Gurucharan Kumhar vs The State of Jharkhand

Amareshwar Sahay, J.—This appeal has been filed from the jail by the convict Gurucharan Kumhar against the judgment of conviction and order of sentence dated 23.6.2004 and 28.6.2004 respectively whereby the Additional Sessions Judge, Fast Track Court-VIII, Jamshedpur in Sessions Trial No. 300 of 2002, has convicted the appellant for commission of the offence under Sections 366 and 376 of the Indian Penal Code and sentenced him to undergo R.I. for 7 years under each count and to pay a fine of Rs. 1000/- also under each count and in default of payment of fine to further undergo R.I. for six months.

The prosecution case, in short, is that the informant (P.W. 1) Bhuneshwari Gope reported to the police on 29.10.2001 that her daughter Sita Kumari was missing since 26.10.2001 and on 3.11.2001 she came to know that her daughter has been enticed away by Gurucharan Kumhar i.e. the appellant, who was a servant in the shop situated in front of her house. On receipt of the information that her daughter was taken away by the appellant to Purulia to his brother''s house, then she along with her brother in law Galok Bihari Gope and her son in law Balram Gope went in search of her daughter to Serandih Purulia on 4.11.2001, from where the victim girl Sita Kumari was recovered from the house of the brother of the appellant. On the basis of the information given by the informant first information report u/s 366A of the Indian Penal Code was registered and thereafter on completion of investigation charge sheet was submitted u/s 366A and 376 of the Indian Penal Code.

In order to establish the charges altogether 7 witnesses were examined on behalf of the prosecution; out of whom the informant Bhuneshwari Gope is P.W. 1, victim girl Sita Kumari is P.W. 7 and Dr. Anjali Srivastava is P.W. 6. However, P.W. 2, Madhai Gope, P.W. 3 Bela Devi, P.W. 4 Kisko Gope and P.W. 5 Vishwa Gope did not support the prosecution case and they were declared hostile. Investigating Officer of the case was not examined. The statement of the victim girl recorded u/s 164 of the Code of Criminal Procedure was marked as Ext. 3.

The learned trial Court on the basis of the evidence and materials on record held that the appellant committed offence under Sections 366 and 376 of the Indian Penal Code and thereby convicted and sentenced him as already noticed above.

Learned Counsel appearing for the appellant submitted that in her statement recorded u/s 164 of the Code of Criminal Procedure, the victim girl specifically stated that she had love affairs with the appellant since last two years. She left her house with the appellant at her own will and consent, since she wanted to live with the appellant as husband and wife and, therefore, it is apparent that the allegation that the appellant enticed away the victim girl or he committed rape upon her without her consent is totally false.

Learned Counsel further submitted that from the evidence of the Doctor P.W. 6 it appears that the victim girl was aged in between 15-16 years and as per the medical jurisprudence age can be presumed plus minus 2 years and, therefore, the victim girl can be said to be more than 16 years of age when she left her house with the appellant and as such no offence as alleged is made out.

In order to test the submissions of the learned Counsel for the appellant, I have minutely gone through the evidence of the prosecution witnesses and have found that the victim girl has made specific statement u/s 164 of the Code of Criminal Procedure that she had love affairs with the appellant since last 2 years and she left her house with the appellant at her own will and consent. She voluntarily went with the appellant to get married and they also got married in Golpahadi temple and thereafter lived together as husband and wife. However, the victim girl while making her statement during trial as P.W. 7 she stated that the appellant committed sexual intercourse with her without her consent, but she did not state in her statement that she was enticed away by the appellant against her will and consent.

From the evidence of the Doctor (P.W. 6), I find that the victim girl was found to be fully grown up and all characteristics of a grown up matured female were present. Therefore, the evidence of the victim girl made u/s 164 of the Cr.P.C. before the Magistrate cannot be totally brushed aside in view of the facts and circumstances of the present case. It may be that under some pressure she might have changed her statement in Court. These facts clearly raise some doubt on the veracity of the prosecution story and therefore the appellant is at least entitled to benefit of doubt.

In the result, I find merit in this appeal. Accordingly, this appeal is allowed and the conviction and sentence passed against the appellant under Sections 366 and 376 of the Indian Penal Code are hereby set aside. However, it appears that by now the appellant has already served out his sentence and as such, he must have been released by now. But in case, if he is still in custody, he is directed to be released forthwith if not wanted in any other case.

This appeal is allowed and the conviction and sentence passed against the appellant by the trial Court are hereby set aside.