Ranjeet Hembrum, son of Munshi Ram Hembrum vs State Of Jharkhand

Pradeep Kumar Srivastava, J

I have already heard the arguments of Mr. Gautam Kumar, learned counsel for the appellant and learned Spl.P.P. for the State.

The instant criminal appeal is directed against the judgment and order of conviction and sentence dated 22.07.2004, passed by learned Additional Sessions Judge, III, Rajmahal, in Sessions Case No.88 of 2002/Sessions Trial No. 267 of 2002, whereby and whereunder the appellant has been held guilty for the offence under Sections 366(A) & 376(1) of the I.P.C. and sentenced to undergo rigorous imprisonment for seven years for each offences. Both sentences were directed to run concurrently.

Factual Matrix

Factual matrix giving rise to this appeal is that victim girl aged about 13 years was a student of Class-VIII of High School, Tinpahar. It is alleged that on 05.11.2001, the victim girl went to school as usual, but did not return back after school hours. The informant, father of the victim, along with other family members made a hectic search and came to know that his daughter has been kidnapped by Ranjeet Hembrum with intention to perform marriage with her. The informant along with other family members went to Village Saharghati, native place of Ranjeet Hembrum, within Dumka District and found his daughter was present there. It is alleged that Ranjeet Hembrum and his family members started threatening to the informant and did not allow to go back his daughter from their house. Therefore, informant returned back to his home and lodged this case at Rajmahal Police Station on 16.11.2001 in writing.

As per written report of the informant, Rajmahal P.S. Case No. 180 of 2001, was registered for the offence under Section 366(A)/34 of the I.P.C. The police raided the house of Ranjeet Hembrum and recovered informant's daughter and after getting medical examination of the victim at Sadar Hospital, which revealed that sexual intercourse was committed with her, in the F.I.R. of this case, offence under Section 376 of the I.P.C. was also added.

After conclusion of investigation, the present appellant was charge-sheeted and another accused person was not sent for trial. After taking cognizance, the case was committed to the Court of Sessions where on denial of charge by the appellant the trial proceeded.

After conclusion of trial, the appellant was held guilty and sentence as stated above.

Submissions on behalf of appellant: -

Learned counsel for the appellant has argued that no offence under Section 366(A) of the I.P.C. is made out in this case, which consists in procuration of minor girl for the purposes of prostitution etc. At best the charge might have been framed for the offence under Section 366 of the I.P.C. So far offence under Section 376 of the I.P.C. is concerned, it is admitted case that the victim girl was a consenting party and under love affairs with the present appellant and she voluntarily accompanied with the appellant and started residing with him. Both the victim and the appellant were teen-ager at the time of occurrence and due to love affair, they were wholeheartedly desirous to solemnize marriage, but the family members of the victim girl have created hurdle by lodging the case. Therefore, no offence under Section 376 of the I.P.C. is also made out against the appellant. The appellant deserves acquittal from the charges leveled against him. Accordingly, impugned judgment and order of conviction and sentence of the appellant is fit to be set aside.

In the alternative, it is argued that the occurrence is of the year 2001, more than two and half decades have been expired. At the time of occurrence, the victim girl was 15-16 years old and the appellant was also 19-20 years old, both fell into love with each other and this case was lodged. Both the victim and the appellant have solemnized their marriage elsewhere and leading their happy conjugal life. Therefore, sending the appellant for serving the remaining period of sentence would create a family setback and no useful purpose may be solved. Therefore, considering the attending circumstances of the case, the period of imprisonment about 2 years 2 months already undergone by the appellant during trial and post conviction would meet the ends of justice in this case. Therefore, the sentence of R.I. of 5 years awarded by learned Trial Court may be reduced to the imprisonment already undergone.

Submissions on behalf of State: -

On the other hand, learned Spl.P.P. controverting the aforesaid contentions raised on behalf of appellant has submitted that the victim girl has consistently proved that she was abducted by the appellant and brought to his own home, where she was subjected to sexual intercourse. The intention of the accused was to solemnize marriage with her forcibly to which he could not succeed due to protest raised by her parents by instituting this case. The medical examination report of the victim also corroborates the story of commission of rape with the victim girl who was admittedly about 14-15 years old on the date of occurrence. Therefore, her consent is of no consequence in legal parlance. The appellant was major more than 19 years on the date of occurrence. There is no illegally or infirmity in the impugned judgment calling for any interference by way of this appeal, which is devoid of merit and fit to be dismissed.

Analysis, discussions and reasons:-

I have gone through the record of the case along with impugned judgment in the light of contentions raised on behalf of both sides.

The only point for consideration in this appeal is that "as to whether the impugned judgment of conviction and sentence of the appellant suffers from any serious error of law calling for any interference in this appeal?"

Before adverting to adjudicate upon above point, it is pertinent here to take brief resume of evidence adduced during trial.

The most important witness in this case is the victim girl herself who has been examined as P.W.-9. According to her evidence, on 05.11.2001 at about 10:00 A.M., she was present at Tinpahar School. At that time, class were not started hence, she was playing with her friend, in the meantime, Ranjeet Hembrum came there and told that "तुम्हारे पाकुड़ वाली बहन की तबियत ख़राब है and your parents have gone there by motorcycle and have also called you there" this witness declined to go with Ranjeet Hembrum, but in the meantime, he spread something obnoxious due to which she lost her normal sense and came under semiconscious state of mind. She was taken by the accused to Pakur by train. After reaching Pakur railway station, Ranjeet Hembrum instead of going to the house of sister of this witness brought her to Dumka by bus from where she was taken to village Saharghati, where she was kept in the house of the accused and subjected to sexual intercourse in the night, without her consent, under threat of life. She has further deposed that later on, her father and relatives reached at the house of accused, but they did not allow her to go back. Hence, her father informed to police and she was recovered by police from the house of accused and police also got her medical examination at Sadar Hospital, Sahibganj and at Dhanbad.

In her cross-examination, she has denied any love affair with the accused. She has also denied that she got married at Baskinath Temple with the accused and thereafter, started residing with accused as husband and wife. Rather she states that she was forcibly taken by the accused from her school to his own village, where she was raped. In the course of cross-examination this witness was shown, a love letter addressed to Ranjeet Hembrum written in her own handwriting and she accepted that the said letter was written by her and bears her signature in her handwriting, which has been marked as Exhibit-A. She also admits that this letter was handed over to Ranjeet Hembrum. She has denied suggestion of defence that at the instance of her father she is giving false evidence implicating the accused in this case.

P.W.-11 Dr. Sunita Prasad has examined the victim girl on 14.12.2001, and opined that no internal or external injury was found including the private part of the victim. The hymen was old ruptured. Vaginal swab examination shows that no spermatozoa were found. It was also opined that for radiological examination, the victim girl should be referred to Dhanbad Medical College for determination of her age. It seems that victim girl was accustomed to sexual intercourse. She has proved her report marked as Exhibit-5.

P.W.-1 Parul Devi @ Pare is the mother of the victim. She stated that her minor daughter had gone to school, but did not return home. Thereafter, her husband and other family members searched for the minor girl and came to know that the present appellant had kidnapped her. After that, her husband along with other family members went to house of accused, but the victim girl was not returned. Subsequently, a police case was lodged.

P.W.-7 Fani Parmanik is the informant-cum-father of the victim, who has proved the contents of his written report and submitted that his minor daughter aged about 15 years was kidnapped by the accused and when after receiving information, he went to the house of accused, he was threatened of dire consequences, then he lodged F.I.R. His daughter was recovered from the house of accused by the police. After recovery of his daughter, he came to know that she was subjected to rape by the accused who desired to solemnize marriage with her. He has proved his written report marked as Exhibit-1.

P.W.-2 Rinki Kumari is elder sister of the victim girl. She is hearsay witness of the occurrence, which was revealed to her by her parents.

P.W.-3 Ashok Parmanik is son-in-law of the informant, who has also came to know about the occurrence from parents of the victim girl and the victim girl herself.

P.W.-4 Gopal Parmanik is also relative of informant who runs a saloon near Tinpahar railway station. According to his evidence, on the date of occurrence at about 09:30 A.M., Ranjeet Hembrum had visited his saloon for shaving and victim girl was also roaming outside of the saloon. In the evening, he came to know that Ranjeet Hembrum has kidnapped the victim girl.

P.W.-5 Santoshi Bhandari is Bhagina of the informant. He is also hearsay witness and came to know from the father of the victim girl that she was missing and did not return from the school.

P.W.-6 Kalachand Bhandari is also hearsay witness who after coming to know about taking of the victim girl by Ranjeet Hembrum went to the house of accused along with father of victim girl and other relatives and found victim girl was there.

P.W.-8 Satendra Choudhary is the I.O. of this case. He has proved the formal F.I.R. with endorsement as Exhibit-2 & 3, respectively. After taking charge of investigation, he went to the house of accused from where the victim girl was recovered along with accused with the help of police of Dumka District. He brought the arrested accused to police station and victim girl was sent to Sadar Hospital for medical examination. Thereafter, Medical College, Dhanbad for determination of her age. He has also proved a school certificate of the victim girl issued by the Headmaster of Tinpahar High School as Exhibit-4.

In his cross examination, this witness admits that the accused has stated before him that there was love affair with the victim girl and he had married with her consent. The victim girl also disclosed that she loves Ranjeet Hembrum and had gone with him of her own sweet will and solemnized marriage with him in a temple. Since then she was living at the house of Ranjeet Hembrum as husband and wife.

P.W.-10 John Tudu is village Pradhan of Harnadanga Village. This witness has also proved that there was love affair between victim girl and accused and both eloped with their consent, but due to protest by father of the victim (informant) against this marriage due to boy belonging to Santhal Caste, the marriage was not solemnized rather this case was instituted.

From the aforesaid evidence of the witnesses, particularly the victim girl herself, it is crystal clear that the victim girl was not induced or seduced by the appellant rather of her own accord due to love affair (as is evident from Exhibit-A, admitted by the victim girl), proceeded with the accused and after solemnizing marriage at Baskinath Temple, started residing with him as husband and wife. Admittedly, the date of birth of the victim, as per Exhibit-4 (School Certificate) is 12.09.1987 and the alleged date of occurrence is 05.11.2001, which comes about more than 14 years, but no ossification test of the victim girl was obtained during the investigation and has not been brought on record. The totality of evidence of the victim girl, in the light of materials revealed in her cross-examination, clearly show that there was love affair between victim girl and the appellant. Since, the victim was below 18 years of age and the appellant was major more than 18 years approx 20-21 years old and in pretext of illness of sister of the victim, the victim accompanied with the accused and instead of taking to her sister's house brought his own village. Therefore, the appellant has enticed the victim girl and taken out of the custody of her lawful guardian, which is an offence under Section 363 of the I.P.C. The intention of the accused was to perform marriage with the victim girl therefore, the offence under Section 366 of the I.P.C. is also proved in this case, although, the charge was framed under Section 366 A of the I.P.C. So far charge under Section 376 of the I.P.C. is concerned, the victim girl was below 16 years of age, hence, as per definition of offence of rape the sexual intercourse with or without consent of the victim, if she is below 16 years comes within the ambit of rape, therefore, the appellant could not escape from liability of committing rape with the victim girl.

In view of above discussion and reasons, I find that the learned Trial Court has committed no error of law while holding the appellant guilty for the offences charged against him except instead of convicting the appellant under Section 366 of the I.P.C., the learned Trial Court has convicted the appellant under Section 366 A of the I.P.C. Therefore, the conviction of the appellant under Section 366 A of the I.P.C. is alter to under Section 366 of the I.P.C.

The most crucial aspect of this case is that both the victim girl and the appellant were teenager at the time of occurrence and roamed in the world of fantasy and passion without caring the legal consequences of their acts. The custom and narrow mind approach of the rustic villagers, the lovers could not fulfill their aspirations and dragged to this case, although, rigidity of law came into way resulting in conviction of the appellant. It is apparent that no force was used while kidnapping/abducting the victim. In the aforementioned surrounding circumstances of the case, while sentencing the appellant several factors ought to be taken into account at the time of sentencing.

The moot question now remains about quantum of sentence may be reduced in the facts and circumstances of this case?

In the case of Anversinh @ Kiransinh Fatesinh Zala versus State of Gujarat (2021) 3 SCC 12, dealing with a situation similar to the facts and circumstances of the present case, the Hon'ble Apex Court expressed its opinion that the need of proportionality during sentencing must be the re-emphasized as earlier held by this Court in State of M.P. versus Surendra Singh (2015) 1 SCC 222 as under:-

"13. We again reiterate in this case that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The court must not only keep in view the rights of the victim of the crime, but also the society at large while considering the imposition of appropriate punishment. Meagre sentence imposed solely on account of lapse of time without considering the degree of the offence will be counter- productive in the long run and against the interest of the society."

It was further held that:-

True it is that there cannot be any mechanical reduction of sentence unless all relevant factors have been weighed and whereupon, the Court finds it to be a case of gross injustice, hardship, or palpably capricious, award of an unreasonable sentence. Applying such considerations to the peculiar facts and findings returned in the case in hand, we are of the considered opinion that the quantum of sentence awarded to the appellant deserves to be revisited.

We say so for the following reasons:-

(i) It is apparent that no force had been used in the act of kidnapping. There was no pre-planning, use to any weapon or any vulgar motive. Although, the offence as defined under Sections 359 and 361 of the I.P.C. has no ingredient necessitating any use of force or establishing any oblique intentions, nevertheless the mildness of the crime ought to be taken into account at the stage of sentencing.

(ii) Although, not a determinative factor, the young age of the accused at the time of the incident cannot be overlooked. As mentioned earlier, the appellant was at the precipice of majority (19 years) at the time of the offence and admittedly it was a case of a love affair. His actions at such a young and impressionable age, therefore, ought to be treated with hope for reform, and not punitively.

(iii) Owing to a protracted trial and delays at different levels, more than 22 years have passed since the incident. Both the victim and the appellant are now in their 40's are productive members of society and have settled down in life with their respective spouses and families. It therefore, might not further the ends of justice to relegate the appellant back to jail at this stage.

(iv) The present crime was one of passion. No other charges, antecedents, or crimes either before 1998 or since then, have been brought to our notice. The appellant has been rehabilitated and is now leading a normal life. The possibility of recidivism is therefore extremely low.

Given these multiple unique circumstances, we are of the opinion that the sentence of five years' rigorous imprisonment awarded by the courts below is disproportionate to the facts of this case. The concerns of both the society and the victim can be respected, and the twin principles of deterrence and correction would be served by reducing the appellant's sentence to the period of incarceration already undergone by him.

Applying to the aforesaid guideline factors to be taken into account, while sentencing in the factual background of this case, it is evident that both the victim and accused were teenager and due to love affection and passion driven by the age factor transgress the mandate of law without caring any consequence as to what they are doing is severely punishable offence. Both were student, fell under love and crossed all limits. The prosecution started in the year 2001, culminated into conviction of appellant by the Trial Court in 2004, but this appeal before the Hon'ble High Court remain pending for 22 years. In this long gap both the parties solemnized their marriage and leading a happy conjugal life with their spouse. The appellant has also no criminal antecedent either prior to the occurrence of this case or subsequent to the conviction and till date. The appellant during pendency of the trial and post conviction remained in custody for 2 years 2 months now sending him again to sustain the remaining period of sentence does not appear to serve the cause of justice as a deterrence rather a reformative theory of punishment must be adopted to meet the ends of justice. Therefore, I am of the considered view that conviction of the appellant does not require to be interfered with which is hereby upheld with the certain variations as stated above, but so far sentence of appellant is concerned, the same is reduced from R.I. of 7 years awarded to him by learned Trial Court to the imprisonment already undergone by him and set at liberty.

Accordingly, this appeal is dismissed on merits with modification in conviction and sentence as stated above.

Appellant is on bail, as such he is discharged from the liability of bail bond and sureties are also discharged.

Pending I.A(s), if any, is also disposed of accordingly.

Let a copy of this judgment along with Trial Court Record be sent back to the court concerned for information and needful.