Ashish Kumar Singh @ Rinku Singh vs State of Jharkhand

Heard Mr. Arjun Narayan Deo assisted by Mr. P. P. Chatterjee, learned counsel appearing for the appellant and Mr. Rajesh Kumar Mishra,

learned Addl. Public Prosecutor appearing for the State.

The instant Criminal appeal is directed against the judgment of conviction dated 23.12.2003 and order of sentence dated 24.12.2003, in Sessions

Trial No.20 of 2003, passed by the learned Additional Sessions Judge, Fast Track Court No.7, Hazaribag, whereby the sole appellant, Ashish Kumar

Singh @ Rinku Singh has been convicted for the offence under Sections 366 and 376 of the Indian Penal Code and awarded rigorous imprisonment

for seven years and a fine of Rs.5,000/- each, under both the heads separately and in case of default of payment of fine, to further undergo simple

imprisonment for three months. Both the sentences are directed to run concurrently. By the said impugned judgment of conviction, the learned trial

court has acquitted the co-accused, Sanjay Sah @ Sanjay Kumar Sahu. 3. The prosecution case is based upon, written report submitted by Dipak

Kumar Chanda, before the officer In-charge, Ramgarh Police Station, on 8.5.2002, stating therein, that in the morning at about 7 a.m., his daughter

Piyali Chanda @ Munni, aged about 17½ years, went to attend classes at Chhotanagpur College, Ramgarh, along with her friend Mamoni, but when

she did not return by 12 o’clock, as such, informant started searching his daughter and during search, it was found that Ashish Kumar Singh @

Rinku, S/o Govind Singh has enticed her girl, for unnatural act and thereafter a First Information Report was lodged.Â

On the basis of the aforesaid 'fardbeyan' of the informant, the Police instituted First Information Report being Ramgarh P.S. Case No. 178 of 2002

dated 08.05.2002 corresponding to G.R. No.1120 of 2002, under Sections 366 and 366(A) of the Indian Penal Code.

After investigation, the Police submitted two charge-sheets vide First Charge-sheet No. 285 of 2002 dated 11.08.2002 under Sections 366, 376,

120(B), 34 of the Indian Penal Code against the accused/appellant, Ashish Kumar Singh @ Rinku Singh and subsequently second charge-sheet vide

Charge-sheet No.72 of 2003 dated 28.04.2003 under Sections 366, 376, 120(B), 34 of the Indian Penal Code against Sanjay Kumar Sah.

The cognizance of the offence has been taken vide orders dated 12.08.2002and 18.06.2003 against Ashish Kumar Singh and Sanjay Kumar Sahu

respectively and the case has been committed to the Court of Sessions vide Notification dated 20.06.2003. The learned trial court has framed charge

against the appellant, Ashish Kumar Singh @ Rinku Singh under Sections 366, 376 of the Indian Penal Code on 10th February, 2003, to which the

appellant pleaded his innocence and claimed to be tried.

The prosecution, in order to prove its case, has examined altogether nine witnesses and also brought documentary evidence, which has been

marked as Exhibits. Pappu Singh has been examined as P.W.1 and he is the Hotel Manager, Shiv Prasad Mitra has been examined as P.W.2 and he

is the brother-in-law of the informant, Anjusri Chanda has been examined as P.W.3 and she is the mother of the victim, Dr. Sandhya Topno has been

examined as P.W.4 and she is the medical officer, who has examined the victim, Deepak Kumar Chanda (informant of the case) has been examined

as P.W.5, Piyali Chanda (victim of the case) has been examined as P.W.6, Tewaran Oraon, first Investigating officer has been examined as P.W.7,

Ramchandra Paswan (subsequent Investigating officer) has been examined as P.W.8, Vijay Kumar, learned Judicial Magistrate, who recorded the

statement of the victim under Section 164 of the Criminal Procedure Code, has been examined as P.W.9.

Medical report of the victim has been proved and marked as Exhibit-1, Fardbeyan of Deepak Kumar Chanda has been proved and marked as Exhibit-

2 and his signature on the 'fardbeyan has been proved and marked as Exhibit-2/1, signature of Piyali Chanda (victim), on the statement recorded under

Section 164 of the Criminal Procedure Code, has been proved and marked as Exhibit-3, signature of the learned Judicial Magistrate who has Â

recorded  the  statement of the victim under Section 164 of the Criminal Procedure Code has been proved and marked as Exhibit-

3/1, endorsement of the Police Officer on fardbeyan has been proved and marked as Exhibit-4 and signature of the Police Officer, on the fardbeyan

has been proved and marked as Exhibit-5, signature of Investigating officer on chargesheet against appellant /accused (Ashish Kumar Singh) has been

proved and marked as Exhibit-6, charge-sheet against accused (Sanjay Kumar Sahu) has been proved and marked as Exhibit-7, statement of the

victim under Section 164 of the Criminal Procedure Code has been proved and marked as Exhibit-8. 7. After recording and closure of the prosecution

evidence, the accused/appellant has been examined under Section 313 of the Criminal Procedure Code on 29.11.2003 and thereafter the defence has

brought the letter written by the victim (Piyali Chanda @ Munni) to the accused/appellant as Exhibit-A, the order-sheet dated 17.05.2002 passed in

G.R. No.1120 of 2002, has been marked as Exhibit-B and the joint photograph of the appellant and the victim has been marked as Exhibit-X for

identification. The learned Trial Court passed the impugned judgment of conviction and order of sentence, which is being assailed before this Hon'ble

Court.

8.  Mr. A. N. Deo, learned counsel appearing for the appellant assisted by his junior counsel, Mr. P. P. Chatterjee, Advocate has submitted, that

the impugned judgment of conviction and order of sentence is bad in law, as the learned trial court without appreciating the evidence and taking judicial

notice of the admitted defence document, which has been exhibited in this case, has passed the impugned judgment. He further submits that there are

contradictory evidences brought on record and the learned trial court without appreciating the contradictions which have cropped up in the prosecution

case, has convicted the appellant under Sections 366, 376 of the Indian Penal Code, which is not sustainable in the eyes of law.

Learned counsel has further submitted, that the learned Judicial Magistrate without following the procedure, before recording the statement under

Section 164 of the Criminal Procedure Code, has recorded the statement of the victim, who was under influence and was admitted in the Hospital,

where her father has influenced her, as such, her statement is not voluntary. The learned counsel for the appellant has further submitted that

statement recorded by the learned Magistrate under Section 164 Cr.P.C. on 21.05.2002 is not a substantial piece of evidence, on which the judgment

of conviction can be passed and relied upon. The statement of the victim under Section 164 of the Criminal Procedure Code, during investigation, is

only a direction for the Investigating officer and that is not a substantial piece of evidence.

Learned counsel for the appellant has further submitted that from the perusal of the letter written by the victim (Piyali Chanda @ Munni) to the

appellant and the same has been admitted by Piyali Chanda @ Munni, but has stated during cross-examination, that same was not voluntarily written

by her, rather it was written under threat of co-accused, Sanjay Kumar Sah. The learned Counsel for the appellant has submitted that way of writing,

its clarity and fonts of words are clearly showing that said letter written by her to the appellant was voluntary to whom she was in love, as such, she

wanted to solemnize marriage with him (appellant) and fled away with appellant.

Learned counsel for the appellant has drawn attention of this Court towards the order dated 17.05.2002 passed in G.R. No.1120 of 2002 whereby, the

appellant along with victim have surrendered before the court and the victim has filed an application to the learned court below to record her

statement, as she has solemnized marriage at “Rajrappa Mandir†and both lived like wife and husband. Learned counsel for the appellant has

further submitted that both the Investigating officer, Ramchandra Paswan (P.W.8) and previous Investigating officer, Tewaron Oraon (P.W.7), have

categorically denied about the allegation levelled by the victim in her statement under Section 161 of the Criminal Procedure Code.

Learned counsel appearing for the appellant has further submitted that the Investigating officer has completely denied that no such statement was

given by the victim before him under Section 161 of the Criminal Procedure Code and the letter has not been written in duress, rather in the

crossexamination, the investigating officer completely belies the prosecution case, as such, benefit of doubt may be granted in favour of the appellant

by acquitting him of his conviction passed by learned trial court.

. 9. Mr. Rajesh Kumar Mishra, learned Addl. Public Prosecutor appearing for the State has vehemently argued this case while supporting the

impugned judgment of conviction and order of sentence, has submitted, that since the victim has stated much against the appellant/accused under

Section 164 of the Criminal Procedure Code, as well as in her deposition, as P.W.6, the learned trial court was justified in convicting the appellant. The

statement of the victim recorded under Section 164 of the Criminal Procedure Code, which has been marked as Exhibit-8, has been duly proved by the

Judicial Magistrate, as such, credential of the statement cannot be doubted and the learned trial court is justified in convicting the appellant.

Heard Mr. A. N. Deo, learned counsel appearing for the appellant assisted by his junior counsel, Mr. P. P. Chatterjee, Advocate and Mr. Rajesh

Kumar Mishra, learned Addl. Public Prosecutor appearing for the State and on perusal of the First Information Report, charge-sheet, depositions,

exhibits and the defence documents, this Court is of the opinion that father of the victim (Dipak Kumar Chanda) has admitted in Para-21 of his cross-

examination, that he met his daughter at Nari-Niketan on 20.05.2002 and subsequently P.W.5 (informant of this case) has also admitted that he met

his daughter in Hospital, at night, on 17.05.2002 and the statement of the victim, under Section 164 of the Criminal Procedure Code, was recorded on

21.05.2002. Learned Judicial Magistrate has recorded the statement of the victim who has been examined as P.W.9, but during cross-examination, he

has admitted, that before recording the statement of the victim, no time was given for reflection nor certificate was issued that her statement was

read-over by her (victim) and it was found to be true. This Court also finds that the period for reflection before recording statement under Section 164

of the Criminal Procedure Code has not been followed by the learned Judicial Magistrate nor the procedures for recording the statement, as envisaged

under Section 164 of the Criminal Procedure Code has been followed.

Further-more, investigating officer (Tewaran Oraon) has been examined as P.W.7, who has categorically admitted during his cross-examination in

Para7 that between 09.05.2002 to 17.05.2002, he has not taken any step with regard to investigation and only after the victim along with the appellant

surrendered before the court on 17.05.2002, he has started investigation of the case. Further-more, this witness has admitted in Para-9 of his

crossexamination that after handing-over the girl to her guardian, he has recorded the statement of the victim, under Section 161 or the Criminal

Procedure Code. This witness in Para-19 of his cross-examination, has stated that the victim was admitted in the Hospital in the night of 17.05.2002

and she was released/ discharged on 18.05.2002 at 7.00 a.m. This witness has contradicted the statement of the victim in his cross-examination by

stating in Paras 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 46, 51, 52, wherein this witness being the Investigating officer (I.O.) has

completely denied, that the girl (Piyali Chanda @ Munni) has never stated before him that she wrote letter (Exhibit-A) in duress and such letter was

taken by the accused persons nor she (victim) has said that under threat photograph was taken, rather the cross-examination of the investigating

officer suggests that after the girl surrendered on

17.05.2002, got admitted in the Hospital in the night and kept in the 'Nari Niketan' till 20th May, 2002 , her father (Dipak Kumar

Chanda) being the informant of the case, met her twice and on the very next day i.e. on 21.05.2002, the statement under Section 164 Cr.P.C. was

recorded. The victim who has been examined as P.W.6 (Piyali Chanda @ Munni) during crossexamination at Paras-9, 45, 46 and 47 has admitted

about her hand-writing in the letter, which has been marked as Exhibit-A as well as the photograph, which has been marked as Exhibit-X for

identification. On such evidence brought on record coupled with cross-examination of P.W.7 (Tewaran Oraon), Investigating officer, this Court is of

the opinion that it is a case of elopement of two major people, as the victim's age has been disclosed by the father to be 17½ years and Doctor

(P.W.4) has assessed her age to be 18-19 years and subsequently after solemnization of their marriage, they surrendered before the court, filed an

application, where the victim has admitted that she is married wife of the appellant, as such, no offence under Sections 366 or 376 of the Indian Penal

Code is made out, as against the appellant.

On the basis of discussions made herein-above, this Court is of the opinion that the appellant deserves to be acquitted, by giving benefit of doubt

and accordingly, the judgment of conviction dated 23.12.2003 and order of sentence dated 24.12.2003, in Sessions Trial No.20 of 2003, passed by the

then learned Additional Sessions Judge, Fast Track Court No.7, Hazaribag, is hereby set aside.

Accordingly, the instant appeal stands allowed.

The appellant, who is already on bail, is discharged from the liability of the bail bonds.

Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.