Sohan Baski And Ors vs State Of Jharkhand

Heard learned counsels for the appellant Mr. P.C. Tripathy, Sr. Advocate assisted by Ms. Nazia Rashid and Mr. Pradeep Kr. Choubey, advocates (in Cr. Appeal (SJ) No. 955 of 2004) and Mr. Dilip Kr. Prasad, Mr. Piyush Krishna Choudhary and Mr. Manoj Kr. Jha for the appellant (in Cr. Appeal (SJ) No. 926 of 2004). Mr. Nehru Mahto, Additional Public Prosecutor and Mr. Vikash Kishore, Additional Public Prosecutors appearing for the State.

Sohan Baski and Gopal Besra have preferred separate appeals against the common judgment of conviction and order of sentence, both dated 20.05.2004 passed by the learned IVth Additional Sessions Judge (Fast Track Court 1), Godda in Sessions Case No. 28/2002, arising out of Pathargama P.S., Case No. 37/94, corresponding to G.R. Case No. 382/94, whereby both the appellants have been held guilty for the offence committed and punishable under sections 363/34, 366A/34, 323/34, 504/34 of the Indian Penal Code and awarded Rigorous Imprisonment for seven years and fine of Rs. 2,000/- for the offence committed and punishable u/s 363/34 of the Indian Penal Code, rigorous imprisonment for seven years and fine of Rs. 2000/- for the offence committed and punishable under section 366A/34 of the Indian Penal Code, rigorous Imprisonment for one year for the offence committed and punishable under section 323/34 of the Indian Penal Code and rigorous imprisonment for two years for the offence committed and punishable under section 504/34 of the Indian Penal Code. In case of default in payment of fine amount of Rs. 2000/- each by the accused/appellants, have to further undergo simple imprisonment for one month. All the sentences are directed to run concurrently.

Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, both the appellants preferred separate criminal appeals before this Hon'ble Court. Sohan Baski has preferred Criminal Appeal (SJ) No. 926 of 2004 and Gopal Besra has preferred Criminal Appeal (SJ) No. 955 of 2004.

The prosecution case is based upon the written report submitted by the Sanoti Murmu (P.W. 1), before the Officer-in-Charge, Pathargama Police Station, alleging therein that today i.e. on 12.04.1994, after appearing in matriculation examination conducted by Bihar School Examination Board, she was returning from the Pathargama College along with her Father Nimbai Murmu, mother Parvati Marandi, and brother Saheb Ram Murmu. As soon as she reached near Jagarnathpur Santhal Tola, suddenly two persons sitting on Rajdoot motor cycle bearing registration no. BHL 2870 came and tried to lift the informant and on protest made by the informant, she was abused and assaulted by the accused appellants. Her parents tried to save her but the appellants also assaulted and abused them and threatened to kill them. Thereafter, the accused persons took away the informant towards Lalmatiya. Sohan Baski was driving the motorcycle and Gopal Besra had caught hold of the informant and pressed her mouth but when the accused persons along with the victim were crossing the Pathargama Market, on seeing, police personnel, the informant raised brawl, then police followed the informant at Telni More and caught the accused persons along with their motorcycle along with victim-informant. The informant has disclosed about the incident. The motorcycle was driven by Sohan Baski and pillion rider was Gopal Besra. The informant alleged that the accused persons have lifted her and she has never seen these accused persons earlier.

On the basis of the written report of the informant, police has registered, Pathargama P.S. Case No. 37/94 dated 12.04.1994 against Sohan Baski and Gopal Besra under sections 341,363, 366A, 323/34 of the Indian Penal Code.

After Investigation, police has submitted charge sheet vide charge sheet No. 30/94 dated 31.05.1994 under Sections 341/34, 342/34, 363/34, 366A/34, 323/34, 504/34 of Indian Penal Code against both the accused persons namely Sohan Baski and Gopal Besra.

The cognizance of offence has been taken vide order dated 02.11.1994 and the case has been committed to the court of Sessions vide order dated 13.08.1996.

The charge has been framed against both the accused namely Sohan Baski and Gopal Besra under Sections 363/34, 366(A) /34, 323/34 and 504/34 of the Indian Penal Code on 19.02.2002 by the learned IVth Additional Sessions Judge, Godda, to which the appellants have pleaded that they are innocent and thus they were put under trial.

The prosecution has examined altogether 8 witnesses. Sanoti Murmu, victim and informant of the case has been examined as P.W.1, Nimbai Murmu, father of the victim has been examined as P.W. 2, Parvati Marandi, mother of the victim has been examined as P.W. 3, Saheb Ram Murmu, brother of the victim has been examined as P.W. 4. P.Ws. 1. 2, 3 and 4 are the eye witnesses to the occurrence.

Saheb Ram Soren has been examined as P.W. 5, Mangal Tudu has been examined as P.W. 6, Sona Murmu has been examined as P.W. 7 and Thakur Hembram, Village Gram Pradhan has been examined as P.W. 8 but these witnesses (P.W. 5, P.W. 6, P.W. 7 and P.W. 8) have been declared hostile by the prosecution as they have stated in their evidence that they do not know about the occurrence.

The prosecution has also adduced documentary evidence. The entire written report of the victim-cum-informant has been proved and marked as Exhibit-1, signature of Saheb Ram Murmu (P.W. 4) on the written report has been proved and marked as Exhibit- 1/1.

After closure of the prosecution evidence, the statement of accused persons have been recorded u/s 313 of Cr.P.C. on 09.12.2003, to which they have pleaded that they have been falsely implicated in this case and in support of their case they have adduced four defence witnesses namely Saheb Ram Hembram as D.W. 1, Baran Murmu as D.W. 2, Marang Besra as D.W. 3 and Ram Marandi as D.W. 4, but no defence document has been brought on record.

After hearing the counsels for the parties and on the basis of the material available on record, learned trial court has passed the impugned judgment of conviction against both the accused persons u/s 363/34, 366A/34, 323/34, 504/34 of Indian Penal Code.

Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence both the appellants have separately preferred criminal appeals and the same is being disposed of by common judgment as the entire evidence is common.

Heard, learned counsels for the appellants, Mr. P.C. Tripathy, Sr. Advocate assisted by Ms. Nazia Rashid and Mr. Pradeep Kr. Choubey, advocates in Cr. Appeal (SJ) No. 955 of 2004 and Mr. Dilip Kr. Prasad, Mr. Piyush Kr. Choudhary and Mr. Manoj Kr. Jha in Cr. Appeal (SJ) No. 926 of 2004. Learned counsels for the appellants have submitted that the impugned judgment of conviction and order of sentence is bad in law as the impugned judgment is perverse and contrary to the materials available on record. Learned counsels for the appellants have submitted that Investigating Officer of the case has not been examined. Thus, the appellants are seriously prejudiced in this case due to non-examination of the Investigating Officer, as no opportunity has been afforded to the accused to cross-examine the Investigating Officer to elucidate the truth to prove their innocence and false implication in the present case. Learned counsels for the appellants have submitted that the conviction of the appellants under section 366A/34 of the Indian Penal Code is not sustainable in the eyes of law, as there is no evidence on record that the victim was kidnapped by the appellants for the purpose of forced marriage or she will be forced or seduced to illicit intercourse and no evidence is adduced on record that her marriage was not solemnized with the accused person namely Gopal Besra as the accused has claimed that his marriage was solemnized with victim.

Learned counsels for the appellants have drawn the attention of this Court towards Sections 363 and 366 A of the Indian Penal Code which are reproduced herein under:-

"Section 363 : Punishment for kidnapping.- Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a terms which may extend to seven years, and shall also be liable to fine.

Classification of offence - The offence under this section is cognizable, bailable, non-compoundable and triable by Magistrate of the first class.

366 A : Procuration of minor girl.-Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.]"

Mr. Dilip Kumar Prasad, learned counsel for the appellant, in Cr. Appeal (SJ) No. 926 of 2004, has buttressed his argument by relying upon the judgment as reported in A.I.R. 2008 SC 288 Iqbal Vs. State of Kerala. By referring para 10 of the judgment, learned counsel has submitted that the appellant cannot be convicted under section 366A/34 of the Indian penal Code, which reads as follows:-

"Para 10 : In the instant case, the admitted case of the prosecution is that girl had left in the company of the accused of her own will and that she was not forced to sexual intercourse with any person other than the accused. The admitted case is that he had sexual intercourse with the accused for which, considering her age, conviction under Section 376 IPC has been maintained. Since the essential ingredient that the intercourse must be with a person other than the accused has not been established, Section 366 A has no application."

Learned counsels for the appellants have further submitted that conviction of the appellants under Section 504/34 of IPC is also not sustainable in the eyes of law and, therefore, the appellants may be acquitted from the charge and conviction under Sections 363/34, 366A/34, 323/34 and 504/34 of the Indian Penal Code. P.W. 6 Mangal Tudu, P.W. 7 Sona Murmu and P.W. 8 Thakur Hembram have categorically stated that the marriage of victim was solemnized with appellant Gopal Besra and they have attended their marriage ceremony. Learned counsels for the appellants have thus submitted that Gopal Besra being lawful guardian of the victim has not committed any offence and be acquitted from the charge under Sections 363/34, 366A/34, 323/34 and 504/34 of the Indian Penal Code by extending benefit of doubt.

Heard, learned counsels for the State, Mr. Nehru Mahto, Additional Public Prosecutor in Cr. Appeal (SJ) No. 955 of 2004 and Mr. Vikash Kishore, Additional Public Prosecutor in Cr. Appeal (SJ) No. 926 of 2004. Learned counsels for the State have vehemently argued the case and have submitted that the impugned judgment of conviction and order of sentence has been passed by the learned trial court on the basis of materials available on record. Learned counsels for the State have further submitted that the accused persons have kidnapped the victim which has been defined under Section 361 of the Indian Penal Code and the punishment for the same has been defined under section 363 of the Indian Penal Code. Learned counsels for the State have also drawn attention of this Court towards Section 366 A of the Indian Penal Code which defines procuration of minor girl as:

"Whoever, by any means whatsoever, induces any minor girl under the age of 18 years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may be extend to 10 years, and shall also be liable to fine."

Learned counsels for the State have further submitted that the victim is a minor girl as she has claimed in her evidence as P.W.1 that at the time of occurrence she was aged about 15 years. Learned counsels for the State have thus submitted that, the impugned judgment of conviction and order of sentence does not warrant any interference by this Hon'ble Court.

After hearing learned counsels for the appellants, Mr. P.C. Tripathy, Sr. Advocate assisted by Ms. Nazia Rashid and Mr. Pradeep Kr. Choubey, advocates in Cr. Appeal (SJ) No. 955 of 2004 and Mr. Dilip Kr. Prasad, Mr. Piyush Kr. Choudhary and Mr. Manoj Kr. Jha in Cr. Appeal (SJ) No. 926 of 2004 and learned counsels for the State, Mr. Nehru Mahto, Additional Public Prosecutor in Cr. Appeal (SJ) No. 955 of 2004 and Mr. Vikash Kishore, Additional Public Prosecutor in Cr. Appeal (SJ) No. 926 of 2004 and on perusal of the materials brought on record including the First Information Report, framing of charge, evidence of eight prosecution witnesses, two prosecution exhibits, statement of the appellants recorded under Section 313 CrPC. and four defence witnesses as well as the impugned judgment of conviction and order of sentence. This Court has perused the written report filed by Sanoti Murmu P.W. 1, which is the basis of the First Information Report. The informant Sanoti Murmu has supported her written report while examining in the court as P.W.1. Admittedly, the victim was aged about 15 years at the time of occurrence but no document has been brought on record to suggest that she was married to Gopal Besra. It is admitted case of the parties that the victim was lifted on a motor cycle bearing registration No. BHL 2870 driven by Sohan Baski and Gopal Besra was a pillion rider, who has lifted the victim and moved towards Lalmatiya, in the midway they were caught by the police and First Information Report was lodged. The defence witnesses have been examined by the defence is of no use as the same is not supporting the case of defence during their cross examination. Thus, this Court is of the view that the conviction of the appellants u/s 363/34 and under section 366 A/34 of the Indian Penal Code is rightly passed by the learned trial court, as the minor victim was lifted by the appellants. No plausible explanation have been given by the appellants in their statement recorded u/s 313 of the Cr.P.C. The judgment Iqbal (supra) relied by the defence is not applicable as facts are different, distinguishable and not admitted by the prosecution.

In the result, the impugned judgment of conviction and order of sentence dated 20.05.2004 passed by the learned IVth Additional Sessions Judge (F.T.C. No. 1), Godda, in connection with Sessions Case No. 28 of 2002 arising out of Pathargama P.S. Case No. 37/94, corresponding to G.R. Case No. 382/94, is hereby upheld and affirmed.

Accordingly, the present criminal appeals are dismissed.

The appellants, who are on bail, their bail bonds are cancelled to serve out rest of the sentence as awarded by the learned trial court by surrendering before the court below forthwith.

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