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2023 DIGILAW 465 (JHR)

Sardar Jaspal Singh v. State of Jharkhand

2023-04-03

DEEPAK ROSHAN

body2023
JUDGMENT : 1. Heard learned counsel for the parties. 2. The instant appeal is directed against the judgment of conviction & order of sentence, both dated 27.06.2003, passed by the learned 1st Additional Sessions Judge, Dhanbad, in S.T. No. 416 of 1995, whereby the appellant was convicted and sentenced to undergo rigorous imprisonment for six months under Section 448 of the IPC, RI for one year under Section 354 of the IPC and RI for 7 years under Section 366A/511 of the IPC with a fine of Rs.5,000/- and in default of payment of fine, further ordered to undergo SI for three months, and all the sentences were directed to run concurrently. 3. The prosecution case in brief is that on 03.08.91, appellant Jaspal Singh along with his three associates entered in the house of informant with an intent to kidnap his minor daughter and on raising alarm all other associates fled away and Jaspal Singh was apprehended by mohalla people and handed over to the police. 4. Mr. Yogesh Modi, learned counsel for the appellant assails the impugned judgment on the legal issue that when the victim girl was not taken away by the appellant; Section 366 A of the IPC is not maintainable. He further submits that as per the admitted position, the appellant only hold the hand of the girl which is in no case be termed as outraging the modesty of the girl. The background of facts is that both were having love affairs and they have also solemnized marriage; however, the learned trial court has failed to consider the defence version as well as the exhibits produced by the defence including the photographs and the love letters which were written by both the parties. He contended that since it was a case of love affair and the informant, who is the father of the victim was opposed to it, the entire prosecution story has been concocted and was made just to take revenge. As a matter of fact, the defence was very specific that the allegations were not proved since the victim Sangita Das fell in love with the appellant and there was exchange of several love letters between them, but the learned trial court has simply brushed aside the love letters and the documents produced by the defence. As a matter of fact, the defence was very specific that the allegations were not proved since the victim Sangita Das fell in love with the appellant and there was exchange of several love letters between them, but the learned trial court has simply brushed aside the love letters and the documents produced by the defence. As a matter of fact, the family of Sangita Das did not like the affair between the two and they were opposed to their marriage and due to this fact, the appellant and Sangita Das got married in April, 1991 against the will of her family. Even, Sangita Das, the alleged victim, made an application to the Deputy Commissioner seeking police protection from her family members on 24.04.1991. Further, the marriage took place in Gurudwara in Burma Mines at Jamshedpur and only after a week of the marriage, the informant came to Jamshedpur and brought back the appellant and the victim girl to Dhanbad on 06.05.1991. They were taken to Dhanbad police from where Sangita Das was handed over to her father but at that time no case was registered and the present FIR has been lodged after about three months which clearly goes to show that it is a revenge of the earlier incidence. The learned trial court has failed to give any finding on the defense version. Though, he has stated that admittedly, the victim Sangita Das had accompanied with accused earlier to Jamshedpur, he has also given finding that she admitted the photographs and letters filed by the defense but due to the age as mentioned in the certificate that she was a minor aged about 17 years, learned trial court has convicted the appellant. As such, the judgment of conviction should be set aside and the appellant should be acquitted. 5. Mr. Rakesh Ranjan, learned APP and Mr. M.B. Lal, learned counsel for the O.P. No.2 opposed the prayed for acquittal and submits that it is an admitted case that the appellant entered the house of the informant and hold the hand of his minor daughter. However, both of them could not dispute the fact that both the appellant and the minor victim were in love affairs. Even they could not dispute the factum of the marriage between them in Gurudwara. 6. However, both of them could not dispute the fact that both the appellant and the minor victim were in love affairs. Even they could not dispute the factum of the marriage between them in Gurudwara. 6. Having heard learned counsel for the parties and after going through the impugned judgment and the LCR it appears that on 03.08.1991 at about 5 P.M. in the evening the appellant entered in the residential house of the informant and caught the hand of his daughter-Sangita Das and when her father came, the appellant jumped and tried to flee, but caught by the local people. The learned trial court in para 26 of its judgment has categorically admitted the fact that Sangita Das had accompanied accused earlier to Jamshedpur. He has also given finding that the girl admitted several photographs and the letters filed by defense. For better appreciation, relevant portion of para 26 is quoted herein below: “26. …….….. The admitted fact from the documents available on record is that Sangita Das had accompanied accused earlier to Jamshedpur. She has admitted photographs and the letters filed by the defense but at the same time it is abundantly clear from Ext-6 the certificate of Central Board of Secondary Education that the age of Sangita Das P.W-4 was 24 April, 1974 meaning thereby for the purpose of marriage she was minor and she was only aged about 17 years. Although this court is not competent to assess the validity of marriage but competent to take judicial notice that the marriage was void ab initio if any. ……….” The aforesaid finding clearly goes to show that in no case the entire incidence could be inferred as the case of kidnapping and/or outraging the modesty of a woman; as the learned trial court has given categorical finding that the girl herself has admitted the photographs and the letters and the factum of marriage but only due to the age of the girl which was around 17 years at the time of incident, the learned trial court opined the case of the defense as false. 7. At this stage, it is also pertinent to deal with the definition of kidnaping which is enumerated in Section 361 of the IPC and also the definition of procuration of minor girl which is enumerated in Section 366A of the IPC. 7. At this stage, it is also pertinent to deal with the definition of kidnaping which is enumerated in Section 361 of the IPC and also the definition of procuration of minor girl which is enumerated in Section 366A of the IPC. For brevity Section 361 and 366A of the IPC are quoted herein below: “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 I said to kidnap such minor or person from lawful guardianship.” “366-A. 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.” From conjoint reading of the aforesaid definitions, it appears that the first and foremost ingredient is that the victim must be taken away by the accused from the lawful guardianship if the girl is minor below 18 years on inducement. The learned trial court has given stress on the age of the victim that she was below 18 years but failed to consider the admitted position that the only allegation against the accused was that he came to the house of the victim and hold hand of the victim but the fact remains that he never took away the victim nor any attempt of taking her away has been alleged and/or proved. So far as the earlier story that both of them fled away and solemnized marriage; this FIR does not refer to the past incident. Admittedly, the appellant did not take away the victim, as such no case of kidnapping from lawful guardianship is made out nor any offence under Section 366A of the IPC is made out against the appellant. Consequently, the conviction under Section 366A / 511 of the IPC is set aside. 8. Admittedly, the appellant did not take away the victim, as such no case of kidnapping from lawful guardianship is made out nor any offence under Section 366A of the IPC is made out against the appellant. Consequently, the conviction under Section 366A / 511 of the IPC is set aside. 8. With regard to the charge under Section 354 of the IPC is concerned; the trial court erred in convicting the accused as with no stretch of imagination, holding hands of a girl be termed as outraging the modesty of a woman. As such, the conviction under Section 354 of the IPC is also set aside. 9. It transpires from the record that appellant certainly entered the house of informant, as such, the conviction under Section 448 of the IPC is sustained for which he is sentenced to undergo rigorous imprisonment for six months. However, on the question of sentence under Section 448 of the IPC, I am of the view that the incidence is of 1991 and appellant faced the rigors of trial for about 32 years and he also remained in custody for about one month, as such the sentence is modified for the period already undergone. 10. Consequently, this appeal is partly allowed. 11. The appellant shall be discharged from the liability of his bail bond. 12. Let the copy of this order and the lower court record be sent to the court concerned forthwith.