Jharkhand High Court
Dhiren Thakur vs The State Of Jharkhand on 5 February, 2021
-1-
Criminal Appeal (SJ) No. 318 of 2006
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Against the judgment of conviction dated 27.02.2006 and order of sentence dated
02.03.20006 passed by Sri Rai Bhawani Nandan Sehai, Additional Sessions Judge-I,
Sahibganj, in Session Case No. 234 of 1997.
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1. Dhiren Thakur
2. Gunadhar Thakur ... ... Appellants
Versus
The State of Jharkhand ... ... Respondent
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For the Appellants : Mrs. J. Mazumdar, Adv.
For the State : Mrs. Vandana Bharti, A.P.P.
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PRESENT
HON'BLE MR. JUSTICE RAJESH KUMAR
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C.A.V. on 22.01.2021 Pronounced on 05/02/2021
This appeal is directed against the judgment of conviction dated 27.02.2006
and order of sentence dated 02.03.20006 passed by Sri Rai Bhawani Nandan Sahai,
Additional Sessions Judge-I, Sahibganj, in Session Case No. 234 of 1997 whereby and
whereunder the appellant no. 2, Gunadhar Thakur has been charged under Section 368
of the Indian Penal Code and convicted for the same offence and appellant no. 1,
Dhiren Thakur has been charged under Section 366(A), 379 and 376 of the Indian
Penal Code and has been convicted for the said Sections.
2. The prosecution story put on trial as reflected from the charge framed
against the appellants, which is quoted below:
" CHARGE WITH ONE HEAD
FORM NO. 33 (I) SCHEDULE II, ACT 2, 1974
(Sections 211, 212, 213, Code of Criminal Procedure)
* Name and Office of Magistrate, etc I, * ADJ 1st Anant Kr. Singh
* Name of accused person hereby charge you Gunadhar Thakur
As follows:-
That you on or about the That you alongwith Kesho Thakur on or above
the 19th day of Dec. 1990 and onwards at difference place like
Karamtola, Gilha, Banjhi etc in furtherance common intention of all
wrongfully concealed or confined Dhanwanti Devi who was kidnapped or
abducted by Dhiren Thakur and
and thereby committed an offence under section punishable of the 368
Indian Penal Code, and within my cognizance and I hereby direct that
you be tried by me on the said charge.
The contents of charge has been read over and explained to the accused
in Hindi to which he pleaded not guilty and claimed to be tried.
Sd/
Magistrate/Judge
Dated the 17th day of March 2004
" CHARGE WITH THREE HEADS
FORM NO. 32 (M) SCHEDULE II, ACT 2, 1974
(Sections 211, 212, 213, Code of Criminal Procedure)
* Name and Office of Magistrate, etc I, * ADJ 1st Anant Kr. Singh
* Name of accused person hereby charge you Dhiren Thakur
As follows:-
FIRST -That you on or about the 19th day of Dec. 1990 at about 9 P. M.
of village Karamtola, P. S Barhait Distt. Sahibganj committed theft of
ornaments and cash amounting Rs. 5000/- by taking it out of the
possession of the informant Bhawani Pandit intending to take the said
thing dishonestly without his consent and thereby committed an offence
punishable under Section 379 of the Indian Penal Code, and within my
cognizance.
SECONDLY- That you, on or about the same day of time and place
induced Dhanwanti Devi a girl under eighteen years of age to go from
the house of the informant Bhawani Pandit wih intent that the said
dhanwanti Devi will be forced to illicit intercourse with Dhiren Thakur
and thereby committed an offence punishable under Section 366 A of the
Indian Penal Code, and within my cognizance.
THIRDLY - That you, on or about the same day of time and place
onwards at different places committed rape on Dhanwanti Devi and
thereby committed an offence punishable under Section 376 of the Indian
Penal Code, and within my cognizance and I hereby direct that you be
tried by me on the said charge.
The contents of charge has been read over and explained to the accused
in Hindi to which he pleaded not guilty and claimed to be tried. .
Sd/
Judge
Dated the 17th day of March 2004
3. On conclusion of trial, the appellants were examined by the Magistrate
under Section 281 of the Cr. P. C. The contents of the examination is as follows:
"FORM OF RECORDING EXAMINATION OF ACCUSED
EXAMINATION OF ACCUSED PERSON
(Section 281 of the Criminal Procedure Code.)
The examination of /khjsu Bkdqj aged about 35 years taken before me lkdsr
flag Magistrate of the Class at on the 18 day of 6 2005 in the fgUnh
Language interpreted by esjs }kjk
My name is /khjsu Bkdqj my father's name is xq.kk/kj Bkdqj My age is 35 years,
I am by religion fgUnw My nationality is Hkkjrh; and I belong to Scheduled
Caste/ Scheduled Tribe. I am by occupation x`gLFk My home is at Mauza
fxYgk Police Station cjgsV District lkgscxat
iz"u %& D;k vkius xokgksa dk c;ku lquk gS \
mRrj %& th gkWaA
iz"u %& xokg dk dguk gS fd fnukad 19-12-90 dks djhc 9-00 cts jkf= esa xzke&
djeVksyk Fkkuk & cjgsV] ftyk& lkgscxat esa vkius /kuoarh nsoh ds lkFk xyr laca/k
LFkkfir djus dh uh;r ls oknh Hkokuh iafMr ds ?kj ls vigj.k fd;k D;k dguk gS \
mRrj %& th ughaA
iz"u %& xokg dk ;g Hkh dguk gS fd vkius /kuoarh nsoh ds lkFk fcuk mldh ethZ ds
tcjnLrh cYkkRdkj fd;k D;k dguk gS \
mRrj %& th ughaA
iz"u %& xokg dk ;g Hkh dguk gS fd vkius /kuoarh nsoh dks ?kj ls Hkxkdj vius lkFk ys
x, rFkk 5][email protected]& :i;s pksjh fd, Fks D;k dguk gS \
mRrj %& th ughaA
iz"u %& lQkbZ esa dqN dguk gS \
mRrj %& funksZ"k gwWaA
SD/-
(Signature of Magistrate)
The above examination was taken in my presence and hearing and
contains a full and true account of the statement made by the accused. It
was read over to the accused or interpreted to him in the language which
he understands and was admitted by him to be correct.
SD/-
(Signature of Magistrate)"
"FORM OF RECORDING EXAMINATION OF ACCUSED
EXAMINATION OF ACCUSED PERSON
(Section 281 of the Criminal Procedure Code.)
The examination of xq.kk/kj Bkdqj aged about 55 years taken before me
lkdsr flag Magistrate of the Class at on the 18 day of 6 2005 in the fgUnh
Language interpreted by esjs }kjk
My name is xq.kk/kj Bkdqj my father's name is Lo0 eqU"kh Bkdqj My age is 55
years, I am by religion fgUnw My nationality is Hkkjrh; and I belong to
Scheduled Caste/ Scheduled Tribe. I am by occupation ukbZ dk dke djrk gWwA
My home is at Mauza fxYgk Police Station cjgsV District lkgscxat
iz"u %& D;k vkius xokgksa dk c;ku lquk gS \
mRrj %& th gkWaA
iz"u %& xokg dk dguk gS fd fnukad 19-12-90 dks vki ,oa ds"kks Bkdqj us feydj /khjsu
Bkdqj }kjk Hkxkdj vidj yk, x, /kuoarh nsoh dks voS/k :I ls fNikdj xyr fu;r ls
xzke&djeVksyk fxYgk ,oa cka>h esa j[kk Fkk D;k dguk gS \
mRrj %& th ughaA
iz"u %& lQkbZ esa dqN dguk gS \
mRrj %& funksZ"k gwWaA
SD/-
(Signature of Magistrate)
The above examination was taken in my presence and hearing and
contains a full and true account of the statement made by the accused. It
was read over to the accused or interpreted to him in the language which
he understands and was admitted by him to be correct.
SD/-
(Signature of Magistrate)"
4. From perusal of the above accusation and the prosecution story developed
in the trial negates the necessary ingredients of Section 366 (A) of the Indian Penal
Code. Section 366 (A) of the Indian Penal Code has been introduced in the year 1923
for giving effect to certain Articles of the International Convention for the Suppression
of Traffic in Women and Children signed by various nations at Paris on May 4, 1910.
This section gets attracted only when the accused induces a minor girl to go
from any place 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, meaning thereby
with a person other than accused. As the accusation lacks necessary ingredient of
Section 366 (A) of the Indian Penal Code, the appellant no. 1, Dhiren Thakur is
discharged from the said Section and the judgment of conviction dated 27.02.2006 and
order of sentence dated 02.03.20006 passed by Sri Rai Bhawani Nandan Sahai,
Additional Sessions Judge-I, Sahibganj, in Session Case No. 234 of 1997 for the said
Section is, hereby, set aside.
5. The prosecution story as disclosed in the FIR by the informant, P.W.-3,
Bhawani Pandit that his daughter (prosecutrix), who was sleeping with her younger
sister and brother has been kidnapped by the appellant no. 1, Dhiren Thakur for the
purpose of marriage along with jewellery and five thousand rupee on 19.12.1990. The
FIR has been lodged on 22.12.1990. 14 witnesses have been examined by the
prosecution and 3 witnesses have been examined by the defense. P.Ws. -1, 2, 5 and 13
have been declared hostile. P. Ws. - 6, 7, 8 and 12 are the hearsay witnesses and P. W.
-14 is a formal witness. P. W. -3 is the father of the victim and informant. P. W. -4 is
the mother of the victim. P. W. -8 is the brother of the victim, P. W.-9 is the victim girl
and P. W. -11 is the sister of the girl and P. W. -10 is the Medical Officer.
6. The age of the girl has been disclosed 14 to 15 years in the FIR while the
prosecutrix i.e. P. W. -9 has declared her age as 16 years and the medical evidence
proved by the doctor i.e. P. W. -10 suggests the age of victim girl is around 17 years.
Thus the evidence on record suggests that the girl was above 16 years of age. The law
prevalent in the year 1990 requires that any sexual intercourse below 16 years of age is
rape whether with consent or without consent. As per evidence on record, the girl was
above 16 years and as such, the only point is required to be decided in the present case
"Whether sexual intercourse between the appellant no. 1, Dhiren Thakur and
prosecutrix was with consent or without consent.
7. From perusal of the deposition of prosecutrix (P. W. -9), she has alleged that
the entire incident has taken place against her will and under threat. To appreciate the
deposition of the prosecutrix, para-6, 7, 8 and 13 of the deposition is quoted
hereinbelow:
"¼6½ lqjx a k ls jsyxkM+h es lkfgcxat jkf= es yk;k FkkA lkfgcxat esa tuknZu odhy
lkgc ds ?kj ysdj x;k FkkA tuk/kZu ckcq odhy lkgc ds ?kj ,d jkr j[kk FkkA
tuk/kZu ckcq odhy lkgc ds ?kj ls eafnj ys x;k FkkA eafnj esa "kknh fd;k FkkA eafnj
esa v0 /khju Bkdqj dk ekSlk ds"kks Bkdqj] xquk/kj Bkdqj] ,oa [kSjok xzke ds /khjsu Bkdqj
dk Hkh uke ckj ckj ysrs FksA
¼7½ eafnj esa "kknh dj eq>s dksVZ yk;k FkkA dksVZ dkxt cuk;k FkkA tcjnLrh dkxt
ij esajk Hkh vaxqBk dk fu"kku fy;k FkkA
¼8½ dksVZ esa QksVks LVqfM;ks ls x;k FkkA LVqfM;ks es tcjnLrh v0 /khjsu Bkdqj vius
lkFk eq>s [kM+k dj QksVks f[kpok;k FkkA LVqfM;ks ls ck>h xzke ds"kks Bkdqj ds ?kj ys
x;k FkkA ds"kks Bkdqj ds ?kj 6-00&7-00 ctsa jkf= esa igqWph FkhA djhc 8-00 cts jkf=
esjs firk] HkkbZ] iqfyl ds lkFk ds"kks Bkdqj ds ?kj vk;s eq>s v0 /khjsu Bkdqj ,oa xquk/kj
Bkdqj dks fxj¶rkj dj ys x;h FkhA iqfyl fxj¶rkj dj cjgsV Fkkuk ys x;h FkhA
¼13½ esjh "kknh ?kVuk ds 4 o'kZ iwoZ lq/khj iafMr xzke cjefl;k esa gqbZ FkhA lq/khj iafMr
ls Ekq>s ifr dk laca/k Fkk fQj Hkh esajs lkFk ugha lksrs FksA"
8. To the question put in her cross-examination, it has been answered by the
prosecutrix that she was in house with closed door. Her sister, P. W. -11, has deposed
that she was sleeping with her sister. The prosecutrix was present in the house with her
brother, sister and parents. Prosecutrix has come out of her house without sound, rather
in silence with jewellery and money. Thereafter they have travelled to an Advocate for
the purpose of marriage. As per suggestion of the Advocate, they performed marriage
in temple with the assistance of pujari. Thereafter they get photographs in Studio and
moved to the Court for Registration.
9. Sometimes conducts speaks louder than bald statement. In the present case
bald statement of the prosecutrix that it was against her will, is not supported by her
conduct as disclosed by her on oath in Court.
10. In the present case, Investigating Officer has not been examined and
Medical Officer has not found any injuries.
11. In view of the above discussion, this Court finds that the prosecution has
failed to prove the allegation that sexual intercourse with prosecutrix by the appellant
no. 1, Dhiren Thakur was without consent, which is a necessary ingredient for
conviction under Section 376 of the Indian Penal Code. Thus, appellant no. 1, Dhiren
Thakur is, hereby, discharged from the charges under Section 376 of the Indian Penal
Code and accordingly, the judgment of conviction dated 27.02.2006 and order of
sentence dated 02.03.20006 passed by Sri Rai Bhawani Nandan Sahai, Additional
Sessions Judge-I, Sahibganj, in Session Case No. 234 of 1997 under Section 376 of the
Indian Penal Code is, hereby set aside.
12. So far as conviction under Section 379 of the Indian Penal Code is
concerned, as discussed above, conduct of the prosecutrix shows that she has willingly
taken out her belongings and money for facilitating marriage with the appellant no. 1,
Dhiren Thakur and as such, conviction of the appellant no.1, Dhiren Thakur under
Section 379 of the Indian Penal Code is not sustainable and the same is also set aside.
13. So far as conviction of the appellant no. 2, Gunadhar Thakur under Section
368 of the Indian Penal Code is concerned, it was dependent upon the conviction of
the appellant no. 1, Dhiren Thakur under Section 366-A of the Indian Penal Code.
Since the conviction of the appellant no. 1, Dhiren Thakur has already been set aside,
the conviction of the appellant no. 2, Gunadhar Thakur also fails. In the result, the
judgment of conviction dated 27.02.2006 and order of sentence dated 02.03.20006
passed by Sri Rai Bhawani Nandan Sahai, Additional Sessions Judge-I, Sahibganj, in
Session Case No. 234 of 1997 under Section 368 of the Indian Penal Code is, hereby
set aside.
14. Since, the appellants, above named, are already on bail, they are discharged
from the liability of their bail bonds.
15. Accordingly, the instant Appeal stands allowed.
16. All pending I.As. are also disposed off.
(Rajesh Kumar, J)
Jharkhand High Court at Ranchi
The 5th day of February, 2021
kamlesh/NAFR/
