Ganesh Gope Vs State of Jharkhand

IN THE HIGH COURT OFJHARKHAND AT RANCHI

Cr. Appeal (S.J.) No. 1201 2005

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[Against the judgment and order of conviction and sentence dated 12.09.2005 passed by learned Additional Judicial Commissioner, FTC-9 at Ranchi in Sessions Trial No.640 of 2003]

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--------- Ganesh Gope, son of Madhu Gope, resident of Hehal, Habsi Colony, Police station-Sukhdeonagar, Dist. Ranchi ……Appellant

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Versus

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The State of Jharkhand

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Umesh Ram Tiwari, aged about 46 years, S/o-Late Rajeshwar Ram Tiwari, R/o-Village-Archero, P.O. + P.S.-Ratu (Nagri), Dist. Ranchi

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…. Respondents

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---------- For the Appellant : Mr. Akhouri Awinash Singh, Advocate Ms. Ayushi Singh, Advocate Mr. Souma Ranjan Mukherjee, Advocate For the Resp.-State : Mrs. Nehala Sharmin, Spl.P.P.

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PRESENT

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CORAM: HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA JUDGMENT

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----------- CAV On 18.06.2026 Pronounced On 02 /07/2026

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Heard Mr. Akhouri Awinash Singh, learned counsel for the appellant and learned Spl.P.P.

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Instant criminal appeal is directed against the judgment and order of conviction and sentence dated 12.09.2005 passed by learned Additional Judicial Commissioner, FTC-9 at Ranchi in Sessions Trial No.640 of 2003, whereby and whereunder the appellant has been held guilty for the offence under sections 363 and 366A of IPC and sentenced to

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undergo R.I. for 5 years for the offence under section 363 of IPC and further sentenced to undergo R.I. for 7 years for the offence under section 366A of IPC. Both the sentences were directed to run concurrently.

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Factual Matrix:-

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Factual matrix giving rise to this appeal is that on 05.08.2003 at about 8:15 hours, the present appellant enticing the minor daughter of the informant took away to unknown place, when his daughter went for worship in a temple at Latha Tangra. The accused is a resident of Hehal, and he is working as T.V. and Radio repairing technician near Piska Station. It is further alleged that the informant was on his duty at G.P.O., Ranchi and when he returned in the evening to his house, he came to know about the occurrence from his son-in-law, Ajay Dubey and his own family members.

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On the basis of above written report of the informant, Ratu (N) P.S. Case No.105 of 2003 was registered for the offence under sections 363 and 366A of IPC. After completion of investigation, charge-sheet was submitted against present appellant and after taking cognizance, the case was committed to the court of Sessions where S.T. No.640 of 2003 was registered. The present appellant has denied the charges leveled against him and claimed to be tried.

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In course of trial, altogether 9 witnesses were examined by the prosecution, namely:-

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P.W.1 -Victim

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P.W.2- Umesh Ram Tiwary (informant)

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P.W.3 -Rajni Kant Tiwari

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P.W.4 -Ajay Dubey

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P .W.5-Manjoo Devi

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P .W.6-Niki Kumari

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P .W.7-Ramakant Tiwary

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P .W.8-Dr. Manjoo Prasad

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P .W.9-Chandrahans Kumar Minz (Investigating Officer)

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Apart from oral testimony of the witnesses, following documentary

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evidences have been adduced by the prosecution.

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Ext.1- Signature of victim on statement of section 164 of

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Cr.P.C.

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Ext.2- Entire written report

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Ext.3- Entire Exam report of victim

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Ext.4- Formal FIR

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Ext.5- Endorsement of signature of O/C on written report

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On the other hand, the defence has also examined altogether 3 defence

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witnesses namely:-

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D.W.1- Baiju Gope

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D.W.2- Binod Kumar

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D.W.3- Dubraj Sahu

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Apart from oral testimony of the witnesses, following documentary evidences have been adduced by the defence.

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Ext.A to A/13 -14 letters of the victim girl

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Ext.B -C.C. of Statement under section 164 of Cr.P.C. of victim

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The case of defence is denial from the occurrence and false implication.

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10.Learned trial court after evaluating the evidence available on record held the appellant guilty for the aforesaid offences and sentenced him as stated above, which has been assailed in this appeal.

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Submission on behalf of appellant:-

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11.Assailing the impugned judgment, learned counsel for the appellant has submitted that the very victim of the alleged offence has not supported the prosecution story, rather she has leveled imputations and allegations against her own father, who is informant (P.W.2) of this case of frequent scolding and abusing her without any reason. As such, she was fade up and voluntarily accompanied the accused and lived for some days with him. Admittedly, as per the evidence of the father of the victim himself, he was married in the year 1980 and after four years of marriage, the victim girl was born, which means the year of birth of the girl is 1984 and the occurrence has been alleged to have happened in the

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year 2003. Therefore, the victim girl was aged about 19 years on the date of alleged occurrence and her consent plays a pivotal role in deciding the case. It is further submitted that there is no iota of evidence that the present appellant either kidnapped or abducted the victim girl, seducing her for solemnizing marriage or with intention or knowledge that she will be forced or seduced to indulge in sexual intercourse with another person. Therefore, the ingredients of offence under section 366A of IPC are absolutely lacking in this case and the offence under section 363 of IPC is also not constituted due to age of majority of the victim girl. Lastly, it is submitted that the impugned judgment and order of conviction and sentence of the appellant is absolutely illegal and liable to be set aside, allowing this appeal.

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12.Learned counsel for the petitioner has relianced upon a reported judgment in Tilku Alias Tilak Singh Versus The State Of Uttarakhand reported in 2025 Live Law (SC) 224 ( Criminal Appeal 183 of 2014 dated 06.02.2025. )

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Submission on behalf of State:-

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13.On the other hand, learned counsel for the State controverting the aforesaid arguments submitted that there is no substance in the points of arguments raised by the appellant. Learned trial court has very wisely and aptly considered the overall evidence available on record and arrived at right conclusion about the guilt of the appellant for the

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offence under sections 363 and 366A of IPC. Therefore, there is no illegality or infirmity in the impugned judgment and order of conviction and sentence of the appellant calling for any interference in this appeal, which is devoid of merits and fit to be dismissed

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Analysis, Reasons and Decision:-

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

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15.The only point for determination in this appeal is that “ as to whether the impugned judgment and order of conviction and sentence of the appellant passed by learned trial court suffers from any error of law calling for any interference in this appeal? ”

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16.Before adjudicating the above point, it is necessary to take brief resume of oral as well as documentary evidence adduced by the prosecution to substantiate the charges leveled against the appellant.

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The most important witness in this case is the victim girl ,

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who has been examined as P.W. 1. According to her evidence, on 05.08.2003 at about 8:00 am, she went for worship at Latha Tangra temple. She further states that from the temple, the accused, Ganesh Gope threatened her and forcibly took away to village Bharno at the house of his Bhagini with intention to solemnize marriage with her. She was recovered from the aforesaid place in the next day night by the

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police. She was brought before the Magistrate by the police, where her statement was recorded and she proved her signature as Ext.1 on her statement under section 164 of Cr.P.C. She was also sent for medical examination. She further states that at the time of her statement recorded under section 164 of Cr.P.C, she was under the influence of accused, Ganesh Gope.

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In her cross-examination, she fairly admits that in her statement recorded before Magistrate under section 164 of Cr.P.C, she has stated that she was frequently scolded, therefore on 05.08.2003, she went to the shop of Ganesh Gope and she herself proposed to go anywhere else with him but this statement was given under pressure. She also admits that at the time of recording her statement, accused, Ganesh Gope was not present. She further admits that when she was recovered from the house of Bhagini of Ganesh Gope, he was not present in the house rather he went away any other place leaving her there. She has denied the suggestion of the defence that no threatening or any kind of pressure was given by the accused rather she voluntarily accompanied him on her sweet will throughout the way without raising any alarm.

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P.W.2-Umesh Ram Tiwari is the informant-cum-father of the victim girl. According to his evidence, he returned from his office in the evening and came to know that his daughter was taken away by the

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accused, then he lodged written report (Ext.2). He also states that during search by the police, his daughter was found in the house of Bhagini of the accused. After recovery of his daughter, her medical examination was done and her statement was recorded by Magistrate. Thereafter, the victim girl was handed over to him. The victim girl disclosed him that she was forcibly taken away by the accused on his motorcycle to village Bharno Bazar and left her in the house of his Bhagini and went away.

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In his cross-examination, he categorically states that his marriage was solemnized in the year 1980 and the victim girl is his second daughter born after four years of his marriage. Therefore, admittedly, the age of the victim girl was 19 years on the date of occurrence.

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P.W.3- Rajni Kant Tiwari is younger brother of the victim girl. According to his evidence, he also came to know from the victim girl about the occurrence that the accused has taken her away forcibly for solemnizing marriage.

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P.W.4-Ajay Dubey is brother-in-law of victim girl and he is a hearsay witness.

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P.W.5-Manjoo Devi is mother of the victim girl. According to her evidence, her daughter went to Mahadeo Tangra temple for worship at about 8:30 am but did not return till evening then her husband lodged this case. Later on, her daughter was recovered from the

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house of Bhagini of Ganesh Gope from village Bharno. She has denied the suggestion of defence that about 4-5 years ago, the victim girl has written some love letters to the accused, which were shown to her by the accused then she forbade him to tell this fact to her husband(informant). She has further denied the suggestion of defence that due to misbehave, the victim girl herself left her house and accompanied with the accused.

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P .W.6-Niki Kumari is the sister of the victim girl and she expressed nothing about the occurrence.

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P.W.7-Rama Kant Tiwary is a hearsay witness and he came to know about the occurrence from the informant. He has no personal knowledge about the occurrence.

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P.W.8-Dr. Manjoo Pd ., who has examined the victim girl and found following:-

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Teeth-14x14, Height-5 ½”, Weight-40 kg. Breastdeveloped. Auxulary and public hair developed. No injury on her private part or anywhere on her body. No foreign hair on her private part. No stain on her private part or on her cloths. No matting of public hair. Old raptured Hyman present. Admit 2 fingers. Vaginal swab taken and sent for pathological examination. X-ray of wrist pelvic elbow advised.

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Radiology report received on 12.08.2003 vide Plat No.170 dated 07.08.2003. X-ray of wrist and hand shows pisiform assisted.

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Head of metacarpal and phalanges fused. Lower end of radius and ulna fused. X-ray of elbow shows epiphysis of lower end of the humerus fuse. X-ray of pelvic shows crest of ilium not fused. Ischial tuberosity not fused.

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This witness has assessed the age of the victim girl to be 16 years according to radiological examination. The pathology report shows “no dead or alive spermatozoa could be found.” No evidence of sexual inter-course found at the time of examination. She has proved the report Ext.3.

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P.W.9-S.I. Chandrahans Kumar Minz is the Investigating Officer of this case. According to his evidence, after receiving the charge of investigation, he went for investigating two places of occurrence. The first place of occurrence is Latha Tanga Temple from where, the victim girl was kidnapped by the accused. The second place of occurrence is the village, Bharno, the house of the Bhagini of the accused, Ganesh Gope from where, the victim girl was recovered on 07.08.2003. He sent the victim girl for medical examination and also got her statement recorded under section 164 of Cr.P.C. by the Judicial Magistrate. He has also interrogated with the witnesses and findings sufficient evidence submitted charge-sheet against the accused. He has proved the formal FIR as Ext.4 and endorsement on written report as Ext.2. He has not interrogated with any witness of Bharno Bazar. He

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further admits that at the time of recoding the statement of victim girl under section 164 of Cr.P.C., the accused Ganesh Gope or his parents or any other relatives were not present and the victim was not influenced by the above persons rather voluntarily gave her statement. He has denied the suggestion of the defence that the investigation is defective and without any evidence, he has submitted charge-sheet against the accused.

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17.On the other hand, the defence witness, D.W.1 Baiju Gope claims to know both the parties. He has frequently seen the victim girl in the shop of Ganesh Gope, where she was complaining about torture meted to her by her parents. On the date of occurrence, she met with the accused and told that her father used to assault her after consuming liquor.

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D.W.2-Binod Kumar was also studying in the same school

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where the victim girl was studying prior to the occurrence. He is acquainted with the handwriting of the victim girl. He has also deposed that the victim girl frequently used to visit to the shop of Ganesh Gope, which is situated at Piska Station. He further proved the original 14 letters written by the victim girl total in 14 pages marked Ext.A to A/13. The above letters have not been denied by the prosecution in the handwriting of the victim girl.

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D.W.3-Dubraj Sahu has also deposed that the victim girl

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always used to visit with the accused, Ganesh Gope on his shop and

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both were under love relationship and was desiring to marry. She was also complaining about ill-behave of her parents, so that she was not desiring to live at her own house.

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In his cross-examination, he fairly admits that he came to know the above facts after the occurrence, hence, his statement was not recorded by police.

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18.Before appreciating the evidence of witnesses, it is pertinent here to extract relevant provision of sections 363 and 366A of IPC

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363. Punishment for kidnapping:

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“Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

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19.To punish the offender under section 363 IPC, the prosecution has to prove two essential ingredients; one is the victim should be minor i.e. below the aged of 18 years and secondly, she must be taken away or enticed by the accused person.

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20.In the case of S. Vardarajan vs. State of Madras, AIR 1965 SC 942 , it was observed that there is a distinction between “taking away” and allowing the minor to accompany a person. These two expressions are not synonymous. In the said case, minor had left her father’s protection knowing and having full capacity to know the full import of what she

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was doing voluntarily, to join the accused persons. It was held that in such a situation, it cannot be said that she had been taken away or lured out of the keeping of the lawful guardian.

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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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21.On perusing said section, it is evident that so as to complete the offence under section 366A IPC, the following ingredient must be proved:-

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The minor girl was under the age of 18 years and she was induced by the accused.

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The minor girl is induced to go from any place to do any act.

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The minor girl is induced with intent that she may be or knowing it is likely that she will be forced to seduced to illicit intercourse with another person.

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22.In the instant case, it is proved beyond doubt that the victim girl was about 19 years on the date of occurrence as per admission of her father. No documentary evidence has been brought on record to prove otherwise except the opinion about the age expressed by the doctor (P.W.8). The victim girl herself has admitted in her statement under section 164 of Cr.P.C. that she left her house voluntarily due to illtreatment and torture meted with her at the hands of her parents and joined the company of accused and went to the house of his Bhagini at village Bharno Bazar. It is also admitted by her that the accused after leaving her at Bharno Bazar, went away anywhere else and not present in the night and on the very next day, she was recovered by the police. Therefore, the ingredient of offence under section 363 of IPC is absolutely not attracted in the factual scenario as proved by the prosecution.

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So far section 366A of IPC is concerned, it is brought on record that no threat or inducement was extended by the appellant to the victim girl for solemnizing marriage with her nor he has attempted to forcibly solemnize marriage with her and they have not indulged in sexual activities. Moreover, the offence under section 366A of IPC is attracted in procuration of minor girl for the purposes mentioned in the above section. In the instant case, the victim girl was not minor at all at

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the time of occurrence, therefore offence under section 366A of IPC is also not attracted in the factual background of this case.

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23.I have given anxious consideration to the overall aspects of the case and the evidence available on record, it appears that learned trial court without recording any valid reasons regarding proof of charges leveled against the appellant, has relied upon the testimony of the victim girl, which was materially improved during trial and contradicted her earlier statement under section 164 of Cr.P. C. and arrived at wrong conclusion. Learned trial court has also failed to take notice of defence witnesses that letters allegedly written by the victim girl to the accused showing her lover-affairs and deep emotions with the accused.

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24.In view of the aforesaid discussion and reasons, I find that learned trial court has committed serious error of law by convicting the appellant for the charges leveled against him without properly appreciating the evidence. Therefore, the impugned judgment and order of conviction and sentence dated 12.109.2005 passed by learned Additional Judicial Commissioner, FTC-9 at Ranchi in Sessions Trial No.640 of 2003 is, hereby, set aside and the appellant is acquitted from the charges leveled against him. This appeal is allowed .

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