Chand Turi Vs State of Jharkhand

Cr. Appeal (S.J.) No.1330 of 2006

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[Against the Judgment and order of conviction and sentence dated 04.05.2006 passed by learned 1st Additional Sessions Judge, Pakur in Sessions Case No.116 of 2005]

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Chand Turi, son of Shri Hemchandra Turi, Resident of villageSemal Jori, P.S.-Littipara, District-Pakur

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.... .... …. Appellant Versus The State of Jharkhand .... .... .... Respondent ------

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For the Appellant : Mr. Rajeeva Sharma, Sr. Advocate Mr. Neetu Singh, Advocate Mrs. Maksuda Khatun, Advocate Mr. Atulaya Shrestha, Advocate For the State : Mr. Tarun Kumar, A.P.P.

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PRESENT

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HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA JUDGEMENT

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Dated-26/11/2024 Pronounced On: 11 /02/2025

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Per-Pradeep Kumar Srivastava

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The present appeal is directed against the judgment and order

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of conviction and sentence dated 04.05.2006 passed by learned 1^st Additional Sessions Judge, Pakur in Sessions Case No.116 of 2005 whereby and whereunder, the appellant has been held guilty for the offences under section 366A of Indian Penal

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Code and sentenced to undergo R.I. of 6 years along with fine of Rs.2.000/- and further held guilty for the offence under section 376 of Indian Penal Code and sentenced to undergo R.I. of 7 years along with fine of Rs.3,000/- with default stipulation. Both sentences are directed to run concurrently.

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FACTUAL MATRIX

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Factual matrix giving rise to this appeal is that on 14.04.2005, the informant had gone to Heramanpur Hatia along with his wife and returned in the evening at about 6:00 PM, then he came to know that his minor daughter aged about 14 years has been kidnapped by the co-villager Chand Turi and his friend Jisu Kisku on motorcycle with intention to commit illicit intercourse with her.

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On the basis of written report of the informant, Littipara P.S. Case No.21 of 2005 was registered for the offence under section 366A of IPC. After completion of investigation, charge-sheet was submitted for the offence under sections 366A and 376 of Indian Penal Code against both accused persons. The learned court of C.J.M., Pakur found Jisu Kisku to be juvenile and his case was separated and sent to Juvenile Justice Board and the case of present appellant was committed to the court of Sessions, where S.C. No.116 of 2005 was registered.

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The trial was proceeded against the present appellant. He denied from the charges and claimed for trial. In the course of trial, altogether 8 witnesses were examined by the prosecution including the victim girl.

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After completion of the prosecution evidence, the statement of the accused was recorded under section 313 of Cr.P.C. The case of the defence is denial from the occurrence and false implication by the father of the victim girl. It is also taken as defence that there was love affairs between the victim girl and the accused, which was being protested by her father, hence, this false case was lodged. No oral or documentary evidence has been adduced by the defence.

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Learned trial court after considering the evidence available on record has held the appellant guilty for the offence under sections 366A and 376 of IPC and sentenced him as stated above, which has been assailed in this appeal.

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Learned counsel for the appellant has submitted that there was delay of 48 hours in lodging the FIR in spite of the knowledge of the informant that prior to the occurrence, the present appellant and his friend have also threatened to kidnap the victim girl. No reasonable explanation has been offered for such inordinate delay. The evidence of the informant suffers

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from material contradictions. Similarly, the victim girl has also deposed that on 21.04.2005 in the night, she was recovered by the police of Littipara Police Station but her statement was not recorded and nothing was asked with her by the police. No memo of recovery of the victim girl was prepared by the Investigating Officer and no local persons were interrogated. Therefore, the place of recovery of the victim girl also becomes doubtful. The statement of the victim was recorded under section 164 of Cr.P.C. under the influence of her father. It is further submitted that the learned trial court has miserably failed to appreciate the evidence available on record in right perspective ignoring the necessary ingredients of section 366A of IPC, which are absolutely lacking in this case. Similarly, the victim girl herself has stated her age about 19 years showing to be major on the date of occurrence and on her own accord, she left her house and went somewhere. The prosecution has failed to prove the second place of occurrence, where the victim is alleged to be confined and ravished by the appellant. There is also no evidence of commission of rape with the victim at any particular time and place by the appellant. Therefore, impugned judgment of conviction and sentence of the appellant is absolutely illegal and not justified under law,

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which is fit to set aside. Learned counsel for the appellant has placed reliance upon reported judgment in Bibhishan Vs. State of Maharashtra (2008) 3 SCC (Cri.163): (2007) SCC online SC 1156 .

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On the other hand, learned Additional Public Prosecutor appearing for the State defending the conviction and sentence of the appellant has submitted that the victim girl was in between 14 to 16 years at the time of occurrence and her consent, if any, does not have any legal value. The testimony of the victim girl has remained consistent throughout and she has also denied any love-affair with the accused /appellant rather she was forcefully taken away on motorcycle and ravished for five days by the accused/appellant, which also finds corroboration from her medical examination report. There is no reason to disbelieve the testimony of the victim girl and cast any doubt on the prosecution story. Learned trial court has very wisely in a threadbare manner analyzed and scanned the prosecution evidence and arrived at right conclusion, which suffers from no illegality or infirmity calling for any interference in this appeal, which is devoid of merits and fit to be dismissed.

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For better appreciation of the case the brief resume of evidence adduced during the trial requires to be discussed:

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P.W.6 is the victim girl . According to her evidence, on the date of occurrence at 5:00 PM, she had gone to wash her hands near pond, where Chand Turi and Jisu Kisku forcibly caught her, got boarded on motorcycle and went towards Dhankutta at the residence of maternal aunt of Jisu Kisku, where she was kept about 5 days and forcibly raped against her will by both Jisu Kisku and Chand Turi. She was brought by the police to Littipara Police Station from where she was sent for medical examination. Thereafter she was brought to court where her statement was recorded and she was handed over to her father.

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In her cross examination, she admits that at the time of occurrence, no other villagers were present near the pond, her mouth was gagged, hence, she could not raise any alarm. She also admits that she was recovered by the police and brought to police station along with brother of Chand Turi namely Nemchand Turi. She stayed overnight at police station and next day, she was sent for medical examination and her statement was recorded under section 164 of Cr.P.C. before the Magistrate. This witness has denied the suggestion of defence

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that there was love-affair between this witness and the accused Chand Turi prior to 1 ½ years and this witness has voluntarily left her home due to scolding by her parents and she was not kidnapped by the accused.

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P.W.1 Dr. Anita Sinha has examined the victim girl on

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22.04.2005 at 10:50 AM and found following:-

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Presence of Axillary and pubic hair. No foreign hair found. No Mark of violence over body or external genitals. Hymen old torn.

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Pathological Examination

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No semen was found because the patient was bleeding( due to menstruation).

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Opinion: No.(i) it may be a case of sexual intercourse.(ii) Age to be decided by medical board.

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On the same day, the Civil Surgeon constituted a medical board. The members were Dr. Vinay Kumar, Dr. S.P. Bhagat and myself.

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Physical Examination:

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(i) Average built, pulse-72/M, sexual character fully developed (which develops at the age of 16years).

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Radiological Examination: (a) X-ray wrist: Distal area of radius not fused (which fuses at the age of 16-17 years). (b) Distal end of ulna-almost to fuse (which fuses at the age of 17 years). (c) X- ray pelvis:- Epiphysis of 2/2 cresol not fused (which fuses at the age of 17-19 age). (d) Head of the femur furred (which fuses at the age of 14-17 years) (e) X-ray elbow: Olecranon process of ulna fused (which fuses at the age of 15-16 years). (f) X-ray mandible: third molar ase not seen and not erupted(which erupted at the age of 17-21 years).

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Opinion:

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As per radiological examination, the age of victim is between 14-16 years.

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P.W.2 Gopichand Goswami is a hearsay witness and uncle of the victim girl. According to his evidence, on the date of occurrence, he returned from Hatia in the evening, then he heard about missing of his niece aged about 14 years and also came to know that Chand Turi and Jisu Kisku have kidnapped her by motorcycle. He also admits that he has heard about the occurrence from his brother Ram Prasad Goswami.

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P.W.3 Ramavatar Goswami is also a hearsay witness,

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who came to know about 6:00 PM hearing hulla in village that daughter of the informant has been kidnapped by Chand Turi and Jisu Kisku.

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P.W.4 Nomita Devi is mother of the victim girl. According to her evidence, she had gone to Hatia and when she returned in the evening then came to know that her daughter has been kidnapped by a motorcycle. She admits that above incident was disclosed by her Bhaisur Gopichand Goswami. She also admits that about two months prior to the occurrence, accused persons have threatened to kidnap her daughter. She has denied any love-affair between Chand Turi and the victim girl.

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P.W.5 Ramavatar Goswami is the informant-cum-

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father of the victim girl. This witness is also not an eye-witness of the occurrence but when he returned at evening at about 6:00 PM, he came to know that his minor daughter aged about 14 years has been kidnapped by Chand Turi and Jisu Kisku. This witness searched his daughter but no clue was found. He has also disclosed that about 2-4 months ago, the accused persons have threatened to kidnap his daughter. He has

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lodged this case at the police station and identified the accused persons behind the dock.

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In his cross-examination, he admits that at first, he informed the village chaukidar about the occurrence, thereafter lodged the case. He has not informed about the prior threatening given by the accused persons at the police station. He has also denied any love-affair between the accused person and the victim girl.

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P.W.7 Anil Kumar Mishra , JM 1^st Class has recorded

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the statement of the victim under section 164 of Cr.P.C on 22.04.2005, which is marked as Ext.2.

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P.W.8 Ravi Shankar Prasad Srivastava is the

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Investigating Officer of this Case and he has proved the fardbayan of the informant along with endorsement of registration of the case and formal FIR as Ext.3 and 3/1 respectively. He also inspected the place of occurrence, which is a pond situated in village Simanjodi, from where the accused persons kidnapped the victim girl on a motorcycle. He made search of the accused and recovered the victim girl along with accused persons, thereafter the statement of the victim girl was recorded under section 164 of Cr.P.C and she was

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medically examined. Finding sufficient evidence, this witness submitted charge-sheet against the accused persons.

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In his cross-examination, he admits that the recovery memo of the victim girl was not prepared and her statement was also not recorded by him. From the village Dhankutta on 21.04.2005 at night, the victim girl was brought at the police station and her father was also present at the police station. He has denied the suggestions of the defence that his investigation is defective and he has not recovered the victim girl from the village Dhankutta .

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On the other hand, the case of the defence is denial from the occurrence and plea of innocence. One defence witness has also been examined namely Munsi Hansda (D.W.1) , who has deposed that there was love-affair between Chand Turi and the victim girl and this fact was known to every villager including the parents of the victim girl. The victim girl was being scolded and assaulted by her father, mother and brothers.

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This witness has not been effectively cross-examined. In cross-examination also, he has stated that he himself has seen the accused and victim girl were expressing love for each other.

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11.From the aforesaid discussion of evidence available on record, it appears that as per radiological report (Ext.1), the age of the victim girl has been assessed between 14-16 years as was disclosed by the informant as well as the victim girl at the time of recording her statement before the learned Magistrate. There is specific evidence of the victim girl that she was ravished by the present appellant and other co-accused person for five days at village Littipara in the house of maternal uncle of Jisu Kisku. The victim girl has remained consistent throughout her statement recorded under section 164 of Cr.P.C. as well as her evidence during trial, which also finds corroboration from the medical evidence of the victim girl. The materials elicited during cross-examination regarding nonraising alarm or no bodily injury internal and external sustained by the victim girl, has no rational for constituting the offence under section 376 of IPC. Similarly, same latches in investigation as pointed out by learned counsel for appellant cannot affect the unrebutted testimony of victim girl. Therefore, charge under section 376 of IPC is proved beyond doubt against the present appellant.

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12.So far charge under section 366A is concerned, relevant provision is extracted hereunder:

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366A. Procuration of minor girl.—

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Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.

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From bare perusal of above provision to attract section 366A, essential ingredients are (1) that the accused induced a girl; (2) that the person induced was a girl under the age of eighteen years; (3) that the accused has induced her with intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse; (4) such intercourse must be with a person other than the accused; (5) that the inducement caused the girl to go from any place or to do any act.

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In the instant case, so far conviction of the appellant for the

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offence under section 366A of IPC is concerned in the factual aspects of the case as discussed above, the ingredients of offence under section 366A is absolutely lacking in this case in as much as there was no procuration of minor girl with intention that she would be forced and seduced to illicit intercourse with some other person. In the instant case, the accused himself is alleged to have induced the minor girl and

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taken her away with intention to establish sexual intercourse with her.

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14.So far as alternative plea of the appellant regarding reduction of sentence is concerned, the factual aspects of the case as brought on record clearly goes to reveal that there was intimacy between the victim girl and the appellant prior to one year of occurrence. The appellant was all along in judicial custody throughout the period of trial and pendency of this appeal about 2 years. Maximum sentence awarded to the appellant is 7 years. Therefore, the appellant has sustained considerable period of sentence during trial of the case. Now, more than two decades had been lapsed from the date of occurrence and the victim girl as well as the appellant have mend their life in their own ways without indulging in any other criminal activities.

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In the aforesaid facts and circumstances, the conviction of the appellant for the offence under section 366A of the IPC is set aside but his conviction for the offence under section 376 of IPC is maintained and upheld. So far, the quantum of sentence is concerned, the sentence awarded by the learned trial court is reduced to the sentence of imprisonment already undergone by the appellant during trial of the case. Accordingly, this

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appeal is partly allowed with modification in conviction and

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sentence as stated above.

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