Jharkhand High Court
Sumitra Mandal vs The State Of Jharkhand on 11 April, 2025
2025:JHHC:11210
Cr. Appeal (S.J.) No.1652 of 2006
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[Against the judgment and order of conviction and sentence dated
29.11.2006 passed by learned 1st, Additional Sessions Judge, Rajmahal
in S.C. No.134 of 2005]
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1. Sumitra Mandal, wife of Munilal Mandal
2. Ratan Mandal, son of Munilal Mandal
All resident of village-Barari, P.S.-Barharwa, District-
Sahibganj
.... .... .... Appellants
Versus
The State of Jharkhand .... .... .... Respondent
With
Cr. Appeal (S.J.) No.86 of 2007
1. Prem Mandal @ Prem Kumar Mandal
2. Jatan Mandal
Both sons of Munilal Mandal, residents of village-Barari, P.S.-
Barharwa, District-Sahibganj
.... .... .... Appellants
Versus
1. The State of Jharkhand
2. Nimai Ghosh .... .... .... Respondents
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For the Appellants : Mr. Gautam Kumar, Advocate
[In both cases]
For the State : Mr. V.S. Sahay, Addl. P.P.
[In Cr. Appeal (SJ) No.1652 of 2006]
Mrs. Vandana Bharti, A.P.P.
Cr. Appeal (S.J.) No.1652 of 2006
&
Cr. Appeal (S.J.) No.86 of 2007
1
2025:JHHC:11210
[In Cr. Appeal (SJ) No.86 of 2007]
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PRESENT
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
JUDGEMENT
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CAV On 13/02/2025 Pronounced On: 11/ 04 /2025
1. The above appeals arise out of common judgement, hence heard together and are being disposed of by common judgment.
2. The present appeals are directed against the judgment and order of conviction and sentence dated 29.11.2006 passed by learned 1st, Additional Sessions Judge, Rajmahal in S.C. No.134 of 2005 whereby and whereunder, the above appellants have been held guilty for the offence under section 366A read with 34 of Indian Penal Code and sentenced to undergo R.I. of 6 years along with fine of Rs.5,000/- each with default stipulation.
FACTUAL MATRIX
3. Factual matrix giving rise to this appeal is that on 26.06.2004, the informant, Nimai Ghosh lodged an FIR at Barharwa Police Station stating inter alia that on 17.06.2004 at about 7 PM, the accused, namely, Sumitra Mandal, Munilal Mandal, Ratan Cr. Appeal (S.J.) No.1652 of 2006 & Cr. Appeal (S.J.) No.86 of 2007 2 2025:JHHC:11210 Mandal, Jatan Mandal had kidnapped his minor sister aged about 13 years from the house with intention to solemnize her marriage with one Prem Mandal. It is further alleged that the victim girl was taken to Farrakah by a car by the accused persons. It is further alleged that the informant returned to his home from his shop then he was informed by his wife about the said occurrence. According to the informant, so many villagers have seen the occurrence and he has proved the written report as Ext.4.
On the basis of above information, the FIR being Barharwa P.S. Case No.36 of 2004 was registered for the offence under sections 366 (A)/34 of IPC against all six accused persons. After completion of investigation, charge-sheet was submitted against all the accused persons for the offence under sections 366A r/w 34 of IPC. The case was committed to the court of Sessions where S.C. No.134 of 2005 was registered. Charge was also explained to the accused persons, who have pleaded not guilty and claimed to be tried. After conclusion of trial, the impugned judgment of conviction and order of sentence was passed, which has been assailed in this appeal.
Cr. Appeal (S.J.) No.1652 of 2006 & Cr. Appeal (S.J.) No.86 of 2007 3 2025:JHHC:11210
4. Learned counsel for the appellants has submitted that during pendency of the appeal, appellant No.2, namely, Munilal Mandal of Cr. Appeal (S.J.) No.1652 of 2006 has died and to this effect, a report being Letter No.232/2019 dated 29.05.2019 has also been received from the learned Additional Sessions Judge-I, Rajmahal.
5. Considering the same, the appeal stands abated, so far appellant No.2, namely, Munilal Mandal of Cr. Appeal (S.J.) No.1652 of 2006 is concerned.
6. Learned counsel for the appellants, namely, Sumitra Mandal, Ratan Mandal, Prem Mandal @ Prem Kumar Mandal and Jatan Mandal assailing the impugned judgment and order has vehemently argued that it is a case where it is alleged that the victim girl was kidnapped by the accused persons and she was kept with accused, Prem Mandal for one month after kidnapping. There is no complaint of the victim girl that any illicit intercourse was committed with her. It is also admitted case of the prosecution that the victim girl was not married with Prem Mandal. Therefore, ingredient of offence under section 366A of IPC is not proved against any of the accused persons. At best, it may be a case falling under section 363 of Cr. Appeal (S.J.) No.1652 of 2006 & Cr. Appeal (S.J.) No.86 of 2007 4 2025:JHHC:11210 IPC alone. The appellants have remained in custody for considerable period during trial of the case. No specific overt act has been attributed against the appellants, namely, Sumitra Manda and Ratan Mandal. Further, the appellants, namely, Prem Mandal and Jatan Mandal have remained in custody for more than 2 years and have sufficiently been punished. Therefore, the appellants deserve acquittal from the charges leveled against them and as such, the impugned judgment and order of conviction and sentence of the appellants is liable to be set aside, allowing this appeal.
7. On the other hand, learned Additional Public Prosecutor appearing for the State defending the impugned judgment and order of conviction and sentence of the appellants have submitted that there are ample positive evidence against the appellants constituting the offence under section 366A of IPC. It is also submitted that considering the gravity of offence wherein a minor girl aged about 15 years was kidnapped with a view to commit illicit intercourse with her by another person i.e. co-accused Prem Mandal. Hence, learned trial court has committed no error of law and there is no legal force in the Cr. Appeal (S.J.) No.1652 of 2006 & Cr. Appeal (S.J.) No.86 of 2007 5 2025:JHHC:11210 contentions raised on behalf of the appellants, hence, this appeal has no merits and is fit to be dismissed.
8. For better appreciation of the respective arguments of the learned counsel for the parties, a brief resume of prosecution evidence appears necessary.
9. In order to substantiate the charge levelled against the appellants, altogether 10 witnesses have examined by the prosecution.
The sterling prosecution witness is the victim girl, who has been examined as P.W.6. According to her evidence, on the date of occurrence at about 7 PM, she was in her house and her two sisters-in-laws were cooking food inside the kitchen, meanwhile, Prem Kumar, Munilal Mandal, Gautam Mandal, Sumitra Mandal, Ratan Mandal, Shyamli Mandal and Jatan Mandal came in a white taxi and Sumitra Mandal called her then she came out and Prem Kumar Mandal gagged her mouth with handkerchief and said that he will solemnize marriage with her. She has further deposed that Prem Kumar Mandal, Shyamli Mahdal caught hold of her hands and forcibly boarded her in a taxi and put vermillion on her head. Thereafter, she was brought to Banna, where she was kept in Cr. Appeal (S.J.) No.1652 of 2006 & Cr. Appeal (S.J.) No.86 of 2007 6 2025:JHHC:11210 the house of Anand Mandal and locked. She has further deposed that when she went out to discharge the nature call, Sumitra Mandal used to follow her. This witness was kept there for a month. Thereafter she was brought to Rajmahal Court where her brother also arrived then she told that she will go with her brother then Sumitra Mandal forbade her. The brother of this witness has also gone to police station along with her and her statement was recorded under section 164 of Cr.P.C and she has proved her signature as Ext.2. This witness was medically examined. This witness was studying at Dharamdenga High School.
In her cross-examination, this witness categorically states that she does not know Hindi and cannot understand and talk in Hindi rather she can speak in Bangla language. She also admits that while the accused persons were taking her from her house then her elder sister-in-law, Lata Ghosh was standing near grill. This witness also raised alarm when her mouth was not gagged. This witness has denied the suggestion of defence that she was not satisfied with her engagement settled by her parents, hence, she went to the house of her maternal grand-mother and resided there for one month and Cr. Appeal (S.J.) No.1652 of 2006 & Cr. Appeal (S.J.) No.86 of 2007 7 2025:JHHC:11210 her brother has lodged this false case against the accused persons.
P.W.1-Lal Chand Mandal is an independent witness. He has corroborated the prosecution story and deposed that on the date of occurrence at about 7 PM, he was standing outside of his house then he saw that the victim girl was kidnapped by Prem Mandal, Sumitra Mandal, Ratan Mandal, Munilal Mandal and Jatan Mandal in a white car. There is nothing in his cross-examination to rebut the aforesaid contents.
P.W.2 Anil Sarkar is a hearsay witness of the occurrence. He has only heard that the victim girl was taken away by some accused persons.
P.W.3-Mangal Mandal has been declared hostile by the prosecution.
P.W.4 Dost Mohmaad is a headmaster of Dharamdenga High School and he has proved the School Leaving Certificate of the victim girl as Ext.1 showing her date of birth as 15.03.1993. According to his evidence, the victim girl was a student in his school.
Cr. Appeal (S.J.) No.1652 of 2006 & Cr. Appeal (S.J.) No.86 of 2007 8 2025:JHHC:11210 In his cross-examination, he admits that the said date of birth is mentioned on the basis of certificate issued by the Barari Primary School, which is not on record.
P.W.5 Namita Ghosh is sister-in-law(Bhaghi) of the victim girl. According to her evidence, at the time of occurrence, she was sitting in her shop situated in his house itself and the victim girl was doing some work inside the house. According to her, the accused persons, namely, Prem Kumar, Sumitra Mandak, Ratan Mandal, Jatan Mandal and Munilal Mandal came on a taxi and eloped with her sister-in- law(nanad) and she disclosed the incident to her husband upon his arrival from the shop situated at Futani Chawk. The victim was aged about 12 years on the date of occurrence.
In her cross-examination, she admits that at the time of occurrence, she was alone in the house and her gotni and brother-in-law were not present in the house. There is nothing in her cross-examination to discredit the aforesaid testimony.
P.W.7 Dr. Bhagwat Marandi, who has examined the victim girl.
In cross-examination, this witness admits that on the direction of superintendent, Sahibganj the Medical Board was Cr. Appeal (S.J.) No.1652 of 2006 & Cr. Appeal (S.J.) No.86 of 2007 9 2025:JHHC:11210 constituted. The doctors had not prepared separate reports. The exact age of the victim was not determined.
This witness has not mentioned in any report as to who had identified the victim. The victim had consented for medical examination. This witness mentioned in his report. It is not a fact that my report is vague.
P.W.8 Nimai Ghosh is the informant. According to his evidence, he has corroborated the contents of the written report and deposed that on the date of occurrence dated 17.06.2004 at about 7 PM, he had gone to his shop and when he returned in the night then he came to know from his wife that all the accused persons had kidnapped his minor sister with intention to forcibly solemnize her marriage. This witness searched his sister at the house of accused persons but they have locked their door and fled away from the house then he lodged a written report before the police station about the said occurrence. This witness has proved the signature of his brother namely Ratan Ghosh marked as Ext.4.
In his cross-examination, he admits that the occurrence took place on 17.06.2004 but the FIR was lodged on 26.06.2004 and in between this period he was searching his sister. This Cr. Appeal (S.J.) No.1652 of 2006 & Cr. Appeal (S.J.) No.86 of 2007 10 2025:JHHC:11210 witness had denied the suggestions of the defence that he was involved in a case of extortion wherein the accused persons have given statement against him before the police, hence, due to enmity, he has falsely implicate the accused persons.
P.W.9 Yogesh Kumar, Judicial Magistrate First Class, has proved the statement of the victim recorded under section 164 of Cr.P.C , which is marked as Ext.2/A. In the cross-examination, this witness admits that the victim has narrated the incident in Hindi, therefore, no interpreter was appointed.
P.W.10 Niwaran Chandra Saha is the Advocate Clerk and formal witness, who has proved the signature of the then officer-in-charge of Barharwa Police Station on formal FIR as Ext.5. He has also proved the endorsement on the written report for the registration of the case as Ext.4/A. He also admits that both above documents were not written in his presence.
10.So far charge under section 366A is concerned, relevant provision is extracted hereunder:
366A. Procuration of minor girl.--
Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from Cr. Appeal (S.J.) No.1652 of 2006 & Cr. Appeal (S.J.) No.86 of 2007 11 2025:JHHC:11210 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.
11. From bare perusal of above provision to attract section 366A, 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 accused; (5) that the inducement caused the girl to go from any place or to do any act.
12. So far as the charge under section 366A of IPC against the appellants is concerned, in such an offence what is required to be proved by the prosecution is that there is cogent and reliable evidence to prove and establish that a minor girl under the age of 18 years was induced to go from one place to other with 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 Cr. Appeal (S.J.) No.1652 of 2006 & Cr. Appeal (S.J.) No.86 of 2007 12 2025:JHHC:11210 to other with intention or knowledge that she may be forced to illicit intercourse.
13. In the instant case the evidence on record does not reveal any such intention. Moreover, the victim girl herself in her testimony has not stated that she was subjected or forced to illicit intercourse by accused-Prem Kumar Mandal. It was bounden duty of the learned trial court to cull out grain from the chaff, but learned trial court failed to discharge it responsibility while appreciating the evidence of the victim girl herself. The vital ingredients of offence under section 366A of IPC is lacking in this case. Therefore, the conviction and sentence of the appellants is not warranted under law.
14. The court is conscious to deal with the cumulative effect of the materials facts proved against the appellants in order to ascertain their 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. The involvement of the appellants is categorically proved that they have come on a white taxi and forcibly got her boarded in the said taxi and ultimately brought her to the house of Anand Mandal, where she was confined for about one month. Therefore, the offence Cr. Appeal (S.J.) No.1652 of 2006 & Cr. Appeal (S.J.) No.86 of 2007 13 2025:JHHC:11210 punishable under section 363 of IPC is well proved against the appellants.
In view of the above discussion and reasons, the conviction and sentence of the appellants for the offence under section 366A of IPC is set aside and they were held guilty under section 363 of IPC.
15. It appears that the appellants, namely, Sumitra Mandal and Ratan Mandal have remained in custody for some months whereas the appellants, namely, Prem Mandal and Jatan Mandal have remained in custody for more than 2 years during course of trial and pendency of this appeal.
16. In the facts and circumstances of the case, the appellants have sufficiently been punished for their guilt.
17. Considering the facts that just after one year of the incident, the victim girl was married with another person and leading her happy marital life and the main accused Prem Kumar Mandal is also married and living his life in his own way. Other accused persons, namely, Sumitra Mandal, Ratan Mandal and Jatan Mandal have their minor role in the said offence. The occurrence is of the year 2004 more than two decades have been lapsed and both the parties have settled in Cr. Appeal (S.J.) No.1652 of 2006 & Cr. Appeal (S.J.) No.86 of 2007 14 2025:JHHC:11210 peaceful manner without any involvement in other case till date.
18. In view of the aforesaid factual aspects of the case and the reasons, all the appellants are sentenced to undergo imprisonment already undergone during the trial of the case for the offence under section 363 of IPC.
19.In view of the above, these appeals are partly allowed with modification in conviction and sentence as stated above.
20.The appellants are on bail, hence, they are discharged from liability of bail bond. The sureties are also discharged.
21. Pending I.A(s), if any, is also disposed of accordingly.
22. Let a copy of this judgment along with Trial Court Records be sent back to the trial court for information and needful.
(Pradeep Kumar Srivastava, J.) Jharkhand High Court, at Ranchi Dated: 11/04/2025 Pappu/- N.A.F.R. Cr. Appeal (S.J.) No.1652 of 2006 & Cr. Appeal (S.J.) No.86 of 2007 15