The High Court
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1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (S.J.) No. 1315 of 2007 --------- Bablu Kumar @ Babla ... Appellant -Versus- The State of Jharkhand … Respondent CORAM: --------- HON’BLE MR. JUSTICE SANJAY PRASAD --------- For the Appellant For the State : Mr. Rajesh Kumar Mehta , Advocate : Mr. Tarun Kumar, A.P.P. --------- ORAL JUDGEMENT Order No. 07/ Dated: 28.02.2023 This Criminal Appeal has been filed on behalf of the appellant by challenging the judgment of conviction and sentence dated 20.09.2007 and 24.09.2007 respectively in Sessions Case No. 144 of 2006 arising out of Dumka (T) P.S. Case No. 269 of 2005 and G.R. No. 1533 of 2005 passed by then learned Sessions Judge, Dumka by which the appellant has been convicted for the offence under section 366-A of the I.P.C. and sentenced to undergo R.I. For five (05) years and a fine of Rs. 500/- and in default he has further been directed to undergo R.I. for six months. 2. The informant, Laxmi Devi (P.W.2) mother of the victim lodged the F.I.R alleging therein that her daughter was a regular student of Santhal Pargana Women’s College, Dumka
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in first year of Intermediate. The informant’s daughter i.e. the victim girl used to attend her College regularly after coming from home. On 05.12.2005, the informant got some official business at Dumka as she was also working A.N.M. at Primary Health Centre, Saraiyahat. The informant alongwith her daughter i.e. the victim girl came to Women’s College, Dumka. The victim met with her friend Rina Kumari. Both had gone to 2 a Photostat Centre to get photo-copy of the Certificates and Testimonials and the victim asked the informant to stay at the Bus Stand where she would be reaching. The informant then came to Bus Stand, waited till 2:00 P.M. for the victim. When she did not find her daughter i.e. the victim girl, then she came to the house of Rina Kumari where she was informed by Rina Kumari that the victim departed soon after they came out of College and she must have reached her house by now. The informant then arrived her home at around 7:00 P.M, however the victim was not found at home. She then started searching her daughter and in course of search she came to know that the accused was also traceless from the village who was living in his Sister’s house and who happened to be a neighbour of the informant. Keeping a track the informant went to the father of the accused at Baunsi where the father of the accused and his family members admitted that the accused had been to Baunsi with the victim girl and they assured that they would hand over the victim girl to the informant within two or three days. The informant then suspected that the victim girl has been kidnapped away by the accused and he was assisted by the other accused persons. 3. Heard learned counsel for the appellants and learned A.P.P. 4. It is submitted by the learned counsel for the appellant that judgment of conviction and sentence passed by the learned Court below are illegal and not sustainable in eye of law. It is submitted that the appellant is innocent and has committed no offence. It is submitted that the victim girl was the major girl aged about 18-19 years and on the date of occurrence, she had gone with the appellant on her own will from Dumka to Bhagalpur and from Bhagalpur to Gujarat. It is 3 submitted that the victim girl, during her statement recorded under section 164 of the I.P.C., has supported the defence version that she had voluntarily gone with this appellant from college to Bhagalpur and from Bhagalpur to Gujarat. It is submitted that the victim girl had also stated during her evidence as P.W. 4 that she alongwith the appellant had gone from the College to Bhagalpur and from Bhagalpur to Gujarat and they lived there as husband and wife for about one and half month. It is submitted that the evidence of the P.W. 1, who is brother-in-law and evidence of the P.W. 2, who is mother of the victim girl , is not reliable as they are interested witnesses. It is submitted that the P.W. 2 is the informant who had also admitted that her daughter had gone with the appellant but she had not disclosed the actual age of the victim girl and she had lodged F.I.R. after much delay . It is submitted that the P.W. 3 is Dr. Pushpalata Tudu who had opined that the victim was aged around 18-19 years and during her cross-examination she stated that she (i.e. victim Girl) was habitual to sexual intercourse. It is submitted that P.W. 5 is Investigating Officer i.e. I.O. of this case and who had merely submitted charge-sheet against the appellant without verifying the fact of this case, although the victim girl had voluntarily gone with this appellant and hence the appellant may be acquitted and this Criminal Appeal may be allowed. 5. On the other hand, the learned A.P.P. has opposed the prayer and has submitted that the judgment of conviction and sentence passed by the learned Court below are fit and proper and no inference is required. It is submitted that the P.W. 2 is informant of this case and she has fully supported the prosecution case. It is submitted that the evidence of P.W. 2 is corroborated by the evidence of P.W. 1 who is her son-in-law 4 and he had stated that the appellant had taken away the victim girl. It is submitted that the evidence of the victim girl is of no consequence as she is a minor girl and her consent is not admissible as there is no material to ascertain her age. It is submitted that the P.W. 5 is I.O. of this case and he had submitted the charge-sheet against the appellant and hence no illegality has been committed vide by judgment of conviction and sentence passed by the learned Court below. 6. Perused the Lower Court Records of this case and considered the submission of both the sides. 7. It transpires that from the F.I.R., although the victim girl was missing from 05.12.2005 when she had gone to the college alongwith her mother but thereafter she was missing, however the F.I.R. was lodged on 13.12.2005 i.e. after delay of around eight (08) days, although the informant had stated that delay has occurred due to saving their prestige in society. 8. It transpires that the police had submitted charge- sheet for the offence under sections 366, 366-A, 34 of the I.P.C. against the applicant on 19.03.2006 before the learned Chief Judicial Magistrate, Dumka who had taken cognizance on 23.03.2006 under sections 366 , 366A and 34 of the I.P.C. against the appellant . 9. After supplying the Police Papers, charges were framed on 30.08.2006 against the appellant for the offences under section 366 and 366 A of the I.P.C. to which he pleaded not guilty and claimed to be tried. 10. It transpires during trial the prosecution got examined five (05) witnesses in support of its case who were as follows:- (i) P.W.1 is Rajan Sharma i.e. Brother (ii) P.W. 2 is Laxmi Devi i.e. the Informant , 5 (iii) P.W. 3 is Dr. Pushpalata Tudu i.e. the Doctor, (iv) P.W. 4 is the victim girl (name not disclosed) and (v) P.W. 5 is Awadhesh Kr. Sinha i.e. I.O. of this case. 11. The prosecution got proved the following document as the Exhibits which were as follows:- (i) Exhibit -1 is written petition of the informant , (ii) Exhibit -2 is signature of Laxmi Devi on written petition, (iii) Exhibit -3 is Medical Examination Report of the victim girl , (iv) Exhibit -2/1 is signature of Dr. Pushapalata Tudu on Medical Report (v) Exhibit -2/2 is signature of Dr. Aruna and (vi) Exhibit -4 is writing and signature of the victim girl in her statement under section 164 of the Cr.P.C. 12. It transpires that the appellant was examined under section 313 of the Cr. P.C. on 01.09.2007 by the learned Court below and to which he denied the circumstances put forth before him. 13. No defence witness was examined, however one letter written by the victim girl to the appellant which is marked as “X” for identification on behalf of the defence. 14. Thereafter, the learned Court below has convicted the appellant as mentioned above and has passed the sentence. Hence this Criminal Appeal has been filed. 15. From the scrutinizing the evidence of P.W. 4, who is the victim girl, it is the evident that during her examination- in--chief , she stated that her mother is a Nurse and she had gone to the college with her mother on 05.12.2005 to take the amount of the Scholarship and thereafter she met with the appellant Bablu who took her from Dumka Bus Stand to Saraiyahat and thereafter she was taken to Godda and thereafter the appellant 6 kept her in quarter at Bousi and she performed marriage with the appellant in Burha Nath Mandir at Bhagalpur and thereafter she went to Gujarat with the appellant and she lived as husband and wife for about one and half month . She also proved her statement recorded under section 164 of the Cr.P.C. During cross-examintion she stated that the appellant is a labour. She has further stated at para -15 that she had voluntarily gone with the appellant and returned back after moving with the appellant for one and half month and the case has been instituted due to mistake . 16. Thus, it is evident that P.W. 4 i.e. the Victim girl has not supported the prosecution case and she had voluntarily gone to Godda and also at Bousi in Bhagalpur with the appellant and stayed in the quarter of father of the appellant during this period, She also admitted during cross-examination that she was acquainted with the appellant much ago as she was visiting the house of his widow sister Neetu. She had also not raised any alarm or made any complaint at the time of living with the appellant in Gujrat. She also admitted at para 15 that she had voluntarily gone with the appellant and she had voluntarily returned with the appellant after moving with him and this case has been instituted due to mistake. 17. P.W. 3 is Doctor who had examined the victim girl on 18.01.2006 and found her aged about 18 to 19 years and she also opined that the victim girl is habitual to sexual intercourse. Thus, evidence of P.W. 3 reveals that the victim girl was major and was aged around 18 and 19 years on the date of occurrence i.e. on 05.12.2005. 18. P.W. 1 is brother –in-law of the victim girl who although supported the prosecution case during his evidence and stated that he learnt from his brother –in –law about missing 7 of the victim girl on 05.12.2005 and he learnt also from her that the Victim Girl was kidnapped by the appellant . He also stated that the appellant is not his relative but his sister resides near the house of his Sasural. Thus, P.W. 1 is a formal whiteness as he remained silent till the institution of the F.I.R. The witness during his cross- examination admitted that he learnt from his brother –in-law after 7-8 days regarding kidnapping of victim girl. He also admitted that the appellant and the victim girl were on visiting terms in the house of each other. 19. P.W. 2 is Mother i.e. the informant of this case who has supported the prosecution case during her evidence, however during her cross-examination she had admitted she is well acquainted with the sister of the appellant who lived near her quarter and they were on visiting terms .She further stated that her daughter and the appellant were reading in the same college and they knew each other. She stated that the victim girl was recovered by the police from the house of the appellant. 20. Therefore from the joint reading of the evidence of the P.W 2 and P.W. 4 , it would appear that the parties were known to each other and they were on visiting terms and the victim girl had voluntarily gone with the appellant . 21. The finding of the learned Court below that the victim girl was kidnapped is perverse and vitiated in view of own admission of the victim girl P.W. 4, during her cross- examination at para 15 that she had voluntarily gone to Gujarat with the appellant and she had voluntarily returned with the appellant. 22. It further transpires from the Lower Court Record that the joint compromise petition was also filed before the learned Sessions Judge on 04.06.2007 having the signature of the informant Laxmi Devi and the Victim Girl and the appellant on 8
Legal Reasoning
the other hand and it was also signed by the learned counsel for the Informant and the learned defence counsel. 23. It transpires that no documentary evidence has been produced by the prosecution with regard to the age of the victim girl. The prosecution had not produced the certificate of the victim girl who was studying in S.P. Medical College in Intermediate and had not shown the Birth Certificate to prove of the date of birth of the victim girl and him in absence of any documentary evidence of the age of the victim girl, the age assessed by the Medical Board as 18-19 years will be relevant. 24. Thus, from the evidence of the victim girl, it is evident that she had voluntarily gone with the appellant no offence under section as 366-A of the I.P.C. is made out . 25. Thus in view of the discussion made above and judgment and sentence dated 20.09.2007 and 24.09.2007 respectively passed by then learned Sessions Judge, Dumka in Sessions Case No. 144 of 2006 are set-aside in the interest of justice and the appellant namely Bablu Kumar @ Babla is acquitted for the offences under section 366-A of the I.P.C. and appellant namely Bablu Kumar @ Babla is also discharged from the liability of his bail bonds. 26. Thus, this Criminal Appeal (S.J.) No. 1315 of 2007 is allowed. 27. Let the entire Lower Court Records be sent to the learned Court below at once by the Office. (Sanjay Prasad, J.) Bibha/