Jharkhand High Court
Hira Lal Prajapati @ Hira Son Of Sri ... vs The State Of Jharkhand on 25 November, 2022
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra
1
CRIMINAL APPEAL(SJ) NO. 508 of 2010
Against the judgment of conviction dated 18.05.2010 and the
order of sentence dated 19.05.2010 passed in Sessions Trial
No. 58 of 2005 by the learned Additional Sessions Judge F.T.C.
II, at Seraikella.
Hira Lal Prajapati @ Hira son of Sri Dinanath Prajapati,
resident of Adarsh Colony Dam Road Chandil, P.O. & P.S.-
Chandil, District- Seraikella-Kharswan
.....Appellant
Vs.
The State of Jharkhand ........Respondent
For the Appellant :Mr. R.C.P. Sah, Advocate
For the Respondent : Mrs. Nehala Sharmin, APP
PRESENT
HON'BLE MR. JUSTICE RATNAKER BHENGRA
C.A.V. ON 25.03.2022 DELIVERED ON 25 /11 /2022
Ratnaker Bhengra,J: This appeal is directed against the judgment of
conviction dated 18.05.2010 and order of sentence dated 19.05.2010 passed by the learned Additional Sessions Judge F.T.C. II, at Seraikella whereby and whereunder appellant was convicted under section 366 of the IPC and was sentenced to undergo RI for seven years and a fine of Rs. 10,000/- and in default appellant was further sentenced to undergo 1 year simple imprisonment, in connection with Chandil P.S. Case No. 157 of 2004 dated 25.11.2004 ( G.R. Case No. 865 of 2004) corresponding to S.T. No. 58 of 2005. Period under gone was ordered to be set off.
2. The prosecution case, in brief, as per the written information dated 25.11.2004 of the informant PW-4 Shyamapado Pramanik is that informant's daughter (name concealed and hereinafter referred to as a victim) was minor and was student of Class X. On 22.11.2004 at about 10:00 am, victim had gone to school for studying and depositing fee and when the victim did not return home till 4:30 pm, then informant started searching her at different places and at his relatives place. Later on informant came to know that Hira Lal Prajapati (appellant herein), Manish Kumar Choudhary, Bimlesh 2 Mandal @ Bablu, Md. Rehman and Grijesh Gaurav @ Suraj had kidnapped his daughter on allurement of marriage. Informant tried to search his daughter with assistance of his neighbourers but informant did not know the whereabouts of his daughter and then the written report was filed by the informant in the police station.
3. On the basis of the written report of the informant Chandil P.S. case no. 157 of 2004 dated 25.01.2004 was registered under section 366(A) of IPC against five named accused persons including the appellant herein. On completion of investigation charge sheet was submitted under sections 366, 366(A) and 376 IPC against three accused persons including the appellant herein. Charges were framed against three accused persons including the appellant herein under section 366 and 366(A) of IPC and separate charge was framed against the appellant under section 376 IPC and trial was held. At the conclusion of the trial two other accused persons were acquitted of the charges and the appellant was acquitted from the charge under section 376 IPC, but, appellant was convicted under section 366 IPC, hence, this appeal.
4. Prosecution had examined altogether six witnesses out of whom PW-4 Shyamapado Pramanik is the informant of the case and father of the victim girl; PW-6 is the victim girl; PW-1 is Brinda Pramanik, who is the mother of the victim girl; PW-2 is Banamath Pramanik @ Manabodh Pramanik, who is the cousin brother of the victim; PW-3 is Dr. Manorama Siddhesh, who had examined the victim girl and PW-5 is Jitan Devi, who is the aunt of the victim girl. Albanus Bara, who is the Investigating Officer of the case was examined as court witness or C.W.-1.
5. PW 4 is Shyampado Pramanik, who is the informant of this case and father of the victim girl. Informant had stated in his evidence that on the day of occurrence at about 10:00 am, his daughter aged about 14-15 years had gone to school, but, did not return. He came to know that Hira Lal Prajapati, Manish, Bimlesh, Suraj and Rehman had kidnapped his daughter. Informant searched for his daughter and when he did not find her, then the matter was reported at the police 3 station. Informant had identified his signature on the written application which was marked as Ext.-2. Informant further stated that after 5-7 days he was called by the police at police station where he found his daughter and accused Hira Lal and Manish were also there. Thereafter, by the order of the court, informant brought his daughter to his house. His daughter disclosed that Hira Lal Prajapati, Manish, Bimlesh, Rehman and Suraj had kidnapped her after allurement but for which purpose they had taken her away, he did not know. Informant had identified the accused Hira Lal Prajapati in the court and did not identify the remaining accused persons. In his cross- examination informant stated that at the time of occurrence the age of his daughter was about 14-15 years. At para 8 informant stated that he does not know whether there was love affair from before between Hira Lal and his daughter. Informant further deposed that his daughter came back after 5-7 days and he did not know where his daughter was taken.
6. PW-6 is the victim girl of the case. PW-6 had stated in her evidence that the occurrence was of 22.11.2004 at about 10:30 am, in the morning and at that time she was returning from Chandil High School after depositing fee. Victim further stated that appellant Hira Lal Prajapati met her at the school gate and told that her brother and bhabhi had gone to Jamshedpur and they had sent him to take her to Jamashedpur. Then she boarded on his motorcycle and thereafter she was taken outskirt of Chandil to some lonely place and at that lonely place four boys Bimlesh, Suraj, Manish and Rehman came out and showed knife to her and told her to do what is said otherwise they will kill her. They gave clothes to change her school dress and thereafter, they took her at Shitla temple, Jamshedpur, where she was forcibly married with the appellant Hira Lal. At para 2, victim stated that Bimlesh did not accompany them, but, remaining all four persons including the appellant Hira Lal took her to Sasaram where sexual intercourse was committed with her in a room. She was kept there for one week and thereafter, she was taken to Ranchi. One day Hira Lal Prajapati committed rape on her and then she said if again he will 4 attempt to commit rape then she will commit suicide. Thereafter, she was taken to the relative of Manish at Ranchi and she was told not to raise alarm otherwise her brother would be killed. Thereafter, she was brought to Chandil from Ranchi, where she narrated all the true facts to police, but, police told her to give statement as per dictate of the accused persons then under pressure of the accused persons she gave statement in the court. Statement under section 164 of the Cr.P.C., of the victim, was marked as Ext.-3. Victim had produced admit card of her matriculation which was marked as Ext.-4 with the objection of the defence. In her cross-examination victim had reiterated almost the same as stated in her examination-in-chief. At para-9 victim stated that at the time of recording of her statement by the Magistrate, she did not state before the Magistrate regarding threatening given to her by the accused persons. At para-11 victim stated that she did not depose before the Magistrate that the police had told her to give statement as told by the accused.
7. PW-1 is Brinda Pramanik, who is the mother of the victim. She had stated in her evidence that during search she came to know that Hira, Manish, Bimlesh, Rehman and one other person had kidnapped her daughter.
8. PW-2 Banamath Pramanik @ Manabodh Pramanik, is the cousin brother of the victim girl. PW-2 had stated in his evidence that a friend of his sister namely Mamta Kumari had informed him that his sister was taken away by the appellant Hira Lal Prajapati and his friends from the school gate. Thereafter, they went to the house of the accused persons, but accused persons had fled away. PW-2 further stated that at the time of occurrence the age of the victim girl was 16 years.
9. PW-5 Jitan Devi is the aunt of the victim girl. PW-5 had stated in her evidence that on the day of occurrence at 10 am, victim had gone to Chandil High School, but, did not return till 4 pm, then, during search they came to know that victim had gone with the appellant Hira Lal. In her cross-examination, PW-5 stated that Mamta had said that victim had gone with the appellant Hira Lal.
510. PW-3 is the Dr. Manorma Siddhesh, who had examined the victim girl. Doctor had stated in her evidence that she had examined the victim on 03.12.2004. Doctor further deposed that she did not find any mark of violence or injury either on the body of the victim or on her private part. Doctor opined that there was no any symptom of sexual intercourse with the victim and age of the victim was between 18-20 years. Doctor had proved the Medical Examination report of the victim girl which was marked as Ext.-1.
11. Court Witness No.-1 Albanus Bara, is the investigating officer of this case. Investigating Officer had stated in his evidence that he had prayed before the court for recording the statement of the victim girl under section 164 Cr.P.C and he got the victim girl medically examined.
ARGUMENTS OF THE APPELLANT
12. Learned counsel for the appellant Mr. R.C.P. Sah, has pointed out the inconsistencies and contradictions in the evidences of the prosecution witnesses. Learned counsel submitted that the alleged victim girl has given varying or contradictory statements before the police under section 161 Cr.P.C and her statement under section 164 Cr.P.C. before the Magistrate as well as before the learned trial court and that there are significant variations, inconsistencies or contradictions in all these statements.
13. Learned counsel further says that as per the doctor's evidence, who is PW 3 Dr. Manorma Siddhesh, the age of the victim girl was between 18 to 20 years and hence the alleged victim girl was not minor. Learned counsel further submitted that matriculation admit card Ext.-4, which has been relied on by the prosecution and on the basis of which the learned trial court assessed the victim girl as minor aged about 15 years is not acceptable as the matriculation admit card was not verified by the prosecution with the original records of the concerned school from where the victim was studying. Counsel further submits that victim had willingly gone with the appellant and hence no case of kidnapping or abduction under section 366 IPC can be made out against the appellant.
614. Learned counsel for the appellant then pointed out the evidence of PW 1 Brinda Pramanik, who is the mother of the alleged victim girl and submitted that PW-1 in paragraph-3 of her evidence had deposed that she did not see the girl being taken away. Further PW-6, who is the victim girl herself had said that she went willingly and if the victim girl went willingly then no case under section 366 IPC is made out.
15. Learned counsel further submits that the case is of the year 2004 and about 17 years have passed during which the appellant had under gone much hardship of trial and mental agony and that the girl is married to another person and this fact may also be considered by this Court in deciding the appeal and imposing sentence, if any.
ARGUMENTS OF THE APP
16. Learned counsel for the State, learned APP Mrs. Nehala Sharmin has however, on the other hand, argued from the evidence that the appellant along with other accused persons had kidnapped or abducted the victim girl and then the victim girl was sent back to her home after 5-6 days of the occurrence of kidnapping. Regarding age of the victim girl, learned APP submitted that as per the evidence of the informant, informant's mother and the alleged victim girl, the age of victim was 14-15 years at the time of occurrence. Learned APP further submits that doctor had also assessed the age of the victim girl to be 18-20 years then on the lower side i.e. minus 2 years, the girl would be around 16 years which would definitely make her minor at the time of the incident. Counsel further says that marriage was solemnized between the appellant and the victim girl at Shitla Mandir, Jamshedpur, after she was abducted on 22.11.2004 and therefore, the offence under section 366 IPC can surely be made out. Moreover, victim had deposed that the appellant had sexually assaulted her. Learned APP further submitted that in her statement under section 164 of the Cr. P.C., before the Magistrate, the victim girl did not say that she gave her statement as said by the appellant. Learned APP further submitted regarding the deposit of school fees on the day of occurrence by the victim girl and pointed out paragraph-10 of 7 victim's evidence and said that Investigating Officer of the case had stated that principal had also supported that victim was in the school, on the day of occurrence.
17. Learned APP further submitted that in paragraph 15 of the evidence the victim girl, victim had stated that she had gone with the appellant as appellant had said that her brother and bhabhi had called her to Jamshedpur and since appellant Hira Lal Prajapati was the friend of the victim brother, she believed Hira Lal Prajapati and hence she went with the appellant. Learned counsel says that this is clearly a case of deception to mislead the victim girl with ulterior purpose and motive and the intentions of the appellant is fully established.
CONCLUSION
18. I have heard both the learned counsels, gone through the records of the case and the evidences and in the facts and circumstances. The conviction of the appellant is under section 366 of IPC.
19. First of all coming to the age of the victim girl, I find that informant PW-4, who is the father of the victim girl had not stated the age of the victim girl in his written report and simply stated in the written report that his daughter was minor. Doctor PW-3, who had examined the victim girl had on the basis of X-Ray had opined the age of victim girl to be between 18 to 20 years. But, during her evidence before the learned trial court victim girl had submitted her Matriculation admit card showing her date of birth as 01.02.1990, which was marked as Ext.-4 with objection by the defence. Learned trial court at para-24 of the impugned judgment had elaborately discussed the issue of age of the victim girl and held that age as assessed by the doctor was not correct and taking age towards lower side held that at the time of occurrence victim was under sixteen years of age. In this regard, I find that there is difference of about 5-6 years in the age of the victim as assessed by the doctor and date of birth of the victim girl as written in the Matriculation admit card, which is a vital difference and hence requires scrutiny. In the Matriculation admit card, date of birth of the victim is mentioned as 01.02.1990 and 8 this date of birth should have been verified by the Investigating Officer with the original records of the school admission register, but, prosecution has failed to do so and hence, relying solely on the matriculation admit card for determination of the age of the victim girl would not be safe in the facts and circumstances and evidences of the case. Here it is pertinent to mention the case of Kondapalli Laxman Rao v. State of A.P. reported in 1999 Cr.LJ 1928, wherein Hon'ble Andhra Pradesh High Court, in a case under 376 IPC, had not accepted the evidence of age based on school records as it was in conflict with the medical evidence. Hence, in the case in hand, taking 2 years of margin on the upper side from the age as assessed by the doctor it is doubtful that alleged victim girl was minor at the time of occurrence.
20. Further, in her examination under section 164 of CrPC Ext.-3, victim girl had stated that she had married with the appellant at Tata and thereafter, she had gone with the appellant to Delhi and there she stayed at Chandni Chowk in a hotel for 7 to 8 days. Thereafter, they returned to Ranchi and from Ranchi she came back to Chandil. Victim girl had further stated in her statement that accused persons cannot be blamed and later on she will think she will live with the appellant or not. Hence, from the statement of the victim girl under section 164 Cr.P.C. it appears that she had gone voluntarily with the appellant as she did not make hue and cry for her rescue neither at the time of marriage at Jamshedpur nor during her stay at Delhi and Ranchi. Hence, evidence of the victim that she had given statement under section 164 Cr.P.C. under the pressure of the accused persons cannot be believed.
21. The alleged victim had gone willingly and allegedly stayed with the appellant for some days. The father, mother, aunt and cousin brother have not stated about being informed by the victim about any sexual overt act or misconduct, hence even sexual ingredients of offence alleged and convicted for is doubtful.
22. Therefore, having gone through the entire gamut of the evidence, appellant is acquitted of the charge under section 366 of 9 IPC by giving him benefit of doubt.
23. Accordingly, the impugned judgment of conviction dated 18.05.2010 and the order of sentence dated 19.05.2010 passed by the learned Additional Sessions Judge FTC-II, at Seraikella in connection with S.T. No. 58 of 2005 cannot sustain and is hereby set aside. Appellant is discharged from the liablity of bail bond.
24. Accordingly, appeal is allowed.
( Ratnaker Bhengra,J.) Jharkhand High Court, Ranchi Dated 25 /11 /2022 Sharda/NAFR