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2008(2) Crimes 255 (Jhar.)
JHARKHAND HIGH COURT
D.G.R. Patnaik, J.
Padma Lochan Das and Ors. —Appellants
versus
State of Jharkhand —Respondent
Cri. Appeal No. 191 of 2000 (R)
Decided on 14-12-2007
For the Appellants:Kaushik Sarkhel and Nagmani Tiwari, Advocates.
For the Respondent: T.N. Verma, A.P.P.
IMPORTANT POINT
Where evidence showed that accused moved with accused to various places for three months since she left the place of her parents and did not resist or get herself free dispute opportunity an inference could be drawn that she voluntarily accompanied accused and had sexual relationship and her evidence that she under threat or duress was not reliable.
Headnote:Indian Penal Code, 1860—Section 366 and 376—Three appellants convicted for kidnapping prosecutrix and appellant No. 2 also convicted under Section 376 IPC also—Appeal—Prosecutrix was taken away from house of her maternal uncle on pretext that her father had met with accident and accused No. 2 exploited her sexually—Discrepancy in evidence regarding persons who visited house of maternal uncle of prosecutrix and took her away on the pretext—Though prosecutrix claimed that she accompanied accused against her will but admitted that throughout journey to several places and during period of about three months from date of her departure, though she had opportunity to protest and free herself, she never protested nor complained to members living in the house—Her evidence that she was under threat or duress was not reliable—Logical inference reasonably could be drawn that she voluntarily accompanied appellants and allowed appellant No. 2 to maintain sexual relations with her—Medical examination showed she was 17 years of age—Margin of two years on plus side could be given and she was above 18 years of age—Conviction could not be sustained. (Paras 9 & 10)
Result: Appeal allowed.
JUDGMENT
D.G.R. Patnaik, J.—Challenge in this appeal by the appellants is made against the judgment of conviction dated 6.5.2000, whereby appellants were convicted by the Trial Court for the offence under section 366-A of the I.P.C. and sentenced to undergo R.I. for five years. The appellant No. 2 Manoj Das @ Manoj Kumar Das has been convicted also for the offence under section 376 of the I.P.C. and sentenced to seven years imprisonment.
2. Case against the appellants was initiated on the basis of the F.I.R. lodged by the informant Guhi Ram Mahato (PW7) alleging therein that on 21.2.1998 at about 2.00 p.m. his daughter Savita Kumari had gone to the house of her maternal uncle Santosh Mahato situated within Adityapur Police Station. The appellants visited the house of the girl’s maternal uncle and on false representation that her father who had suffered road accident had sent them to fetch her. The appellants induced the girl to leave her maternal uncle’s house and to accompany them.
The girl was later recovered and on the basis of revelations made by her, the further case of the prosecution is that instead of taking her to her father’s house situated at village Dindali, the appellants took her to Telco on a motorcycle where she was confined in a room over night and on the next morning, they along with the girl boarded a bus to Durgapur where they kept the girl for about a month and during this period, the appellant No. 2 Manoj Das had sexually abused her. He later brought the girl to Jadugora where after observing a formal ceremony of marriage with the girl, the appellant No. 2 Manoj Das took her to his own house and continued to exploit her sexually. On the basis of the above information conveyed to him by his brother-in-law namely the maternal uncle of the girl, the informant lodged the F.I.R. at the Police Station on 22.2.1998.
3. While denying the charges and pleading not guilty, the appellants in their defence, had contended that as a matter of fact, the girl was in love with Manoj Das (Appellant No. 2) and she had voluntarily accompanied him and had allowed herself to be sexually exploited by him with whom she had solemnized her marriage.
4. At the trial, the prosecution had examined altogether nine witnesses including the prosecutrix, the doctor and the informant. The investigating officer of the case has however not been examined.
5. Placing reliance upon the testimony of the prosecutrix and on the observation that on the date of occurrence, the victim girl was less than 18 years of age and believing the prosecution’s case that the appellants had induced the girl to leave her maternal uncle’s house on false representation with sole intention to subject her to alleged sexual intercourse with the appellant No. 2 Manoj Das, the Trial Court convicted all the three appellants for the offence under Section 366-A of the I.P.C., but on the basis of the same evidence, the Trial Court convicted the appellant No. 3 Manoj Das also for the offence under Section 376 of the I.P.C.
6. Appellants have assailed the impugned judgment of conviction and sentence primarily on the ground that the Trial Court has committed grave error in failing to appreciate the evidences on record in proper perspective.
Shri Kaushik Sarkhel, learned Counsel appearing for the appellants, while elaborating the grounds advanced by the appellants, submits that even from the evidences of the prosecutrix it would be evident that the appellants and the prosecutrix were known to each other since long and the appellants were on visiting terms to the house of the prosecutrix and were known to her father and also to her maternal uncle from before and the girl was in love with the appellant No. 2 Manoj Das and she had voluntarily eloped with him from the house of her maternal uncle and accompanied him to Durgapur, Jadugora and other places and had voluntarily solemnized marriage with him accepting herself to be the lawfully wedded wife of the appellant No. 2 Manoj Das
