Jharkhand High Court
Raju Toppo vs State Of Jharkhand on 7 December, 2013
Author: R.R.Prasad
Bench: R. R. Prasad
Criminal Appeal (S.J) No.1181 of 2007
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Against the Judgment of conviction dated 20.8.2007 and the order of sentence
dated 23.8.2007 passed by the Judicial Commissioner,Ranchi in S. T. No.663
of 2006.
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Raju Toppo................................................................................Appellant
VERSUS
State of Jharkhand................................................................ Respondent
For the Appellant : Mr.Ananda Sen, Advocate
For the State : Mr. S. K.Dubey, Advocate
P R E S E N T
THE HON'BLE MR. JUSTICE R. R. PRASAD
By Court: The sole appellant, Raju Toppo @ Togi Toppo was put on trial to face charges
under Sections 366A, 376 and 363 of the Indian Penal Code on the allegation that he having enticed away a minor girl (daughter of Ramashish Sharma, P.W.1) committed rape upon her.
The court did not find the appellant guilty for the offences under Sections 366A and 376 of the Indian Penal Code and hence, acquitted the appellant for the said charges. However, the court having found the appellant to be guilty for an offence under Section 363 of the Indian Penal Code sentenced him to undergo rigorous imprisonment for five years.
The case of the prosecution is that Ramashish Sharma's (P.W.1) daughter, aged about 13 years had left home for coming to school on 1.4.2005 for fetching mark sheet from there. When she did not return, enquiry was made by Ramashish Sharma (P.W.1) who in that course, came to know that this appellant had enticed away her daughter.
On such allegation, a case was registered as Dhurwa P.S. Case no.66 of 2005 under Sections 366, 366A of the Indian Penal Code.
Further case is that after one year of the occurrence, P.W.1 received one telephonic call of her daughter, who stated that she had been calling from Orissa. However, it was found that call had been made from Ranchi itself. Thereafter the matter was informed to the police. From the telephonic call when it was detected that they are living at Hindpiri, the police reached over that place and recovered the girl, who at that time was in the company of this appellant from the house situated at Hindpiri. The appellant was arrested. The girl was sent for medical examination before the Doctor. She was examined medically by Doctor Vijya Dasmi Oraon (P.W.9) who found the age of the girl in between 16-17 years. Thereupon the Investigating Officer got the statement of the girl recorded under Section 164 of the Code of Criminal Procedure wherein she stated that she had been enticed away by this appellant.
On completion of investigation, charge sheet was submitted under Sections 366A, 376 of the Indian Penal Code. Upon which cognizance of the offences was taken and the appellant was put on trial wherein charges were framed under Sections 366A, 376 and 363 of the Indian Penal Code.
The prosecution examined altogether 9 witnesses. Of them, P.W.1 the informant, father of the victim, P.W.2, Shanti Devi the mother of the victim and P.W.4 Manoj Kumar Sharma, the brother of the victim did testify that when they did find that the victim girl has not returned home from the school, they started searching her and during that course, they came to know that this appellant had enticed away the girl. P.W.2 has further gone to depose that she came to know from the mother of the appellant that the appellant had enticed away the girl. Similarly, P.W.3 Indrawati Devi residing in the neighborhood and her husband P.W.5 Bhola Ram have deposed that they came to know that the appellant had enticed away the girl. P.W.7 is the victim. She in her evidence testified that she had never been enticed away by the appellant, rather she was being tortured by her father and mother and hence, she left home and went away with this appellant.
The court on these evidences found the appellant guilty for an offence under Section 363 as, according to the court, P.W.5 and P.W.2 have deposed before the court that this appellant had taken the victim minor girl with him and kept her in his company and while the victim was in the company of this appellant, she was recovered by the police.
The trial court accordingly, convicted the appellant under Section 363 of the Indian Penal Code. However, the court did not find the appellant guilty for the offences under Sections 366A and 376 of the Indian Penal Code.
Mr.Ananda Sen, learned counsel appearing for the appellant submitted that there has been absolutely no evidence on the record that the appellant had taken or enticed away the victim girl, rather the evidence is otherwise which has come from the mouth of the victim P.W.7 that she had left home voluntarily and in that situation, even if the victim girl was found in the company of the appellant, the appellant cannot be held to be guilty for an offence under Section 363 of the Indian Penal Code and thereby the court committed illegality.
Having heard learned counsel appearing for the appellant and learned counsel appearing for the State, I do find that none of the witnesses examined on behalf of the prosecution has stated that this appellant had taken or enticed away the victim girl,rather all the witnesses namely, P.W.1, P.W.2, P.W.3, P.W.4 and P.W.5 have testified before the court that they came to know from other source that this appellant had taken away the victim girl. Thus, all the witnesses, referred to above, examined on behalf of the prosecution are the hearsay witnesses whose testimonies will have hardly any evidentiary value.
Further I do find that P.W.7, the victim girl has testified in the court that she had left home voluntarily as she was being tortured by her father and mother. However, she has admitted that she was living in the company of this appellant but this piece of evidence given by the victim hardly proves the culpability of the appellant as according to witness she had left home voluntarily and thereby nothing is there to show that this appellant had taken or enticed away the victim. In spite of that the trial court has recorded the order of conviction against the appellant.
Thus, I do find that the trial court has committed illegality in convicting the appellant guilty for an offence under Section 363 of the Indian Penal Code as the prosecution has failed to prove the charges against the appellant.
Under the circumstances, the judgment of conviction dated 20.8.2007 and the order of sentence dated 23.8.2007 passed by the trial court is hereby set aside. Consequently, the appellant is acquitted of the charges levelled against him.
In the result, this appeal is allowed.
(R.R.Prasad, J.) Jharkhand High Court, Ranchi, Dated the 7th December, 2012, NAFR/N.Dev