The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (S.J.) No. 561 of 2007 --------- Nakul Sharma ... Appellant -Versus- The State of Jharkhand … Respondent --------- CORAM: HON’BLE MR. JUSTICE SANJAY PRASAD --------- For the Appellant For the State : Mr. Rahul Dev , Advocate : Mr. Sanjay Kr. Srivastava, A.P.P. --------- Oral Judgement in Court Order No. 08/ Dated: 27.07.2023 This Criminal Appeal has been filed on behalf of the appellant by challenging the judgement of conviction dated 28.04.2007 and sentence dated 30.04.2007 passed in Sessions Trial No. 181 of 2003/111of 2003 by Sri Rama Shankar Shukla, learned Additional Sessions Judge, F.T.C.- VI, Dhanbad by which the appellant has found guilty for the offences under sections 363 and 366 I.P.C. and sentenced to undergo R.I. for a period of four (04) years for the offence under section 366 however no separate sentence has been passed in respect of offence under section 363 of I.P.C. 2. The prosecution case, in brief, is that the Informant Ram Kumar Sharma (P.W. 2) had submitted a written report addressed to Officer- in-charge of Putki P. S. on 18.09.1985 stating therein that on 17.09.1985 at about 10:30 pm in the night he came to know that his sister i.e. the victim girl (P.W. 4) aged about 15 years old, had been kidnapped by accused Nakul Sharma at about 12;00 noon from his house at Karkenda Bazar P.S. Putki, District Dhanbad and the accused Nakul Sharma was also resident of same locality. Then the Informant made hectic search of his sister but he could not trace out her. However he 2 learnt from the servant of Arun’s betel shop namely Prakash who had seen that accused Nakul Sharma had taken away his sister at that time. It is stated that the Victim Girl was married with one Debendra Thakur two(02) years ago from the occurrence, but the accused Nakul Sharma induced his sister and kidnapped her with an intention to marry with her. 3.
Legal Reasoning
Learned counsel for the appellant has submitted that impugned judgment and sentence passed by the learned Court below is not sustainable in eye of law. It is submitted that the age of the victim girl is not ascertained by the police and also by the learned Court below. It is submitted that the victim girl was examined as P.W. 4 and she had admitted that written paper was given to her before recording her statement under section 164 Cr.P.C. and hence the evidence of the victim girl is not sufficient to convict him. It is submitted that there is no eye witness of the occurrence. It is submitted that the P.W. 2 –the informant has named the appellant in the F.I.R. on suspicion and has falsely implicated him. It is submitted that I.O. and Doctor were not examined in this case. It is submitted that the P.W. 3 is a hearsay witness and the P.W. 5 is also a hearsay witness and the P.W. 6 has been forced by the police to give statement against the appellant and hence impugned judgment and sentence may be set-aside and appellant may be acquitted and hence this Criminal Appeal may be allowed. 4. On the other hand, learned A.P.P. has submitted that impugned judgement and sentenced passed by the learned Court below are fit and proper and no interference is required. It is submitted that the P.W. 4 was examined who is the victim girl and she has fully supported her case. It is submitted that the P.W. 1 is elder sister of the victim girl (i.e. P.W. 4) and she has 3 also supported the prosecution case. It is submitted that although the Investigating Officer and Doctor have not been examined but that does not make the prosecution case fatal. It is submitted that P.W. 2 Ram Kumar Sharma and P.W. 3 Chhotan Thakur have also supported the prosecution case. It is further submitted that even P.W. 5 Sudhir Gupta and P.W. 6 Shankar Thakur have also supported the prosecution case and hence no illegality was committed by the learned Court below by convicting the appellant and hence this Criminal Appeal may be dismissed. 5. Perused the Lower Court Records and considered the submission of both the sides. 6. It transpires that the F.I.R was lodged on 18.09.1985 by one Ram Kumar Sharma by submitting the written application before the Officer -In-charge Putki P.S. stating that the appellant Nakul Sharma (Barbar) has enticed his sister (i.e. the Victim Girl P.W. 4 ) on 18.09.1985 ( date sic i.e. torn) . It was also stated that the Victim Girl was married earlier with one Debendra Thakur two years ago, however the appellant has enticed her . 7. It transpires that the police had submitted the charge- sheet against the appellant on 04.01.1986 before the learned Chief Judicial Magistrate, Dhanbad for the offences under sections 363 and 366 (A) of the I.P.C. Thereafter, the learned Chief Judicial Magistrate Dhanbad had taken cognizance under sections 363 and 366 (A) of the I.P.C against the appellant. 8. After supplying police papers to the appellant, charges were framed against the appellant on 21.10.2003 under section 363 and 366(A) of the I.P.C. and to which the appellant 4 pleaded not guilty and claimed to be try. 9. During trial the prosecution got examined six (06) witnesses who are as follows: (i) P.W. 1 Champa Devi i.e. sister of the informant, (ii) P.W. 2 Ram Kumar Sharma i.e. the informant – brother of the victim girl, (iii) P.W. 3 Chhotan Thakur is uncle of the informant , (iv) P.W. 4 is Victim Lady ( name not being disclosed ) , (v) P.W. 5 is Sudhir Gupta and (vi) P.W. 6 is Shankar Thakur. 10. The prosecution got marked the following documents as the Exhibit as follows:- (i) Ext.1 is signature of Ram Kumar Sharma on written report, (ii) Ext. 2 is statement of the victim girl under section 164 of Cr.P.C. and (iii) Ext. 3 is signature of Shankar Thakur as witness under section 164 of the Cr.P.C. 11. Thereafter the appellant was examined under section 313 Cr.P.C on 15.12.2006 and he had denied the circumstances put forth before him. 12. Neither any defence witness was examined nor the documents marked as Ext. 13. Thereafter learned Court below has convicted the appellant under section 363 and 366 of the I.P.C., however, the learned Court held that the offence under section 366-A of I.P.C. is not made out and the appellant was sentenced to undergo R.I. for a period of four (04) years for the offence under section 366 of the I.P.C. only and no separate sentence was passed for the offence under section 363 of I.P.C. and hence the appreciation evidence of prosecution witnesses is 5 necessary . 14. P.W. 2 Ram Kumar Sharma is the Informant of this case who stated during his evidence that in year 1985 the occurrence took place and at the time of occurrence his sister i.e. the victim girl was aged about 15 years and one Nakul Sharma has enticed her sister which was seen by one Prakash Kumar (not examined by the prosecution) who is the servant of Arun betel shop. However he has not identified the appellant i.e. Nakul Sharma in the Court. During the cross-examination he stated that he has not informed the matter with the neighbours and had gone to the Police Station on the next day. He has also shown ignorance as to when the police came to his house. He also further stated that the police has not recorded his statement earlier. He also stated during further cross-examination that he had not identified Nakul Sharma who used to remain there earlier. 15. Thus from the scrutinizing the evidence of P.W. 2 i.e. the Informant, it is evident that he had not identified the appellant in the Court and even during cross –examination he has stated that he has not identified the appellant. Thus, P.W. 2 has not supported the prosecution case which is fatal for the prosecution case. 16. P.W. 1 Champa Devi is elder sister of the victim lady and who stated during her evidence that Nakul Sharma had enticed her sister i.e. the Victim Girl aged about 15 years. However, during her cross examination, she stated that the police had not recorded her statement earlier. Thus her evidence reveals P.W. 1 is giving evidence first time before the Court and she is a hearsay witness and 6 hence her evidence cannot be relied upon to convict the appellant. 17. P.W. 3 Chhotan Thakur is Uncle of the victim lady and who is a hearsay witness and who had stated to have learnt that Nakul Sharma has enticed the victim girl for the purpose of marriage, however, he has not identified the appellant in the Court at the time of his evidence. Thus, from the evidence of P.W. 3 it is clear that he has also not supported the prosecution case . 18. P.W. 5 is Sudhir Gupta who is a business man and who has also tried to support the prosecution case by stating the appellant has enticed the minor victim girl for the purpose of marriage, however during further evidence before the Court, he failed to identify the appellant. During cross-examination he also stated that the police also not recorded his statement. Thus P.W. 5 has also not supported the prosecution case and hence his evidence is not reliable. 19. P.W. 4 is Victim Girl and on the date of her examination- in- chief on 16.12.2003 her age is shown as 27 years, which does not appear to be correct as per case given in the FIR which was lodged on 18.09.1985. It would appear that she was shown aged about 15 years. Therefore, it would appear that the learned Court below was negligent even in recording the age of the victim girl. P.W. 4 has stated during her evidence that occurrence took place 15 years ago and while she was living with her mother, the appellant had taken her away for marriage and kept her for one (01) day. 7 During cross-examination, she stated that she was married 20 years ago and her real age sic–(torn). During her further evidence she stated that her statement under section 164 Cr.P.C, was recorded and she identified her signature. However during her further cross-examintion she stated that she had given her statement as per instruction. 20. Thus the evidence of P.W. 4 also indicates that her evidence was tutored and her evidence contradicts the evidence of P.W. 2 i.e the Informant. 21. P.W. 6 is Shankar Thakur is Salon owner and brother –in-law of the appellant and stated girl was recovered from his house who has brought by the appellant Nakul Thakur. He also proved his signature over the statement recorded under section 164 Cr.P.C. as Exhibit -3. However during cross-examination he stated that he had no personal knowledge of this case and the police had not recorded his statement with regard to this case. He also stated that the police officer has instructed him to say as to what he has to say. 22. Thus from scrutinizing the evidence of P.W. 6, it is evident that he had also deposed under the influence of the police and hence the evidence of P.W. 6 is not reliable. 23. It further transpires from the statement recorded under section 164 of Cr.P.C. of the Victim girl that she could not say about her age before Sri N. Sinha, the learned Judicial Magistrate- 1st Class, Dhanbad on 23.09. 1985 and stated that the appellant Nakul Sharma had taken her to the house his brother –in –law by Trekker and next day the police came to residence of Shankar Thakur and recovered her and handed over the Victim girl to her brother and the appellant had enticed 8 again her wishes . The statement of the Victim Girl does not appear to be correct as she was taken by the Trekker by the appellant Nakul Sharma in full public view but she had shown no resistance and she had no raised alarm for any help from the people. 24. Apart from this she had admitted, while examined as P.W. 4 during evidence, that before giving her statement, she was tutored. Thus the statement of the Victim girl recorded under section 164 Cr.P.C. is not believable for the purpose of conviction of the appellant. Therefore the evidence of P.W. 4 is not sufficient to convict the appellant. 25. It is further evident that one Prakash, who had seen the Victim Girl with the appellant, had not been examined by the prosecution. 26. It is further evident that the Doctor and the Investigating Officer of this case have not been examined by the prosecution and which is fatal to the prosecution case. 27. Thus, the judgement dated 28.04.2007 and sentence dated 30.04.2007 passed in Sessions Trial No. 181 of 2003/111of 2003 by Sri Rama Shankar Shukla learned Additional Sessions Judge, F.T.C.- VI, Dhanbad is set-aside the appellant namely Nakul Sharma is acquitted for the offences under sections 363 and 366 I.P.C and the appellant is also discharged from the liability of his bail bonds. 28. Accordingly, this Criminal Appeal (S.J.) No. 561 of 2007 is allowed . 29. Let the Lower Court Record be sent to the learned Court below by the Office. (Sanjay Prasad, J.) Bibha/