted : I. Pelvis AP II. Right knee A.P. lateral III. Right Ankle A.P. lateral IV. Right Wrist A.P. Lateral V. Right Elbow A.P. lateral It is found that the doctor has given different opinion after perusing the X-ray plates and at one place he observed that she was above 16 years old or above, further in view of the different X-Ray plates it is found by him that she was 17 years or above, further it is observed by the doctor from another X-ray plate that she is below 20 years or below 18 years or below 19 years, so even after taking average, it is found that she is at the threshold of being major, i.e. 18 years. 10. Further PW-2 Ashok Kumar Singh is the father of the victim, who categorically stated in his cross-examination that these two accused appellants Ram Nawal Prasad and Lalan Prasad @ Malakar were innocent and they were not the same persons about whom the allegations were made and clearly denied their involvement in the commission of the offence and from the depositions of this witness P.W.2 in the cross-examination vide para 6 , it is found that due to misunderstanding, these two appellants have been named in the alleged offence and the persons, who had actually committed the offence were different and therefore, having come to know this fact that these two appellants Ram Nawal Prasad and Lalan Prasad @ Malakar were not involved in the commission of this offence, they have entered into a compromise and all these facts, have come in to knowledge from his daughter-victim PW – 3 and therefore this witness totally demolished the case of the prosecution to the extent that these two appellants were involved in the commission of the offence of kidnapping and abduction. 11. PW – 3 is the victim and in examination-in-chief, she categorically stated that none of the accused, who are present in the Court, had committed the offence, although the learned court below had observed that the accused appellants Ram Nawal Prasad and accused appellant Lalan Prasad @ Lalan Malakar was present in the Court. 11. PW – 3 is the victim and in examination-in-chief, she categorically stated that none of the accused, who are present in the Court, had committed the offence, although the learned court below had observed that the accused appellants Ram Nawal Prasad and accused appellant Lalan Prasad @ Lalan Malakar was present in the Court. These testimonies of the victim established that these two appellants were not involved in the commission of the offence, rather they were some another persons of the same name, which is clear from her subsequent statement in para – 5 of the cross-examination, where she categorically stated that the case was instituted against the accused persons including Ram Nawal Prasad and Lalan Malakar but they were different accused persons other than these two persons, who were facing the trial and they were not present in the Court and thus the victim has completely absolved these two appellants for the charges leveled against them. Thus from the testimonies of this victim in the cross-examination, it is found that due to misunderstanding, the name of these two persons have been falsely implicated in this case and when she came to know about this fact, she had entered into a compromise and the compromise has taken place with respect to these two appellants and thus she completely falsified the case of the prosecution (the Fardbeyan exhibited as EXT.2) establishing that these two appellants were innocent and they were never involved in the commission of the offence. 12. PW – 4 Manju Devi was the mother of the victim and she had supported the version of the victim daughter, by which it is found that due to misunderstanding, these two appellants have been facing the trial by charging them in the commission of offence, although the offence was committed by some another person of the same names. She categorically stated in para – 3 that none of the accused was present in the Court, although these two appellants Lalan Prasad and Ram Nawal Prasad were present in the Court, as evident from para – 3 of the Examination-in- Chief of this witness where the learned court below has clearly written these two accused-appellants namely Ram Nawal Prasad and Lalan Prasad @ Malakar were present in person on the day in the court. Further, it is found from the testimonies of this witness P.W.4 that after coming to know about the misunderstanding with respect to the involvement of these two appellants in the commission of the offence, a compromise had taken place between the victim and these two appellants and she clearly stated in para – 9 that she did not want to pursue this case as both the accused appellants were innocent as told by the victim P.W.3 herself. 13. PW – 5 Somnath Tiwari and PW – 6 Akhilesh Singh have been declared hostile as they did not support the case of the prosecution. In view of the testimonies of these witnesses including Ashok Kumar Singh (PW – 2 the father of the victim), (PW -3 the victim herself), Manju Devi (PW – 4 the mother of the victim herself), the depositions of the I.O. PW – 7 Rajeshwar Prasad have become redundant, who has identified the formal FIR as Ext- 2/2, forwarding of the medical report Ext – 4 and arrest memo of the accused Lalan Prasad-Ext.-5, forwarding report of accused Ram Nawal Prasad Ext- 6 and medical report of the doctor as Ext.7. The sign of the victim on the medical report and the sign of the victim’s mother on the requisition have been marked as Ext 3 and Ext.3/1 although these official documents have not been initiated by the I.O. nor identified or proved by the Doctor Rosy Sahnkar, M.O. 14. Recapitulating the aforesaid discussions and appraisal of the testimonies of the witnesses, it is well founded that both the accused appellants are innocent and they were never involved in the commission of the offence as stated categorically by the victim, her mother and her father consistently and uniformly as evaluated in the aforesaid paragraphs. In this view of the matter, it is found the learned court below did not appreciate the testimonies of the witnesses in an integrated manner. Although the learned A.P.P. has pointed out as the proof of the charges against these two appellants on the basis of the appreciation of the facts based on the arrest and forwarding memo of these two appellants by the learned court below, but all these probabilities get mitigated in view of the categorical testimonies in unequivocal words the victim and her parents. As a result it is found that the learned trial court failed to take into account the legal evidences in a holistic and comprehensive manner including the witnesses examined on behalf of the prosecution particularly, PW-2, PW 3 and PW -4, who categorically, consistently and uniformly deposed that due to misunderstanding, these accused-appellants were named in the commission of the offence, although they were not involved at all and therefore later on they had entered into compromise with these two appellants. In view of these forceful manifestations in unequivocal words by the victim, her father and her mother, the appreciation of evidences by the learned trial court below based on the arrest memo, forwarding report and other documents becomes redundant and dispensable and hence the findings of the learned court below are not sustainable in the eyes of law as wholly misconceived and perverse. 15. In the backdrop, this Court holds that the impugned judgment of conviction and order of sentence is bad in law and fit to be set-aside. Hence the Judgment of Conviction dated 13.08.2004 and order of sentence dated 18.08.2004 passed by the learned Additional District & Sessions Judge, FTC No.III, Bokaro, in S.T. No.372 of 2003, arising out of B.S. City P.S. Case No.112 of 2003, corresponding to G.R. no.450 of 2003 , against these two appellants namely Ram Nawal Prasad and Lalan Prasad @ Malakar is set-aside. 16. Both the appellants are on bail; hence they are discharged from the liabilities of their bail bonds. 17. In the result, this appeal is allowed. 18. Let the Lower Court Record be sent back forthwith to the concerned court below along with the copy of this judgment.