Jharkhand High Court
Basant Das Alias Basant Kumar Das Son Of ... vs The State Of Bihar on 17 July, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
2025:JHHC:19622-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal (DB) No. 306 of 1998(R)
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(Against the judgment of conviction dated 16th September,
1998 and order of sentence dated 23rd September, 1998,
passed by learned 1st Additional Sessions Judge, Chatra in
Sessions Trial No.133 of 1997)
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Basant Das alias Basant Kumar Das son of Jagdish Das,
resident of village Hiring, Police Station Huntergunj,
District-Chatra. .... Appellant
Versus
The State of Bihar ..... Respondent
with
Cr. Appeal (DB) No. 281 of 1998(R)
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Banshi Das son of Chathu Das, resident of village Bana
Sandi, Police Station Simaria, District-Chatra.
.... Appellant
Versus
The State of Bihar ..... Respondent
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
.....
For the Appellants : Mr. Chandan Kumar, Advocate
[In both cases]
For the State : Mrs. Priya Shrestha, Spl. P.P.
[In both cases]
.....
C.A.V. on 02/07/2025 Pronounced on 17/07/2025
Per Sujit Narayan Prasad, J.:
1. Since both the appeal arises out of the common judgment of conviction dated 16th September, 1998 and order of sentence dated 23rd September, 1998, passed by learned 1st Additional Sessions Judge, Chatra in Sessions Trial No.133 of 1997, as such they have been 2025:JHHC:19622-DB tagged together and taken up together for hearing and are being disposed of by this common order. Prayer:
2. Both the appeals have been filed under Section 374 (2) of the Code of Criminal Procedure against judgment of conviction dated 16th September, 1998 and order of sentence dated 23rd September, 1998, passed by learned 1st Additional Sessions Judge, Chatra in Sessions Trial No.133 of 1997, by which the appellant, namely, Basant Das has been convicted for the offence under Section 366A and 376 of the Indian Penal Code and further appellant- Banshi Das has been convicted for the offence under Section 366A of the Indian Penal Code and as such the appellant-Banshi Das has been sentenced of RI for five years for the offence under Section 366A of the Indian Penal Code; and the appellant, Basant Das has been sentenced to undergo rigorous imprisonment for life under Section 376 of the Indian Penal Code and in view of sentence passed under Section 376 IPC no separate sentence was awarded against the appellant, Basant Das, under Section 366A IPC.
Prosecution Case:
3. The prosecution case, as made out in the written report of the informant, is that victim (P.W.4) is the daughter 2 2025:JHHC:19622-DB of the informant Bajrang Prasad. In April, 1995, she was minor aged about 14 years. She was studying in a school at Huntergunj, Police Station Huntergunj, District Chatra.
4. According to the prosecution case, victim as usual, left her house situated at Huntergunj at about 7.00 A.M. in order to attend her morning class in the school. But she did not return home. It caused anxieties to the informant and other family members. She was searched here and there but she could not be traced out.
5. It is stated in the written report that about 8 to 10 days before the date of occurrence, an unknown lady came to the house of the accused Gopal Prasad Swarnkar and Nirmla Devi. The said Nirmla Devi called upon victim and got her identified with the unknown lady. Thereafter victim went to her school. Again, on the same day when she was returning from her school that unknown lady met her in the way. She wanted to talk something. However, Nirupa Kumari did not give any lift to her and went to her house. She uttered the entire occurrence to her mother. It is also stated that when victim went to her school after being identified with the unknown lady, the accused Gopal Prasad Swarnkar went to the house of informant and enquired from Jagrit Mahto, servant of the informant, as to when 3 2025:JHHC:19622-DB victim used to go to and return from her school. Just after 8 to 10 days of victim being identified with the unknown lady, at the instance of accused Nirmala Devi, she was kidnapped and thus on the basis of this fact and also the fact that the accused Gopal Prasad Swarnkar was enquiring about her, these two accused persons were prosecuted on suspicion after victim was kidnapped.
6. It is further case of the prosecution that when victim was going to attend her school the accused Banshi Das met her at the Bus Stand at Huntergunj and got her forcibly boarded on Uma Bus. Since Banshi Das was threatening her, she could not even raise hulla. Victim, out of extreme nervousness asked for water. Upon this, Banshi Das gave water to her. She drank the water and thereafter she mentally became unconscious. When Uma Bus reached Chatra from Huntergunj, she became conscious. She saw that in place of accused Banshi Das; the accused Basant Das was with her who after advancing threat to her again got her boarded in another bus which was ready to depart from Chatra for Ranchi.
7. In this way victim left the Uma Bus and got herself boarded by accused Basant Das in another Bus which was ready to ply for Ranchi. Out of fear victim neither 4 2025:JHHC:19622-DB raised halla nor could utter any word to anyone. In this way, Basant Das and minor victim girl reached State Bus Depot at Ranchi. Accused Basant Das took her in a room and stayed there with her in the night. He committed rape on her at night in the room against her will and consent.
8. On the following morning Basant Das took victim to the house of his friend situated near a soap factory at Ranchi. He kept victim for whole of the day. However, in the evening the informant along with Huntergunj Police reached there and rescued the minor girl from the clutch of the accused Basant Das there.
9. For the aforesaid occurrence a written report was submitted by the informant to the Officer-in-Charge of Huntergunj Police Station on 18.04.1995 on the basis of which the Huntergunj Police Case No. 16 of 1995 dated 18.04.1995 u/s 366(A) of the Indian Penal Code was registered. The F.I.R. was drawn up.
10. The statement of Victim (Ext.5), on her recovery, was recorded u/s 164 of the Code of Criminal Procedure, 1973 and on completion of the investigation charge- sheet was submitted on the basis of which the learned Chief Judicial Magistrate, Chatra took cognizance of the offence against the accused persons, namely, (1).Basant Das; (2).Gopal Prasad Swarnkar; (3).Umesh Kumar 5 2025:JHHC:19622-DB alias Upendra Das; (4).Banshi Das and (5).Nirmla Devi, after supply of necessary police papers to them committed the case to the Court of Sessions for trial.
11. The appellants including other accused persons appeared at the Court of Sessions. Charges against them were framed, which were read over and explained to him in Hindi to which they pleaded not guilty and claimed to be tried.
12. In course of trial, altogether 10 witnesses have been examined on behalf of the prosecution to prove its case, out of them P.W.10-Saroj Devi is a house wife and resident of Hunterganj. P.W.6 Babita Devi and P.W.7 - Kamla Devi are also housewives residing at Huntergunj. The prosecution has tendered them. None of these three witnesses has deposed anything against any of the above-named accused persons in cross-examination. Besides that, some documents have also been exhibited.
13. The learned trial Court, after recording the evidence of witnesses, examination-in-chief and cross- examination, recorded the statement of the accused persons, find and hold the accused persons, namely Banshi Das and Basant Das, the appellants herein guilty u/s 366 A of the Indian Penal Code and further, find and hold the accused Basant Das guilty u/s 376 of 6 2025:JHHC:19622-DB the Indian Penal Code and as such both of them were convicted thereunder. As such the appellant-Banshi Das has been sentenced RI for five years for the offence under Section 366A of the Indian Penal Code; and the appellant, Basant Das has been sentenced to undergo rigorous imprisonment for life under Section 376 of the Indian Penal Code and in view of sentence passed under Section 376 IPC no separate sentence was awarded under Section 366A IPC against the appellant, Basant Das.
14. However, the prosecution has miserably failed to establish and prove its charge against the accused Gopal Prasad Swarnkar, Nirmla Devi and Umesh Kumar alias Upendra Das u/s 366 A read with section 149 of the Indian Penal Code and as such they were acquitted from the charge u/s 366 A read with section 149 of the Indian Penal Code and they were discharged from the liability of their respective bail bond and set at liberty.
15. Against the aforesaid order of conviction and sentence the present appeals have been preferred. Submission on behalf of appellants:
16. Mr. Chandan Kumar, learned counsel for the appellant has assailed the impugned judgment of 7 2025:JHHC:19622-DB conviction and order of sentence on the following grounds:
I. Prosecution has miserably failed in proving the charge.
II. In the instant case, the appellants were not initially named in the FIR and no suspicion was raised against the appellants rather the FIR was against Gopal Prasad Swarnakar and his wife, who were acquitted.
III. Further, the victim in her statement has not stated about these appellants.
IV. The victim girl was examined by a team of doctors, who in the report has assessed the age of the victim to be 17 to 19 years, as such she was major at the time of alleged occurrence.
V. Further submission has been made that it is not a case of kidnapping rather from the fact it is evident that she left the house voluntarily with the appellant.
VI. It further appears from the statement of the victim that she was the consenting party and she left the house with her own will. She did not raise any alarm when boarding in the bus. In the bus also, she did not raise any hue and cry and further in the hotel also she did not raise alarm of kidnapping. As a matter of fact, the appellant, Basant Das and the 8 2025:JHHC:19622-DB victim, both were major and had love affair since long and she left the house voluntarily.
VII. Furthermore, in the case at hand, the prosecution has failed to bring on record any piece of evidence to establish the fact that the appellant was kidnapped by the victim.
VIII. The investigating officer of the case has also not been examined and due to his non-examination, the case of the appellant has been prejudiced.
IX. Further, the vital witnesses i.e., staff of the bus or hotel have not been examined to prove the case of kidnapping.
17. Learned counsel for the appellant, in the backdrop of aforesaid grounds, has submitted that the judgment of conviction and order of sentence since is not based upon cogent evidence and as such it cannot be said that the prosecution has been able to prove the charge beyond all reasonable doubt.
Submission of the learned APP for the state
18. Per Contra, Mrs. Priya Shreshta, learned Special Public Prosecutor appearing on behalf of State has defended the impugned judgment of conviction and order of sentence taking the ground that the impugned judgment has been passed based upon the testimony of witness who have supported the prosecution version. 9
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19. Submission has been made that from the medical evidence of the doctor as also the oral evidence of the victim and other witnesses, it is amply clear that the appellant, Basant Das and Banshi Das kidnapped a minor girl, the victim, whose age was assessed to be less than 18 years at the time of occurrence, and inducted her to go to Ranchi from Huntergunj with an intention that the said victim might be forced to seduced to illicit intercourse with appellant, Basant Das.
20. The appellant, Banshi Das actively participated in such commission of offence and kidnapped victim from Bus stand Huntergunj by getting her boarded in "Uma Bus" at Huntergung for Chatra Bus stand. The accused Basant Das kidnapped her to Ranchi State Bus depot where he hired a room and forcibly kept the victim in that room for whole night and committed repeated rape on her.
21. So far other accused persons, namely, Gopal Pd. Swarnkar, Nirmla Devi, and Umesh Kumar alias Upendra Das are concerned, since no sufficient material was against them as such, they were discharged from the liability of their respective bail bond and set at liberty.
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22. Learned State counsel based upon the aforesaid ground has submitted that the prosecution has been able to prove the guilt of the accused beyond all reasonable doubt.
Analysis
23. We have heard learned counsel for the parties, perused the documents and the testimony of witnesses as also the finding recorded by learned trial Court in the impugned order.
24. This Court, on the basis of aforesaid factual aspect vis-à-vis argument advanced on behalf of parties, is now proceeding to examine the legality and propriety of impugned judgment of conviction and order of sentence by formulating following questions to be answered by this Court:
(I). Whether the prosecution has proved the guilt of the accused for the offence under Section 366A IPC beyond reasonable doubt?
(II). Whether the prosecution has proved the guilt of the accused/appellant Basant Das for the offence under Section 376 IPC?
(III). Whether the trial Court committed any error in convicting the accused and sentencing them as above?
25. Since the issues are inter-linked with each other and as such they are being taken together by taking into 11 2025:JHHC:19622-DB consideration the facts of the given case including the testimony of witnesses.
26. This Court, in order to answer the issues framed by this Court, first deems it fit and proper to go through the testimony of witnesses examined by prosecution. For ready reference, the extract of their testimony is discussed hereunder as:
27. P.W. 1-Dr. Neelam Choudhary, has stated that no external injury was found anywhere in the body. She opined that no definite opinion of rape can be given. The medical report prepared in the same process, which was in her ink and pen was marked as Ext. 1. Further, the supplementary report prepared by Medical Head on 17.07.1995, which is in the handwriting of Dr. S.K. Choudhary wherein also she had put her signature has been marked as Ext. 2.
28. P.W. 2-Dr. Satyendra Kumar Choudhary, has deposed that he was one of the members of the Medical Board and report is in his handwriting.
29. P.W. 3-Anand Prasad, is the uncle of the victim girl. He has stated that the date of occurrence is three years ago. On the date of occurrence, her niece, the victim was studying in class IX and she was aged about 14 years. When she did not return from school, they searched for her but she could not be traced out. He has further 12 2025:JHHC:19622-DB deposed that before 8-10 days of incidence; the wife of one Gopal Prasad had called the victim to her house which is in the way of school. When the victim went there, she found one unknown lady, to which on being asked whether she knows her, the victim denied and went to her school.
30. P.W. 3 has further deposed that when the victim was returning to home at around 4.00 in the evening, that unknown lady met her near Mahuwa tree and she called her but the victim fled away from there and told the whole story to her mother. Her mother told the said incidence to her husband. After missing of the victim, the informant said, about this incident to the police. He has further deposed that after three days of incidence, the girl along with his teacher Basant Ravidas (appellant herein) was recovered with the help of Ranchi Police.
31. In cross-examination, he has deposed that after kidnapping, the victim did not tell anything about the Gopal Prasad and his wife and talked only about Basant Ravidas, who kidnapped her.
32. P.W. 4, the victim herself has stated that the incidence is of 04.05.1995. When she was going to her school, the appellant Banshi Das by force get her boarded in bus. At that time, no one was there. When she tried to raise hulla, she was threatened. Due to nervousness, she 13 2025:JHHC:19622-DB demanded water. But something was mixed in water as such she became unconscious and when she reached Chatra, she regained some sense. She has further deposed that Bansi Das was not present there rather in his place Basant Das was there. She further deposed that Basant Das used to teach her, her two brothers and her uncle at her home.
33. P.W. 4 further deposed that in Chatra she was not in complete consciousness. Basant Das started threatening her. She was further forced to board the bus to Ranchi, where after de-boarding from Uma Bus at Ranchi in noon, near Government Bus Stated, Basant Das booked a room on rent where she remained at night also. She has further deposed that she was subjected to rape by force against her will many times. Since she became senseless, as such she has deposed that she cannot say how many times in the night she was subjected to rape.
34. P.W. 4 has further deposed that in the next day, her father along with Hunterganj Police came there from where she and Basant Das went to Hunterganj along with the police.
35. P.W. 4 has also deposed that before 10 days of incidence, Gopal Prasad Swarnakar had come to her house. In the next day, when she was going to school, the wife of Gopal Prasad Swarnakar had called, which is in 14 2025:JHHC:19622-DB the way of school, where there was an unknown lady. The wife of Gopal Prasad Swarnakar has told that she is that girl. She has further deposed that when she was returning to home, that unknown lady had called her but fled away from there.
36. P.W. 4 has marked her statement made under Section 164 Cr.P.C. as Ext. 3.
37. In cross-examination, P.W. 4 has stated in paragraph 12 of her cross-examination that at the time when the occurrence took place she was aged about 14 years. She remained consistent in her cross-examination what she has deposed in her examination-in-chief.
38. P.W. 5-Sarita Devi, the mother of the victim. She has deposed that before the incidence, Basant Das used to give tuition to her daughter. On 18.04.1995 her daughter went to school from where she was kidnapped by Banshi Das and Basant Das. After three days, her daughter was recovered from Ranchi. Her daughter has told that in the state of intoxication, she was subjected to rape by Basant Das.
39. P.W. 5 further deposed that in the case of abduction; there was no hand of accused Gopal Prasad Swarnakar and his wife and only on the basis of doubt they have been named as accused.
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40. P.W. 6-Babita Devi and P.W. 7-Kamla Devi have been declared tender witness.
41. P.W.8-Jagrit Yadav is the servant in the house of informant. He has deposed that Gopal Prasad Swarnakar has come to ask him that when the daughter of Bajrang (informant) goes to school to which he said that she goes to school 9.00 a.m. Nothing material has come in the cross-examination.
42. P.W. 9 -Bajrang Prasad has corroborated the case of the prosecution to the extent that 8-10 prior to the date of occurrence the accused Gopal Prasad Swarnkar had met his servant, Jagrit Mahto and enquired from him as to when victim used to go to and return from her school. He has further deposed that the wife of Gopal Prasad has introduced one unknown lady to the victim. On 18.04.1995, in the evening when he was returning, his family members told that victim is missing as such he submitted written report which is in his handwriting, which has been marked as Ext. 4. He has further supported the prosecution version.
43. P.W. 10-Saroj Devi has been declared tender witness.
44. On the strength of the testimonies of the witnesses this Court has gone through the grounds taken by the learned counsel for appellants.
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45. The main ground has been taken by learned counsel for the appellants that from the statement of the victim and other witnesses it appears that the victim was the consenting party and she left the house with her own will. Further, in the medical report no definite sign of rape has been found. So the ingredient of Section 376 is lacking.
46. The second ground has been taken that at the time of alleged occurrence, the victim was not the minor rather she was major, as would be evident from finding so recorded by the doctor who opined the age of the victim to be in between 17 to 19. Further neither birth certificate nor school leaving certificate has been produced by the prosecution in support of the fact that the victim at the time of incidence was minor.
47. So far the issue of kidnapping of minor girl is concerned, it has been argued that the victim at no point of time raise halla, neither while alleged to be forced to board in the bus at Huntarganj or in the Uma Bus which was to go to Ranchi. So far the allegation of intoxication is concerned, before that also she did not raise alarm that she is being forced to board in the bus, therefore, in the case at hand neither the ingredient of 366A and 376 of the Indian Penal Code is attracted against the appellants.
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48. While on the other hand, the prosecution has defended the impugned order stating that it is a case where it is the tuition teacher of the victim who with the help of co-accused, Banshi Das had kidnapped the victim and intoxicated her in the bus and brought her to hotel in Ranchi with the definite purpose and thereafter committed repeated rape, and this fact has fully been substantiated by the victim girl in her testimony.
49. It has further been submitted that in such type of heinous crime, the testimony of the victim itself is sufficient to prove the charge, who in her statement is consistent regarding her forced kidnapping and commission of rape. So far age of the victim is concerned, it has been stated by the prosecution that the victim herself has stated in paragraph 12 of her cross-examination that at the time when the occurrence took place she was aged about 14 years. She being a student of Class IX is supposed to know her age, which has been corroborated by the testimony of her uncle, Anand Prasad [P.W. 3] and other witness.
50. In the backdrop of the aforesaid contention of both the parties and taking into consideration the testimonies of the prosecution witnesses, this Court has to see whether there is sufficient material to attract the 18 2025:JHHC:19622-DB alleged offence under Section 366A and 376 IPC, is available or not. For ready reference the Section 366A of the IPC is being quoted as under:
"366A. 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.
51. A perusal of the aforesaid section reveals that, in order to attract the offence punishable under section 366-A, there must be existence of the following ingredients:
(i) that the accused induced a girl;
(ii) that the girl was under eighteen years of age;
(iii) that the girl was induced to go from a place or to do an act;
(iv) that the accused 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.
52. It is evident from ingredient No. (iv) supra that the inducement of the minor girl must be with the intention that it was thereby likely that she would be forced to illicit intercourse with a person other than the person who kidnaps her.
53. Thus, from perusal of the aforesaid provision it is evident that in such an offence what is required to be proved by the prosecution is that there is reliable 19 2025:JHHC:19622-DB evidence to prove and establish that a minor girl under the age of 18 years was induced to go from one place to the other with the intention that such girl may be forced to have illicit intercourse with another person. Therefore, in such an offence, the chief ingredient is that the girl is made to go from one place to the other with the intention or knowledge that she may be forced to have illicit intercourse.
54. In the backdrop of aforesaid facts, submissions advanced by the parties and the ingredients of Section 366A this Court has first gone into the determination of age of the victim as to whether the victim is minor or not. The victim herself has stated in paragraph 12 of her cross-examination that at the time when the occurrence took place she was aged about 14 years. She being a student of Class IX is supposed to know her age, which has been corroborated by the testimony of her uncle, Anand Prasad [P.W. 3].
55. In the instant case the age of prosecutrix has been assessed by the Doctor between 17 to 19 years, meaning there by there is variation of two years. Even, the Honourable Apex Court in Jaya Mala v. Home Secretary, Government of Jammu and Kashmir, reported in (1982) 2 SCC 538 : AIR 1982 Supreme 20 2025:JHHC:19622-DB Court 1297 has criticized the evidence regarding ossification test in these words:
"However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side."
56. It requires to refer herein that the alleged occurrence was caused on 18th April, 1995 and her age was assessed by the learned trial court on 05.03.1998 as 18 years, therefore, from the testimonies available on record, it is apparent that the age of the victim at the time of occurrence was below 18 years. Further, there is no contradictory testimony regarding the age of victim neither documentary nor oral evidence has been put forth by the appellants and merely a bald statement of the appellants that at the time of occurrence she was above the age of 18 years is not fit to be acceptable.
57. So far, the implication of Section 366A of the IPC is concerned, as per discussions which has been referred herein above, the victim girl at the time of occurrence was minor. She in her deposition has specially stated that the appellant, Banshi Das met her at the Bus Stand at Huntergunj and got her forcibly boarded on Uma Bus. Since Banshi Das was threatening her she did not even raise hulla. She further deposed that out of extreme nervousness she asked for water. Upon this, 21 2025:JHHC:19622-DB Banshi Das gave water to her. She drank the water and thereafter she became unconscious.
58. Thus, from perusal of the aforesaid part of the testimony of the prosecutrix it is evident that appellant (Cr. Appeal (DB) No. 281 of 1998(R) ) Banshi Das was very much instrumental in carrying out the first part of the alleged criminal transaction wherein he had forcefully boarded the prosecutrix on Uma Bus and thereafter he had mixed some sedative substance in the drinking water of the prosecutrix due to which the prosecutrix lost her consciousness.
59. Now in the aforesaid factual aspect this Court is adverting to the ingredients of the Section 366A of the IPC in order to ascertain that whether culpability of the appellant namely Banshi Das under Section 366A of the IPC is made out or not.
60. As per discussion made hereinabove in the preceding paragraph it is evident that in order to attract Section 366-A of the IPC, essential ingredients are: (1) that the accused induced a girl; (2) that the person induced was a girl under the age of eighteen years; (3) that the accused has induced her with intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse; (4) such intercourse must be with a person other than the 22 2025:JHHC:19622-DB accused; and (5) that the inducement caused the girl to go from any place or to do any act.
61. Herein there is categorical finding of this Court that victim girl was minor at the time of alleged occurrence as such one of the important ingredients of the Section 366A has fully been established herein. Further it has come in the testimony of the prosecutrix that the accused Banshi Das (appellant of (Cr. Appeal (DB) No. 281 of 1998(R) ) had used the force and compel the prosecutrix to boarded on the Uma Bus and thereafter he had adulterated the drinking water of the prosecutrix due to which the prosecutrix lost her consciousness. Thus, from the aforesaid evidence the required ingredients of Section 366A i.e. that the accused 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 has fully been established.
62. Herein, admittedly the girl is minor one. The appellant, Banshi Das had kidnapped her and handed it over to appellant, Basant Das, who committed rape upon her. Therefore, it is a case where all the parameters to attract the penal offence under Section 366A has fully been established against the appellant Banshi Das.
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63. Thus, on the basis of discussion made hereinabove this Court is of the considered view that accused Banshi Das has rightly been held guilty by the learned trial court for the offence under Section 366A of the IPC, as such the judgment of conviction and sentence passed by the learned trial court requires no interference so far the accused Banshi Das ((Cr. Appeal (DB) No. 281 of 1998(R) is concerned.
64. Now this Court is going to consider the culpability of the appellant Basant Das (Appellant) Cr. Appeal (DB) No. 306 of 1998(R) under Section 366 A of the IPC.
65. It has come in the testimony of the prosecutrix that when she became conscious at Chatra, she saw that in place of accused Banshi Das, the accused Basant Das was with her who after advancing threat to her again got her boarded in another bus which was ready to depart from Chatra for Ranchi. Thereafter, appellant Basant Das got her boarded in another Bus for Ranchi, where in a hotel in a state of intoxication, she was subjected to rape against her will and consent.
66. At the cost of repetition, it would be apt to reiterate herein the ingredients for attracting Section 366A is that the victim must be a minor girl; the accused must have induced the girl to leave her place or perform some act; the accused must have the intent that the girl be 24 2025:JHHC:19622-DB forced or seduced into illicit sexual intercourse or know that it is likely that she will be forced or seduced into such intercourse .
67. In the instant case, so far conviction of the appellant for the offence under Section 366-A IPC is concerned in the factual aspects of the case as discussed above, the ingredients of offence under Section 366-A IPC is absolutely lacking in this case inasmuch as there was no procuration of minor girl with intention that she would be forced and seduced to illicit intercourse with some other person.
68. The court is conscious to deal with the cumulative effect of the materials facts proved against the appellant Basant Das in order to ascertain his criminality. Here in this case, the minor girl under the age of 18 years has been induced/enticed to go away from the custody of lawful guardian from Chatra to Ranchi. The involvement of the appellant has been substantiated by the testimony of the sole prosecutrix who categorically stated that when she became conscious at Chatra, she saw that in place of accused Banshi Das, the accused Basant Das was with her who after advancing threat to her again got her boarded in another bus which was ready to depart from Chatra for Ranchi. Thereafter, appellant Basant Das got her boarded in another Bus 25 2025:JHHC:19622-DB for Ranchi, where in a hotel in a state of intoxication, she was subjected to rape against her will and consent.
69. In the instant case, the appellant Basant Das himself is alleged to have taken the minor girl away with intention to establish sexual intercourse with her and this factual aspect has been substantiated by the evidence available on record as it has come on record that prosecutrix had been recovered from the Hotel in wherein she was found with the appellant Basant Das.
70. Thus, it is apparent herein that the accused/appellant Basant Das had procured the minor girl/prosecutrix and committed sexual intercourse with the her, therefore the ingredients of Section 366A i.e. accused 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, is not available herein.
71. Thus, in the factual aspects of the case as discussed above, the ingredients of offence under Section 366-A IPC is lacking in this against the appellant Basant Das inasmuch as there was no procuration of minor girl with intention that she would be forced and seduced to illicit intercourse with some other person rather the appellant Basant Das committed rape upon the prosecutrix.
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72. At this juncture it needs to refer herein that while appreciating the evidence, it is the obligation, duty and responsibility of the Court to see that chaff is separated from the grain. In that view of the matter, we are of the concluded opinion that the prosecutrix was a minor on the date of the offence. We are, however, unable to persuade ourselves to believe that the accused appellant Basant Das are guilty of the offence under Section 366-A IPC.
73. It needs to refer herein that since the kidnapping is the continuing offence as such this court is now see that whether appellant Basant Das is guilty for the offence under Section 363 IPC or not.
74. The ingredients of Section 363 IPC involve an act of kidnapping of any person from the lawful guardianship. Kidnapping from the lawful guardianship is defined under Section 361 IPC, where it is stated that 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, a case of kidnapping is made out.
75. It has come in testimony of prosecutrix that when she became conscious at Chatra, she saw that in place 27 2025:JHHC:19622-DB of accused Banshi Das, the accused/appellant Basant Das was with her who after advancing threat to her again got her boarded in another bus which was ready to depart from Chatra for Ranchi, thereafter, appellant Basant Das got her boarded in another Bus for Ranchi.
76. Thus, on the basis of the aforesaid fact this Court is of the considered view that against the appellant Basant Das the offence punishable under Section 363 IPC is made out.
77. From the record it is evident that charge under Section 366A of the IPC has been framed against the appellant Basant Das but no charges under Section 363 IPC has been framed against him.
78. It needs to refer herein that the Hon‟ble Supreme Court has held in Willie (William) Slaney v. State of M.P. [AIR 1956 SC 116 : (1955) 2 SCR 1140] that any error or omission in framing charge could be rectified even at the appellate stage, provided no prejudice is caused to the accused persons.
79. This Court is conscious with the fact that question of prejudice to the appellant is the core consideration herein. In the instant case already an offence was alleged against the appellant in respect of which a charge under Section 366-A IPC was also framed and, as such, the appellant Basant Das knew that he was 28 2025:JHHC:19622-DB being charged for taking away a minor out of the custody of the lawful guardian and he got full opportunity to defend himself as against such an allegation.
80. It requires to refer herein that Section 366-A IPC is a major offence whereas Section 363 IPC is a minor offence compared to that of Section 366-A IPC. There is, therefore, a difference in respect of the said two offences in respect of the punishment also. Section 366-A IPC envisages a maximum punishment of ten years whereas Section 363 IPC envisages a punishment of seven years.
81. It needs to refer herein that under the provisions of Section 222 of the Cr.P.C., a provision is stipulated that in a case where the accused is charged with a major offence and the said charge is not proved, the accused could be convicted for a minor offence if such a case is made out though he was not charged with the same.
82. In Tarkeshwar Sahu v. State of Bihar [(2006) 8 SCC 560 : (2006) 3 SCC (Cri) 556] the Hon‟ble Apex Court after relying upon the decision rendered in the case of Lakhjit Singh v. State of Punjab [1994 Supp (1) SCC 173 : 1994 SCC (Cri) 235] and Shamnsaheb M. Multtani v. State of Karnataka [(2001) 2 SCC 577 : 2001 SCC (Cri) 358] held that if the offence committed is clearly covered and has the ingredients of a minor 29 2025:JHHC:19622-DB offence, in that event, the Court is empowered to convict the person under minor offence by invoking the provisions of Section 222 CrPC.
83. It is settled position of law that the object of the charge is not to introduce a provision that goes to the root of the jurisdiction but to enable the accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet. The said principle has stood the test of time and is being reiterated by the Hon‟ble Apex Court. (reference be made to State of W.B. v. Laisal Haque [(1989) 3 SCC 166 : 1989 SCC (Cri) 513] ; Kammari Brahmaiah v. Public Prosecutor, High Court of A.P. [(1999) 2 SCC 522 : 1999 SCC (Cri) 281] and Dalbir Singh v. State of U.P. [(2004) 5 SCC 334 : 2004 SCC (Cri) 1592] )
84. Therefore, on the basis of discussion made hereinabove it is considered view of this Court that no prejudice is caused to the appellant Basant Das as such the offence punishable under Section 363 IPC is well proved against the appellant Basant Das. In view of the above discussion and reasons, the conviction and sentence of the appellant Basant Das for the offence under Section 366-A IPC is set aside and the appellant Basant Das is held guilty for the offence punishable under Section 363 IPC.
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85. Now, coming to the question of commission of rape upon the minor girl, this Court has again gone into the testimony of witness in particular the victim girl because in the case of commission of rape, it is the victim who can best depose about the commission of rape.
86. She has deposed that when she was going to her school, the appellant Banshi Das by force got her boarded in bus. At that time, no one was there. When she tried to raise halla, she was threatened. Due to nervousness, she demanded water. But something was mixed in water and when she drank the water she became unconscious. She has further deposed that when she reached Chatra, the said Bansi Das was not present rather in his place Basant Das was there. She further deposed that Basant Das used to teach her, her two brothers and her uncle at her home.
87. She further deposed that in Chatra she was not in complete consciousness. Basant Das started threatening to her. She was further forced to board the bus of Ranchi, where after de-boarding from Bus at Ranchi in noon, near Government Bus Stated, Basant Das booked a room on rent in noon where she remained in night also. She has further deposed that she was subjected to rape by force against her will many times. 31
2025:JHHC:19622-DB Since she became senseless, as such she has deposed that she cannot say how many times in the night she was subjected to rape.
88. There is no iota of doubt that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.
89. The Hon'ble Supreme Court in the case of State of Maharashtra v. Chandraprakash Kewalchand Jain reported in AIR 1990 SC 658 has observed in Para. Nos. 16 and 17 which reads as under:
"16. A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on 32 2025:JHHC:19622-DB the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accept ed. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage:
"It is only in the rarest of rare cases if the Court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary."
With respect, the law is not correctly stated. If we may say so, it is just the reverse. Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation. (Emphasis supplied).
17. We think it proper, having regard to the increase in the number of sex-violation cases in the recent past, particularly cases of molestation and rape in custody, to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars except in the 33 2025:JHHC:19622-DB rarest of rare cases. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behavior. Ours is not a permissive society as in some of the Western and European countries. Our standard of decency and morality in public life is not the same as in those countries. It is, however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. An Indian woman is now required to suffer indignities in different forms, from lewd remarks to eve-teasing, from molestation to rape. Decency and morality in public life can be promoted and protected only if we deal strictly with those who violate the societal norms. The standard of proof to be expected by the Court in such cases must take into account the fact that such crimes are generally commit ted on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by leveling a false charge concerning her chastity."
(Emphasis supplied).
90. Further, in the case at hand the version of the victim got corroborated by the evidence of other witnesses who has got the description of the same from the mouth of victim. In the case at hand, the appellant-Basant Das has been caught from the hotel, which fortify the version of the victim.
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91. In the case at hand, submission has been made that in the medical report, the doctor has opined that no external injury was found anywhere in the body further opined that no definite opinion of rape can be given. So far as the external injury is concerned, it is version of the victim she was intoxicated, therefore, it is quite impossible for her to resist as such possibility of external injury is remotely expected. So far so definite sign of rape upon the victim is concerned, from the deposition so made by the doctor, it is quite apparent that he has not negated the incidence of commission of rape rather it is opined that „no definite opinion of rape is there‟, which does not mean there was no commission of rape by the appellant, Basant Das.
92. But in her deposition, the victim has stated in clear term that she was subjected to repeated rape in the night where she was kept in the hotel. Therefore, the factum of rape cannot be denied.
93. In the case at hand, the act of sexual harassment by the teacher of a girl student, who is also a minor, would figure quite high in the list of offences of grave nature since it has far-reaching consequences, which impact more than just the parties to the proceeding. Therefore, the appellant does not deserve any leniency. 35
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94. The learned trial court taking into consideration these aspects of the matter has convicted the appellant, namely, Basant Das for the offence under Section 376 and accordingly, sentenced to undergo rigorous imprisonment for life under Section 376 of the Indian Penal Code.
95. In the aforesaid facts and circumstances and on basis of the discussion made hereinabove this Court is of the view that the conviction of the appellant namely Basant Das for the offence under Section 366-A IPC is set aside and he is held guilty for the offence under Section 363 IPC but his conviction and sentence for the offence under Section 376 IPC is maintained and upheld. However, no separate sentence for offence under Section 363 IPC is being awarded to the appellant.
96. Accordingly, the appeal Cr. Appeal (DB) No. 306 of 1998(R) stands dismissed with aforesaid modification in the judgment of conviction.
97. Further the judgment of conviction dated 16th September, 1998 and order of sentence dated 23rd September, 1998, passed against the appellant Banshi Das (Appellant of Cr. Appeal (DB)No. 281 of 1998(R)) by learned trial Court whereby the appellant has been convicted for the offence under Section 366A and has 36 2025:JHHC:19622-DB been directed to go five years RI requires no interference.
98. Accordingly, Cr. Appeal (DB) No. 281 of 1998(R)) is also hereby dismissed.
99. In the result, both the criminal appeal stand dismissed.
100. Consequent upon dismissal of the appeals preferred by the appellants, since appellants are enjoying suspension of sentence after the order being passed by this Court directed to release them during pendency of the appeal, their bail bonds are cancelled and they are directed to surrender before the learned trial Court who would send them jail to serve out their remaining sentence.
101. Needless to say, that if the appellants will not surrender, the trial Court will take endeavours for securing custody to serve out their remaining sentence.
102. Let a copy of the judgment along with the Trial Court Records be sent back to the Court concerned forthwith.
I Agree (Sujit Narayan Prasad, J.)
(Rajesh Kumar, J.) (Rajesh Kumar, J.)
Jharkhand High Court, Ranchi
Alankar / A.F.R.
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