Jasbir Singh  Bapi Vs State of Jharkhand

2025:JHHC:11295

Criminal Appeal (S.J.) No. 685 of 2007

[ Against the Judgment of conviction and Order of sentence dated 24.04.2007, passed by learned Additional Sessions Judge-III, East Singhbhum, Jamshedpur in Sessions Case No. 139 of 2005 .

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Jasbir Singh @ Bapi, son of Shri Jaspal Singh, resident of H.N. 32, Parkhidih Bastee, Birsanagar Zone, No. 7, Jamshedpur, P.S.-Golmuri, District – East Singhbhum.

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Versus State of Jharkhand … … Respondents ….. For the Appellant : Mr. A.K. Sahani, Advocate. For the Respondent : Mrs. Vandana Bharti, A.P.P.

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P R E S E N T

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HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA JUDGMENT

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C.A.V. on 27.01.2025 Pronounced on 11.04.2025

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1. Heard learned counsel for the parties.

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2. The present appeal is directed against the judgment of conviction and order of sentence dated 24.04.2007 passed by learned Additional Sessions Judge-III, East Singhbhum, Jamshedpur in Sessions Case No. 139 of 2005, whereby and whereunder the appellant has been held guilty for the offence under Section 376 & 366A of the I.P.C. and sentenced to undergo R.I. for seven years along with fine of Rs. 5,000/- for the offence under Section 376 of the I.P.C. and further sentenced to undergo S.I. for one year for the offence under Section 366A of the I.P.C. Both the sentences were directed to run concurrently.

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FACTUAL MATRIX

3. The factual matrix giving rise to this appeal is that on 30.04.2004 at about 7:00 AM, the informant left his daughter (victim girl) at K.M.P.M. Inter College. The daughter of the informant also requested to send her brother at about 11:00 AM for returning back to home. It is further alleged that informant’s son Vivek reached at the said College at 10:45 AM and was waiting for his sister till 12 O’ Clock, but she did not come out from the College, then he returned to home and narrated the above matter to his parents. In the course of search of his daughter, the informant has come to know that one Bapi (appellant) along with his family members has enticed and taken away the victim girl for solemnizing marriage with her. Accordingly, F.I.R. being Bistupur P.S. Case No. 90 of 2004 was registered for the offence under Sections 366/34 of the I.P.C. against five accused persons including the appellant.

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4. During course of investigation, the victim girl surrendered before the police and her statement was also recorded. She was sent for medical examination. After completion of investigation, charge-sheet was submitted against the above-named appellant and accordingly, after cognizance, the charges were

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framed for the offence under Sections 376 / 366A / 120(B) of the I.P.C. The appellant denied the charges leveled against him and claimed to be tried. After conclusion of trial, the impugned judgment and order was passed.

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5. Learned counsel for the appellant assailing the impugned judgment and order of the appellant has vehemently argued that in the instant case, altogether six witnesses were examined by the prosecution, but the Investigating Officer has not been examined.

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6. It is further submitted that except the victim girl (P.W.-6), there is no eye-witness of the occurrence.

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7. It is further submitted that there was love affairs between the appellant and the victim girl since one year prior to the occurrence. The victim girl was major at about 19 years, which is admitted by her in her evidence. The victim has also identified love letters written by her to the appellant, which has been marked as Exhibit-B & B/1 and photographs, which have been marked as Exhibit-A Series. She has also identified her signature on Exhibit-C series, the applications filed by her before the Marriage Office in Purulia, although she has denied that she has attended the said Marriage Office.

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8. It is further submitted that the appellant has also examined D.W.-1, Nand Dulal Ghosh, Teacher, A.D.L.

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Sunshine School, Jamshedpur, who has proved the admission register of the victim girl i.e. Exhibit-G, Exhibit-E and E/1 are birth certificates of victim girl and Exhibit-F is the Marriage Certificate. All the above evidences available on record not only indicates that the victim being a major girl voluntarily and on her own sweet will has accompanied the appellant to solemnize marriage with him and she had been residing for a long period without any resistance and protest, but she erred on the desire of her parents, who have lodged a false case against the appellant and manufactured a story of commission of rape.

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9. It is further submitted that the factual background, in which the incident took place does not invoke the offence under Section 376 of the I.P.C. and provision of Section 366A of the I.P.C. is not applicable in the facts and circumstances of the present case. The learned trial court has miserably failed to properly appreciate the evidence of the victim, which is solitary basis for the conviction of the appellant and ignoring her all voluntary conducts, who has duped her father and voluntarily accompanied with the appellant and also solemnized marriage with him are sufficient to exculpate the appellant from the charges leveled against him. Therefore, the impugned judgment of

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conviction and order of sentence is not sustainable under law, which is liable to be set aside and this appeal may be allowed.

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10. Per contra, learned APP appearing for the State has vehemently opposed the aforesaid contentions raised on behalf of the appellant and submitted that the prosecution has proved its case beyond all reasonable doubt. Learned trial court has very meticulously examined the evidence adduced by the prosecution as well as defence. Mere non-examination of Investigating Officer does not materially affect the prosecution case. In a case of rape, the solitary evidence of victim girl is sufficient to convict the accused. There is no illegality or infirmity in the impugned judgment of conviction and order of sentence of the appellants and there is no merit in this appeal, which is fit to be dismissed.

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11. I have gone through the record the case along with impugned judgment in the light of contentions raised on behalf of both side.

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12. For better appreciation of the case, brief resume of oral testimony of witnesses is required to be discussed.

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13. The most important witness in this case is victim girl, who has been examined as P.W.6. According to her

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evidence, on 30.04.2004, she had gone to K.M.P.M. Inter College Bistupur for appearing in the examination along with her father at about 7:00 AM. She requested her father to send her brother at 10:45 AM after expiry of the examination period. She has further deposed that at about 10:00 to 10:15 AM, she came out from examination hall and started waiting for her brother. Meanwhile, Bapi met her and expressed his apology for some altercation previously happened between them in front of Chappan Bhog and he also told that her maternal uncle has come to his home and is calling her then she proceeded towards the vehicle and found that it was not Sumo vehicle belonging to her maternal uncle. She has also stated that present appellant was driver of Sumo vehicle of her maternal uncle. She has further deposed that when she reached near the vehicle, meanwhile, the appellant gaged her mouth, forcibly got her boarded in the Sumo vehicle, wherein already 2-3 persons and a lady were present, 3-4 persons were also surrounding the vehicle from outside, who were pushing this witness to sit into the vehicle. She has further deposed that a person boarding inside the vehicle pulled her in and pasted a white colour tape on her mouth and another person whipped out a

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pistol and pointed towards her head and commanded to do what he says, otherwise consequences would be very bad. That person was brother of Bapi namely, Tinku. She also identified one person as Banti, one as Chandan Singh and one as Harpal and the lady was mother of Bapi and her name was Paramjeet. She has further testified that when the vehicle proceeded a few distance then two persons boarding on the vehicle alighted and Bapi said to them to keep vigil on the parents and brother of this witness. The mother of Bapi was saying that her son has been humiliated by her parents hence she will take revenge by performing marriage of Bapi with this witness. She has further stated that in the way the vehicle was stopped at a place for taking dinner. She was not ready, then Bapi, Chandan and Harpal Singh forcibly took her into a room of the restaurant at instance of receptionist Yaspal, then she was kept alone along with Bapi and Chandan and Harpal went away. She has further deposed that in the said room Bapi forcibly committed rape on her inspite of her violent protest and also assaulted her. Thereafter, she was again got boarded in the vehicle and one Safique also boarded in the vehicle and mother of Bapi left the place. Thereafter she was brought to Kolkata at Hotel Park and kept by

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accused Bapi about 20 days, where she was daily assaulted and forcibly raped by accused Bapi. It is further stated that one day Tinku, Banti, Safique and Chandan Singh also came to said Hotel and threatening this witness to do everything what Bapi says to her, otherwise they will also commit rape with her. After 20 days, she was brought to Purulia and she was forced to put her signature on some paper saying that these papers are meant for Court Marriage. She declined to sign on the said paper, then Bapi attempted to strangulate her putting a gamcha on her neck and also threatened to kill her brother and father, then she put her signature on that paper. From Purulia she was brought to a Punjabi Family in the night where a lady disclosed that it is Bhatia Basti Tata and the house belongs to elder father of Bapi namely Sukha Singh, where she was kept for 10 days and the accused committed rape on her and also got 3-4 letters written by her with contents that “ I Love You and solemnize marriage with consent and also come with Bapi voluntarily ”. One day father and mother of Bapi came there and told that father of this witness has lodged a case and police is searching them so that they should surrender before the police. In the next day morning, she was brought before

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Superintendent of Police, Jamshedpur, from where Police Inspector of Bistupur brought her to police station. Thereafter, she was sent to MGM Hospital for medical examination. She has identified the accused Bapi present behind the dock.

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In her cross-examination , she admits that she was acquainted with accused since about one year ago. She also admits two letters marked as Exhibit-B & B/1 written by her. Exhibit-B was written by her to her father and Exhibit-B/1 was written to Bapi. She also states that the said letters were forced to be written by her. She has also admitted the photograph Exhibit-A Series, wherein she admits that in Photograph Exhibit-A/1 she is not along with Bapi, but in Exhibit-A/2, Exhibit-A/3 and Exhibit-A/4 she was along with Bapi, but she could not say where these photographs were taken. She has also identified her signature as Exhibit-C, Exhibit-C/1 and ExhibitC/2 on three page application, but she denied that the said application was presented by her before the Court in this case. She has also admitted that she was all along with accused about one month and in the aforesaid period she has not complained to anyone that the accused has kidnapped her and sexually exploited her. She also states that she has

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never given her birth certificate to the accused, which might be forged and fabricated by him for some ulterior purpose. She never went before Marriage Officer at Purulia. She returned home on 03.06.2004. On the same day, she was medically examined and her statement was recorded by police. She has also denied any letter written by her addressing to the court that Jasbir Singh @ Bapi is her legally wedded husband. She has also identified her writing on photocopy of a letter admitting her marriage with the accused, which is marked as Exhibit-D with objection, but she states that when this letter was written, she could not recollect. She has denied the suggestion of defence that she has voluntarily performed marriage with the accused due to love affairs with him, which was protested by her parents. Hence, at the instance of her parents and brother, she is giving false evidence against the accused regarding solemnization of marriage and free and voluntarily physical relation with him. She was not kidnapped by the accused rather she voluntarily accompanied him from the College.

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14. P.W.-4 Dr. Mariya Madhu Bara is the Doctor who has examined the victim on 04.06.2004 in a medical board. She has deposed that she along with other

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doctors have examined the victim and found that there was no injury all over the body. According to them their opinion was:-

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(i) On the basis of clinical, radiological and dental the age of the girl is above 17 years but below 18 years.

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(ii) There is evidence of sexual intercourse, but not recent on the basis of hymen tear.

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(iii) There is no evidence of any pregnancy on pelvic exam and ultrasound.

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In cross-examination, she states that whether ossification test was done or not, she cannot say.

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15. P.W.-5 Dr. Arun Kumar Verma is one of the members of medical board. He examined x-rays of victim girl. The x-ray was done in his Department. He has further said that :-

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(i) Both wrist joint A.P. & lateral view, the epiphyses distal and of both radius & ulna appeared and recently fused, the fusion sclerotic line is still visible.

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(ii) Both elbow A.P. view – The epiphysis found of the medial and lateral A.P. epicondeyles of the humerus, trochilia, head of radius and olecranom process of the ulna appeared and already fused.

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(iii) Pelvis A.P. View – The epiphysis of the Iliac crest appeared but not completed the fusion. Opinion – On the basis of above radiological finding the age of the girl estimated more than 17 years and less than 18 years.

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In cross-examination, he has said that x-ray plate is not before me at this time. Ossification can only be tested by X-ray.

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16. The remaining witnesses of facts are father, mother and brother of the victim girl.

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17. P.W.-2 is the informant-cum-father of the victim girl. He has proved the contents of written report and submitted that on 30.04.2004 at about 7:00 AM, he left his daughter at K.M.P.M. Inter College for appearing in the examination. It is further alleged that on request of his daughter (victim girl), he sent his son Vivek at about 11:00 AM to bring his daughter from the College. His son went to College at 10:45 AM and waiting for his sister for a long time, but she did not return, then he started searching his daughter and came to know that a boy namely, Bapi, resident of Birsanagar, Jamshedpur has enticed and taken away his daughter for solemnizing marriage with her. He has further stated that on 03.06.2004, the accused Bapi surrendered at Bistupur P.S. along with

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his daughter then he received telephonic message from the concerned police station. He has also identified the accused Bapi present behind the dock, who is driver of his brother-in-law. He has also proved his written report as Exhibit-1.

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During cross-examination of this witness, a photograph was shown marked as “X” for identification wherein he said that there is no photograph of his daughter. In this photograph, his daughter is not present. He also admits that in Exhibit-A to A/4 photographs his daughter is also present. He has denied the suggestion of defence that the victim girl was born in 1985, but he has reduced her age by two years at the time of admission in the school. He has also denied any love affair between his daughter and accused Bapi and her marriage with accused on her own accord.

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18. P.W.-3 is the brother of the victim girl. He has simply stated that on 30.04.2004, he went to bring back his sister from College at 12:30 PM, but she was not present there. Then he returned to home and narrated the same to his parents. There is nothing else in his evidence.

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19. P.W.-1 is the mother of the victim girl. She has also corroborated the contents of FIR and deposed that on

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30.04.2004 at about 7:00 AM her daughter had gone to K.M.P.M. College for appearing in the examination. She has further deposed that her daughter also requested to her father to send his brother at about 10:00 AM to bring back to her, then her son Vivek went to the College, but victim girl was not present there. In course of search, it was found that on some pretest, accused Bapi has taken her daughter from the College. Her daughter returned to home on 03.06.2004 then she disclosed that Bapi has forcibly taken her on false pretext that her maternal uncle has called her. She has also disclosed the age of the victim girl to be 16 years on the date of occurrence and her date of birth is 15.07.1987.

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In her cross-examination, she has denied that the victim girl was born in the year 1985. She admits that in the five photographs Exhibit-A to A/4 her daughter is present with accused Bapi. She also admits that she is matric pass. She is acquainted with Bapi since one year prior to occurrence. He used to come to her house along with her brother because he was driver of the vehicle. She has further admitted that now her daughter has been married with another person. She denied the suggestion of defence that the victim girl voluntarily accompanied with the accused and such

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type of statement was given by her in the court of Magistrate.

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20. On the other hand, the defence has also examined one witness namely, Nand Dulal Ghosh (D.W.-1), Teacher, A.D.L. Sunshine School, Jamshedpur, who has produced the Admission Register of 1989 of the said School on the instruction of Principal of the said School. It is proved that at Sl. No. 1244, the name of victim with her parentage and address has been entered showing the date of admission on 08.03.1989 in Nursery Class and the date of birth of the victim girl is on 01.02.1985, which is in the hand-writing of the then Clerk, Smt. V. Sumati, which has been marked as Exhibit-G without objection. No crossexamination has been conducted by prosecution touching the genuineness of the aforesaid document. It is simply illustrated in cross-examination that the said document was not written in presence of this witness and he does not know the student, for whom admission register is produced.

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21. The defence has also got exhibited following documents during evidence of the victim girl herself:Exhibit-A to A/4 : Five Photographs of Victim Girl without objection.

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Exhibit-B & : Letter written by Victim Girl to B/1 her father (without objection).

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Exhibit-C, : Signatures of the Victim Girl on C/1 & C/2 application dated 04.06.2004. Exhibit – D : Photocopy of application dated 04.06.2004 marked with objection.

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Exhibit-E & E/1 : Birth Certificates of the Victim Girl.

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Exhibit-F : Marriage Certificate of the Victim Girl dated 06.05.2004.

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Exhibit-G : Entry in the Admission Register.

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22. From the testimony of prosecution witnesses, as discussed above, it is crystal clear that except the victim girl, other witnesses are only hearsay witnesses, as regards factual aspect of the case. The victim girl is the sterling witness in this case. She admits her acquaintance with the appellant prior to one year of the occurrence. The appellant was working as a driver of the vehicle owned by maternal uncle of the victim girl. Since the overall prosecution story is based upon the solitary testimony of victim girl, therefore, it is desirable to scrutinize her evidence cautiously and carefully.

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23. The victim girl (P.W.-6) has specifically stated that on the date of occurrence, she had gone to K.M.P.M. Inter College for appearing in the examination with

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her father at 7:00 A.M. She told her father that her examination will be end at 10:45 A.M. and requested to send her brother to bring back her to home. The other attending circumstances admitted by the victim girl in her evidence as regards letters written to her father (Exhibit-B & B/1) are admitted one along with photographs with the accused prior to the date of occurrence, which clearly goes to show that she has expressed her deep love with the appellant with full consciousness and shared her emotions with the appellant through the said letters. She was fully conscious about protest of her marriage by her parents and family members. Under the aforesaid background, she called her brother to bring back from the College at 11:00 A.M. indicates that she has already managed to elope with the appellant prior to coming of her brother. She had categorically admitted that at about 10:10 A.M., she came out of the College, where appellant Bapi was waiting for her with Sumo Vehicle and his mother, brother and some other persons were also there in the said Vehicle. Bapi expressed his apology for his previous mis-behaviour at Chappan Bhog Restaurant and then proceeded with her in the said Vehicle. At this juncture, although the victim girl says that she was forcibly got

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boarded in the Vehicle with the accused, who put her into fear and also under pretext that her maternal uncle is calling her, cannot conceived to be true and genuine version of the victim. She has also admitted her signature on application for marriage under Special Marriage Act before Marriage Officer, Purulia, but later on denying her presence, although Marriage Certificate has been issued within stipulated time of its presentation before the Marriage Officer (Exhibit-F) which has not been challenged by the victim girl before any court of law claiming it to be obtained by fraudulent means. The Original Birth Certificate issued from the Registrar, Birth & Death, Jamshedpur N.A.C. (Exhibit-E & E/1) was also submitted at the time of solemnization of marriage before the Marriage Officer showing her date of birth 03.02.1985. Later on, it was disclosed in the School Character Certificate, Admit Card and Mark Sheet issued by Jharkhand Academic Council, her date of birth is shown as 01^st July, 1987. That document was not disputed by the prosecution.

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24. Under the aforesaid circumstances, the real age of the victim is proved to be more than 18 years at the time of occurrence, but as per Certificate, Admit Card and Character Certificate of High School, her age was 16½

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years. The victim girl has also admitted that she lived with the present appellant after solemnization of marriage with him for one month as his wife. She also admits that when her father-in-law came to know about the institution of FIR against the accused then he suggested her to surrender before the police along with her husband. Thereafter, they surrendered before police. These facts also indicate the consensual relationship between accused and the victim girl after solemnization of the marriage. At the earlier occasion, the statement of the victim has not been recorded under Section 164 of the Cr.P.C. and brought on record by the prosecution. Therefore, the victim girl under the influence of her parents, who were against her marriage, has bent upon during trial to state against the genuineness of the marriage and kidnapping by the accused on enticement and false statement that her maternal uncle is calling her. The occurrence is of the year 2004 at that time, the offence of rape as defined under Section 375 I.P.C. is extracted as hereunder :-

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375. Rape .- A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-

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First .-Against her will. Secondly .-Without her consent.

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Thirdly .-With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

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Fourthly .-With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

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Fifthly .-With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly .-With or without her consent, when she is under sixteen years of age.

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Explanation .- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

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Exception .- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

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25. From the aforesaid provisions also, it is apparent that sexual intercourse by a man with his own wife, when the wife is not under fifteen years of age, is not rape.

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26. Similarly, if the rape has sexual intercourse with a woman above the age of 16 years with her free consent is not rape as it falls under the clause sixthly. 27. In the instant case admittedly, at worst, the victim was more than 16½ years at the time of occurrence. The overall conduct shown by the victim clearly indicates her willingness and voluntarily accompany

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the accused appellant for performance of marriage in a temple and thereafter court marriage, does not constitute the offence of rape under Section 376 of the I.P.C.

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28. Similarly, offence under Section 366A of the I.P.C. is also not applicable here in this case. The relevant provision of Section 366A of the I.P.C. is reads as follows:-

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366A. Procuration of minor girl .—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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29. The essential ingredients for applicability of offence under Section 366A of the I.P.C. are as follows:-

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(1) that the accused induced a girl;

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(2) that the person induced was a girl under the age of eighteen years;

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(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;

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(4) such intercourse must be with a person other than the accused;

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(5) that the inducement caused the girl to go from any place or to do any act.

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30. The key ingredient of Section 366A of I.P.C. is that inducement of minor girl for illicit intercourse with another person. Herein, this accused is alleged to

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have taken the victim girl for solemnizing marriage with her and not for any illicit intercourse with another person, therefore, the ingredients of Section 366A of the I.P.C. is also not applicable against the appellant.

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31. Considering over all aspects of the case, it transpires that the learned trial court has failed to properly consider the ingredients of offence of Section 366A of the I.P.C., which is also not attracted and complied with in this case.

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32. In my considered view, both the charges under Sections 376 and 366A of the I.P.C. levelled against the appellant has not been conclusively proved against him. Therefore, the appellant deserves acquittal from the charges levelled against him.

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33. Accordingly, the impugned judgment of conviction and order of sentence dated 24.04.2007 passed by the learned Additional Sessions Judge-III, East Singhbhum, Jamshedpur in Sessions Case No. 139 of 2005 is set aside and the appellant is acquitted from the charges levelled against him.

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34. This appeal is allowed.

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35. Appellant is on bail, as such she is discharged from the liability of bail bond. Sureties are also discharged.

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36. Pending I.A., if any, stand disposed of.

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37. Let a copy of this judgment along with trial court record be sent back to the court concerned for information and needful.