Jharkhand High Court
Puspa Marandi vs The State Of Jharkhand on 25 September, 2018
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No.1252 of 2004
(Against the Judgment of conviction dated 23.07.2003 and order of sentence dated
25.07.2003, passed by learned Additional Sessions Judge, Fast Track Court No.I,
Pakur, in Sessions Case No. 14 of 2003/30 of 2003).
Puspa Marandi, daughter of Late Hopna Marandi
resident of village- Soglay, P.S.- Shikari Para,
District - Dumka. ... Appellant
Versus
The State of Jharkhand ... Respondent
PRESENT
HON'BLE MR. JUSTICE KAILASH PRASAD DEO
For the Appellant : Mr. Birendra Kumar, Amicus Curiae.
For the State : Mr. Gauri Shankar Prasad, Additional Public Prosecutor.
.....
By Court:- Heard, learned Amicus Curiae, Mr. Birendra Kumar and Mr. Gauri Shankar Prasad, learned Additional Public Prosecutor, appearing for the State.
2. The instant Criminal appeal is directed against the judgment of conviction dated 23.07.2003 and order of sentence dated 25.07.2003, passed by the learned Additional Sessions Judge, Fast Track Court No.I, Pakur, in Sessions Case No. 14 of 2003/30 of 2003, whereby, the appellant, Puspa Marandi has been convicted for the offence committed and punishable under Section 368 of the Indian Penal Code and awarded Rigorous Imprisonment for five years and to pay fine of Rs. 500/- and in default of payment of fine the appellant is further sentenced to undergo Rigorous Imprisonment for three months. The learned trial Court has acquitted the appellant of the charge under Section 366 of the Indian Penal Code.
3. The prosecution case, is based upon, written report of informant, Miru Marandi (P.W.5) before the Officer-in-charge, Pakuria Police Station, on 19.06.2002, wherein, the informant has stated that, in the month of January, Puspa Marandi (appellant) came to her house at Rampur Hatia along with her daughter Parbati Murmu, aged about 18 years and stayed at her house for three to four hrs. The informant thought that Puspa Marandi is the friend of her daughter Parbati Murmu. Later at about 4.00 o'clock, Puspa Marandi went away with the daughter of the informant. The informant thought that they have gone somewhere. After two to three days, when the informant's daughter did not returned, then the informant's Nephew, Somesh Marandi went to the house of Puspa Marandi at village -Soglay, but he did not found Puspa Marandi and Parbati Murmu. Thereafter, the informant and others have searched 2 Parbati Murmu in the house of her relatives, but even then she could not be traced. During search, they got knowledge that Dular Murmu, daughter of Kuran Murmu, Tulshi Hansda, daughter of Matal Hansda and Didimoni Tudu, daughter of Majhuwa Tudu have also been taken away. After three months Puspa Marandi returned to village- Parkunda. On getting such information, the informant also reached to the village Parkunda and made query from Puspa Marandi about the whereabouts of her daughter. Puspa Marandi disclosed her that she took Parbati Murmu to Delhi. The informant has also asked about the location and telephone number of the place of Parbati Murmu, but she did not disclosed and as such, hot talk took place between the informant and Puspa Marandi. Thereafter, the informant narrated about the incidence to her husband and family members. Informant's husband and other family members also went to village-Parkunda to make query from Puspa Marandi but could not met her. Again on 19..06.2002 Puspa Marandi was seen at village- Domen garia. The informant has doubt that Puspa Marandi has taken away all the four girls to Delhi and had sold them.
4. On the basis of the written report of the informant, the Police registered First Information Report bearing Pakuria P.S. Case No. 20 of 2002, dated 19.06.2002, under Section 370 of the Indian Penal Code.
5. After investigation, the police submitted charge sheet vide charge sheet no.34 of 2002 dated 30.12.2002, under Sections 366, 367, 368, 370 and 372 of the Indian Penal Code against the appellant Puspa Marandi.
6. The cognizance of the offence has been taken vide order dated 16.01.2003 and the case has been committed to the Court of Sessions vide order dated 18.01.2003.
7. The learned trial Court has framed charge against the appellant on 29.01.2003, under Sections 366 and 368 of the Indian Penal Code, to which the appellant has pleaded her innocence and thus, she was put under trial.
8. The prosecution, in order to prove its case, has examined altogether six witnesses and exhibited documentary evidence.
Durbeen Hansda (co-villager of the Parbati Murmu) has been examined as P.W.1, Fuchun Das has been examined as P.W.2 but has been declared hostile by the prosecution, Somesh Marandi (co-villager of the informant) has been examined as P. W. 3, Huzur Murmu, father of the victim, has been examined as P.W.4, Miru Marandi (informant of this case) has been examined as P.W.5 and Ram Harish Nirala 3 (Investigating Officer of this case) has been examined as P.W.6.
Formal First Information Report has been proved and marked as exhibit-1.
9. After closure of the prosecution evidence, the statement of the appellant has been recorded under Section 313 Cr.P.C., on 26.06.2003, to which the appellant has stated that she is innocence and thus, and has been falsely implicated in this case.
10. After hearing learned counsel for the parties and on the basis of material available on record, learned trial Court has convicted the appellant under Section 368 of the Indian Penal Code, but the learned trial Court has acquitted the appellant of the charge under Section 366 of the Indian Penal Code.
Being aggrieved at, and dissatisfied with the, impugned judgment of conviction and order of sentence, the present criminal appeal has been preferred by the appellant before this Hon'ble Court , assailing the impugned judgment of conviction and order of sentence.
11. Heard, learned Amicus Curiae, Mr. Birendra Kumar.
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, as the basic ingredient to convict a person under Section 368 of the Indian Penal Code is missing in the present case.
Learned Amicus Curiae has further submitted, that appellant has been acquitted by the learned trial Court of charge under Section 366 of the Indian Penal Code, which is principle offence for convicting a person under Section 368 of the Indian Penal Code. The prosecution has not been able to establish the case against the accused person under Section 366 of the Indian Penal Code beyond all reasonable doubt as such, appellant has been acquitted of the charge under Section 366 of the Indian Penal Code and as such, conviction of the appellant under Section 368 of the Indian Penal Code is not sustainable in the eyes of law.
Learned Amicus Curiae has drawn attention of this Court towards, the provision of Section 368 which reads as follows:-
"368. Wrongfully concealing or keeping in confinement, kidnapped or abducted person - Whoever, 4 knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement".
Learned Amicus Curiae has further submitted, that since kidnapping or abduction has not been proved against any of the accused person including the appellant, as such, the appellant cannot be convicted for offence committed and punishable under Section 368 of the Indian Penal Code.
Learned Amicus Curiae has further submitted, that this appellant, who has been charged under Section 366 of the Indian Penal Code, has been acquitted by the learned trial Court of the said charge and the judgment of acquittal has not been assailed by the State or by the Informant before an appropriate Court of law and as such, acquittal of the appellant under Section 366 of the Indian Penal Code attains its finality.
Learned Amicus Curiae has further submitted, that P.W.1 (Durbeen Hansda) being a co-villager has not alleged anything against the appellant with respect to offence of kidnapping or abduction nor anything has been proved that this appellant has kept or confined the victim Parbati Murmu as Parbati Murmu had come along with appellant to her house and again went out of the house with the appellant voluntarily.
Learned Amicus Curiae has further submitted, that from perusal of the First Information Report and the evidence of the prosecution witnesses, it appears that Parbati Murmu was aged about 18 years and at that time, for being major the minimum age requires to be of sixteen years and as such, Learned Amicus Curiae has submitted, that if a major girl went along with the appellant, no offence is made out under the law.
Learned Amicus Curiae has further submitted, that none of the witnesses examined on behalf of the prosecution has alleged that appellant has kidnapped or abducted the victim-Parbati Murmu. The evidence has been adduced on behalf of the 5 prosecution is that the daughter of the informant, Parbati Murmu is missing and from the perusal of the evidence brought on record only a suspicion can be raised against Puspa Marandi (appellant) that she has taken the victim Parbati Murmu to some place but merely on that appellant Puspa Marandi cannot be convicted.
Learned Amicus Curiae has further submitted, that Fuchun Das has been examined as P.W.2 and has been declared hostile by the prosecution.
Learned Amicus Curiae has further submitted, that Somesh Marandi has been examined as P.W.3 and this witness has stated that Parbati Murmu went out of her house along with Puspa Marandi. Even then, this evidence is not sufficient to convict the appellant under Section 368 of the Indian Penal Code, when the appellant has been acquitted by the learned trial Court of charge under Section 366 of the Indian Penal Code. Huzur Murmu, father of the victim and husband of the informant has been examined as P.W.4. This witness is admittedly a hearsay witness and this witness in para-5 of his cross-examination, has stated that, he has never seen Puspa Marandi earlier. From the evidence adduced by this witness, it appears that nothing has been brought on record to constitute an offence under Section 368 of the Indian Penal Code. Miru Marandi, informant of the case and mother of the victim has been examined as P.W.5. This witness has stated in para-9 of her cross-examination that her daughter Parbati Murmu never used to go alone but she used to go along with co- villager Didimoni and Dular and on the fateful day also, she went to fair along with those persons. This witness has further stated in para-10 that even after 3-4 days of leaving the house by Parbati Murmu, she has not informed the same to the police. This witness has further stated that, Didimoni and Dular are not present in the village. From the evidence adduced by the informant, nothing has been brought on record for constituting an offence under Sections 366 or 368 of the Indian Penal Code. Ram Harish Nirala, officer in-charge of Pakudia Police Station and investigating officer of the case has been examined as P.W.6. This witness has submitted charge-sheet against the appellant. This witness (P.W.6) has submitted in para-4 of his examination-in-chief, that Fulchand Das has stated before him that while they were inquiring from Puspa Marandi(appellant), it has transpired that four girls, namely Parbati Murmu(victim), Dular Murmu, Tulsi Hansda and Didimoni Tudu were enticed 6 by Puspa Marandi and has taken the girls from their house but said Fulchand Das has been examined in this case as P.W.2 and has been declared hostile by the prosecution.
Learned Amicus Curiae has further submitted, that without having any material, the appellant has been charge sheeted by the police and without having any material on record, the learned trial Court has convicted the appellant under Section 368 of the Indian Penal Code though by the same impugned judgment, the learned trial Court has acquitted the appellant of charge under Section 366 of the Indian Penal Code, which is principle offence for conviction under Section 368 of the Indian Penal Code.
Learned Amicus Curiae has further submitted, that as such, the appellant is entitled for benefit of doubt, as the impugned judgment of conviction and order of sentence cannot sustain in eyes of law.
12. Heard, Mr. Gauri Shankar Prasad, learned Additional Public Prosecutor appearing for the State.
Learned counsel for the State has submitted, that impugned judgment of conviction and order of sentence is well founded and learned trial Court has rightly convicted the appellant under Section 368 of the Indian Penal Code.
Learned counsel for the State has submitted, that State of Jharkhand is well known state for the offence committed against the unmarried girls, who are taken away by the accused to force them to work at some metropolitan city, like Delhi and other big cities.
Learned counsel for the State has further submitted, that Parbati Murmu came to her house along with the appellant (Puspa Marandi) and also left the house along with the Puspa Marandi and since then Parbati Marandi is missing and as such, it is rightly construed by the learned trial Court that appellant has wrongfully confined the victim Parbati by Kidnapping or abducting her.
Learned counsel for the State has further submitted, that the investigating officer and the informant have supported the prosecution case and as such, the learned trial Court has rightly convicted the appellant under Section 368 of the Indian Penal Code 7
13. Heard, learned Amicus Curiae, Mr. Birendra Kumar and learned counsel for the State, Mr. Gauri Shankar Prasad, Additional Public Prosecutor and perused the records, i.e First Information Report, framing of the charge, evidence of six prosecution witnesses, one exhibit of the prosecution side and the statement of the appellant recorded under Section 313 Cr.P.C. as well as the impugned judgment of conviction and order of sentence.
This Court has scrutinized the evidence of prosecution witnesses. From perusal of the evidences of the prosecution witnesses, this Court is of the opinion that ingredient of kidnapping or abduction is not available on record and the learned trial Court has rightly passed the judgment of acquittal against the appellant of charge under Section 366 of the Indian Penal Code, which has not been challenged by the State or by the informant before appropriate Court of law. This Court has also perused the evidence brought on record. The investigating officer, P.W.6 Ram Harish Nirala has categorically stated in his statement before the Court that Fulchand Das has stated before him that while they were inquiring from Puspa Marandi(appellant), it had transpired that four girls, namely Parbati Murmu(victim), Dular Murmu, Tulsi Hansda and Didimoni Tudu were enticed by Puspa Marandi and has taken the girls from their house but said Fulchand Das has been examined in this case as P.W.2 and has been declared hostile by the prosecution. P.W.1 Durbeen Hansda and P.W.3 Somesh Marandi are hearsay witnesses, P.W.4 Huzur Murmu, farther of the victim is also hearsay witness and P.W.5, Miru Marandi(informant) has not adduced any evidence to constitute an offence under Sections 366 or 368 of the Indian Penal Code.
Thus, this Court is of the opinion that once the case has not been established under the principle offence i.e. under Section 366 of the Indian Penal Code and in absence of any material to constitute an offence under Section 368 of the Indian Penal Code, the appellant cannot be convicted under Section 368 of the Indian Penal Code.
Under the aforesaid background, as discussed above, this Court is of the opinion that the impugned Judgment of conviction and order of sentence, cannot sustain in the eyes of law.
Accordingly, the judgment of conviction dated 23.07.2003 and order of 8 sentence dated 25.07.2003, passed by learned Additional Sessions Judge, Fast Track Court No.I, Pakur, in Sessions Case No. 14 of 2003/30 of 2003, is hereby set aside by giving benefit of doubt.
14. In the result, the instant criminal appeal stands allowed.
15. The appellant, who is on bail, is discharged from the liability of her bail bonds.
16. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.
17. Before parting with this judgment, this Court appreciates the assistance rendered by learned Amicus Curiae, Mr. Birendra Kumar to this Court in disposal of the present criminal appeal. The Secretary JHALSA is directed to pay remuneration as per the rule to learned Amicus Curiae, Mr. Birendra Kumar within a period of four weeks from date of receipt of a copy of this judgment.
18. Let a copy of this judgment be communicated to the Jharkhand High Legal Services Authority forthwith.
(Kailash Prasad Deo, J.) Jharkhand High Court, Ranchi Dated 25.09.2018 Jay/-