Partly allowed

China Mallik v. State of Jharkhand

Jharkhand HC1 Sept 2017Cr.A(SJ)/53/2010

Case brief

AI extract

What is this about?

This appeal challenged convictions for rape, kidnapping, and cruelty under the IPC and Immoral Traffic Act. The High Court upheld the rape and kidnapping convictions against China Mallik based on reliable victim testimony of confinement and lack of consent. It acquitted Basant Mistri but upheld cruelty charges against the husband, Mahendra Mistri, while setting aside immigration-related conviction

What did the court decide?

Basant Mistri acquitted; Mahendra Mistri upheld cruelty conviction, set aside trafficking; China Mallik upheld rape and abduction convictions, set aside trafficking.

China Mallik Vs State of Jharkhand — Domestic Violence | Jharkhand HC (2017)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (S.J.) No. 53 of 2010 with Cr. Appeal (S.J.) No. 1375 of 2007 With

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Cr. Appeal (S.J.) No. 1431 of 2007

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(Against the judgment of conviction dated 3.10.2007 and order of sentence dated 5.10.2007 passed by the 2^nd Additional Sessions Judge,Chatra (FTC) in connection with Sessions Trial No. 139 of 2006 arising out of Simaria P.S. Case No. 25 of 2006 , G.R. no. 227 of 2006)

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China Mallik S/o Late Gulten Mallik R/o Village Ichak Kala PO and Ps Simaria, Distt. Chatra …… …...... Appellant in Cr.A. No. 53 of 2010

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Basant Mistri S/o Late Guna Mistri R/o Vilalge Jogiara PS Pratapppur Distt Chatra …… …...... Appellant in Cr.A. No. 1375 of 2007

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Mahendra Mistri S/o Late Guna Mistri R/o Village Ichak PS Simariya Distt Chatra …… …...... Appellant in Cr.A. No. 1431 of 2007

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-Versus-

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The State of Jharkhand ...... Respondent

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CORAM : HON’BLE MR. JUSTICE RATNAKER BHENGRA

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For the Appellants : Mr.B.K.Dubey,Advocate For the Respondent : Addl.P.P.

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08/Dated: 01.09.2017 RATNAKER BHENGRA,J

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These Criminal Appeals have been preferred against the judgment of conviction and order of sentence dated 3.10.2007 and 5.10.2007 respectively passed by the 2^nd Additional Sessions Judge,Chatra (FTC) in connection with Sessions Trial No. 139 of 2006 arising out of Simaria P.S. Case No. 25 of 2006 , G.R. no. 227 of 2006 whereby and whereunder appellants namely Basant Mistri and Mahendra Mistri were sentenced to undergo R.I. for three years u/s 498A IPC and a fine of Rs. 1000/- each and in default of fine further imprisonment for six months and u/s 5(1) of The Immoral Traffic (Prevention) Act, 1956 further R.I. for three years and fine of Rs. 1000/- each and to further undergo imprisonment for six months in default of payment of fine amount and both the sentences were ordered to run concurrently. Appellant China Mallik was sentenced to undergo R.I. for three years for offence u/s 344 IPC and a fine of Rs. 1,000/-and to further undergo imprisonment for six months in default of payment of fine. Further sentenced to undergo R.I.

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for seven years for offence u/s 376 IPC and a fine of Rs. 2,000/- and to further undergo imprisonment for one years in default of fine and u/s 5 (I) of Immoral Traffic (Prevention) Act, 1956 to further undergo imprisonment for three years and fine of Rs. 1,000/- and further undergo imprisonment for six months in default and all the sentences were ordered to run concurrently.

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2 . The prosecution case according to the fard-beyan of informant/victim (name concealed) PW-6 is that she was married to accused Mahendra Mistri of Village Jogiara, PS Pratappur, Dist. Chatra in the month of Jyeshth 2005 in accordance with the Hindu rites and her parents had given gifts to the best of their ability at the time of their marriage. She remained for 15/20 days with her husband in her nupital house. Her husband had been working in Kolkata since before. Hence, he left her at the her parent's place at Village Ranigunj, PS Imamgunj, Dist Gaya after about twenty days of marriage, saying that he is going to Kolkata for work and will return after working for some days then take her to his home, and thus her husband went to Kolkata. Thereafter, her husband returned from Kolkata in month of Shawan 2005 and without informing her he contracted another marriage with the daughter of Fagu Mistri of Village Angawan. When the parents of the informant came to know about another marriage by informant's husband then family members of her in law's in order to suppress this fact took informant to village Jogiara and kept her in the house of her uncle-in-law Phul Mistri. Thereafter about 15/20 days ago her husband Mahendra Mistri, his elder brother accused Basant Mistri and accused China Mallik came to the house of her uncle-in-law in village Jogiara and took her next day to village Ichchak where Mahendra and Basant used to live but they did not take her to their house rather took her to the house of accused China Mallik and left her there and went away. Accordingly, she remained in custody and confinement in the house of China Mallik for about 10 to 12 days. China Mallik confined her in his house under closed door and used to rape her every day and when she objected he threated to kill her. The villagers came to know about her confinement then they took her out from the house of China Mallik and informed the police. Police brought her, accused Basant Mistri and China Mallik to the police station for interrogation, but since she became mentally weak due to atrocities committed on her she could not tell true facts. Hence, she was left on written undertaking to live

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at the house of her husband's elder brother, Ratan Mistri. However, China Mallik was detained at the police station. She came to know later on that a warrant was pending against China Mallik so he was sent to jail. Her brothers came on 14.4.2006, then she was no longer fearful and made true statement regarding what had happened to her.

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3. On the basis of fard-beyan of the informant Simaria P.S. Case no. 25 of 2006 was registered and after investigation charge sheet was submitted under Sections 344/494/498/498A/376/371 IPC and u/s 5/6 of Immoral Traffic (Prevention) Act, 1956. Thereafter, cognizance was taken and case was committed to the court of Sessions and registered as S.T. No. 139 of 2006. The charges were framed against the accused persons to which they pleaded not guilty and claimed to be tried. The prosecution examined altogether eight witnesses and on the conclusion of the trial the learned trial court convicted and sentenced the appellants as aforesaid.

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4 . PW-6 is the informant. She deposed that she was married to accused Mahendra Mistri and after marriage she went to her matrimonial house and lived there for twenty days. Since her husband used to work at Kolkata, he put her at her parent's house and went to Kolkata for work, saying that he will return after some days and take her home. Thereafter in month of Shrawan her in-law Phulchand Mistri took her in Bidai and accordingly she went to Jogiara. Thereafter, her husband Mahendra Mistri, his elder brother Basant Mistri and accused China Mallik came and took her to Simaria from village Jogiara. Her husband and Basant Mistri handed over her to China Mallik and fled away telling her to remain there for fifteen days. China Mallik kept her in his house and used to commit rape on her every night. He used to keep her under lock and key. Thereafter, one day the persons from the vicinity took her out from his house by force and gave her to the police, where she made statement and instituted the case. She went to her parent's house from the police station where she is living presently.

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5 . P.W.7 is Gupteshwar Mistri and PW-8 is Janardhan Mistri are brothers of the victim. These two witnesses have also supported the facts that victim was married to Mahendra Mistri. She lived in her nupital house for twenty days. Thereafter, her husband left her to their place and said that he is going to Kolkata. Mahendra Mistri contracted another marriage with daughter of Fagu Mistri of village Angawan in the month of Shrawan

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and thereafter took the victim to his place. Thereafter Mahendra Mistri, Basant Mistri and China Mallik went to village Jogiara and brought informant to Simaria and handed her over to China Mallik and fled away. Informant lived in the house of China Mallik for fifteen days. Whenever, she wanted to go she was threatened to be killed. China Mallik used to commit rape on her. When persons of vicinity came to know about this, they then recovered informant from the house of China Mallik and informed the police. The information was also sent to them. Then they came and case was instituted. PW-7 admitted in his cross-examination that he was hearsay on the point that Basant, Mahendra and China brought informant to Simaria and handed her over to China and China committed rape on her.

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6 . PW-2 Amin Mallik though hostile had said that he heard that there was a girl in house of China Mallik and on this hulla the people of village Belgadda came and took out informant, wife of Mahendra Mistri from the house of China Mallik and sent China Mallik and informant to police station.

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7 . P.W.-1 Md. Samsul Mallik has also said in his evidence that the villagers came to know that there is a girl in the house of China Mallik and the house of China Mallik was locked. The villagers broke the lock and China Mallik and a girl was recovered from the house. The girl was wife of younger brother of Basant Lohar. They were sent to police station.

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8 . PW-4 Satyendra Prasad is the investigating officer. He proved the fard-beyan, endorsement on fardbeyan, formal FIR which were marked as Ext.1, Ext.2 and Ext.3 respectively. He also proved the medical report of victim marked as Ext.4.

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9 . Ext.4 is the medical examination report of the victim informant. This document shows that informant was examined by the doctor on 19.4.2006 by Dr. Miss. M.M.Bhengra Civil Assistant Surgeon Sadar Hospital, Hazaribag. This document shows that the doctor found secondary sex character well developed. No injury on any part of her body. P/V examination Utarous A.V. Hypoplastic. Cx-Normal, Fx-Clear. No foreign hair in the vagina. Vaginal swab taken. Vaginal smear prepared and sent to pathologist of hospital for examination of spermatozoa. According to pathological report spermatozoa not found. X-ray A.P. View of right elbow joint, wrist joint and pelvic was taken by the radiologist of the

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hospital. The x-ray report is as follows:

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I. Greater and linear trachanter fused.

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ii. Epiphysis of iliac crest partially fused.

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Iii. Elbow fused.

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iv. Lower end of radios and alma fused.

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On the basis of this report the age of victim was indicated between 18 to 19 years. In the opinion of doctor since there was no injury on her private part and spermatozoa not found in pathological report, it was difficult to give definite opinion about rape.

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10 . One defence witness was also examined. He is D.W.-1 Chhathu Ganjhu. He said that he knows Mahendra Mistri and his family. They were resident of Jogiara and they were living in his village i.e. village Kalaichak Tola Barbadih since 8/10 years and were doing the work of blacksmith. Mahendra was married to informant. She used to be brought to the house of Mahendra but used to flee away. Mahendra had not contracted another marriage. He also knew China Mallik who lived in Ranchi with his family and works as rickshaw puller and used to come to village on festive occasions with his family members. He was a man of good character and informant had instituted false case against him.

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11. Learned counsel for the appellants submitted that the only role of the appellant Basant Mistri was that he went to the house of China Mallik along with the husband of the victim, Mahendra Mistri and it was with the consent and permission of the legal guardian of the alleged victim that she was handed over to China Mallik. The only allegation that can be made against Basant Mistri is that he was simply present with Mahendra Mistri, the husband of the victim. If the husband of a woman was to leave his wife with some one else then the third party cannot be blamed and in this case the third party being the brother of Mahendra Mistri cannot be blamed. Counsel for the appellants further submitted that Basant Mistri is also living separately from his brother so he cannot be dragged into the crime along with Mahendra Mistri. He has further submitted that there is no allegation or evidence against this appellant that he had at anytime or any place demanded dowry from the victim and her family members and also there is no allegation of assault or torture. He has further submitted that Basant Mistri had only been dragged into the offence of 498A IPC and Section 5(1) of Immoral Traffic (Prevention) Act 1956 because he happens

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to be the relative or the brother of husband of the victim but this cannot be so especially because Mahendra Mistri himself is only responsible for his wife and in presence of the husband who is the legal guardian of the alleged victim she was handed over to China Mallik. Therefore, no offence u/s 498A IPC or Section 5 (1) of the Immoral Traffic Act can be attributed against this appellant. Moreover, the ingredients of Section 498 A is not made out against this appellant. He has further submitted that this appellant has already spent about nine months in custody and it may be taken into account at the time of passing judgment. 12. Learned counsel for the appellant has also argued that Mahendra Mistri is the husband of the alleged victim but in the fardbeyan there is no mention that any demand of dowry or torture was made. Therefore, no offence u/s 498 A IPC is made out. He has further submitted that there has been some allegation that Mahendra Mistri, appellant has contracted second marriage. However, he has submitted that in the offence u/s 494 IPC he has been acquitted. He has further submitted that appellant Mahendra Mistri was working in Kolkata to earn his livelihood and so he left his wife in the house of China Mallik and hence, he should not be blamed for betrayal of the trust by China Mallik therefore, his conviction under Section 498 A IPC and 5(1) of Immoral Traffic (Prevention) Act,1956 will not be sustained. He has further submitted that PW-1 deposed that China Mallik lived with his family and so under such circumstances it is doubtful that whether he will be guilty of such an offence in his own house. Further he has said that PW-3 and PW-5 have been declared hostile but in their depositions there is no mention of any demand of dowry or indication of any torture and assault. He has further submitted that evidence of PW-6 shows that after marriage victim was kept and looked after for about 15 -20 days in her in- laws' place and when the appellant Mahendra Mistri had to go to Kolkata for work then she was kept with China Mallik with all good intention.

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13. Finally counsel for the appellant submitted that appellant China Mallik has been sentenced for the offence u/s 344 IPC for three years and fine of Rs. 1,000/- and in default six months imprisonment further R.I. for seven years u/s 376 IPC and to pay fine of RS. 2,000/- and to further undergo one year imprisonment in default of payment of fine amount. He has also been sentenced for three years and to pay fine of RS. 1000/- and further six months imprisonment in default under the offence u/s 5(1) of

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Immoral Traffic (Prevention ) Act, 1956. Counsel for the appellants says that this appellant also should not be convicted and sentenced for any of the offences and he has reiterated the arguments made earlier on behalf of other two appellants and said that the victim was handed over to China Mallik by her husband who is the legal guardian of the victim and also that when she was being handed over to the said China Mallik why she had not protested the same. He has further submitted that China Mallik lived along with his family members so it cannot be said that rape would have taken place. He has further said that if there was any intention to commit trafficking of a woman or illegal confinement or rape then there would have been an offence like abduction but in no way it has come that she was abducted from her matrimonial home and then taken to the house of China Mallik and therefore, the allegation against the appellant China Mallik cannot be sustained.

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Learned counsel has further relied upon the judgments reported in:

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(2008) 10 SCC 69 (Lalli Ram & anr. Vs. State of Madhya Pradesh )

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(2008)10 SCC 81 (Premiya @ Prem Prakash Vs.State of Rajasthan)

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14 . Learned counsel for the State submitted that it has come clearly from the deposition of PW-6 that the alleged victim was not merely kept in the house of China Mallik rather she was also confined in his house. He has pointed out to paragraph no.3 of her deposition in which it has been indicated that appellant China Mallik used to rape her forcefully. PW-1 and 2 have indicated her confinement, and the fact that she was rescued by the village people that may be taken into consideration. He has referred the evidence of PW-1 that one girl was confined in locked house and that the villagers had to break open the lock and get her released and to that extent the deposition of PW-1 may be taken into account. He has also referred to PW-2 who in his evidence said that in the house of China Mallik one girl was recovered. The evidence of P.W.-1 is corroborated by the evidence of PW-2 and the villagers had to break open the door and rescue her. He has further submitted that the victim was kept in confinement for ulterior or illegal motive. He has also referred to a judgment passed by the Hon'ble Supreme Court in the case of State of Rajasthan Vrs. N.K . the accused reported in (2000)5 SCC 30 of which para 9 and 11 reads as under :

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“ 9. … An unmerited acquittal encourages wolves in

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the society being on the prowl for easy prey, more so when the victims of crime are helpless females. It is the spurt in the number of unmerited acquittals recorded by criminal courts which gives rise to the demand for death sentence to the rapists. The courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on women. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, this Court observed that refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. This Court deprecated viewing evidence of such victim with the aid of spectacles fitted with lenses tinted with doubt, disbelief or suspicion. We need only remind ourselves of what this Court has said through one of us (Dr A.S. Anand,J. as his Lordship then was) in State of Punjab v. Gurmeet Singh (SCC p.403,para 21)

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“[A] rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault- it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case”

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“11 . … There is no rule of law that her testimony cannot be acted without corroboration in material particulars. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness, a

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high degree of probability having been shown to exist in view of the subject-matter being a criminal charge. However, if the court of facts may find it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would do. Reference may be had to a long chain of decisions some of which are Rameshwar, Sidheswar Ganguly, Madho Ram, State of Maharashtra v. Chandraprakash Kewalchand Jain, Madan Gopal Kakkad, Narayan, Karnel Singh, Bodhisattwa Gautam and Gurmeet Singh. We may quote from the last of the abovesaid decisions where the rule for appreciating the evidence of the prosecutrix in such cases has been succinctly summed up in the following words (SCC p.403, para 21)

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“If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.”

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He has said that on the basis of all the aforesaid arguments and reasonings the offences of Section 376 IPC is fully established and proved beyond reasonable doubts and their conviction should be upheld. Counsel for the State further argued that there is no reference made for the offence of demand of dowry or torture and assault but leaving a newly married woman in another house and that too after few days of marriage would definitely amount to mental cruelty. He has said that “ Rakshak became Bhakshak”. He has further said that Basant Mistri along with his

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brother Mahendra Mistri had taken the victim to the house of China Mallik and they left the victim there in custody of China Mallik and therefore, the offence under Section 498 A IPC and Section 5(1) of Immoral Traffic (Prevention) Act 1956 against them is fully established.

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FINDINGS:

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15 . Having gone through the arguments of the counsels, the records on hand and in the facts and circumstances, so far as appellant Basant Mistri is concerned, there is no mention of demand of dowry or torture and for the same, the charges of which thus cannot be levelled against him. Prosecution has also failed to prove the allegations of inducing the informant for prostitution against the victim. Basant Mistri is brother of Mahendra Mistri but the responsibility of the victim, was on the hands of his brother Mahendra who is the husband of the victim.

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As far as appellant Mahendra Mistri conduct is concerned, it is indeed an act of utmost irresponsibility to have left his newly married wife in the so called care of another person. Did not he have a home ? He could have left her with his mother and father but he did not do so. One can imagine what the victim must have felt, having left her own parental home and then just after a few days of marriage, not even a month, being dropped in a strangers home. In such circumstances, moreover with the knowledge of what befalls his wife, appellant Mahendra Mistri is found surely of committing cruelty or particularly mental cruelty on his wife and hence, the offence under section 498A is made applicable to him. Offence under section 5(1) of the Immoral Traffic (Prevention) Act 1956 is not made out because State has failed to prove that appellant Mahendra Mistri induced his wife for prostitution. Nothing in the evidence has come to prove this charge.

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16. Regarding appellant China Mallick, the circumstances are such that the victim was left at his mercy, and the husband had left her with good faith and purpose, the appellant China Mallick misused this trust and committed rape upon her. Moreover, the victim in her deposition has said that she was raped repeatedly by China Mallick while being confined by him. It has come in the evidence that she was kept under confinement and locked in a room. It has further come in evidence that she was rescued by the villagers when they came to know about her confinement. If China Mallick had no ill motive she would not have been kept in

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confinement, hence, basing myself also on the testimony of the victim which appears truthful and reliable, appellant China Mallick's conviction under section 376 IPC is upheld. So far as charge under section 344 IPC is concerned, it has come in evidence that victim was confined by the appellant China Mallick for more than ten days and then she was rescued by the villagers from the house of appellant China Mallick. So conviction u/s 344 IPC against China Mallick is upheld. So far his conviction u/s 5(1) of the Immoral Traffic (Prevention ) Act, 1956 is concerned, state has failed to to bring any evidence against him to substantiate the charge.

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17 . So far as case of Lalli Ram (supra) is concerned it is not applicable in the facts and circumstances of the present case, because there is consistency in the evidence of the victim in the present case. Regarding the case of Premiya (supra), this case is also not applicable, because in that case conviction of the accused was altered from Section 376 IPC to Section 354 IPC.

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18 . On the basis of aforesaid reasons appellant Basant Mistri is acquitted of all of the charges levelled against him and accordingly he is discharged from the liabilities of his bail bond. Accordingly, his Criminal Appeal (S.J.) No. 1375 of 2007 is allowed.

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Appellant Mahendra Mistri's conviction u/s 5(1) of the Immoral Traffic (Prevention) Act, 1956 is set-aside. However, his conviction under section 498A IPC is upheld and as he has already served out half the sentence imposed, he is sentenced to the period already undergone. He is discharged from the liabilities of bail bond. Accordingly, his Criminal Appeal (S.J.) No. 1431 of 2007 is dismissed, with above modification in conviction and sentence.

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Appellant China Mallick's convictions under section 5(1) of Immoral Traffic (Prevention) Act, 1956 is set aside. However, his conviction for the offence u/s 376 IPC and 344 IPC is upheld. His bail bond is cancelled. Learned court below is directed to take all necessary steps to secure his custody so that he may serve out the remaining sentence awarded to him. Accordingly, his Criminal Appeal (S.J.) No. 53 of 2010 is dismissed.

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(RATNAKER BHENGRA,J)

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Jharkhand High Court,Ranchi dated: 01.09.2017(Nibha)/NAFR

China Mallik v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

China Mallik v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

What the court decided

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