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2023 DIGILAW 799 (JHR)

Komal Kumar Pandey v. State of Jharkhand

2023-06-21

DEEPAK ROSHAN

body2023
JUDGMENT : DEEPAK ROSHAN, J. 1. Heard learned counsel for the parties. 2. This appeal is directed against the judgment of conviction dated 07.01.2004 and order of sentence dated 08.1.2004, passed by the learned Additional Sessions Judge, (FTC-VII), Hazaribag, in Sessions Trial No. 162 of 2003, whereby the appellant was convicted for the offences punishable under sections 363, 366 and 376 IPC and sentenced to undergo R.I. for a period of 5 years and a fine of Rs. 1000/-. In default of payment further undergo S.I. for a period of 1 month for the offence under section 376 IPC. Further sentenced to undergo R.I. for a period of 5 years under section 366 IPC and fine of Rs. 1000/- and in default of fine further undergo S.I. for a period of 1 month. Further sentenced to undergo R.I. for 3 years and fine of Rs. 250/- for commission of offence under section 363 IPC and in default of payment of fine further sentenced to undergo S.I. for 15 days and all the sentences shall run concurrently. 3. The prosecution case has been lodged on the basis of written report of Budhuwa Uraon who stated that on 4.7.2002 about 8 p.m. in the night his daughter Sawan Kumari aged about 12/13 years came out from the house to attend to natures call and when she did not return after an hour he started searching for her. In course of search it came to light that the appellant along with his father and Ravi Kumar Singh has kidnapped her with the intention to marry appellant with her. 4. Learned counsel for the appellant submits that no case under section 376 is made out for following reasons: (i) The victim under section 164 Cr.P.C. has categorically stated that she was in love affair with the appellant and she suo moto eloped with him to solemnize marriage. However the said victim has taken a U-turn before the learned trial court and said that the statement made by her before the police was under coercion therefore, the statement of the victim herself shall not be considered as trustworthy. (ii) Since the age of the victim was more than 16 years as per the finding of the learned trial court, as such the charge would not attract section 375 VIth description. (ii) Since the age of the victim was more than 16 years as per the finding of the learned trial court, as such the charge would not attract section 375 VIth description. (iii) The I.O. has supported the version of section 164 Cr.P.C. and further there cannot be any question for coercion for the reason that she has not given her statement under section 164 under any haste rather when she returned from the place of elopement at her residence after couple of days she has given the statement, as such there cannot be any assumption or presumption for coercion and since there is improvisation in the deposition by the victim herself trusting her deposition to be the sole reason for conviction is not justified. (iv) For all the above reason even the other sections for which the appellant has been convicted is not maintainable. 5. Learned APP opposed the prayer for acquittal and submits that the learned trial court has not committed any error in convicting the appellant. However, he fairly submits that as per record, there is no any criminal antecedents of the appellants. 6. Having heard learned counsel for the parties and after going through the impugned judgment and the documents available on LCR; it is imperative to extract relevant portion paragraph no. 17 to ascertain about the age of victim and Paragraph no. 26 about the motive/intention/manner of the occurrence, are quoted herein-below: “17............The statement of the witness clearly suggest that the victim girl must be between age of 16/17 years at the time of occurrence which also find support from the statement of victim girl u/s 164 Cr.P.C. Thus, it is held that the victim girl was 16/17 years old at the time of occurrence in the year 2002.” “26. After hearing learned counsel for the parties and from perusal of the record, the contention of the learned counsel for the convict appears to be sound. The manner under which the offence has been committed by the convict and the treatment which has been given to the victim girl during the period of 1 month when the victim girl remained with the convict at Patna shows that the convict Komal Kumar Pandey is entitled to get a lenient view in awarding sentence. The manner under which the offence has been committed by the convict and the treatment which has been given to the victim girl during the period of 1 month when the victim girl remained with the convict at Patna shows that the convict Komal Kumar Pandey is entitled to get a lenient view in awarding sentence. The circumstances under which the offence has been committed and the conduct of the victim girl clearly shows that it was with the consent of the victim girl but only because the victim girl has been found to be less than 18 years of age, therefore her consent has not been taken into consideration. But it may be taken into consideration for awarding sentence to the convict, and it is the special circumstances in this case as provided under the proviso of Section 376 IPC........” (Emphasis supplied) 7. After perusing the aforesaid portion of the impugned judgment, it is crystal clear that the learned trial court has accepted the age of the victim girl to be 16/17 years old at the time of occurrence in the year 2002 and further held that the circumstances under which the alleged offence has been committed and the conduct of the victim girl clearly shows that it was with the consent of the victim girl but only because the victim girl has been found to be less than 18 years of age, therefore her consent has not been taken into consideration. At this point, the learned trial court has committed an error by ignoring the fact that at the time of occurrence the law with regard to rape i.e. 375 clause 6, the legislature has given the age below 16 years where the consent will not be considered and the same was amended in 2013; as such, the learned trial court has misdirected itself by considering the age to be 18 years instead of 16 years, for giving consent for sexual relationship as the learned trial court itself held that the girl was more than 16 years of age as such, looking to the overall facts and circumstance of this case, it is held that no offence of Rape has been committed by the appellant. Having regard to the discussion made herein above and looking to the overall fact and circumstance of the case the appellant is acquitted from the charge of offence u/s 376 IPC. 8. Having regard to the discussion made herein above and looking to the overall fact and circumstance of the case the appellant is acquitted from the charge of offence u/s 376 IPC. 8. So far as conviction under section 363 IPC is concerned; for the same reason that the circumstances under which the offence has been committed and the conduct of the victim girl clearly shows that it was with the consent of the victim girl but only because the victim girl has been found to be less than 18 years of age, therefore her consent has not been taken into consideration for the learned trial court. At this stage, it is relevant to refer the judgment of the Hon’ble Apex Court in the case of S. Varadarajan vs. State of Madras, AIR 1965 SC 942 wherein the Hon’ble Apex Court has held as under: “9. It must, however, be borne in mind that there is a distinction between “taking” and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.” (Emphasis supplied) In view of the aforesaid law laid down by the Hon’ble Apex Court, the appellant also deserves to be acquitted for the offence u/s 363 and 366 IPC. Ordered accordingly. 9. In view of the aforesaid discussions, the instant criminal appeal stands allowed. 10. The appellants shall be discharged from the liability of his bail bonds. 11. Ordered accordingly. 9. In view of the aforesaid discussions, the instant criminal appeal stands allowed. 10. The appellants shall be discharged from the liability of his bail bonds. 11. Let a copy of this order be communicated to the trial court and the lower court record be sent to the court concerned forthwith.