Allowed

Vijay Prasad v. State of Jharkhand

Jharkhand HC26 Jul 2023Cr.A(SJ)/1388/2004

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court examined the conviction for rape and kidnapping. The court found the victim's testimony unreliable due to her delayed reporting and conduct suggesting consent. The court concluded that no offence was made out and acquitted the appellant.

What did the court decide?

The judgment of conviction and order of sentence dated 31.07.2004 is quashed and set aside; the appellant is discharged from bail bond liability.

Vijay Prasad Vs State of Jharkhand — Jharkhand HC (2023) — LawSathi Research

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Appeal (SJ) No. 1388 of 2004

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(Against the judgment of conviction and order of sentence dated 31.07.2004, passed by the learned Sessions Judge, Hazaribag in Sessions Trial No. 409 of 2000.)

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Vijay Prasad ..… Appellant

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The State of Jharkhand ..... Respondent

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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Appellant : Mr. H.K.Shikarwar, Adv For the State : Mr. V.S.Sahay, APP

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06/Dated: 27^th July, 2023

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Heard learned counsel for the parties.

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2. This appeal is directed against the judgment of conviction and order of sentence dated 31.07.2004, passed by the learned Sessions Judge, Hazaribag in Sessions Trial No. 409 of 2000; whereby the appellant has been convicted under section 366 IPC and sentenced to undergo R.I. for five years and R.I. for 7 years under section 376 IPC, both the sentences were ordered to run concurrently.

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3. The prosecution case in short is that the informant's daughter had been married to Manohar Kr. Das on 10.07.2000. After the marriage, her daughter went to her sasural. On 20.07.2000, all of a sudden at 7.30. a.m, her son in law informed her that her daughter was trace-less since the evening of 19.07.2000. After getting the said information, informant searched her daughter but could not find her. In the meantime, she came to know that two days ago appellant along with others had purchased a wrist watch and had gone to the house of Manohar Kr. Das to give the watch to Tara Devi. It was also alleged that on the day of disappearance of her daughter, appellant was seen near the sasural of her daughter and since that day appellant is also trace-less. Therefore, informant had suspicion that the appellant had induced her daughter and took her away.

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4. Learned counsel for the appellant draws attention of this court towards the evidence of the victim who in her deposition has stated that she has lived with her brother and his wife for 7

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days at Hosiarpur, Punjab, but on account of fear she told them that she was married with the appellant.

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He further submits that the victim has not even informed the police while going in the train. Further, she had physical relationship with the appellant which she disclosed her brother’s wife.

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As a matter of fact, the victim being a major lady eloped with the appellant on her own will and never resisted nor made any alarm during her journey. The victim remained in the house of her brother and bhabhi at Punjab in a separate room by saying that she was married with the appellant.

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He lastly submits that the victim informed her bhabhi about physical relationship with the appellant; if at all the said physical relationship was against her will, she must have informed about the same to her bhabhi but the same was not done.

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5. Mr. V.S.Sahay, learned Addl. P.P does not dispute the admitted position. However, he supports the judgment and submits that no error has been committed by the learned trial court in convicting the appellant.

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6. Having heard the learned counsel for the parties and after going through the impugned judgment and the LCR, it transpires that apart from a bald denial that the victim had gone with appellant on false pretext of illness of her mother, no evidence is forthcoming from the submissions of PWs or otherwise to substantiate the fact that the victim had been taken by the appellant forcefully as the victim had never tried to escape even though she had ample opportunities at several places.

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From the deposition of the victim herself, it can be construed that she did not offer any resistance and she did not even make any complain to anybody. This clearly goes to shows that she was a willing party to appellant’s doing. She has given no explanation at all as to why she did not complain about the same to her mother even though she had a talk with her in telephonic call several times. From the evidence of the victim i.e., from para 11 of her deposition she has stated that she had

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lived with her brother and his wife for seven days at Hosiapur, Punjab but on account of fear she had told them that she was married with the appellant.

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The statement of the victim about her marriage with the appellant to her Bhabhi as well as for not resisting the accused at the time of the sexual intercourse, it can be inferred that it is an afterthought when the motive has not been fulfilled.

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Her entire story of her having been taken by appellant to the station and thereafter to Punjab and of her having stayed for about 7 days in the house of her own maternal brother in a separate room with appellant and she stayed for several days at one more different place, sought to be narrated as if all this was done against her will or without her consent, is impossible to believe.

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It is also evident as per the report of the doctor that the victim was major and she was about 18 years at the time of alleged incident. Thus, looking to the overall facts and circumstances of the case it can be inferred as to why she did not make any complain to his brother, bhabhi and/or to her mother in telephonic calls.

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As a matter of fact, it can be deciphered that she agreed voluntarily to allow appellant to get physical with her, and that too for 10-15 days. Her silence about non-reporting in this regard has to be taken to be either because of fear of reprisal or because of the need felt to protect her image.

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Last but not the least, in para 26 of cross- examination, the victim has stated that she is ready to marry the appellant and from the willingness to marry appellant, consent for sexual act can well be presumed. Further PW 4 (husband) in his deposition had stated that after about one and a half month of the incident, he found his wife at police station. He further deposed in para 1 and 3 that his wife does not wants to live with him and he got the custody of his wife through court. Thus, it leaves no puzzlement/confusion that no offence is made out under section 376 IPC.

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7. The appellant has also been convicted for the offence of kidnapping under section 366 of the Penal Code. A careful

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reading of the evidence of the victim has led me to the conclusion that victim has made out a story that the appellant took her on the false pretext that her mother was ill and was admitted to Ranchi; if she went with the appellant for Ranchi and she was taken to other place i.e. Hosiyarpur, Punjab by train then she must have remained in the train for at least 3 days but she never informed anyone not even to the police as in her deposition in para 20 she had admitted that police was there in the train but out of fear she did not say anything to police or other passenger which is unbelievable.

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From the facts stated herein above it is well established that the offence under section 366 IPC is also not made out as the victim lady was a married lady, major and studying in matric and if at all the relationship was their the same was with consent.

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8. Having regard to aforesaid discussions, I would consider it unsafe to act on her testimony without corroboration and this Court is having no hesitation in holding that the victim herself is non trustworthy.

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9. Consequently, the judgment of conviction and order of sentence dated 31.07.2004, passed by the learned Sessions Judge, Hazaribag in Sessions Trial No. 409 of 2000, is hereby, quashed and set aside. As a result, the instant criminal appeal stands allowed.

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10. The appellant shall be discharged from the liability of his bail bond.

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11. Let a copy of this order be communicated to the trial court and also to the appellant through officer in charge of police station and the lower court record be sent to the court concerned forthwith.

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(Deepak Roshan, J.)

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Amardeep/

Vijay Prasad v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

Vijay Prasad v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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