Jharkhand High Court
Murari Rai Son Of Baldev Rai vs The State Of Jharkhand on 4 March, 2025
Cr. Appeal (S.J.) No. 327 of 2006
[Against the judgment and order of conviction 28.02.2006 and sentence dated
03.03.2006 passed by Additional Sessions Judge, Fast Track Court No. II,
Deoghar]
1. Murari Rai son of Baldev Rai,
2. Prabhkar Das son of Chetu Das
Both resident of village-Charghara, P.O. & P.S. Sarawan, District-
Deoghar. .... Appellant s
Versus
The State of Jharkhand ..... Respondent
With
Cr. Revision No. 332 of 2006
Haribol Mahto, Son of Late Gopal Mahto, resident of Village- Charghara,
P.S. Sarwan, Sub Division and District-Deoghar. ..... Petitioner
Versus
1. The State of Jharkhand.
2. Prabhakar Das.
3. Diwakar Das.
Both Sons of Chetu Das.
4. Murari Rai, Son of Baldeo Rai.
5. Baldeo Rai, son of late Teju Rai,
6. Kunti Devi, Wife of Baldeo Rai.
7. Nirmal Pujhar, Son of Potam Pujhar.
8. Sugiya Devi, wife of late Chetu Das.
All residents of Sakim, Chardhawa, P.S. Sankha, District-Deoghar.
..... Respondents
PRESENT
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
--------
For the Appellants : Mr. Arvind Kr. Choudhary, Adv.
(In Cr. Appeal (S.J.) No. 327 of 2006)
For the Respondent : Mrs. Vandana Bharti, A.P.P.
(In Cr. Appeal (S.J.) No. 327 of 2006)
For the Petitioner : None.
For the Resp. State : Mr. Arup Kr. Dey, A.P.P.
For the Resp Nos. 2-9 : Mr. Arvind Kr. Choudhary, Adv.
(In Cr. Revision (S.J.) No. 332 of 2006)
Cr. Appeal (S.J.) No. 327 of 2006
Page | 1
---------
JUDGMENT
C.A.V. On 07.12.2024 Pronounced On: 04 /03 /2025
Per- Pradeep Kumar Srivastava, J.
Heard learned counsel for appellants Mr. Arvind Kr. Choudhary as
well as learned Additional Public Prosecutor appearing for the State Mrs.
Vandana Bharti.
2. Criminal Appeal No. 327 of 2006 is directed against the judgment and
order of conviction and sentence dated 28.02.2006 and 03.03.2006
passed by Additional Sessions Judge, Fast Track Court No. II, Deoghar
(hereinafter call it as impugned order), whereby and whereunder, the
appellants have been convicted for committing offence under Section
363 of the I.P.C. and sentenced to undergo R.I. for five years along with
fine of Rs.5000/- each with default stipulation.
3. Against the same judgment, Criminal Revision No. 332 of 2006 has also
been preferred by the informant which was admitted for hearing along
with Cr. Appeal No. 327 of 2006. In the Criminal Revision, there is
prayer for setting aside the impugned judgment and order dated
28.02.2006 to the extent of acquittal of opposite party nos. 2 – 8 and
acquittal of present appellants for the offence under Section 366A and
120B of the I.P.C. which has been proved beyond doubt.
FACTUAL MATRIX
4. Factual matrix giving rise to this appeal is that on 28.12.1997 at about
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06:00 PM informant’s daughter aged about 15 years (victim girl) went to
discharge nature’s call outside the house, but she did not return till 07:00
PM, then his father Haribol Mahto (Informant) and other family
members started searching her in the neighbourhood. The present
appellants used to visit his daughter frequently and talk her at the time of
watching television in his house and on the basis of suspicion present
appellants and other family members namely Diwakar Das, Sibiya Devi,
Baldeo Rai, Kanti Devi and Nirmal Pujhar were made accused in the
F.I.R. which was registered for the offence under Sections 363, 366A and
120B of the I.P.C.
5. After completion of investigation, charge-sheet was submitted against
seven accused persons for the aforesaid offences and after completion of
trial other accused persons were acquitted from the charges by giving
benefit of doubt, but present two appellants were held guilty and
sentenced for the offence under Section 363 of the I.P.C. and sentenced
to undergo R.I. for five years along with Rs.5,000/- each with default
stipulation which has been assailed in this appeal.
6. Learned counsel for the appellants has submitted that the appellants have
been erroneously convicted without cogent and reliable evidence. There
is no evidence against the appellants that they have enticed or taken
away the minor daughter of the informant. There are several self-
contradictory evidence of witnesses. It has rightly been disbelieved by
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the concerned trail court and the appellants were acquitted under
Sections 366A and 120B of the I.P.C., but without framing any charge,
appellants have been convicted for the offence under Section 363 of the
I.P.C. which is not sustainable under law and fit to be set aside.
In the alternative, it is submitted that both the appellants have
surrendered before the Judicial Magistrate, First Class on 27.02.1998 and
vide order dated 29.01.1999 passed in Cr. Miscellaneous Petition No.
24779 of 1998 by the Honb’le Patna High Court they were directed to be
released by furnishing the bail bond and were released on 03.02.1999
bail as such remained in custody about one year and have sufficiently
been punished. Appellants are also ready to deposit the fine amount
awarded by the concerned trial court if not so deposited. Hence, sentence
of the appellants may be reduced to imprisonment already undergone.
7. In connection with Criminal Revision No. 332 of 2006, it is submitted on
behalf of the appellants, opposite party nos. 2-8 that the learned trial
court has very wisely and aptly taken into consideration all the aspects of
the case and rightly acquitted the opposite party nos. 2-8 from any of the
charges because there was no attribution of any specific overt act against
them and being family members of the main accused, they were falsely
dragged in this case. The informant himself has filed the criminal
revision challenging the order, but State did not file any appeal against
the acquittal of the opposite party nos.2-8. In that view of the matter no
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interference is required in the impugned judgment and order of acquittal
of opposite party nos.2-8 and its revision is fit to be dismissed.
8. On the other hand, learned A.P.P. appearing for the State assisted with
learned counsel for the informant-cum-revisionist has submitted that the
conviction and sentence of the appellants is not adequate. The appellants
have been acquitted from the charges levelled against the appellants
under Sections 366A and 120B of the I.P.C. without any reasons which is
beyond the weight of evidence available on record. Similarly in criminal
revision no. 332 of 2006. Opposite party nos. 2-8 have been given clean
chit and acquitted from the charges beyond the weight of evidence
available on record. The victim girl herself has stated in specific terms
showing complicity of the above accused persons also. Therefore,
appropriate order may be passed against opposite party nos.2-8 of the
criminal revision 332 of 2006 and the present appellant should also be
held guilty for the offence under Sections 366 and 120-B of the I.P.C.
9. For better appreciation of rival contentions of the parties, brief appraisal
of evidence led by the prosecution is discussed here under:-
The most important witness of the case is the victim girl herself who
has been examined as P.W.11. According to his evidence, on 28.12.1997
at about 06:00 PM, she had gone to discharge nature’s call outside the
house in her village and when she was returning, then a person flashed
torch on her body, then she saw, it was Murari Rai, Prabhakar Das
Cr. Appeal (S.J.) No. 327 of 2006
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(Appellants) and Shankar Yadav. She has further alleged that Murari Raiand Prabhar Das caught hold of her and putting cloth at the point of
pistol dragged her to some distance near a tree where Sudhir Das,
Jaiprakash Das, Pappu Das and his mother along with Diwakar Das,
Goverdhan Das, Baldeo Das, Nirmal Pujhar were also sitting. She has
further stated that Sudhir Das ordered to Prabhar Das to take this witness
and he will see the consequences. Jaiprakash Das also said the same
thing by providing money assistance. She was also threatened to proceed
with Prabhakar Das otherwise her brother and father will be killed.
Thereafter, she was taken to Madhupur where she was boarded on a train
and brought to Howrah, where she was kept in a house about three days
and pappu Das also came there and gave her ante-dated letter and
suggested to copy the same, then she wrote the letter. She has further
stated that after one and half month, father of Prabhakar Das also arrived
there and was desired to take her to his own house, but she declined. It is
further stated that on the same day her father, uncle and other family
members arrived at about 01:00 to 02:00 PM at Kolkata where she was
residing. On demand of rent of the house by the land lord, father of
Prabhakar Das paid the rent, then she returned with her father and at first
she was brought to Sarawan police station, thereafter, Civil Court,
Deoghar and was also sent for medical examination. Her statement was
also recorded before the learned Magistrate and she has proved her
Cr. Appeal (S.J.) No. 327 of 2006
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signature on her statement under Section 164 Cr.P.C. as Exhibit-7.In her cross-examination, she has stated that accused persons are her
co-villagers. She also admitted that prior to occurrence, her marriage was
solemnized at village Madhuban Dahua with one Mantu Yadav. She also
admits that she lived at Kolkata with the accused Prabhakar Das about
one and half month and accused persons were working throughout the
day remaining outside of the house and in the meantime, she used to talk
with the landlord, but she neither complained anything to the landlord
nor gave any letter to be sent to her father. She has also not sent letter to
her husband Mantu Yadav and she also admits that she has not been
divorced by her husband. She further admits that her second marriage
was solemnized with one Dr. Chandrakant Yadav of village Lodhratri.
This witness also admits that at the time of occurrence, she was
accompanied with her sister Mamta (P.W.1) and one Sanju who has left
the place of occurrence after five minutes. She also admits that she did
not raise any alarm when the accused persons caught hold of her and
took her towards the palm tree. She was not dragged or pulled out by the
accused persons rather she accompanied with them on foot towards
Madhupur and at that time due to fear, she did not raise any alarm. She
has denied the suggestion of defence that her father lodged this false
case. She has also denied that she left her own husband because she was
not liking him and on her on accord she eloped with accused to Kolkata
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and she is giving the false evidence against the accused persons.P.W. 8 Haribol Mahato:- is the father of the victim girl-cum-informant
of the case. Admittedly, he is not an eye witness of the occurrence rather
when his daughter did not return till 7 PM, then he started searching her
and on the basis of suspicion that Prabhakar Das and Murari Rai who
usually visit his home to watch television and were in talking terms with
his minor daughter, had enticed and taken her away for the purpose of
solemnizing marriage with her. Thereafter, he lodged report which was
scribed by Jay Prakash Mahto (Exhibit-4). According to him, he got
knowledge on 18.02.1998 that his daughter is at Kolkata from one Shiv
Shankar Yadav. Thereafter, he along with his cousin Jai Prakash Mahto
and Shiv Shankar Yadav went to Kolkata at given place on 19.02.1998
where Prabhakar Das, Murari Rai and his daughter were present, then he
along with her daughter returned to his house and went to Sarwan police
station and produced his daughter for medical check-up which was
conducted and her statement under Section 164 of the Cr.P.C. was
recorded before the Judicial Magistrate.
In his cross-examination, this witness admits that prior to the
occurrence, his daughter was married with one Mantu Yadav, but divorce
took place in accordance with society norms and no divorce case was
filed before the court.
P.W. 1 Mamta Devi also claims that she along with the victim girl and
Cr. Appeal (S.J.) No. 327 of 2006
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one Sanju had gone towards pond in the evening for discharging nature’scall from where Murari Rai, Prabhakar Das took the victim girl towards
southern side. They were threatened by the accused persons against
disclosing this fact to anyone in the village.
In her cross-examination, she admits that after returning, she raised
alarm, but none of the villagers came there. She also met with Haribol
Mahto (informant), but did not disclose him anything and her statement
was recorded at the police station after three days.
P.W.2 Harish Chandra Mahto has also claimed that he came to know
about the occurrence at the same day from Mamta Kumari (P.W.1). This
witness is uncle of the victim girl, but states that he did not informed his
brother about the occurrence nor he went in search of victim girl and
after three days of occurrence his statement was taken in police station
where he disclosed that he came to know about the occurrence upon
hulla raised by Mamta Kumari (P.W.1).
P.W.3 Anandi Devi is the mother of the victim girl. According to her
evidence, on the date of occurrence in the evening, she came to know
from one Saraswati Devi that his daughter who had gone for discharging
nature’s call along with Sanju and Mamta Kumari has been kidnapped by
Prabhakar Das, Murari Rai and Shankar Yadav. Thereafter, her husband
and brother-in-law started searching her daughter and came to know that
the accused persons under conspiracy have kidnapped her daughter.
Cr. Appeal (S.J.) No. 327 of 2006
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In her cross-examination, she admits that the victim girl was marriedwith Dr. Chandrakant Yadav of village Lodhratri where she is residing at
present.
P.W.4 Meera Devi has also claimed to heard about the occurrence from
Saraswati Devi and Anandi Devi and has no personal knowledge of the
occurrence.
P.W.6 Dashrath Mahto this witness is also not witness of fact rather a
letter was seized by the police from the house of informant allegedly
written by the victim girl and he is witness of seizure list which is
marked as Exhibit (i) and his signature as exhibit (ii).
P.W.7 Indramani Sahi is an independent witness, but hearsay from
villagers and came to know that informant’s daughter has been
kidnapped by the accused persons. He is also a witness of jimmanama
exhibit (iii) prepared at police station.
P.W. 9 Dharmendra Yadav is also a seizure list witness of a letter
seized from the house of the informant which has already been marked
as exhibit-i.
P.W.10 Dr. Gita Mishra is a member of medical board constituted to
medically examine the victim girl and opined that no internal or external
injury was found, hymen old healed. At present, no injury was found on
the body and as per the radiological report the age of victim girl is
between 17 – 19 years.
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P.W. 12 Jaidev Mahto is the school teacher of School Badhni who hasproved the admission register of the year 1990-1994 and proved that he
cannot say that the victim girl is the student of that school or not.
In the admission register of 1993 at Sr. No. 14, there is name of the
victim girl along with the name of her father (informant) with residential
address where her date of birth was mentioned as 30.03.1983.
P.W. 13 Ramadhin Sahu is the headmaster of Badhni Medical Scholl
who has also proved the admission register of 1993 where at Sr. No.14,
the admission of victim girl was taken which has marked as Exhibit-8
and the signature of teacher as Exhibit (8/1).
10. Apart from above oral testimony of witnesses, following documentary
evidence also adduced by prosecution:-
Exhibit:- 1 Letter dated 09.03.2004 Exhibit:- 2 Seizure List. Exhibit:-3 Jimmanama Exhibit:-4 Fardbeyan and signature of the informant Exhibit:-5 Presentation Letter
Exhibit:-2/1 Signature of witness Dharmendra Mahto on Seizure List.
Exhibit:-2/2 Signature of witness Haribol Mahto on the seizure list.
Exhibit:-6 Carbon copy of wound report of the victim.
Exhibit:-7 Statement (164 of the Cr.P.C) of Sangeeta Yadav dated
21.02.1998.
Cr. Appeal (S.J.) No. 327 of 2006
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Exhibit:-8 Signature of Headmaster of Middle School, Badhni
admission of the year 1993 at Sr. No.14.
Exhibit:-8/1 Signature of teacher of Middle School, Badhni admission
of the year 1993 at Sr. 14.
11. For better appreciation of the case, relevant provision of the I.P.C. is
extracted as under:-
Section 120A. Definition of criminal conspiracy.–
When two or more persons agree to do, or cause
to be done,–(1)an illegal act, or(2)an act which
is not illegal by illegal means, such an agree-
ment is designated a criminal conspiracy:
Provided that no agreement except an agreement
to commit an offence shall amount to a criminal
conspiracy unless some act besides the
agreement is done by one or more parties to such
agreement in pursuance thereof.
Section 120B. Punishment of criminal conspiracy.–
“(1) Whoever is a party to a criminal conspiracy
to commit an offence punishable with death,
imprisonment for life or rigorous imprisonment
for a term of two years or upwards, shall, where
Cr. Appeal (S.J.) No. 327 of 2006
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no express provision is made in this Code for thepunishment of such a conspiracy, be punished in
the same manner as if he had abetted such
offence.
(2) Whoever is a party to a criminal conspiracy
other than a criminal conspiracy to commit an
offence punishable as aforesaid shall be
punished with imprisonment of either description
for a term not exceeding six months, or with fine
or with both”.
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 term
which may extend to seven years, and shall also
be liable to fine”.
Definition of Section 366A:- Procuration of minor girl:-
“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
Cr. Appeal (S.J.) No. 327 of 2006
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or seduced to illicit intercourse with anotherperson, shall be punishable with imprisonment
which may extend to ten years, and shall also be
liable to fine”
12. From the provision of Section 366A of the I.P.C., it emerges that in
order to bring home the charge for the offence under Section 366A,
the prosecution is required to prove through cogent and reliable
evidence that a victim girl under the age of 18 years was induced to go
from one place to another with the intention that such girl may be
forced or seduced to have illicit intercourse with another person.
13. In the instant case, the evidence available on record as dealt above
does not reveal any such intention of the accused/appellants. The
factum of illicit intercourse either by the accused persons or by any
other person has also not been proved by the victim girl. The
deposition of victim girl (P.W. 11) gives clear shape and true picture as
regards the incident which happened. The main motto of both of them
was to solemnize marriage with the victim girl.
14. Thus, the essence for the offence under Section 366A of the I.P.C. is
absolutely lacking in this case. Therefore, the conviction for the
offence under Section 366A of the I.P.C. is not warranted under law
Hence, the learned trial court has rightly acquitted the appellant for the
offence punishable under Section 366A of the I.P.C.
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15. So far, the acquittal of the appellants of Criminal Appeal No. 327 of
2006 under Section 120B of the I.P.C. is concerned. None of the
witnesses in their evidences has discussed above proved that there was
a prior agreement meeting of minds amongst the accused for
commission of offence as proved. Hence, the trial court has rightly
acquitted from the charges under Section 120B of the I.P.C.
However, it cannot be ignored from consideration at this juncture,
that on the date of occurrence, the victim girl was minor below the age
of 18 years and she was taken away by the accused/appellants without
consent of her guardian. In the instant case, the consent of the victim
has no relevance at all in legal perspective. Therefore, the ingredients
of Section 363 of the I.P.C. is well proved in this case against the
appellant which involve an act of kidnapping of any person from the
lawful guardianship as defined under Section 361 of the I.P.C., where
it is stated that whoever taken or enticed any minor under the age of
16 years, if a male or under 18 years if a female or any person of
unsound mind, out of the keeping of lawful guardian of such minor or
person of unsound mind, without the consent of such guardian is
stated to kidnapping such person.
16. In view of the aforesaid discussions and reason, the conviction of the
appellants for the offence under Section 363 of the I.P.C. is upheld.
Cr. Appeal (S.J.) No. 327 of 2006
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17. It further transpires that the appellants have also remained in custody
during trial of the case for more than one year. Considering the offence
committed by the appellants and the circumstances under which the
same was committed and also in view of the fact that more than two
decades has been lapsed from the date of alleged commission of
offence, I am of the firm view that imprisonment already undergone
by the appellants are sufficient punishment to meet the ends of justice
in this case. Therefore, punishment for the offence under Section 363
of the I.P.C. is also sentenced to imprisonment already undergone. In
view of the above, this appeal is dismissed on merits with
modification in sentence and Criminal Revision preferred by the
informant is also dismissed as there is no error on the face of the
record in the impugned judgment and order of conviction.
18. Appellants are on bail, hence they are discharged from their
respective bail bonds and sureties are also discharged.
19. Let a copy of this judgment along with trial court records be sent back
to the court concerned for information and needful.
20. Pending I.As, if any stands disposed of.
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court, at Ranchi
Date: 04/03/2025
Amar/- N.A.F.R.
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