Haribol Mahto Vs State of Jharkhand And Ors.

Cr. Appeal (S.J.) No. 327 of 2006

[Against the judgment and order of conviction 28.02.2006 and sentence dated 03.03.2006 passed by Additional Sessions Judge, Fast Track Court No. II, Deoghar]

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1. Murari Rai son of Baldev Rai,

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2. Prabhkar Das son of Chetu Das

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Both resident of village-Charghara, P.O. & P.S. Sarawan, DistrictDeoghar. …. Appellant s

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Versus

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The State of Jharkhand ….. Respondent

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With

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Cr. Revision No. 332 of 2006

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Haribol Mahto, Son of Late Gopal Mahto, resident of Village- Charghara, P.S. Sarwan, Sub Division and District-Deoghar. ….. Petitioner

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Versus

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1. The State of Jharkhand.

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2. Prabhakar Das.

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3. Diwakar Das.

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Both Sons of Chetu Das.

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4. Murari Rai, Son of Baldeo Rai.

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5. Baldeo Rai, son of late Teju Rai,

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6. Kunti Devi, Wife of Baldeo Rai.

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7. Nirmal Pujhar, Son of Potam Pujhar.

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8. Sugiya Devi, wife of late Chetu Das.

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All residents of Sakim, Chardhawa, P.S. Sankha, District-Deoghar.

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….. Respondents

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PRESENT

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HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

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-------- For the Appellants : Mr. Arvind Kr. Choudhary, Adv. ( In Cr. Appeal (S.J.) No. 327 of 2006 ) For the Respondent : Mrs. Vandana Bharti, A.P.P. ( In Cr. Appeal (S.J.) No. 327 of 2006 ) For the Petitioner : None. For the Resp. State : Mr. Arup Kr. Dey, A.P.P. For the Resp Nos. 2-9 : Mr. Arvind Kr. Choudhary, Adv. ( In Cr. Revision (S.J.) No. 332 of 2006 )

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Cr. Appeal (S.J.) No. 327 of 2006

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JUDGMENT

C.A.V. On 07.12.2024 Pronounced On: 04 /03 /2025

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Per- Pradeep Kumar Srivastava, J.

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Heard learned counsel for appellants Mr. Arvind Kr. Choudhary as

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well as learned Additional Public Prosecutor appearing for the State Mrs.

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Vandana Bharti.

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2. Criminal Appeal No. 327 of 2006 is directed against the judgment and order of conviction and sentence dated 28.02.2006 and 03.03.2006 passed by Additional Sessions Judge, Fast Track Court No. II, Deoghar (hereinafter call it as impugned order), whereby and whereunder, the appellants have been convicted for committing offence under Section 363 of the I.P.C. and sentenced to undergo R.I. for five years along with fine of Rs.5000/- each with default stipulation.

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3. Against the same judgment, Criminal Revision No. 332 of 2006 has also been preferred by the informant which was admitted for hearing along with Cr. Appeal No. 327 of 2006. In the Criminal Revision, there is prayer for setting aside the impugned judgment and order dated 28.02.2006 to the extent of acquittal of opposite party nos. 2 – 8 and acquittal of present appellants for the offence under Section 366A and 120B of the I.P.C. which has been proved beyond doubt.

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FACTUAL MATRIX

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4. Factual matrix giving rise to this appeal is that on 28.12.1997 at about

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06:00 PM informant’s daughter aged about 15 years (victim girl) went to discharge nature’s call outside the house, but she did not return till 07:00 PM, then his father Haribol Mahto (Informant) and other family members started searching her in the neighbourhood. The present appellants used to visit his daughter frequently and talk her at the time of watching television in his house and on the basis of suspicion present appellants and other family members namely Diwakar Das, Sibiya Devi,

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Baldeo Rai, Kanti Devi and Nirmal Pujhar were made accused in the F.I.R. which was registered for the offence under Sections 363, 366A and 120B of the I.P.C.

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5. After completion of investigation, charge-sheet was submitted against seven accused persons for the aforesaid offences and after completion of trial other accused persons were acquitted from the charges by giving benefit of doubt, but present two appellants were held guilty and sentenced for the offence under Section 363 of the I.P.C. and sentenced to undergo R.I. for five years along with Rs.5,000/- each with default stipulation which has been assailed in this appeal.

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6. Learned counsel for the appellants has submitted that the appellants have

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been erroneously convicted without cogent and reliable evidence. There is no evidence against the appellants that they have enticed or taken away the minor daughter of the informant. There are several selfcontradictory evidence of witnesses. It has rightly been disbelieved by

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the concerned trail court and the appellants were acquitted under Sections 366A and 120B of the I.P.C., but without framing any charge, appellants have been convicted for the offence under Section 363 of the I.P.C. which is not sustainable under law and fit to be set aside.

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In the alternative, it is submitted that both the appellants have surrendered before the Judicial Magistrate, First Class on 27.02.1998 and vide order dated 29.01.1999 passed in Cr. Miscellaneous Petition No.

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24779 of 1998 by the Honb’le Patna High Court they were directed to be released by furnishing the bail bond and were released on 03.02.1999 bail as such remained in custody about one year and have sufficiently been punished. Appellants are also ready to deposit the fine amount awarded by the concerned trial court if not so deposited. Hence, sentence

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of the appellants may be reduced to imprisonment already undergone.

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7. In connection with Criminal Revision No. 332 of 2006, it is submitted on

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behalf of the appellants, opposite party nos. 2-8 that the learned trial court has very wisely and aptly taken into consideration all the aspects of the case and rightly acquitted the opposite party nos. 2-8 from any of the charges because there was no attribution of any specific overt act against them and being family members of the main accused, they were falsely

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dragged in this case. The informant himself has filed the criminal revision challenging the order, but State did not file any appeal against

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the acquittal of the opposite party nos.2-8. In that view of the matter no

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interference is required in the impugned judgment and order of acquittal

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of opposite party nos.2-8 and its revision is fit to be dismissed.

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8. On the other hand, learned A.P.P. appearing for the State assisted with

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learned counsel for the informant-cum-revisionist has submitted that the conviction and sentence of the appellants is not adequate. The appellants have been acquitted from the charges levelled against the appellants under Sections 366A and 120B of the I.P.C. without any reasons which is beyond the weight of evidence available on record. Similarly in criminal revision no. 332 of 2006. Opposite party nos. 2-8 have been given clean

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chit and acquitted from the charges beyond the weight of evidence available on record. The victim girl herself has stated in specific terms showing complicity of the above accused persons also. Therefore, appropriate order may be passed against opposite party nos.2-8 of the criminal revision 332 of 2006 and the present appellant should also be held guilty for the offence under Sections 366 and 120-B of the I.P.C.

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9. For better appreciation of rival contentions of the parties, brief appraisal

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of evidence led by the prosecution is discussed here under:-

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The most important witness of the case is the victim girl herself who has been examined as P.W.11 . According to his evidence, on 28.12.1997

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at about 06:00 PM, she had gone to discharge nature’s call outside the house in her village and when she was returning, then a person flashed

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torch on her body, then she saw, it was Murari Rai, Prabhakar Das

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(Appellants) and Shankar Yadav. She has further alleged that Murari Rai

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and Prabhar Das caught hold of her and putting cloth at the point of pistol dragged her to some distance near a tree where Sudhir Das, Jaiprakash Das, Pappu Das and his mother along with Diwakar Das, Goverdhan Das, Baldeo Das, Nirmal Pujhar were also sitting. She has further stated that Sudhir Das ordered to Prabhar Das to take this witness and he will see the consequences. Jaiprakash Das also said the same thing by providing money assistance. She was also threatened to proceed with Prabhakar Das otherwise her brother and father will be killed. Thereafter, she was taken to Madhupur where she was boarded on a train and brought to Howrah, where she was kept in a house about three days and pappu Das also came there and gave her ante-dated letter and suggested to copy the same, then she wrote the letter. She has further stated that after one and half month, father of Prabhakar Das also arrived there and was desired to take her to his own house, but she declined. It is further stated that on the same day her father, uncle and other family members arrived at about 01:00 to 02:00 PM at Kolkata where she was residing. On demand of rent of the house by the land lord, father of Prabhakar Das paid the rent, then she returned with her father and at first she was brought to Sarawan police station, thereafter, Civil Court, Deoghar and was also sent for medical examination. Her statement was also recorded before the learned Magistrate and she has proved her

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signature on her statement under Section 164 Cr.P.C. as Exhibit-7.

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In her cross-examination, she has stated that accused persons are her co-villagers. She also admitted that prior to occurrence, her marriage was solemnized at village Madhuban Dahua with one Mantu Yadav. She also admits that she lived at Kolkata with the accused Prabhakar Das about one and half month and accused persons were working throughout the day remaining outside of the house and in the meantime, she used to talk

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with the landlord, but she neither complained anything to the landlord nor gave any letter to be sent to her father. She has also not sent letter to her husband Mantu Yadav and she also admits that she has not been divorced by her husband. She further admits that her second marriage was solemnized with one Dr. Chandrakant Yadav of village Lodhratri.

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This witness also admits that at the time of occurrence, she was accompanied with her sister Mamta (P.W.1) and one Sanju who has left the place of occurrence after five minutes. She also admits that she did not raise any alarm when the accused persons caught hold of her and took her towards the palm tree. She was not dragged or pulled out by the accused persons rather she accompanied with them on foot towards Madhupur and at that time due to fear, she did not raise any alarm. She

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has denied the suggestion of defence that her father lodged this false case. She has also denied that she left her own husband because she was

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not liking him and on her on accord she eloped with accused to Kolkata

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and she is giving the false evidence against the accused persons.

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P.W. 8 Haribol Mahato :- is the father of the victim girl-cum-informant

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of the case. Admittedly, he is not an eye witness of the occurrence rather

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when his daughter did not return till 7 PM, then he started searching her

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and on the basis of suspicion that Prabhakar Das and Murari Rai who usually visit his home to watch television and were in talking terms with his minor daughter, had enticed and taken her away for the purpose of solemnizing marriage with her. Thereafter, he lodged report which was scribed by Jay Prakash Mahto (Exhibit-4). According to him, he got knowledge on 18.02.1998 that his daughter is at Kolkata from one Shiv Shankar Yadav. Thereafter, he along with his cousin Jai Prakash Mahto and Shiv Shankar Yadav went to Kolkata at given place on 19.02.1998 where Prabhakar Das, Murari Rai and his daughter were present, then he along with her daughter returned to his house and went to Sarwan police station and produced his daughter for medical check-up which was conducted and her statement under Section 164 of the Cr.P.C. was recorded before the Judicial Magistrate.

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In his cross-examination, this witness admits that prior to the occurrence, his daughter was married with one Mantu Yadav, but divorce took place in accordance with society norms and no divorce case was filed before the court.

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P.W. 1 Mamta Devi also claims that she along with the victim girl and

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one Sanju had gone towards pond in the evening for discharging nature’s

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call from where Murari Rai, Prabhakar Das took the victim girl towards southern side. They were threatened by the accused persons against disclosing this fact to anyone in the village.

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In her cross-examination, she admits that after returning, she raised alarm, but none of the villagers came there. She also met with Haribol Mahto (informant), but did not disclose him anything and her statement was recorded at the police station after three days.

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P.W.2 Harish Chandra Mahto has also claimed that he came to know

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about the occurrence at the same day from Mamta Kumari (P.W.1). This witness is uncle of the victim girl, but states that he did not informed his brother about the occurrence nor he went in search of victim girl and after three days of occurrence his statement was taken in police station where he disclosed that he came to know about the occurrence upon hulla raised by Mamta Kumari (P.W.1).

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P.W.3 Anandi Devi is the mother of the victim girl. According to her

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evidence, on the date of occurrence in the evening, she came to know from one Saraswati Devi that his daughter who had gone for discharging nature’s call along with Sanju and Mamta Kumari has been kidnapped by Prabhakar Das, Murari Rai and Shankar Yadav. Thereafter, her husband and brother-in-law started searching her daughter and came to know that

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the accused persons under conspiracy have kidnapped her daughter.

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In her cross-examination, she admits that the victim girl was married with Dr. Chandrakant Yadav of village Lodhratri where she is residing at present.

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P.W.4 Meera Devi has also claimed to heard about the occurrence from

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Saraswati Devi and Anandi Devi and has no personal knowledge of the occurrence.

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P.W.6 Dashrath Mahto this witness is also not witness of fact rather a

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letter was seized by the police from the house of informant allegedly written by the victim girl and he is witness of seizure list which is marked as Exhibit (i) and his signature as exhibit (ii).

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P.W.7 Indramani Sahi is an independent witness, but hearsay from villagers and came to know that informant’s daughter has been kidnapped by the accused persons. He is also a witness of jimmanama exhibit (iii) prepared at police station.

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P.W. 9 Dharmendra Yadav is also a seizure list witness of a letter

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seized from the house of the informant which has already been marked

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as exhibit-i.

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P.W.10 Dr. Gita Mishra is a member of medical board constituted to

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medically examine the victim girl and opined that no internal or external

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injury was found, hymen old healed. At present, no injury was found on

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the body and as per the radiological report the age of victim girl is

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between 17 – 19 years.

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P.W. 12 Jaidev Mahto is the school teacher of School Badhni who has

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proved the admission register of the year 1990-1994 and proved that he

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cannot say that the victim girl is the student of that school or not.

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In the admission register of 1993 at Sr. No. 14, there is name of the victim girl along with the name of her father (informant) with residential address where her date of birth was mentioned as 30.03.1983.

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P.W. 13 Ramadhin Sahu is the headmaster of Badhni Medical Scholl

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who has also proved the admission register of 1993 where at Sr. No.14,

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the admission of victim girl was taken which has marked as Exhibit-8

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and the signature of teacher as Exhibit (8/1).

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10 . Apart from above oral testimony of witnesses, following documentary

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evidence also adduced by prosecution:-

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Exhibit:- 1 Letter dated 09.03.2004

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Exhibit:- 2 Seizure List.

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Exhibit:-3 Jimmanama

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Exhibit:-4 Fardbeyan and signature of the informant

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Exhibit:-5 Presentation Letter

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Exhibit:-2/1 Signature of witness Dharmendra Mahto on Seizure List.

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Exhibit:-2/2 Signature of witness Haribol Mahto on the seizure list.

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Exhibit:-6 Carbon copy of wound report of the victim.

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Exhibit:-7 Statement (164 of the Cr.P.C) of Sangeeta Yadav dated

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21.02.1998.

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Exhibit:-8 Signature of Headmaster of Middle School, Badhni

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admission of the year 1993 at Sr. No.14.

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Exhibit:-8/1 Signature of teacher of Middle School, Badhni admission

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of the year 1993 at Sr. 14.

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11 . For better appreciation of the case, relevant provision of the I.P.C. is extracted as under:-

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Section 120A. Definition of criminal conspiracy.—

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When two or more persons agree to do, or cause to be done,—(1)an illegal act, or(2)an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such

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agreement in pursuance thereof.

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Section 120B. Punishment of criminal conspiracy.—

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“(1) Whoever is a party to a criminal conspiracy

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to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where

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no express provision is made in this Code for the

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punishment of such a conspiracy, be punished in

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the same manner as if he had abetted such offence.

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(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an

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offence punishable as aforesaid shall be punished with imprisonment of either description

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for a term not exceeding six months, or with fine

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or with both”.

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Section 363. Punishment for kidnapping.—

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“Whoever kidnaps any person from India or

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from lawful guardianship, shall be punished with

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imprisonment of either description for a term

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which may extend to seven years, and shall also

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be liable to fine”.

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Definition of Section 366A :- Procuration of minor girl:-

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“Procuration of minor girl.—whoever, by any

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means whatsoever, induces any minor girl under

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the age of eighteen years to go from any place or

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to do any act with intent that such girl may be, or

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knowing that it is likely that she will be, forced

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or seduced to illicit intercourse with another

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person, shall be punishable with imprisonment

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which may extend to ten years, and shall also be

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liable to fine”

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12. From the provision of Section 366A of the I.P.C., it emerges that in order to bring home the charge for the offence under Section 366A, the prosecution is required to prove through cogent and reliable evidence that a victim girl under the age of 18 years was induced to go from one place to another with the intention that such girl may be forced or seduced to have illicit intercourse with another person.

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13 . In the instant case, the evidence available on record as dealt above does not reveal any such intention of the accused/appellants. The factum of illicit intercourse either by the accused persons or by any other person has also not been proved by the victim girl. The deposition of victim girl (P.W. 11) gives clear shape and true picture as regards the incident which happened. The main motto of both of them was to solemnize marriage with the victim girl.

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14 . Thus, the essence for the offence under Section 366A of the I.P.C. is absolutely lacking in this case. Therefore, the conviction for the offence under Section 366A of the I.P.C. is not warranted under law Hence, the learned trial court has rightly acquitted the appellant for the offence punishable under Section 366A of the I.P.C.

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15 . So far, the acquittal of the appellants of Criminal Appeal No. 327 of

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2006 under Section 120B of the I.P.C. is concerned. None of the witnesses in their evidences has discussed above proved that there was

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a prior agreement meeting of minds amongst the accused for commission of offence as proved. Hence, the trial court has rightly acquitted from the charges under Section 120B of the I.P.C.

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However, it cannot be ignored from consideration at this juncture,

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that on the date of occurrence, the victim girl was minor below the age of 18 years and she was taken away by the accused/appellants without consent of her guardian. In the instant case, the consent of the victim has no relevance at all in legal perspective. Therefore, the ingredients of Section 363 of the I.P.C. is well proved in this case against the appellant which involve an act of kidnapping of any person from the lawful guardianship as defined under Section 361 of the I.P.C., where it is stated that whoever taken or enticed any minor under the age of 16 years, if a male or under 18 years if a female or any person of unsound mind, out of the keeping of lawful guardian of such minor or person of unsound mind, without the consent of such guardian is stated to kidnapping such person.

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16 . In view of the aforesaid discussions and reason, the conviction of the appellants for the offence under Section 363 of the I.P.C. is upheld.

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17 . It further transpires that the appellants have also remained in custody

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during trial of the case for more than one year. Considering the offence committed by the appellants and the circumstances under which the same was committed and also in view of the fact that more than two decades has been lapsed from the date of alleged commission of offence, I am of the firm view that imprisonment already undergone by the appellants are sufficient punishment to meet the ends of justice in this case. Therefore, punishment for the offence under Section 363 of the I.P.C. is also sentenced to imprisonment already undergone. In view of the above, this appeal is dismissed on merits with modification in sentence and Criminal Revision preferred by the informant is also dismissed as there is no error on the face of the record in the impugned judgment and order of conviction.

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