Deepak Kumar Mistry vs State of Jharkhand

The instant Criminal Appeals have been preferred against a common judgment of conviction dated 26.07.2003 and order of sentence, dated

28.07.2003, passed by learned Additional District and Sessions Judge, Fast Track Court No. V, Dhanbad, in Sessions Case No. 356 of 2002, whereby

three persons namely Guddu Ansari, Pradip Ram and Deepak Kumar Mahto@ Deepak Kumar Mistry have been convicted for the offence

committed under Sections 366 A/34 of the Indian Penal Code and awarded rigorous imprisonment for five years and a fine of Rs. 5000/- each and in

default of payment of fine further imprisonment for six months each. It is made clear that Guddu Ansari has died during pendency of the appeal and

his criminal appeal (SJ) No. 1520/2003 has been dismissed as abated.

The prosecution case is based upon the written report filed by Babuchand Rajak (P.W. 2- father of the victim Pinki Kumari) before the Officer-in-

Charge, Mahuda police station, Dhanbad on 16.04.2002, alleging therein, that his daughter aged about 16 years went to the house of her maternal

grandmother which is situated adjacent to the house of the informant at a distance of 100 gaj on 11.04.2002 at around 8.00 P.M. The informant has

further stated that his daughter used to visit the house of her maternal grandmother usually and on 11.04.2002 at around 9.30 P.M informant’s

mother-in-law (Shanti Devi) came to the house of the informant and asked the informant whether Pinki has reached or not. Upon enquiry it was found

that Pinki was missing. Thereafter it was alleged that Guddu Ansari was sitting on the roof of the house and was talking with Mistri and thereafter

Pradip Ram of Mahuda More called Guddu Ansari and also gave a signal by his hand that it is late and thereafter Guddu came down and met with

Deepak Kumar Mistry @ Deepak Kumar Mahto, who was standing on the road. After some time, it was found that Pinki Kumari is not present in the

house. Thereafter, the mother-inlaw of the informant started searching Pinki and disclosed entire fact to the informant, that Guddu Ansari, Deepak

Kumar Mistry and Pinki are missing from their house. The informant made a hectic search but they could not found her and thereafter the informant

gave a written report at the police station and a missing report was filed on 16.04.2002 claiming that Deepak Kumar Mistry, Guddu Ansari and Pradip

Ram have kidnapped his minor daughter to entice her for the purpose of marriage by taking her at different places. On the basis of the written report,

the police registered Baghmara (Mahuda) P.S. Case No. 68 of 2002 dated 16.04.2002, under Section 366 A of the Indian Penal Code.

After investigation police submitted charge sheet vide no. 96 of 2002 dated 15.06.2002 under Sections 366 A/ 34 of the Indian Penal Code against

all the three accused persons. The cognizance of the offence has been taken vide order dated 17.06.2002 and the case has been committed to the

Court of Sessions vide order dated 25.07.2002. The charge has been framed against all the three accused persons under Section 366 A read with

Section 34 of the Indian Penal Code on 11.09.2002 to which the appellants have pleaded their innocence and thus they were put under trial.

  Prosecution has examined altogether nine witnesses and also exhibited a number of documents up to Exhibit- 4 and the photocopy of the letter

written by the victim has been marked as Exhibit ‘X’, ‘X’/1 for identification, though the victim has denied that such letter has been

written by her.

Shanti Devi (maternal grandmother of the victim) has been examined as P.W. 1, Babuchand Rajak (father of the victim) has been examined as

P.W. 2, Meena Devi (mother of the victim) has been examined as P.W. 3, victim has been examined as P.W. 4, Dr. A. Mallick (who has examined

the victim) on 07.06.2002 has been examined as P.W. 5, Deepu Rajak (cousin of the victim) has been examined as P.W. 6, Shankar Rajak (maternal

uncle of the victim) has been examined as P.W. 7, Badeshwar Shukla (investigating officer of the case) has been examined as P.W. 8 and Sunil

Kumar Singh (Judicial Magistrate who recorded the statement of the victim under Section 164 Cr.P.C.) has been examined as P.W. 9.

The signature of the informant Babuchand Rajak on the fardbeyan has been proved and marked as Exhibit- 1, the signature of the victim on her

statement under Section 164 Cr.P.C. has been proved and marked as Exhibit- 1/1 subsequently marked Exhibit- 5 also, signatures of Pinki Kumari and

Babuchand Rajak on the personal bond have been proved and marked as Exhibits- 1/2 and 1/3, the medical report of the victim has been proved and

marked as Exhibit- 2, endorsement on the written report of the informant has been proved and marked as Exhibit- 3, formal F.I.R. has been proved

and marked as Exhibit- 4 and photocopy of the letters of the victim denied by her has been proved and marked as Exhibit- ‘X’ and ‘X/1’

for identification.

After closure of the prosecution evidence, the statements of the appellants have been recorded under Section 313 Cr.P.C. on 11.03.2003. The

defence has not examined any witness nor exhibited any documents on their behalf. The learned Trial Court on the basis of the materials available on

record convicted the appellants under Section 366 A/34 of the Indian Penal Code. Against the said impugned judgment of conviction and order of

sentence the present criminal appeals have been preferred.

Heard, learned counsel for the appellants, Mr. Lalji Sahay assisted by Mr. Hemant Chakraborty, Advocate. Learned counsel for the appellants has

submitted that the impugned judgment of conviction and order of sentence is not sustainable in the eyes of law. Learned counsel for the appellant has

submitted that from perusal of the evidence of Pinki Kumari (P.W. 4- victim), recorded by learned Trial Court and the Exhibit- 1/1 and subsequently

marked as Exhibit- 5, which is the statement of the victim recorded under Section 164 Cr.P.C. by Sunil Kumar Singh (P.W. 9), if both are compared

together, then vital contradictions will be found. The learned Trial Court has failed to appreciate the vital contradictions to pass the impugned judgment

of conviction. Learned counsel for the appellants has placed Exhibit- 5, which is statement of the victim recorded under Section 164 Cr.P.C., where

the victim has said, that her marriage was solemnized with Deepak on 19.04.2002 and thereafter she returned along with relative of Guddu Ansari to

her own house and subsequently went to the police station. If Exhibit- 5 (i.e. the statement of the victim under Section 164 Cr.P.C.) is compared with

the statement of the victim recorded during trial, vital contradictions are found in this case. During examination-in-chief, the victim has categorically

stated at paragraph 1, that Pradip Ram and Guddu Ansari brought a three wheeler/ tempo, in which she was forcibly taken and subsequently, the

tempo went near the shop of Deepak and Deepak was also forcibly taken on the tempo. She has further stated in paragraph- 2 of her examination-in-

chief, that in Ranchi, the accused Guddu Ansari has solemnized marriage with her forcibly and subsequently committed wrong with her. She has

further stated, that police has taken her in custody along with Guddu and Pradip at Bokaro bus stand. She has further stated in paragraph- 4 of her

examination- in- chief, that in court she has given a wrong statement, that Deepak has solemnized marriage with her, on 19.04.2002 and kept her in

Ranchi. This is a wrong statement meaning thereby, this witness has completely denied, the statement made under Section 164 Cr.P.C., which has

been marked as Exhibit- 5. This witness (P.W. 4) has stated that her signature on her statement made under Section 164 Cr.P.C. has been marked as

Exhibit- 1/1 and signatures on the personal bond executed by the victim and her father have been marked as Exhibits- 1/2 and 1/3.Â

 This witness (P.W. 4) has further stated during her cross-examination, that three wheeler/ tempo was taken to the shop of Deepak, where Deepak

was forcibly taken but she has not stated this statement before the police and the learned Court. She has further stated during her crossexamination

that Guddu Ansari has solemnized marriage forcibly with her and this statement was made by her during her statement recorded by the police under

Section 161 Cr.P.C. and also during the course of recording of her statement under Section 164 Cr.P.C. This witness has further stated during her

cross-examination that, while she left her house and was returning, she met Pradip and Guddu was also there but Deepak was not there. A photocopy

of a letter written by the victim has been shown by the defence counsel but she has denied the same but the same has been marked as Exhibit-

‘X’ for identification. She has categorically stated in paragraph- 13 of her crossexamination, that Guddu and Pradip has taken her forcibly and

also taken Deepak forcibly. She has further stated during her cross-examination at para- 14 of her cross-examination, when she was taken on three

wheeler/ tempo her mouth was tied with cloth, so that she could not raise hulla but she has never said this fact to any person. The cloth was removed

at Dhanbad. She has further stated that from Dhanbad bus stand, she went to Ranchi along with the accused persons and she was arrested from

Bokaro bus stand by the police along with Pradip and Guddu. But this fact was contradicted by the investigating officer (P.W. 8) Badeshwar Shukla,

this witness (P.W. 8) has categorically stated in paragraph- 25 of his cross-examination that Deepak and Guddu were arrested together. Pradip was

not there as Pradip has already been arrested on 18.04.2002. The victim (P.W. 4) has further stated during crossexamination that, she has never said

anything about Deepak nor Deepak has committed anything wrong with her. She has further stated that, while she was taken on three wheeler/ tempo

Guddu and Pradip were already sitting on the three wheeler/ tempo and thereafter at the shop of Deepak, where Deepak was also forcibly taken on

three wheeler/ tempo, as he was not willing to go. This witness has stated in paragraph- 29 of her cross-examination, that she could not say, when

Deepak was arrested. Learned counsel for the appellants has submitted that from the evidence of P.W. 4, who is the victim of the case, if the same is

compared with Exhibit- 5, i.e. the statement of victim under Section 164 Cr.P.C., vital contradictions are present in the case. In her statement under

Section 164 Cr.P.C., she has stated, that her marriage was solemnized with Deepak on 19.4.2002, whereas in her deposition in the court, as P.W. 4,

she has categorically stated, that her statement made under Section 164 Cr.P.C. was not correct rather, her marriage was forcibly solemnized with

Guddu Ansari. She has categorically stated, that there is no role of Deepak, as he was in his shop, when she was forcibly taken, he was not the

person, nor Deepak was willing to go. Thus, there is no evidence against Deepak to constitute an offence under Section 366 A of the Indian Penal

Code and he may be acquitted of the charge and conviction under Section 366 A of the Indian Penal Code.

Learned counsel for the State, Mr. Nehru Mahto, Additional Public Prosecutor has submitted that Deepak has been convicted by the learned Trial

Court but from perusal of the record, learned counsel for the State has also submitted, that victim (P.W. 4) has completely exonerated

Deepak.    This court is of the opinion that the statement recorded under Section 164 Cr.P.C. is not a substantial piece of evidence and as

such, considering the deposition of P.W. 4 (victim) comparing the same with statement under Section 164 Cr.P.C., this court is of the opinion, that

Deepak has been wrongly convicted by the learned Trial Court and as such, Deepak deserves to be acquitted from the charge and conviction under

Sections 366 A/ 34 of the Indian Penal Code.Â

Learned counsel for the appellants has further submitted that P.W. 1 is maternal grandmother of the victim. She has stated during her examination-

inchief, that Pradip gave signal to Pinki and subsequently stated that Pradip and Guddu gave signal to Pinki and thereafter Pinki came out of her

house. She has further stated that when Guddu and Pradip came out of the house, nobody from the house came out with them. She has categorically

stated, in paragraph 6 of her cross-examination, that she has not seen the kidnapping of Pinki by three persons. Learned counsel for the appellants has

further submitted, that on the basis of suspicion, the accused persons have been named by this witness, as this witness has categorically stated in

paragraph 6 of her cross-examination that she not seen any of the three person taking away and as such, the benefit of doubt may be granted in

favour of Pradip Ram.Â

Learned counsel for the State, Mr. Nehru Mahto, Additional Public Prosecutor has submitted, that P.W. 1, Maternal Grand-mother of the victim is

an eye-witness from whose house Pinki Kumari came out and subsequently she was taken on a three wheeler/ tempo and as such, whatever the

evidence she has adduced those are reliable and the learned Trial Court has rightly convicted the appellants under Sections 366 A/34 of the Indian

Penal Code, on the basis of the evidence of P.W. 1, Shanti Devi who is the maternal grandmother of victim.Â

P.W. 2 (father of the victim) is a hearsay witness and F.I.R. has been instituted, on the basis of the disclosure of P.W. 1 Shanti Devi. Learned

counsel for the appellant has submitted, that on the basis of suspicion, the First Information Report has been lodged against three persons. Learned

counsel for the appellants has further submitted, that it appears that the victim Pinki Kumari had some affair with Guddu Ansari (now dead) and as

such, the letter has been marked as Exhibit- ‘X’ for identification, as the same has been denied by the victim but the benefit of doubt must go in

favour of the appellant, Pradip Ram, who has no relation with either Guddu Ansari or Pinki Kumari.Â

 Learned counsel for the State, Mr. Nehru Mahto, Additional Public Prosecutor has further submitted that P.W. 2 is not an eye-witness to the

occurrence and he has filed a case on the basis of disclosure made by P.W. 1, Shanti Devi, from whose house Pinki was missing. Learned counsel for

the State has submitted that the learned Trial Court has rightly convicted the appellants on the basis of the evidence of P.W. 1 and P.W. 2.Â

 This court is of the opinion that P.W. 1 has categorically stated in paragraph 6 of her cross-examination, that she has not seen these three persons

kidnapping the girl and P.W. 2 is a hearsay witness and as such the conviction of Pradip Ram was not on the basis of the material available on

record.Â

Meena Devi (mother of the victim) has been examined as P.W. 3. She is a hearsay witness. Pinki Kumari has been examined as P.W. 4. She is

the victim, who has stated, that she was caught along with Guddu and Pradip at Bokaro bus stand, in paragraph 11 of her cross-examination but the

same is not factually correct as the investigating officer (P.W. 8) has stated that he has arrested Pradip, on 18.04.2002. Under such background the

presence of Pradip Ram along with victim and Guddu is highly doubtful, which entitled Pradip Ram for the benefit of doubt. Dipu Rajak (cousin of the

victim), Shankar Rajak (maternal uncle of the victim) are hearsay witnesses. The learned counsel for the appellant, has further submitted that Pradip

Ram is also entitled for the benefit of doubt, as the main accused, Guddu Ansari, against whom there is a consistent evidence has already died. These

appellants cannot be convicted, on the basis of surmises and conjectures and learned Trial Court without drawing the contradictions, in the evidence of

the prosecution witnesses have committed an error of record and gave a perverse finding of convicting the appellant (Pradip Ram) under Sections 366

A/34 of the Indian Penal Code.Â

 Learned counsel for the State Mr. Nehru Mahto, Additional Public Prosecutor has submitted, that since the victim was arrested along with Guddu

and there is a dispute in the evidence of P.W. 8 (the investigating officer) and the victim, Pinki Kumari (P.W. 4) with regard to other person, who was

arrested with Guddu. As per the victim- P.W. 4, she was along with Pradip Ram and Guddu Ansari, but as per the P.W. 8 (investigating officer),

Pradip Ram was arrested one day prior i.e. on 18.04.2004 and Pinki was with Guddu Ansari and Deepak. But this is not fatal for the prosecution case,

as the role played by these persons in kidnapping a minor girl and as such, the impugned judgment of conviction and order of sentence, does not

require interference by this Hon’ble Court.Â

Heard learned counsel for the appellants Lalji Sahay assisted by Mr. Hemant Chakraborty, Advocate and Mr. Nehru Mahto, learned Additional

Public Prosecutor for the State and also perused the entire record, the F.I.R., the framing of charge, evidence of nine witnesses, exhibits and the

statement of the appellants recorded under Section 313 Cr.P.C. This court is of the opinion that Guddu Ansari, against whom there is a consistent

evidence of kidnapping of Pinki Kumari has already died and his Cr. Appeal (SJ) No. 1520 of 2003 has been dismissed as abated. But from perusal of

the records, it appears that there is no consistency with respect to the involvement of Deepak Kumar Mahto @ Deepak Kumar Mistry and Pradip

Ram in the alleged offence. As per P.W. 4 (victim), she has completely exonerated Deepak by saying that when the victim along with Guddu Ansari

and Pradip Ram was on three wheeler/ tempo reached to the shop of Deepak Mistry, Deepak refused to go with them but was forcibly taken. Thus,

the case of prosecution against Deepak Kr. Mistry is completely without any cogent material, as such Deepak Kumar Mistry is acquitted by giving

benefit of doubt from the charge and conviction under Sections 366 A/34 of the Indian Penal Code passed by the learned Trial Court. This court has

also examined the evidence of P.W. 1 (Shanti Devi). She has stated that she is not an eye-witness to the occurrence. P.W. 2 being the informant and

father of the victim is a hearsay witness, who lodged the F.I.R. on the basis of disclosure made by Shanti Devi (P.W. 1). The other prosecution

witnesses such as P.W. 2, P.W. 3, P.W. 6 and P.W. 7 are hearsay witnesses, though they are related to the victim, Pinki Kumari. Victim has been

examined as P.W. 4. She has stated that police has arrested Guddu Ansari and Pradip Ram along with her, while they were at Bokaro bus stand but

the investigating officer (P.W. 8) has stated that Pradip Ram was already arrested by the police, on 18.04.2002 and as such, there is discrepancies in

the evidence of P.W. 4 and in absence of any cogent material, that minor Pinki Kumari was induced by Pradip Ram knowing that it is likely that she

will be, forced to illicit intercourse with another person. The conviction of the appellant Pradip Ram is also not sustainable in the eyes of law because

nowhere Pinki has said that Pradip Ram has forced her to seduce relationship with Guddu, rather the statement of P.W. 4 is that Guddu has forcibly

solemnized marriage with her and has established physical relationship with her. Under the aforesaid background this court is inclined to grant benefit

of doubt to Pradip Ram. The appellant, Pradip Ram is also acquitted of the charge and conviction under Sections 366 A/34 of the Indian Penal Code.

In the result, the judgment of conviction dated 26.07.2003 and order of sentence, dated 28.07.2003, passed by learned Additional District Sessions

Judge, Fast Track Court No. V, Dhanbad, in Sessions Case No. 356 of 2002 in connection with Baghmara (Mahuda) P.S. Case No. 68 of 2002,

consequent to G. R. Case No. 934/2002, is hereby set aside and in both the criminal appeals, the appellants are acquitted by giving benefit of

doubt.  Â

The appellants, who are on bail, are discharged from liability of their bail bonds.

Accordingly, the present criminal appeals are allowed.   Â

Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action. Â