Birendra Kumar Yadav Vs State of Jharkhand

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (SJ) No.682 of 2006

(Against the judgment of conviction and order of sentence dated 2^nd May 2006, passed by learned Additional Sessions Judge-I-cum-Special Judge (SC/ST Act), Sahibganj, in Special Case No.56 of 2003 / S.C. No.116 of 2002 arising out of Borio (J) P.S. Case No. 104/2001, Sahibganj, Jharkhand)

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Birendra Kumar Yadav, s/o Chhabu Yadav, resident of Jirwabari Chhota Panch Road, P.S. Jirwabari, District- Sahibganj … Appellant

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Versus

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The State of Jharkhand … Respondent ---

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CORAM: HON’BLE MR. JUSTICE NAVNEET KUMAR

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--For the Appellant : Mr. Sudhanshu Shekhar Choudhary, Advocate Mr. Ashish Kr. Thakur, Advocate For the State : Mr. Vineet Kumar Vashistha, Spl. P.P.

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Judgment dated :4^th March 2025

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This appeal is directed Against the judgment of conviction and order of sentence dated 2^nd May 2006, passed by learned Additional Sessions Judge-I-cum-Special Judge (SC/ST Act), Sahibganj, in Special Case No.56 of 2003 / S.C. No.116 of 2002 arising out of Borio (J) P.S. Case No. 104/2001, Sahibganj, whereby and whereunder the learned Trial Court while acquitting the accused/appellant from the charges under Section 366-A and 368 of IPC and Section 3(xi), (xii) & (xv) of the SC/ST (Prevention of Atrocities Act, convicted the appellant under Section 363 of IPC and sentenced him to undergo R.I. for five years with fine of Rs.5,000/- and in default of payment of fine, further directed to him R.I. for two and half months.

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2. The prosecution story is based on the written statement made by PW-4 Lakshmi Baski on 21.6.2001 addressing to the Sahibganj police. The informant-PW-4 stated therein that her daughter left home for the college on 23.5.2001 but she did not return home. The informant with a view to trace her out, approached her relatives and friends but she could not get any clue. It has further been stated in the said written statement (Ext.-1) that one Birendra

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Kumar Yadav, son of Chhabu Yadav resident of village Jirwaberi (Chhote Panchger) District- Sahibganj, the present accused/appellant of this case used to visit her house every day to teach her daughter, who was residing adjacent to her house and the said boy was also found to be traceless since the date of missing of her daughter. In view of this fact as stated in the written petition, the informant was quite confident of the fact that the said boy, the present accused of this case must have enticed her daughter away for the purpose of marriage. It has been further stated therein that the informant is posted at Primary School, Bochahi as teacher and her husband is posted at Rajsthan in B.S.F. and only 3 boys (sons), one girl, one niece and a made servant were residing in her house as her family members. In view of these facts, it has been finally submitted in the application that her daughter be traced out for which she would ever remain obliged.

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3. On the basis of such application, Borio (J) P.S. Case No. 104/2001 dated 01.07.2001 under section 366A I.P.C. and 3/4 S.C./S.T. ((P.Α.Ο) Act was registered against the aforesaid accused and on completion of the investigation, finally charge-sheet under sections 363/366/376/368 I.P.C. and U/s. 3(1) & (x) S.C./S.T. (Prevention of Atrocities) Act was submitted against the accused and after cognizance this case was sent to this special Court to try the offences relating to S.C./S.T. (P.O.A.) Act and charges under section 363/366-A/376/368 of I.P.C. and U/s. 3(xi) (xii) (xv) of the SC/ST (Prevention of Atrocities) Act was framed by Learned Additional Sessions Judge cum Spl. Judge Sahibganj and explained to the accused in Hindi, to which he pleaded not guilty and claimed to be tried.

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4. The learned trial Court after conducting the full-fledged trial, passed the impugned judgment of conviction and order of sentence, which is under challenge in this appeal.

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5. Heard learned counsel appearing on behalf of the appellant and learned Special P.P. Mr. Vineet Kr. Vasistha, appearing on behalf of the State. Arguments advanced on behalf of the appellant.

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6. The learned defence counsel appearing on behalf of the appellant submitted that the learned trial Court failed to appreciate the ingredients of constituting the offence punishable under Section 363 of IPC and passed the impugned judgment of conviction and order of sentence for the offence punishable under Section 363 of IPC without proper application of judicial mind.

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7. It has been pointed out from the statements of the victim PW-9 that it is clear that the ingredients of constituting the offence under Section 363 of IPC including the enticement or taking away from lawful guardian of the victim are wholly absent and PW-9 clearly stated that she had accompanied the appellant voluntarily and willingly and therefore even if she is minor, it is not a case under section 363 of IPC for want of these mandatory ingredients for constituting the offence punishable under section 363 of IPC as no element of taking away or enticement.

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8. Further, it has also been pointed out that the mother of the victim has been examined as PW-4 and she also did not justify that her daughter, the victim (PW-9) had been taken away or by enticing her away by the appellant and as such the case of the prosecution has not been supported by the version of the victim PW-9 and her mother PW-4.

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9. It is submitted that in this view of the matter, the judgment of conviction and order of sentence passed by the learned trial court is wholly illegal and fit to be set aside.

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Arguments advanced on behalf of the State

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10. On the other hand, the learned special P.P. appearing on behalf of the

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State opposed the contentions raised on behalf of the appellant and stated that the victim was minor at the time of occurrence and she has been taken away by the appellant from her village to Dumka although he did not controvert the fact that there is no trace of any enticement or taking away victim by the appellant as is evident from the version of victim-PW-9 that she had accompanied the appellant willingly and voluntarily without any force or coercion or pressure and no unlawful activities alleged to have been committed by the appellant.

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11. Having heard the learned counsels appearing on behalf of the parties and perused the trial court record and other materials available therein.

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Findings & Appraisal

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12. In order to substantiate the charges levelled against the appellant, it is found that the prosecution has been able to examine altogether 10 witnesses as under:

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PW-1 Nitesh Kumar Murmu (brother of the victim) PW-2 Ritesh Kumar Murmu (brother of the victim) PW-3 Tulamani Soren PW-4 Laxmi Baski (informant herself) PW-5 Pramod Kumar Thakur (declared hostile) PW-6 Shiv Kumar Tekariwal PW-7 Prahlad Choudhary PW-8 Sunita Prasad (medical officer) PW-9 victim herself PW-10 Mithlesh Kumar (I.O.)

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Apart from oral evidences, the prosecution has also adduced the

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documentary evidences as under:

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Ext.1 – Written report by the informant Ext.2 – Jimmanama

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Ext.3 – Medical report prepared by Dr. Sunita Prasad of the victim Ext.3/1 – Report prepared by Dr. A.K. Mandal Ext.3/1 – Report prepared by Dr. J.L. Sahu

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One witness has been examined on behalf of defence i.e. DW-1 Kamleshwar Saha. The defence has also adduced documentary evidence,

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which has been marked as exhibit- ‘a’, by which it appears that it is the admission register of Holy Cross Balika Ucha Vidyalay, Sitapahar.

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13. It appears that PW-1 Nitesh Kumar Murmu and PW2 Ritesh Kumar Murmu are the brothers of the victim girl PW-9 and the sons of the informant.

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From the versions of these two witnesses, it is quite evident that none of them has stated that the appellant has enticed or taken away their sister (PW-9) with him and they had simply stated about the missing of their sister (PW-9).

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14. Similarly, PW-3, Tulamani Soren also did not state against the appellant nor any whisper about the enticement within the meaning of definition of kidnapping or taking away by the appellant and she had simply stated about the missing of the victim.

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15. PW-4 Lakshmi Baski (informant) is the mother of the victim and she is a very important witness. She did not state that it was the appellant who had taken away her daughter, rather she has simply suspected as the appellant was also traceless from the date when her daughter was missing and therefore, she had suspected and made a written report to that effect to the Sahibganj police station, which has been marked as exhibit-1. She had stated in para -2 that “मेरे

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पति सीमा सुर्ቌा बल में है जो राजस्थान में हैं वो घटना के समय यहाां नह ां थे जब बच्ची नह ां ममल रह थी और बीरे቎ኚर यादव पढाने भी नह ां आिा था िो मुझे शक हुआ कक बीरे቎ኚर यादव के साथ ह मेर बच्ची गई होगी। आज बीरे቎ኚद यादव ቎ኚयायालय के कठघरे में उपस्स्थि है पहचानिी ह ूँ।”

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She has been declared hostile on the oral request of prosecution and cross examined by prosecution. But in her cross examination no evidence has been came out from her mouth by which it can be inferred that accused appellant had kidnapped her child.

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She had further stated that she came to know from unknown person after 1 to 2 months, when her daughter was seen in Dumka and thereafter she went to Dumka and found her daughter-PW-9. She did not utter a single word about any kind of kidnapping, enticing or taking away by the appellant against the will of the child or within the meaning of Section 361 of IPC, which deals with the definition of kidnapping, under which the appellant has been convicted under Section 363 of IPC, which deals with punishment for kidnapping.

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This witness PW-4 had categorically stated that the appellant Birendra Yadav was her neighbour and he was quite known to her.

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16. PW-5 Pramod Thakur has also been declared hostile.

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17. PW-6 Shiv Kumar Tekariwal and PW-7 Prahlad Choudhary had

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been tendered.

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18. PW-8 is the doctor Lalit Mohan Prasad who had medically examined the victim-PW-9 and he had estimated the age of the victim as per the dental surgeon report that she is above 16 years of age.

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This witness PW-8 had proved the medical examination report of the victim-PW-9, which has been marked as exhibit-3 and he opined that she was above 16 years of age.

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19. In the light of the version of the informant-PW3 (mother of the victim), this court proceeds to the deposition of PW-9 , who is the victim and most important witness in this case in order to fasten the guilt of the accused appellant.

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20. PW-9 in her examination-in-chief explicitly stated in unequivocal words that on 23.05.2001, she had come out from her house along with the appellant and went to Dumka and stayed there for about three months in a rental house and when her mother came to know and then the police came and took her and

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police after medical examination, handed over her to her mother.

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In para-2, she categorically stated that both, she and appellant Birendra Kumar Yadav got married and started leading conjugal life as husband and wife and also established physical relationship and she was also following all the rituals of married women and living as wife of the appellant by putting vermilion on her head.

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In the cross-examination also she had clarified in her deposition that both the appellant and she had gone together voluntarily and willingly without any coercion, pressure and threat and both were living happily in Dumka in Shiv Mandir Muhalla. In para 4 she has stated that “ददल्ल जाने के मलए हमदोनों घर से साथ-साथ तनकले थे। मैं राजी खुशी से उनके साथ तनकल थी।”

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From the version and testimony of this witness, it is well-founded that none of the ingredients of Section 363 IPC is attracted, even if she is minor in view of the clearcut deposition of witness-PW-9 as well as her mother-PW-4, inasmuch as the mother of the victim-PW-4 never accused the appellant that she had taken her daughter against her will to Dumka and therefore neither any enticement or taking away by the appellant has been alleged and attributed either by PW-9 or PW-4, who are the victim and her mother-informant respectively.

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21. In this view of the matter, it is found that the learned trial court did not appreciate the depositions and testimonies of the witnesses in the right perspective and committed gross error in not evaluating the testimonies of the witnesses examined on behalf of the prosecution, particularly the victim-PW-9 and her mother-PW-4 in the light of the ingredients of Section 363 of IPC.

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22. The I.O. PW-10 Mithlesh Kumar , has been examined on behalf of the prosecution and he has recorded the statement of victim and her mother (informant). In their statement she did not utter a single word against the

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appellant that he had taken forcibly or by enticing or taking away her daughter against her will and forcibly and the informant being the mother of the victim simply stated that she was living in Dumka and she went there and with the help of police, took back her daughter and nothing more than that.

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23. The learned defence counsel also stated that one witness was also examined as DW-1 Kamleshwar Sah who had brought on record the admission register in order to ascertain the age of the victim, which was 15.03.1984, although the age of the victim is irrelevant when the other ingredients of taking away or enticement of the victim is not present as evident from the depositions of the victim PW-9 and PW-4, who are victim and her mother and also from the depositions of the brothers of the victim PW-1 and PW-2.

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24. Further in view of the categorical statement of the victim that she had solemnized the marriage with the appellant and this fact has been confirmed at the appellate stage also before this court when in the counter affidavit filed on behalf of the State, a report of Jirwabari police station has been furnished to the learned Special P.P., which is available on record to the counter affidavit filed as Annexure-A.

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25. From perusal of Annexure-A, it is found that the Ward Parsad of Nagar Prishad, Sahibganj on the photocopy of the Aadhar Card of the appellant certified that the wife of the appellant namely PW-9 has died in the year 2022, which is evident from the letter dated 08.12.2024 written by A.S.I. Cum Officer in Charge Jirwabari P.S. where it has been stated that PW-9, who was the wife of the appellant died in the year 2022.

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26. The learned defence counsel has relied upon the rulings of the Hon’ble supreme court as observed in the case of Sat Parkash Vs. State of Haryana & Anr. reported in (2015)16 SCC 475 , where under the facts and circumstances of this case, the condition has been set out in order to

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constitute the offence punishable under section 363 as under:

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“3. In view of the clear and unequivocal statement made by the deceased d Sushila to the effect that she had left her residence by her own free will, it was not possible to record the guilt of the appellant under Section 363 of the Penal Code. This, on account of the acknowledgment that no other evidence had been produced by the prosecution to demonstrate that Sat Parkash had enticed the deceased Sushila to accompany him. The only evidence available is that Sushila was found in the residence of the appellant Sat Parkash. Based on the above factual position, it was presumed that the appellant had kidnapped the deceased. We are of the view that the above presumption is wholly misconceived and untenable.”

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27. In view of the aforesaid discussions and appraisal of the evidences adduced on behalf of the parties in the foregoing paragraphs vis-à-vis aforesaid observation of Hon’ble Supreme Court, it is well-founded that the learned trial court has committed gross error in passing the impugned judgment of conviction and order of sentence dated 2^nd May 2006.

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28. Accordingly, the Judgment of conviction and order of sentence dated 2^nd May 2006, passed by learned Additional Sessions Judge-I-cum-Special Judge (SC/ST Act), Sahibganj, in Special Case No.56 of 2003 / S.C. No.116 of 2002 Borio (J) P.S. Case No. 104/2001 against the appellant is set aside.

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29. The appellant is acquitted from the charges levelled against him.

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30. Since the appellant is on bail, he is discharged from the liabilities of bail bonds.

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31. In the result, this appeal is allowed.

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32. Let a copy of this judgment along with the Trial Court Record be sent

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back to the learned trial court.

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(Navneet Kumar, J.)