Jharkhand High Court
Umesh Pandey vs The State Of Jharkhand on 28 January, 2025
Cr. Appeal (S.J.) No.1281 of 2006
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[Against the judgment and order of conviction and sentence dated
31.08.2006 passed by learned Additional Sessions Judge, FTC No. IV,
Dhanbad in S.T. No.402 of 2001]
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Umesh Pandey, son of Late Hiralal Pandey, resident of Village-
Khaodih, P.S.- Topchanchi, District-Dhanbad
.... .... .... Appellant
Versus
The State of Jharkhand .... .... .... Respondent
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For the Appellant : Mr. Suraj Singh, Advocate
For the State : Mrs. Nehala Sharmin, S.P.P.
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PRESENT
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
JUDGEMENT
——
CAV On 26/11/2024 Pronounced On: 28 /01/2025
Per-Pradeep Kumar Srivastava
1. The present appeal is directed against the judgment and order
of conviction and sentence dated 31.08.2006 passed by learned
Additional Sessions Judge, FTC No. IV, Dhanbad in S.T.
No.402 of 2001 whereby and whereunder, the appellant has
been held guilty for the offences under sections 376 and 366A
of Indian Penal Code and sentenced to undergo R.I. of 7 years
Cr. Appeal (S.J.) No.1281 of 2006
1
and 5 years respectively. Both sentences are directed to run
concurrently.
FACTUAL MATRIX
2. Factual matrix giving rise to this appeal is that the informant
was in judicial custody in connection with Topchanchi P.S.
Case No.11 of 2001 along with his two sons and he was
released on bail on 19.04.2001, when the informant returned to
his home, then he came to know from his wife that his minor
daughter aged about 14 years has been taken out by Umesh
Pandey, Nagesh Pandey, Lalita Devi and Noor Mohammad by
inducing her to solemnize marriage with Umesh Pandey. It is
further alleged that the appellant and other associates have
kidnapped his daughter by taking advantage of absence of the
informant. It is further alleged that the informant’s wife had
gone to the house of Umesh Pandey, where she was threatened
on the point of pistol saying that he has solemnized marriage
with her minor daughter.
3. On the basis of written report of the informant Jagdamba
Rawani, Topchanchi P.S. Case No.54 of 2001 dated 21.04.2001
was registered against the accused persons for the offence
under sections 366A r/w 34 of IPC. In course of investigation,
the victim girl was recovered from the house of the appellant
Cr. Appeal (S.J.) No.1281 of 2006
2
(Umesh Pandey). The statement of the victim girl was recorded
under section 164 of Cr.PC and she has disclosed about
commission of rape with her by the accused Umesh Pandey,
hence section 376 of IPC was also added in the FIR. The victim
girl was sent for medical examination and after completion of
investigation, charge-sheet under sections 366A, 376, 420/34 of
IPC was submitted against four accused persons namely
Nagesh Pandey, Lalita Devi, Noor Mohamad and Umesh
Pandey. After cognizance, the case was committed to the court
sessions, accordingly S.T. Case No.402 of 2001 was registered
and trial proceeded against all the accused persons for the
offence under section 366A, 420 r/w section 34 of IPC and
separate charge was framed against Umesh Pandey for the
offence under section 376 of IPC. After conclusion of trial, the
other accused persons have been acquitted whereas the
present appellant was held guilty and sentenced as stated
above.
4. Learned counsel for the appellant has argued that the victim
girl was major aged about 19 years and the appellant and the
victim girl eloped with their free consent and sexual
intercourse was established voluntarily with the full consent of
the victim girl and the appellant. The prosecution has brought
Cr. Appeal (S.J.) No.1281 of 2006
3
nothing concrete documentary evidence on record to establish
the fact that the victim girl was minor at the time of marriage
with the accused/appellant. The victim girl has deposed
before the court in her statement recorded under section 164 of
Cr.P.C. under the influence of her parents. The learned trial
court has acquitted other accused persons for the offence
under sections 366A and 420 of IPC, therefore, the present
appellant is also entitled for acquittal in this case as no
ingredients either for the offence under sections 376 and 366A
of IPC has been established by the prosecution.
In alternative, it is submitted that this case is
originating out of love-affair between the victim girl and the
appellant, and marriage could not be solemnized due to
dissenting guardians. The appellant has remained in custody
throughout of the trial of the case for 5 years and has
sufficiently been punished for his guilt, therefore, his sentence
may be reduced to the extent of imprisonment already
undergone, which will serve the ends of justice in this case.
5. On the other hand, learned A.P.P. appearing for the State
refuting the aforesaid contentions raised on behalf of the
appellant has submitted that the prosecution has proved
through cogent reliable evidence that the victim was a minor
Cr. Appeal (S.J.) No.1281 of 2006
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girl aged about 14 years at the time of occurrence. She was
induced and taken away by the appellant with intention to
solemnize marriage with her and also established illicit
physical relationship with her. The consent of the minor girl
for the sexual intercourse is no consent in the eye of law.
Therefore, the appellant has rightly been convicted and
sentenced. It is further submitted that the sentence awarded to
the appellant is also proportionate to his guilt, which requires
no alteration and this appeal is fit to be dismissed.
6. In the instant case, the most important witness is the victim
girl herself, who has been examined as P.W.3, she has
disclosed her age at the time of medical examination to be 16
years. According to her evidence, about 2 years ago, in the
morning at about 9 AM, she was alone in her house when
Lalita Devi came to her house and induced her that she will
manage her visit with her father in jail. Then, she came out of
the house and in the way, Nagesh Pandey, Umesh Pandey,
and Noor Miya were also met and they brought to her
Dhanbad where she was forced to sign on four blank papers
on the point of pistol. Thereafter, she was brought to Khaodih
and confined in the house of Umesh Pandey for 10 days, where
Umehs Pandey assaulted her and forcibly established sexual
Cr. Appeal (S.J.) No.1281 of 2006
5
relationship with her. This witness further deposed that she
was recovered by the police from the house of Umesh Pandey
and her photographs (material Ext.1) was also taken. This
witness was medically examined at the instance of police and
her statement was recorded by the Magistrate under section
164 of Cr.PC and she has proved her signature as Ext.1. Then,
this witness was handed over to her parents.
7. P.W.1 Puja Devi is mother of the victim girl, P.W.2 and P.W.4
are brothers of the victim girl namely Arun Kumar and Manoj
Rawani respectively and all the witnesses have supported the
prosecution story as heard from the victim girl.
P.W.5 Jagdamba Rawani is the informant of this case,
this witness has also proved the contents of the written report
and also stated that when his minor daughter was handed
over to his custody, then she disclosed about the commission
of rape with her by the accused. This witness has denied the
suggestions of the defence that Umesh Pandey used to visit his
house frequently and with consent of his wife, the victim girl
went with Umesh Pandey and solemnized marriage with him.
P.W.6 Rajgrih Rai is the second Investigating Officer
of this case and he has submitted the charge-sheet against the
accused persons.
Cr. Appeal (S.J.) No.1281 of 2006
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P.W.7 Bandana Bakhla is the first Investigating Officer
of this case. According to his evidence, he has recorded the re-
statement of the informant visiting the place of occurrence and
recovered the victim girl from the house of Umesh Pandey and
this witness has also arrested the accused Umesh Pandey. He
has got the statement of the victim girl recorded under section
164 of Cr.PC and sent to her PMCH, Dhanbad for medical
examination. Thereafter, on 20.06.2001, further charge of
investigation was handed over the then Officer-in-Charge
Ashok Kumar.
P.W.8 Dr. Laxmi Pandey is the medical officer, who
has examined the victim girl on 22.04.2001 at about 7:00 PM.
According to her evidence, no internal or external injuries
were found on the body of the victim and there was also no
recent sign of rape rather hymen was found old raptured.
According to radiological report, the age of the victim girl is
appeared to be 16-17 years. Her report has been marked as
Ext.5.
P.W.9 is the Judicial Magistrate Swarn Shandar
Prasad, who has recorded the statement of the victim girl
under section 164 of Cr.PC, which is marked as Ext.6.
Cr. Appeal (S.J.) No.1281 of 2006
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8. On the other hand, the case of the defence is denial from the
occurrence and false implication. The defence has also
examined 4 witnesses. It is pleaded by the appellant in his
statement under section 281 of Cr.P.C that on 26th February,
2001, he has solemnized registered marriage with the victim
girl with her consent in presence of victim’s mother and she
was residing with him. The father of the victim girl has lodged
this false case against him.
Apart from the above plea, four witnesses have been
examined by the defence Kedharnath Mahto (D.W.1), Md.
Alauddin Ansare (D.W.2), Sitaram Mahto (D.W.3),
Brijnandan Mahto (D.W.4) have stated about the marriage of
the victim girl with Umesh Pandey with the consent of the
victim girl and her mother and also filed original notarized
marriage certificate (Ext.B) and signature of notary advocate is
proved as Ext.A.
9. From the aforesaid above discussion particularly the testimony
of the victim girl, it is apparent that she has categorically
deposed about her kidnapping and obtaining forceful
signature on certain papers and commission of rape with her
by the appellant. The age of the victim girl was also proved in
between 16-17 years and there is no evidence on record to
Cr. Appeal (S.J.) No.1281 of 2006
8
prove that she has attained the age of majority on the date of
occurrence. It has also come in the evidence that the present
appellant was visiting the house of the victim girl prior to the
occurrence in connection with offering “puja” and other
religious ritual organized by father of the victim from time to
time. In the course of frequent visit, the intimacy was
developed between the victim girl and the appellant. The
prosecution story also finds corroboration from the medical
examination report of the victim girl and her earliest statement
recorded under section 164 of Cr.P.C. by learned Magistrate
(P.W.9). The defence plea about consensual marriage as well as
consensual sexual intercourse with the victim girl cannot be
entertained in view of the minority of the victim, who was not
capable to accord consent for physical relation with her.
10. So far conviction of the appellant for the offence under section
366A of IPC is concerned in the factual aspects of the case as
discussed above, the ingredients of offence under section 366A
is absolutely lacking in this case in as much as there was no
procuration of minor girl with intention that she would be
forced and seduced to illicit intercourse with some other
person. In the instant case, the accused himself is alleged to
have induced the minor girl and taken her away with intention
Cr. Appeal (S.J.) No.1281 of 2006
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to solemnize marriage with her and also established sexual
intercourse with her.
11. So far offence under section 376 of IPC is concerned; the
prosecution has well proved the ingredients of the said offence
as defined under section 375 of IPC.
12.So far as alternative plea of the appellant regarding reduction
of sentence is concerned, the factual aspects of the case as
brought on record clearly goes to reveal that there was
intimacy between the victim girl and the appellant prior to the
occurrence. The appellant was all along in judicial custody
throughout the period of trial consuming 5 years and 4
months. Maximum sentence awarded to the appellant is 7
years. Therefore, the appellant has sustained considerable
period of sentence during trial of the case. Now, more than
two decades had been lapsed from the date of occurrence and
the victim girl as well as the appellant have mend their life in
their own ways without indulging in any other criminal
activities.
13.In the aforesaid facts and circumstances, the conviction of the
appellant for the offence under section 366A of the IPC is set
aside but his conviction for the offence under section 376 of
IPC is maintained and upheld. So far, the quantum of sentence
Cr. Appeal (S.J.) No.1281 of 2006
10
is concerned, the sentence awarded by the learned trial court is
reduced to the sentence of imprisonment already undergone
by the appellant during trial of the case. Accordingly, this
appeal is partly allowed with modification in conviction and
sentence as stated above.
14.The appellant is on bail, hence, he is discharged from liability
of bail bond. The sureties are also discharged.
15. Pending I.A(s), if any, is also disposed of accordingly.
16. Let a copy of this judgment along with Trial Court Records be
sent back to the trial court for information and needful.
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court, at Ranchi
Dated: 28/01/2025
Pappu/- N.A.F.R.
Cr. Appeal (S.J.) No.1281 of 2006
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