Bombay High Court
Sapan Chandrakant Haldar And 2 Others vs The State Of Mah.Thr.Pso Gadchiroli on 9 July, 2019
Author: V.M.Deshpande
Bench: V.M.Deshpande
Judgment
apeal221.06 1
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.221 OF 2006
1. Sapan s/o Chandrakant Haldar,
Aged about 30 years, Occupation : Cultivation,
R/o Shrirampur, District : Gadchiroli.
2. Kumar Tarachnad Pal,
Aged about 50 years,
R/o : At present Mathuranagar,
District : Gadchiroli,
Originally r/o : Ramala,
District : Bagpat (U.P.).
3. Sukesh s/o Naren Mandal,
Aged about 25 years, Occupation : T.V.Repairer,
R/o : Gomni, District Gadchiroli. ..... Appellants.
:: VERSUS ::
The State of Maharashtra, through
P.S.O.Mulchera, District : Gadchiroli. ..... Respondent.
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Shri R.M.Daga, Counsel for the Appellants.
Shri P.S.Tembhare, Additional Public Prosecutor for the
Respondent/State.
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CORAM : V.M.DESHPANDE, J.
DATE : JULY 9, 2019.
ORAL JUDGMENT
1. By the present appeal, the appellants are challenging .....2/-
::: Uploaded on - 19/07/2019 ::: Downloaded on - 14/04/2020 05:02:04 ::: Judgment apeal221.06 1 2 judgment and order of conviction dated 28.3.2006 passed by learned Additional Sessions Judge, Gadchiroli in Sessions Trial No.88/2004.
2. By the impugned judgment and order of conviction, learned Judge of the Court below convicted accused No.1/appellant No.1 Sapan and accused No.4/appellant No.3 Sukesh for offence under Section 363 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 3 years and to pay a fine of Rs.500/- by each of them and in default of payment of the fine amount to suffer rigorous imprisonment for 1 month. Learned Judge also convicted the said accused persons for offence under Section 366 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 4 years and to pay a fine of Rs.500/- by each of them and in default of payment of the fine amount to suffer rigorous imprisonment for 1 month.
Learned Judge convicted accused No.3/appellant No.2 Kumar for offence under Section 368 of the Indian Penal Code and .....3/-
::: Uploaded on - 19/07/2019 ::: Downloaded on - 14/04/2020 05:02:04 ::: Judgment apeal221.06 1 3 sentenced to suffer rigorous imprisonment for 4 years and to pay a fine of Rs.500/- and in default of payment of the fine amount to suffer rigorous imprisonment for 1 month.
It is directed that all the sentences of the accused persons shall run concurrently and also set-off was given to them since they were in jail.
Learned Judge acquitted accused No.2 Subodh of the said offences and no appeal is preferred against his acquittal.
3. Heard learned counsel Shri R.M.Daga for the appellants and learned Additional Public Prosecutor Shri P.S.Tembhare for the respondent/State, in extenso.
4. According to learned counsel for the appellants, if evidence of victim girl No.2 (PW8) is seen, it is clear that she was consenting party and, therefore, the appellants are required to be acquitted. The said was the only submission advanced before this Court at the time of hearing of the present appeal.
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5. Head Constable Nanak Durge (PW10), station diary incharge of Mulchera Police Station, on 24.3.2004 registered a crime, on the basis of complaint lodged by Sau.Anjana Bala (PW1), vide No.6/2004 for offences under Sections 363 and 366-A read with Section 34 of the Indian Penal Code against the appellants and the acquitted accused person.
6. On 24.3.2004, investigation was entrusted to Police Sub Inspector Moreshwar Portet (PW12). On that day, he recorded statements of complainant Sau.Anjana Bala (PW1) and others and arrested accused No.1 Sapan and accused No.2 Subodh. He visited village Shrirampur and prepared spot panchnama (Exhibit 44) at house of the complainant. During investigation it was revealed that two kidnapped girls were taken to village Pabanba, Dhand Police Station, Kurukshetra Railway Station, State of Haryana. As such, he sent police staff for searching of the kidnapped girls and at that time accused No.1 Sapan was also with the police staff.
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7. Police Sub Inspector Vishwas Tayade (PW14) was asked by Sub Divisional Police Officer, Ghot, Taluka Chamorshi, District Gadchiroli to go to district Kurukshetra in the State of Haryana for taking a search of the kidnapped girls. On 26.3.2004, he, his staff, accused No.1 Sapan, and a resident of village Shrirampur had gone to Kurukshetra. At night of 27.3.2004, they reached Kurukshetra and on the next day they had been to Dhand Police Station. With the help of police of Dhand Police Station, they went to village Makwana. Though a search was made there, the kidnapped girls were not found and, therefore, they returned back to Dhand. After reaching at Dhand, they received an information that accused persons along with the kidnapped girls were about to go outstation and, therefore, they went to Bus Stand. At the Bus Stand, accused No.1 Sapan and the person, who was resident of Shrirampur, identified the kidnapped girls. Accused Nos.3 and 4 were found with the kidnapped girls. Vishwas Tayade took the kidnapped girls and the said accused persons in his custody and brought them to Chamorshi Police Station. He .....6/-
::: Uploaded on - 19/07/2019 ::: Downloaded on - 14/04/2020 05:02:04 ::: Judgment apeal221.06 1 6 handed over the custody of the accused persons and the kidnapped girls to Investigating Officer. Investigating Officer, after completion of investigation, filed chargesheet.
8. In order to bring home the guilt of the accused persons, the prosecution examined in all 14 witnesses. After appreciation of evidence brought on record, learned Judge of the Court below found that the prosecution failed to prove that accused Nos.1, 2, and 4 kidnapped victim girl No.1 (PW3). Learned Judge below found that the prosecution proved that accused No.1 and 4 abducted victim girl No.2 (PW8). Learned Judge below also found that accused No.3 confined victim girl No.1 and, therefore, passed the impugned judgment.
9. After hearing learned counsel for the appellants and learned Additional Public Prosecutor for the respondent/State, I have no hesitation in my mind to record an approval with the finding recorded by learned Judge of the Court below that the prosecution could not prove that age of victim girl No.1 (PW3) was .....7/-
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10. To prove that victim girl No.2 (PW8) was below 18 years of age, the prosecution examined Nitin Naral (PW11). The said witness was working as Secretary of Grampanchayat of village Govindpur. He brought with him Births and Deaths Register for Year 1989-90 maintained in the Grampanchayat. In the said Register, entry of Date of Birth of victim girl No.2 is taken as 1.7.1989. As per the said entry, name of mother of the said victim girl was shown as Sau.Bullu (PW2). Certificate in respect of the Date of Birth is at Exhibit 41. The said prosecution witness (PW11) brought original register in the Court. Learned Judge of the Court below verified contents of the original register with photocopy and it was found to be correct. Submission of learned counsel for the appellants in that behalf is that though there is documentary evidence, the prosecution has not conducted ossification test of victim girl No.2 to determine her age.
When primary evidence, in respect of Birth Certificate .....8/-
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11. On 21.3.2004, victim girl No.2 (PW8) was taken away from lawful guardianship of her parents. Looking to the date of birth of victim girl No.2, it is clear that she was below 18 years of age.
12. Since victim girl No.2 (PW8) was below 18 years of age and was minor, the argument of learned counsel for the appellants that she was consenting party has no meaning in the eye of law. Further, evidence of victim girl No.2 shows that she was enticed by the accused persons. Not only that even evidence of victim girl No.1 (PW3) shows that accused No.4/appellant No.3 Sukesh told them that since their parents are poor, they are unable to perform their marriages and as such he had taken responsibility of performing of their marriages.
13. In this view of the matter, learned Judge of the Court .....9/-
::: Uploaded on - 19/07/2019 ::: Downloaded on - 14/04/2020 05:02:04 ::: Judgment apeal221.06 1 9 below, after elaborately discussing the evidence of the victim girls, found that the girls were enticed on a pretext of their marriages with wealthy persons and they were taken from district Gadchiroli of the State of Maharashtra to the State of Haryana. The victim girls were found in the company of accused No.3/appellant No.2 Kumar and accused No.4/appellant No.3 Sukesh in the State of Haryana and they were brought to the State of Maharashtra. There was no occasion for these girls, who belongs to poor families, to go to the State of Haryana, a far away place from the district Gadchiroli of the State of Maharashtra.
14. The evidence of victim girl No.1 (PW3) and victim girl No.2 (PW8) shows that accused No.3/appellant No.2 Kumar and accused No.4/appellant No.3 Sukesh got knowledge that accused No.1/appellant No.1 Sapan and accused No.2 Subodh are arrested and still they took them from Delhi to Kurukshetra and confined them against their will and wish.
15. In view of the aforesaid, learned Judge of the Court .....10/-
::: Uploaded on - 19/07/2019 ::: Downloaded on - 14/04/2020 05:02:04 ::: Judgment apeal221.06 1 10 below rightly appreciated entire evidence of the prosecution witnesses in its correct perspective and found, in my view, rightly that the accused persons are liable for conviction. Hence, this Court passes following order:
ORDER
(i) The criminal appeal is dismissed.
(ii) The judgment and order of conviction dated 28.3.2006 passed by learned Additional Sessions Judge, Gadchiroli in Sessions Trial No.88/2004 is hereby maintained.
(iii) The appellants who are on bail are directed to surrender their Bail Bonds immediately. Else, learned Judge of the Court below is directed to issue appropriate warrants to secure their presence to serve out their remainder of jail sentence.
JUDGE !! BRW !! ...../-
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