Subhash Yadav Vs The State Of Jharkhand

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

Cr. Appeal (SJ) No.868 of 2017

(Against the Judgment of conviction dated 19.04.2017 and order of sentence dated 21.04.2017, passed by learned Second Addl. Sessions Judge cum Fast Track Court (Rape Cases), Deoghar, in Sessions Trial No.152 of 2012 [arising out of Deoghar (Town) P.S. Case No.320 of 2010 and G.R. No.854 of 2010].

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Subhash Yadav

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1.The State of Jharkhand. 2.Punoom Kumari

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…. Appellant Versus ….. Respondents P R E S E N T

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….. Respondents

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HON’BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellant : Mr. Sudhanshu Kr. Deo, Advocate For the State : Mr. V. S. Sahay, APP

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By Court:- Heard learned counsel for the appellant and learned counsel for the State.

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1. The instant Criminal appeal is directed against the Judgment of conviction dated 19.04.2017 and order of sentence dated 21.04.2017, passed by learned Second Addl. Sessions Judge cum Fast Track Court (Rape Cases), Deoghar, in Sessions Trial No.152 of 2012 [arising out of Deoghar (Town) P.S. Case No.320 of 2010 and G.R. No.854 of 2010 whereby the appellant/accused has been awarded a sentence of three years and fine of Rs.10,000/- for the charges under Section 363 IPC and in default of payment of fine, further to undergo sentence of three months S.I.

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2. As per the written report lodged on 16.08.2010 by the father of the victim girl, it is alleged that on 12.07.2010 his minor daughter aged about 15 years had gone to participate in a Tilak ceremony from her native place i.e. Jamui (Bihar) to Deoghar and stayed in a dharmshala. From there she was enticed and taken by some unknown person. When she could not be traced information regarding this was given to the Officer-in-Charge, Jamuai Police Station. Later on, when he received information that the appellant along with his friends / associates had kidnapped his daughter. Thereafter Police case was registered.

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3. On the written report, FIR being Deoghar P.S. Case No.320 of 2010 was registered on 16.08.2010 under Section 363 IPC against the appellant/accused and three other co-accused persons.

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4. Police on investigation found the case to be true and submitted charge-sheet against the accused persons and they were put on trial jointly under Sections 363/34 IPC and 376/34 IPC.

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5. Altogether nine witnesses were examined on behalf of the prosecution including, and relevant documents including the Medical report were adduced into evidence and marked as Exhibits-1 to 8.

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6. The impugned judgment of conviction and sentence has been assailed on the ground that there was no enticement on the part of the appellant/accused so as to make out an offence of kidnapping against him. The victim/girl in her statement under Section 164 Cr. P. C. (Exhibit-8) stated that she had married with appellant (Subhash Yadav) on her own accord.

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7. Victim-girl has been examined as P.W.9, wherein she has unequivocally stated that she was not kidnapped and neither any force nor any fraud was applied for the same. As a matter of fact, her parents wanted to marry her with some other person and, therefore, she had left her home and started working in Delhi. The case instituted against the appellant was false as she was an adult.

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8. With regard to the age of the victim-girl, it is argued that the Doctor examined her on 09.09.2010 and her age was assessed to be of 18 to 19 years. 9. With regard to Exhibits -5 & 6 which have been proved by P.W.7 (Narayan Sah), it is argued that this witness has not made any entry in the Admission Register and, therefore, the admission register cannot be relied.

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10. There was inordinate delay in institution of the FIR. As per the case of the prosecution the victim went missing on 12.07.2010 whereas FIR has been lodged on 16.08.2010 after more than one month without any explanation for the said delay.

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11. The impugned judgment of conviction and sentence is defended by the learned APP for the State. It is argued that as per the Admission Register, victim/girl was aged about 15½ years at the time of the said incidence and was a minor below 18 years and her consent was immaterial in such a case. 12. Heard learned counsel for the parties and perused the materials available on records. The matter for consideration is whether the offence of kidnapping against the appellant/accused is made out in view of the specific statement of the victim/girl that she was neither enticed nor any inducement was offered while taking her away.

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13. Taking or enticing a minor out of the keeping of the lawful guardian is an essential ingredient of offence under Section 361 of the IPC. When the

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minority is established consent of minor in a criminal prosecution for offence of kidnapping is immaterial. There is a distinction between “taking and “allowing a minor to accompany a person”. The two expressions are not some anonymous. Enticing is inducing the minor to go of her own accord with the kidnapper. There may be circumstances in which the minor herself voluntarily abandons the keeping of her guardian. Mere passive consent on the part of a person in giving shelter to the minor does not amount to taking her enticing of the minor. There should be some evidence to show that the accused laid the foundation of inducement so as to influence the mind of a minor.

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14. In the present case in the FIR itself, it has been stated that when the minor girl went missing on 12.07.2010 from Deoghar, informant was completely clueless about the person involved in the kidnapping. This came to their knowledge only after information that the Appellant was involved in it. Having been so, it logically follows that there was no act on the part of the Appellant preceding the date when she went missing, to suggest that the Appellant had induced the victim to leave her lawful guardian. As far as the minor is concerned she has deposed that in July 2010, she left her home and went on her own accord from Jasidih to Patna by train. From Patna she called the Appellant to Delhi. Both of them stage together in a room. Nothing was done by the Appellant during her stay at Delhi. In her cross-examination she has completely exonerated the Appellant and has stated that her father was inclined to marry her against her wish to someone else, therefore, she fled to Delhi. She was a major and false case has been lodged by her father against the Appellant.

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On these materials, this Court is of the view that there is no material to show that Appellant had enticed the victim girl. Prosecution has failed to prove the charge beyond the shadow of all reasonable and probable doubt.

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Judgment of conviction and sentence is accordingly set aside. Sureties are discharged from their liabilities of their bill bond.

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Appeal is allowed.

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Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.

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Jharkhand High Court, Ranchi Dated 19.03.2024. sandeep/

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(Gautam Kumar Choudhary, J.)

Subhash Yadav v. The State Of Jharkhand

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Subhash Yadav v. The State Of Jharkhand

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