Jharkhand High Court
2012) vs The State Of Jharkhand on 6 May, 2024
Author: Ananda Sen
Bench: Ananda Sen
Criminal Appeal (DB) No. 86 of 2015
...
Against the judgment of conviction dated 20.08.2014 and order of
sentence, dated 25.08.2014, passed by the learned Additional Judicial
Commissioner-III-cum FTC (CAW), Ranchi in Session Trial No. 520 of 2012
(arising out of Ormanjhi P.S. Case No. 48 of 2012, G.R. Case No. 1810 of
2012).
...
Lakhindra Ganjhu @ Lakhendra Ganjhu ... Appellant
-V e r s u s-
The State of Jharkhand ... Respondent.
...
For the Appellant : - Ms. Shaurya Dwivedi, Advocate.
For the Respondent : - Ms. Lily Sahay, A.P.P.
...
P R E S E N T: -
SRI ANANDA SEN, J.
SRI SUBHASH CHAND, J.
...
Per Sri Ananda Sen, J.
Heard the learned counsel for the appellant and the learned counsel appearing for the State.
2. We have gone through the trial court records.
3. This appeal is preferred against the judgment of conviction dated 20.08.2014 and order of sentence, dated 25.08.2014, passed by the learned Additional Judicial Commissioner-III-cum FTC (CAW), Ranchi in Session Trial No. 520 of 2012 (arising out of Ormanjhi P.S. Case No. 48 of 2012, G.R. Case No. 1810 of 2012), whereby the appellant has been convicted for committing the offence under Sections 366 and 376 of the Indian Penal Code, who has been sentenced to undergo rigorous imprisonment for 10 years and also to pay a fine of Rs.2,000/- and in default of payment of fine to undergo further simple imprisonment for one month for the offence under section 366 of the Indian Penal Code and rigorous imprisonment for 10 years with a fine of Rs.2,000/- and in default of payment of fine to undergo further simple imprisonment for one month for the offence under section 376 of the Indian Penal Code.
4. Learned counsel for the appellant submits that the prosecution has miserably failed to establish the guilt of the appellant beyond all reasonable doubts. She submits that though the victim has stated that she was minor, aged about 16 years but the victim and her father in their cross-examination has admitted that the victim was a major at the time of occurrence. She submits that the Doctor also found that she was aged about 18 to 19 years on the date of occurrence. Though there was documentary evidence in support of the date of birth but the prosecution has withheld the same, thus, the benefit should be given to the appellant. She submits that it is a consistent evidence that since last more than three months, the appellant was in contact with the victim and they were talking to each other by phone, which would suggest that the victim has eloped with the appellant and she being a major, no offence under Section 366 of the Indian Penal Code is made out. Proper analysis would suggest that the entire incident occurred with the consent of the victim. Further the fact that the victim has left the house with the jewellery and money would clearly suggest that being a major, the victim has eloped with this boy taking the jewellery and money with her. Learned counsel for the appellant also points out several lacunae in the judgment of the learned Trial Court, like non- examination of the witnesses of the alleged hotel in Gomia where the victim and this appellant stayed and also non-examination of the driver of the vehicle, who had brought them to their houses. She submits that the Police had not investigated nor taken any statement of the person who were there in the bus stand with whose help the accused was apprehended.
5. Learned A.P.P. appearing on behalf of the State opposes the prayer and submits that the appellant is not of the religion of the victim, thus, there is probability of kidnapping. She submits that the Doctor also suggested that rape could not be ruled out. She submits that the Doctor has assessed the victim, to be aged about 16 years, which is the conclusive proof of age of the victim and since the victim was minor and there was forceful sexual intercourse, the 2 [Cr. A. (DB) No. 86/2015] appellant has been correctly convicted for the offence under Section 376 and 366 of the Indian Penal Code.
6. After hearing the parties, we have gone through the F.I.R. and the depositions and other documents including the exhibits. We are only dealing with the relevant materials and the depositions, which is sufficient for disposal of this appeal. It is not necessary to narrate each and every statement as it will only multiply the pages and nothing else.
7. The F.I.R. is registered on the basis of a written report of the victim, who is P.W.-4. She stated in her Ferdbeyan that she is aged about 16 years and resident of Ormanjhi. She further states that this appellant since last three months was talking to her. She stated that this appellant told her that he is in love with her and wants to marry her. The victim-informant stated that she is disabled and her parents were really disturbed about performing her marriage. Thus, she told this appellant to come with his parents to her house and in the meantime, on 01st April, 2012, this appellant called the informant and told her that he along with his father and mother are waiting near Ormanjhi block in a car and she should come. On receiving this information, she went to the place, where she was asked to come, when the appellant took her to a vehicle and forcibly pushed her in. He, then with another person, who was the driver, took her under threat. She protested, when this appellant told her to keep quiet, otherwise he will sell her or commit her murder. She further narrated that she was taken to a hotel near the Gomia Railway station, where she was kept under threat and rape was committed upon her. She further alleged that this appellant had taken her golden ornaments and 600/- Rs., which she was carrying. In the meantime, on 08.04.2012, her father, along with 4 or 5 persons came in search of her, when seeing her father, she started shouting, then her father rescued her and also caught this appellant and entrusted this appellant to the police.
3 [Cr. A. (DB) No. 86/2015]She lastly concluded that against her wish, this appellant had committed rape upon her and has also taken the jewelleries which is worth Rs.35,000/-. On the basis of the aforesaid Fard-beyan, case under sections 366A, 376 and 379/34 of the Indian Penal Code was instituted.
8. The Police started investigation and recorded the statement of the witnesses. Police arrested the appellant. His confessional statement was recorded. He was interrogated and it is alleged that he has confessed his guilt. After conclusion of investigation Police submitted charge sheet under sections 366 (A)/376/379/34 of the Indian Penal Code. As the appellant claimed innocence, he was put on trial after framing of charge. He has also denied the circumstances in his statement under section 313 of the Cr.P.C.
9. Altogether six witnesses were examined by the prosecution in this case, out of which, P.W. 1. is Idrish Ansari, P.W. 2 is Md. Inam Ansari, P.W. 3 is Md. Jan Alam, P.W. 4 is the victim herself, P.W. 5 is Dr. Anita Kumari and P.W.6 is Ramdhari Singh, the investigating Officer of this case.
P.W. no. 4 is the victim herself, who in her written report (exhibit-1) has clearly stated that she is a handicapped girl aged about 16 years. The appellant on 01st April, 2012 called her on phone and told her that his parents and brothers are at Ormanjhi Block Chowk and they want to meet her. On his request, when the informant reached near the Maruti Van, which was standing near Ormanjhi Chowk the appellant forcefully took her in that Van and brought her in a hotel near Gomia Railway Station and forcibly committed rape on her under threat that he would sell her in a red light area or murder her. The appellant also forcibly taken the ornaments of the victim and cash Rs.600/- which she was carrying. When she and this appellant was standing in Ramgarh, the girl seeing this witness shouted, when this appellant was caught by her 4 [Cr. A. (DB) No. 86/2015] father. The appellant was thereafter produced before the police and thereafter she filed this case.
P.W. no. 1, Idrish Ansari is the father of the victim, who has fully supported the evidence of victim. This witness stated that on 01.04.2012, her daughter without informing any one left the house. She did not return till evening. Her daughter was physically handicapped. She was searched, but no clue was there, as to where, she had gone. On 08.04.2012, this witness had gone to Ramgarh, when this girl seeing this witness, raised an alarm. Along with her, this appellant Lakhindra Ganjhu @ Hanif was present. He then caught this appellant and brought the daughter to their house. He was taken to the Police Station, when the F.I.R. was lodged. He stated that her daughter narrated the entire incident to him as to how she was called by this appellant to Ormanjhi block and had forcibly taken her. He stated that the girl while leaving the house had taken her jewelleries and Rs. 600/-. He has stated that the girl narrated to him that she was taken to Phurso, where, she was raped and her jewellery and money was taken away. This witness identified this appellant in Court. He stated that the age of the girl was 16 years. In cross-examination, he stated that her daughter has failed in matric. She had sat in the matriculation examination, but, failed. He does not know, since how long this appellant and the victim established contacts. In cross-examination, he further stated that he has not stated the age of the victim after going through the certificate. Rather, he has narrated the same on estimation. In cross-examination, he further stated that when her daughter went missing, he did not lodge any missing report before the police, because it is a question of a girl child. For eight days, he searched her and on 08.04.2012, she was found in Ramgarh. She was standing in Ramgarh, when she shouted, seeing this witness and this appellant was also with her. He further stated that he alone, went to Ramgarh and the girl was found next to the bus stand and 5 [Cr. A. (DB) No. 86/2015] the girl was standing with this boy. The boy was caught with the help of the people, who were there in the bus stand, when he was trying to flee. He admitted that no information was given to the Ramgarh Police Station. He narrated that from Ramgarh, they hired a car and brought the girl and this appellant to their house. He stated that they had taken the boy to the Police Station. In paragraph 33, he stated that the Police had recorded the re- statement of her daughter, but not of his. He stated that what he is narrating before this Court, is as per the information given to him by his daughter. He denied the suggestion that the appellant was forcibly kept in his house and he wanted to convert his religion and when he did not agree, this false case was lodged.
P.W. no. 2, is Md. Inam Ansari and P.W. no. 3 is Md.
Jan Alam and on the basis of the evidence of victim, they are two other independent witnesses. These witnesses stated that they went to the house of the informant and on 08.04.2012, they had seen this appellant, who was brought by the father of the victim. On query, he stated that he disclosed his name as Hanif Ansari, but, later on, they could come to know that was not his actual name. This appellant was caught in Ramgarh. They also stated that on 01.04.2012, they could come to know that this girl of the P.W. 1 was dismissed. These witnesses knew about the facts from the daughter of the P.W.1.
P.W. no. 5, is Dr. Anita Kumari, who, on 08.04.2012 at 2.45 P.M. examined the victim and opined that on the basis of clinical and pathological examination, there is no recent evidence of sexual intercourse at the time of examination and age of individual is between 18 to 19 years. She has identified the injury report which is marked as exhibit-2.
P.W. No. 6, Ramdhari Singh is the Investigating Officer. He stated that on 08.4.2012 he was posted as Sub-Inspector in Ormanjhi Police Station. On that day victim came with her written 6 [Cr. A. (DB) No. 86/2015] report to the police station. After registration, Officer-in-charge gave him the charge of investigation of this case. After taking the charge of investigation he has recorded the re-statement of victim, thereafter he recorded the statement of witnesses Idrish Ansari, Md. Jan Alam and Inam Ansari all of them have fully supported the case of the prosecution. The witnesses have also produced the victim and accused in the police station. He arrested the accused, thereafter recorded his defence statement. In his statement he confessed his guilt, thereafter he produced the victim for medical examination. He has identified the requisition for medical examination which is marked as exhibit-3.
10. Besides the above oral evidence prosecution has produced the following documentary evidences: -
Exhibit-1 is the signature of the victim on the written report. Exhibit-1/A is the registration on the written report. Exhibit-2 is Medical Report.
Exhibit-3 is the application for medical report. Exhibit-4 is formal F.I.R.
11. In this case also, we find that while the statement of this appellant was recorded under Section 313, Cr.P.C., he denied giving any confessional statement before the police.
12. After hearing the parties and after going through the record as well as evidences, we find that though the FIR has been registered under sections 366A, 376, 379 and 34 of the Indian Penal Code, but from the record, we find that the charge has been framed under section 366 of the I.P.C. While framing charge, from the document of charge i.e. form no. 32M, we find that the court observed that the girl is of 16 years. If a girl is of 16 years, the charge should be framed under Section 366A, but if she is more than 18 years, the charge would be under section 366. Thus, we hold that the victim was more than 18 years and the trial court has correctly framed charge under section 366 of the I.P.C.
7 [Cr. A. (DB) No. 86/2015]As per evidence of the P.W. 1 and P.W. 4, i.e. the father and the victim herself, they claimed that the girl is aged about 16 years. The appellant challenges the aforesaid statement and has come up with the plea that the girl is more than 18 years. In this case, we find that P.W. 1, who is the father of the victim, in cross-examination, stated that the girl had sat in the matriculation examination, but failed. Once, any person, appears in a matriculation examination, he is served with an admit-card, which contains the date of birth. Further, in any certificate issued by the Board, in relation to the matriculation also, contains the date of birth. In this case, the document in respect of date of birth has not been produced by the prosecution to prove that the girl was less than 18 years. Further, the father of the victim stated that only on estimation, he had stated that the girl was 16 years. A father cannot by estimation say that the girl is minor or aged 16 years, more so, when there was a documentary evidence, which admittedly, has been withheld in this case.
Further, when the girl was examined, the Doctor also found her to be 18 to 19 years, thus, she is more than 18 years.
We find that one of the ingredients of section 366 I.P.C. is that the woman had to be kidnapped or abducted with an intention that he may be compelled or knowing it to be likely that she will be compelled to marry any person against her will or she may be forced or seduced to illicit intercourse or knowing it to be likely that she would be forced or seduced to illicit intercourse.
In this context, we find that the girl in her evidence stated that her father was worried about her marriage and this appellant had assured that he will marry her. The appellant called the girl and she went to meet him in the Ormanjhi chowk along with all her jewelleries. This act on part of the victim suggests that there was element of consent. Further she was found standing in the bus stand amongst several persons, but she did make any hue and cry.
8 [Cr. A. (DB) No. 86/2015]This clearly suggests that she was freely moving with the appellant. She states that she was kept in Gomia in a hotel, but she also did not raise any alarm. Thus, we hold that the prosecution has failed to prove section 366 of the Indian Penal Code in this case.
13. Now, the next question is about conviction under section 376 of the Indian Penal Code. The girl, who, we have hold, is a major, as per her, was taken forcibly by this appellant in Gomia and in a hotel, she was raped. She stated the aforesaid story, but the Doctor, who, after recovery of the victim examined her, did not find any recent evidence of sexual intercourse. Further, the conduct of the girl and that of the informant and his father i.e. P.W. 1 creates some doubt in the mind of this Court. The sequence of events, if analyzed, would suggest that there may be an element of consent. From the evidence, we find that since last 3 months from the date of occurrence, this appellant and the girl was in touch and they were regularly communicating with each other over phone. The appellant calls the girl to a particular place and it is alleged that she was forced to go there. The surprising element is that she had taken away with her all her ornaments and 600/- Rs. cash. It is the case of the appellant that the victim eloped with him with all the money and cash. If a girl is called by a boy to come to a particular place, then the question comes to the mind of this Court as to why she would carry all her jewelleries with him, if she does not have any intention to elope. Further, we find that she was taken at a hotel and where she was kept and she was ravished. The date, when she had allegedly gone missing, was 01st of April and she was recovered on 08th of April. She was in a hotel, but there is nothing on record to suggest that she made any hue and cry nor did she raise alarm or informed any person. Further surprising is that this appellant and the victim were standing near the bus stand when seeing her father, the victim started shouting and she was recovered. This meeting definitely, was by chance. It is also surprising that this girl did not 9 [Cr. A. (DB) No. 86/2015] even raise any alarm, when she was standing near the bus stand, which is a thickly populated area. This gives an impression that there must be some element of consent.
14. Further, we find that the Investigating Officer had neither gone to Gomia to enquire and investigate as to whether she was actually taken to Gomia and was kept in the hotel or not. Further, no person, who apprehended this boy in the bus stand was brought in the court as a witness. The father, who is P.W. 1, stated that he alone had gone to Ramgarh, when he saw his daughter, who raised alarm, but, surprisingly, P.W. 3 stated that he was accompanying P.W. 1, when they went to search for the daughter at Ramgarh. Further, in the Fard-beyan, the girl stated that his father was accompanied by four to five persons, when she was allegedly rescued. These are the major contradictions, which gives a dent to the prosecution story. Further, we find that the father of the victim, as P.W.1 stated that they reserved a vehicle and brought her daughter and this appellant to their house at Ormanjhi, but surprisingly, the driver was not examined as any witness. All these facts clearly raise a doubt about the prosecution story. Since there is an element of doubt about the prosecution story and there are contradictions in the evidence of witnesses, we are of the opinion that the charge under section 376 of the I.P.C. is also not substantiated by the prosecution. So far as section 379 is concerned, we find that there is no evidence to suggest that this appellant had stolen any articles of the girl.
15. Considering what has been held above, we find that the conviction of the appellant cannot be sustained and the same is bad, as the entire chain of circumstances is not complete. Thus, we are inclined to allow this appeal and acquit the appellant.
16. In the facts and circumstances of the case, the conviction of the appellant under Sections 366 and 376 of the Indian Penal Code vide the judgment of conviction dated 20.08.2014, passed by the learned Additional Judicial Commissioner-III-cum FTC (CAW), Ranchi in Session Trial No. 520 of 2012 (arising out of Ormanjhi P.S. Case No. 48 of 2012, 10 [Cr. A. (DB) No. 86/2015] G.R. Case No. 1810 of 2012), is hereby set aside and accordingly the sentence awarded by the learned Trial Court vide order dated 25.08.2014 is also set aside.
17. Accordingly, this Criminal Appeal is allowed.
18. This Court directs the above named appellant to be released forthwith from custody, if not required in any other case.
(Ananda Sen, J.) (Subhash Chand, J.) Jharkhand High Court, Ranchi.
Dated - The 06th May, 2024 APK/A.F.R. 11 [Cr. A. (DB) No. 86/2015]