Ramesh Bouri vs The State of Jharkhand

Prashant Kumar, J.—This appeal is directed against the judgment of conviction and order of sentence passed by Additional Sessions Judge IXth Dhanbad dated 07.10.2002 in S.T. No. 51 of 1989 whereby he convicted the appellant u/s 366 of the Indian Penal Code and sentenced him to undergo R.I. for five years and also directed to pay fine of Rs. 1000/-.

The case of prosecution as per the written report is that on 4.6.1988 at about 6.30 p.m., appellant, Ramesh Bouri, forcibly took away victim girl, Fekni Kumari. It is stated that the informant (mother of victim girl) raised alarm but none had come in rescue.

On the basis of aforesaid written report Jharia P.S. Case No. 355 of 1988 dated 5.6.1988 u/s 364 of the IPC instituted and police took up investigation. It appears that after completing the investigation, police submitted charge sheet against the appellant u/s 366 of the IPC. Accordingly, learned CJM, Dhanbad took cognizance of the offence. Thereafter, the case committed to the court of sessions as the offence u/s 366 of the IPC is exclusively triable by the court of sessions. It further appears that learned trial court framed charge against the appellant u/s 366 of the IPC and explained the same to the appellant in Hindi, to which he pleaded not guilty and claimed to be tried. Thereafter prosecution examined altogether seven witnesses in support of its case. The prosecution also brought on record injury report (Ext-1), Signature of doctor on the injury report (Ext. 1/1), Formal FIR (Ext.-2), Signature of O.C. on the formal FIR (Ext.-2/1).

After close of the case of prosecution appellant was examined u/s 313 Cr.P.C. in which his defence is of total denial and false implication. The learned court below after considering the evidence available on record convicted and sentenced the appellant as aforesaid, against that the present appeal filed.

It is submitted that the informant and her husband stated in their deposition that the FIR instituted on the date of occurrence, but from perusal of FIR it appears that the same was instituted on the next day i.e. on 5.6.1988. It is further submitted that I.O. has not been examined, which is fatal for the case of prosecution. It is further stated that from the perusal of the evidence of P.W. 2 the victim girl, it is clear that the appellant had not solemnized marriage with the victim nor he established sexual relation with her, thus no offence u/s 366 of the IPC is made out. Accordingly, it is submitted that the Impugned judgment of conviction and order of sentence cannot be sustained.

On the other hand, learned Additional P.P. submits that from the perusal of written report, the basis of formal FIR it is clear that the said written report was handed over to Officer-in-Charge, Jharia police Station on 4.6.1988. Thus, there is no discrepancy in the evidence of Informant and her husband in this respect. Moreover nothing has been brought on record to show that the informant and her family members had any personal reason to falsely implicate the appellant. Thus the delay in drawing of the FIR has of no consequence. It is further submitted that nothing has been elicited by the defence to impeach the credibility of the prosecution witnesses. It is submitted that due to non examination of I.O. no prejudice caused to the appellant, thus non examination of I.O. is not fatal. It is then submitted that P.W. 2 categorically stated that the appellant forcibly took her to a temple and kept her under the watch of two boys. She further deposed that appellant thereafter had gone to market for purchasing a Sari for marriage. This shows that the victim has been kidnapped and/or abducted with an intention to solemnize marriage against her will. Thus the offence u/s 366 of the I.P.C. is made out. Accordingly, it is submitted that there is no illegality and/or Irregularities in the impugned judgment.

Having heard the submission, I have gone through the record of the case and carefully scrutinized the evidence available on record. P.W. 1 Surji Devi is the informant and mother of the victim. She deposed that at the time of occurrence she was returning from a shop after purchasing K. Oil and when she reached near her house, she saw that the appellant was taking away her daughter Fekni towards the back of her house. She further deposed that they raised alarm but none had come. She further deposed that appellant put a cloth in the mouth of her daughter. She then stated that thereafter she informed her husband and gave information in the police station. She further stated that later on she came to know that appellant took her daughter in the temple for marriage. From perusal of the cross examination, I find that she remained consistent to her earlier statement made in the examination in chief as well as the written report. There is nothing in her cross examination on which her credibility can be doubted.

P.W. 2 Fekni @ Rekha Kumari is the victim girl. She stated that on the date of occurrence at about 7 p.m. while she was alone in her house, appellant came and forcibly took her to Shiv Mandir and kept her under the watch of two boys. She further deposed that thereafter appellant went to market for purchasing a sari for the purpose of marriage. However, during the absence of appellant, her father arrived in the temple, then she returned to her house. During the cross examination she stated that the accused appellant had not outraged her modesty nor he ill-treated her. There is nothing in her cross examination on which her testimony can be thrown over board.

P.W. 3 Jagdish Sao is the father of victim. He supported the case of prosecution and stated that his wife came and informed him about the occurrence. He also stated that thereafter they went to police station, where his wife gave information regarding the occurrence. He further deposed that later on he came to know that his daughter was kept in Shiv Temple, then he went there and found that her daughter was sitting there under the watch of two boys. On his arrival, his daughter disclosed that appellant took her forcibly for solemnizing marriage. He further deposed that later on he brought his daughter in the house. This witness has also been cross-examined but nothing has been elicited on which his credibility can be doubted.

P.W. 4 and 5 are tendered, P.W. 6 is doctor who examined the victim girl and gave opinion that age of victim girl was 15 years. She also stated that there is no sign of any injury in the private parts or any other external part of body. No foreign hair seen, the vaginal swab also does not contain any spermatozoa. P.W. 7 is an advocate clerk who formally proved FIR and signature of Officer-in-Charge on the said FIR.

Thus, from the perusal of the evidence available on record, I find that there is clear, consistent and cogent evidence on record to show that on the date of occurrence i.e. 4.6.1988 in the evening at 6.30 to 7 p.m. appellant forcibly kidnapped the victim girl from her house and took her to Shiv Temple for solemnizing marriage. There is also consistent evidence to show that victim girl was kept in the Shiv Temple under the watch of two boys and appellant had gone to market for purchasing Sari for solemnizing marriage. Thus the kidnapping of the victim girl, who is a minor, with intent to marry her has been proved by the prosecution. Hence the offence u/s 366 of the IPC made out. Section 366 of the IPC says that if a woman kidnapped and/or abducted with intent to marry against her then offence completes. For application Section 366 of the IPC, it is not necessary that marriage must be solemnized after kidnapping. As noticed above, in the instant case, the appellant kidnapped the victim girl and took her in the temple and from there went to market for purchasing Sari for marriage. This shows that the appellant kidnapped the victim girl with an intention to marry her. Thus, in my view, learned court below rightly come tot he conclusion that the case comes within the mischief of Section 366 of the IPC.

It is worth mentioning that written report shows that the information given to the police on 4.6.1988 in the evening itself but on the basis of aforesaid information, FIR was drawn on 5.6.1988 at 7.30 a.m. Thus, I find that there is no delay on the part of informant in giving information to the police regarding the occurrence. Thus, if police lodged FIR on the next day then the same was a lapse on the part of police and for that purpose the informant cannot be blamed. Moreover, nothing has been brought on record to show that the informant and/or her family members have any enmity or any other reason to falsely implicate the appellant. Thus, even if there is delay of about 12 hours in lodging of FIR, it cannot be concluded that the same has been lodged after due deliberation with a view to falsely implicate the appellant. Thus, I find no substance in the aforesaid submission of learned Counsel for the appellant.

It is true that in the instant case I.O. has not been examined but by that itself the prosecution case cannot be thrown overboard. It is well settled that if no prejudice has been caused to the defence, non examination of I.O. has no consequence on the case of prosecution. In the instant case, I noticed that nothing has been elicited from the prosecution witnesses to contradict them with their previous statements made before the police. Thus even if the I.O. has not been examined, no prejudice caused to the appellant.

In view of the clear, cogent and consistent evidence of the prosecution witnesses, I find that learned court below rightly convicted the appellant u/s 366 of the I.P.C. Thus, I find no reason to Interfere with the aforesaid judgment of conviction.

Now coming to the order of sentence passed by the court below, I find that the victim girl stated that the accused has not outraged her modesty, nor he ill treated her. It is also admitted fact that the marriage has not been solemnized. It further appears that during the trial appellant was remanded in judicial custody on 18.6.1988 and thereafter he was released, on bail on 23.2.1989. Thereafter again he was arrested and remanded to judicial custody on 2.7.1990 as his bail bond was canceled. Thereafter he was granted bail on 16.7.1990. Again he was arrested and sent to judicial custody on 20.7.2002. Thus, it appears that the appellant remained in custody for about more than one year in this case. Since the appellant had not outraged the modesty of victim girl nor he ill treated her and as this case is of the year 1988, in my view, the ends of justice will be served if appellant be sentenced to undergo imprisonment for the period already spent by him in jail custody. Accordingly, I modify the order of sentence passed by the learned court below and order that the appellant will undergo imprisonment for the period, already spent by him in custody during trial and thereafter.

In the result, with the aforesaid modification in the order of sentence, this appeal is dismissed.