Jharkhand High Court
Lalta Prasad @ Lalta Yadav vs The State Of Jharkhand on 15 January, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 250 of 1999
(Against the judgment of conviction and order of sentence dated 29.6.1999 passed by
the Sessions Judge, Bokaro in connection with S.T. No. 18 of 1995 arising out of
B.S.City P.S. Case no. 94 of 1995, G.R. no. 276 of 1995.)
------
Lalta Prasad @ Lalta Yadav, S/o Dukhan Yadav R/o village Rupchandpur, P.S.
Badlapur, District Jaunpur, (U.P.) At present resident of Sector XII, B.S. City, P.S.
B.S. City, District-Bokaro ...... Appellant
-Versus-
The State of Jharkhand ...... Respondent
------
CORAM : HON'BLE MR. JUSTICE RATNAKER BHENGRA
------
For the Appellant : Mr. P.S.Dayal, Advocate
For the Respondent : Ms. Priya Shreshtha, A.P.P.
C.A.V. ON 02.8.2019 PRONOUNCED ON. 15.01.2021
-------
This Criminal Appeal has been preferred against the judgment of
conviction and order of sentence dated 29 th June, 1999 passed by the
Sessions Judge, Bokaro in connection with S.T. No. 18 of 1995 arising out
of B.S.City P.S. Case no. 94 of 1995, G.R. no. 276 of 1995 whereby and
where under the appellant was convicted under sections 366 A and 376 of
IPC and sentenced to undergo rigorous imprisonment for five years u/s
366 A IPC and R.I. for seven years and fine of Rs. 100/- u/s 376 IPC and
in default of payment of fine, appellant was to further undergo rigorous
imprisonment for fifteen days. Both the sentences were directed to run
concurrently.
2. The case of the prosecution as per the fardbeyan dated 22.02.1995
of the informant Bhagwan Sah-PW-4 is that he along with his family
members lives in a hut situated in Sector XII B and is used to sell
vegetable. He has six daughters and one son and his eldest daughter is
aged about 14 years (she is a victim and her name is concealed).
Informant further stated that Lalta Yadav of village Rupchandpur, P.S.
Badlapur, Distt- Jaunpur (U.P.) was living in a hut by the side of his hut
and being a neighbour used to come in the house of the informant. He
was working as labour with a contractor of the plant. Informant further
stated that on 24.12.1994 the accused induced and kidnapped his
daughter. But, with the help of Mahesh Yadav, who is the co-villager of the
accused Lalta Yadav, he managed to bring his daughter on 28-12-1994
from the house of Lalta Yadav. But, at that time he did not lodge the FIR
as the victim was unmarried and it was an issue of prestige. Then again
on 26.1.1995 in absence of the informant and his wife accused Lalta
Yadav induced his daughter for marriage and kidnapped his daughter. The
informant with his friend Butur Singh and Moti Ram Yadav (co-villagers of
Lalta Yadav) went to the house of the accused and found his daughter in
the house of the accused. Informant further stated that the accused did
not allow his daughter to go and accused told that he would marry his
daughter and threatened to kill the informant .
3. On the basis of above fardbeyan police registered B.S.City P.S.
Case no. 94 of 1995 u/s 366/366A of the IPC against the accused/
appellant. After completion of investigation, charge sheet was submitted
against the appellant u/s 366, 366A and 376 of the IPC and cognizance of
the offences were taken and the case was committed to the court of
Sessions. Charges were framed against the accused under Sections
366A and 376 of the IPC. On conclusion of trial the learned trial court
convicted and sentenced the appellant as aforesaid. Hence, this appeal.
4. Prosecution had examined altogether eight witnesses out of whom
PW-1 Kalawati Devi is the mother of the victim; PW-2 is Bhagwan Sah,
the informant and father of the victim; PW-3 Sunita Devi is a hearsay
witness; PW-4 Kitabul Begam is also a hearsay witness; PW-5 is the
victim herself, PW-6 is Dr. Maithily Thakur, who examined the victim girl
on 26.4.1995; PW-7 is Raj Bali Sharma, the I.O. of the case and PW-8 is
Vijay Kumar Singh, a constable and a formal witness.
5. PW-5 is the victim girl herself and she has stated in her evidence
that on the day of occurrence at about 5 or 6 p.m. she was lonely in her
hut. In the meantime, Lalta Prasad came in her hut and induced her and
took her to this house in District- Jaunpur (U.P.) in the Badlapur police
station. She lived there for five to six days and the accused kept her as
his wife. Victim further stated that her mind did not work and the accused
kept her forcefully. After 5-6 days her father came there and thereafter she
returned to Bokaro. At that time case was not lodged due to prestige
issue. She further stated that one day when her father went to Dundibad
to sell vegetable and her mother had also gone there and nobody was in
her house then Lalta Prasad and his friend Shankar came in a shop in
front of her house. Thereafter Lalta Prasad came to her hut and asked her
to go with him but she refused. Thereafter, Lalta Prasad got him
something eaten and she lost her mental balance and then Lalta Prasad
took her to railway station on a tempo and from there to his house in
Jaunpur. He kept her there for 10 to 25 days. Thereafter, her father came
with police and police took her and Lalta back to Bokaro.
6. PW-1 Kalavati Devi is the mother of the victim. She has stated in
her evidence that on the day of occurrence she had gone to bring
vegetable. When she returned to her house at about 4 p.m. her daughter
was not in the house. They searched for her daughter for 2-4 days but
was not found. Thereafter, her husband went to the village of Lalta Prasad
at Jaunpur. Her husband returned and informed that Lalta Prasad had
kept her daughter and did not allow her daughter to go and was telling
that he would marry her.
7. PW-2 Bhagwan Sah is the informant of the case. He deposed that
on 24.12.1994 at 5 p.m. he was selling vegetable in Dundibad haat and
his wife had gone to bring vegetables from haat. Hs daughter Kranti
informed him that his daughter (victim) was not in the house, then he
returned to his house. He went to the house of Lalta Prasad but, the
accused was not there. He told Mahanth Yadav, brother of Lalta Prasad,
that Lalta Prasad had took his daughter to Jaunpur. P.W.2 further stated
that he along with Mahanth Yadav went to the house of Lalta Prasad at
Jaunpur and found his daughter there. Lalta Prasad accepted his guilt
and then he along with his daughter returned to Bokaro. Informant further
deposed that on 26.1.1995 at 7 p.m. Lalta Prasad again took his daughter
to Jaunpur with an intention to marry her. At that time age of her daughter
was 14 years. Thereafter informant again went to Jaunpur and found his
daughter there. The accused said that he would marry his daughter and
brought a paper and asked him to put his signature. When the informant
refused to sign then the accused attempted to assault him. Thereafter he
returned back to Bokaro and filed the case in the police station. He has
identified his signature on the fardbeyan which was marked as Ext.1.
8. P.W.-6 is Dr.Maithili Thakur. She deposed that she had examined
the victim girl on 26.4.1995. Doctor stated in her evidence that from X-Ray
report and physical examination, age of the patient is more than 16 years.
There is no scratch on chest, lower abdomen, inner side of thigh or on
genitals. Doctor further deposed that gait of the patient is normal and
there is no seminal fluid or any other foreign body in vagina. Vagina is lax
admitting two fingers easily. Doctor opined that patient is habituated in
intercourse and there is no sign of rape. Doctor has proved the medical
report of the victim girl which was marked as Ext.-2. In her cross-
examination doctor stated that girl can be between 18 to 20 years.
9. PW-7 Raj Bali Sharma is the investigating officer of the case. He
deposed that on 22.2.1995 at 4 p.m. he recorded the fardbeyan of the
informant. Investigating Officer has proved the fardbayan of the informant
which was marked as Ext.-3. He further deposed that on 25.4.1995 with
the help of Badlapur police he raided the house of Lalta Prasad and
arrested the accused and recovered the kidnapped girl.
ARGUMENTS ON BEHALF OF APPELLANT:
10. Learned counsel for the appellant argued that there is serious
discrepancy in medical evidence and prosecution case. The medical
evidence does not support the case of the prosecution regarding factum
of rape. Learned trial court had seriously erred in law in not appreciating
the fact that there is no cogent evidence of any rape neither there is any
witness in support of the same nor the doctor had found any sign of rape
in her medical report or Ext.-2 and as such appellant conviction under
section 376 of the IPC is also erroneous in law.
11. Learned counsel for the appellant has further argued that factum of
rape was also not supported by any of the independent witness and even
PW-5 or victim herself being evasive combined with medical evidence of
doctor or PW-6 that there was no sign of rape and that she was
habituated to sex, the conviction of the appellant under section 376 of the
IPC is also unsustainable in law. He has further submitted that the learned
trial court seriously erred in law in not appreciating the evidence on record
that the victim lady was aged about 20-21 years at the time of occurrence
and she went at her own will along with the appellant in as much as she
admitted in her evidence that while moving from her house she did not
resist nor raised any alarm.
12. Learned counsel for the appellant has also submitted that the
learned trial court failed to appreciate that victim girl was major at the time
of alleged occurrence which is supported by the evidence of doctor or
PW-6 as well as doctor in her cross-examination deposed that girl can be
between 18-20 years and the victim girl went herself with the appellant
which could be gathered from the evidence on record itself, hence, the
conviction of the appellant under section 366 A is bad in law. From the
very conduct of the victim girl which is apparent from her evidence on
record and other prosecution evidence, she was a consenting party but
later on to save her skin denied the same.
13. He has also submitted that the learned trial court failed to
appreciate that there was abnormal delay in lodging the FIR. Firstly the
alleged occurrence had taken place on 24.12.1994 and again on
26.1.1995 but, the FIR was lodged on 22.2.1995 after about a month of
the occurrence which itself creates a serious doubt and is fatal for the
prosecution case in as much as there is no reasonable explanation of the
delay in lodging the FIR. Learned counsel further submitted that there is
no eye witness to the occurrence and the entire prosecution case is
based on the solitary evidence of PW-5 or the alleged victim and even the
same is not such as to base the conviction upon the same.
14. Learned counsel for the appellant has also submitted that the victim
was not a minor at the tme of occurrence. Learned counsel has referred
two judgments of Hon'ble Apex Court- Darga Ram alias Gunga v. State
of Rajasthan reported in 2015 (2) SCC 775 and Jaya Mala v. Home
Secretary Government of J and K and others reported in 1982 Cr.L.J.
1777 (SC) in support of his case and argued that in radiological test, as
per the doctor, she is said to be more than sixteen years of age and
adding two years on either side would make her eighteen years old or
more, hence an adult.
ARGUMENTS ON BEHALF OF STATE:
15. Learned APP has on the other hand argued that this is a case of
kidnapping of a minor girl and even if adult she was abducted. The
appellant had compelled the victim to marry and also had forcible illicit sex
with her. Hence, all ingredients of offence under section 366 A and 376 of
IPC are proved. Regarding the delay in lodging of FIR, learned APP
submitted that slight delay was due to election as indicated by PW-1 in
para-6 of her deposition. Regarding age of the victim girl, learned counsel
submitted that she cannot give consent for sex because victim was minor
and PW-1, the mother of the victim girl had deposed that she studied in
class -6 and her father PW-2 has in para-4 of his evidence deposed that
she was 14 years of age. Both mother and father of the victim girl are
reliable witnesses. The victim in her deposition herself deposed that she
was 13-14 years old at the time of occurrence. Learned APP has also
then argued that the victim was totally lured or deceived into having illicit
or forcible sex. The victim had deposed in para 32 that the accused
appellant had told her that he will take her on a trip and bring her back.
Learned counsel for the State has further stated that the victim girl has
fully supported the prosecution case and hence, the appellant's conviction
and sentence as passed by the learned trial court needs to be sustained
and upheld by this court.
FINDINGS:
16. Having heard both counsels and having gone through the records of
the case as well as in the facts and circumstances of the case, this is a
case in which the appellant has been convicted under section 366 A IPC
and sentenced to imprisonment for five years and also convicted under
section 376 IPC and sentenced for seven years. But before proceeding
further, it would be pertinent to note that for convicting a person under
section 366 A it is essential to establish that one has induced a girl below
the age of 18 years to go away from any place with the intent that she
would be forced or seduced to have illicit intercourse. So, it has to be
seen whether the victim girl or P.W.5 was induced to go to Jaunpur at U.P.
from Bokaro and whether the age of the victim girl, was below 18 years at
the time of occurrence.
(i) Re: age of the victim
Though the informant or the family of the victim girl or the victim girl
tried to make out a case that girl was a minor and around 14 years at the
time of the incident. But, the doctor or P.W.6,who had examined the victim
girl, in her evidence stated that girl is over 16 years of age and in her
cross-examination doctor stated that girl can be between 18-20 years of
age. Hon'ble Apex court in the case of Jaya Mala (supra) has held that
the margin of error in age ascertained by radiological examination is two
years on either side. Hence, in such situation in the case in hand, girl
would be adult and not below 18 years of age and on this score the
alleged victim being adult and also a consenting party.
(ii) Re: inducement of the victim girl
I find from the fardebyan as well as evidence of the informant P.W.2
Bhagwan Sah or the father of the alleged victim girl that the incident took
place over a period i.e. firstly on 24.12.1994 and secondly on 26.1.1995,
though the FIR itself was lodged late in the month of February on
22.2.1995. Informant in his evidence has stated that on 24.12.1994 his
daughter was induced and taken away by the accused-appellant and
kidnapped and he had not lodged an FIR since the victim was unmarried
and it was a prestige issue. Thereafter, the incident again took place on
26.1.1995 and again she was induced and was taken to Jaunpur for
marriage as it has come in both the fardbayan and the evidence of the
informant. In the evidence of PW-5 i.e. the alleged victim girl, she has
deposed that in the first instance when she was alone at her home then
she was induced into going with the accused-appellant to Jaunpur District.
There she stayed for five six days and he had kept her as his wife.
Thereafter after 5-6 days her father had come and she returned back to
her home. It is not revealed as to how she was taken away from her home
from Bokaro to a considerable distance to Jaunpur in U.P. which is
another state and she had made no alarm whatsoever and she stayed
there also for 5-6 days and apparently during her stay at the accused
house also she had not made any alarm. She alleges in the evidence that
she was forcibly kept there without her consent. Subsequently, alleged
victim in her evidence has stated that she was again taken away when
she was again alone in her house in the evening as Lalta Prasad had
come with his friend and told her to go with him. At the second instance
she deposed that appellant had given her something to eat and she
started feeling dizziness and thereafter she was taken away to Jaunpur
and where she stayed for 20-25 days. So, once again there is inducement
as has been indicated but for the first time victim added in para-4 of her
evidence that appellant had given her something to eat which may be to
alter her will or her capacity to think independently and then she was
taken away. This aspect about being given something to eat is not in the
fardbeyan of her informant father. Hence, for the second time she stays
20-25 days in the appellants house and it is again only when her father
comes and takes her back that the issue arises and the question that
comes to mind is that she may have continued to stay there had not her
father come and taken her back. From both the instance of going to
Jaunpur on 24-12 -1994 and on 26 -1-1995 what is apparent is that the
alleged victim girl travelled a considerable distance to another State and
on both occasions she stayed there for some time but she had not made
alarm or complained to any authority and it appears that she was not kept
totally confined both times. So, from the evidence of the victim girl, I find
that there was no inducement on the part of appellant and it was the girl's
willingness to go to Jaunpur.
17. The next issue of delay in lodging FIR, the allegations are serious
particularly when offence is of one under section 366-A and 376 of IPC
and family and father of the girl (informant) should have shown a greater
willingness to report to the police because alleged sex with a underage
girl would clearly be serious offence. In the first instance on 24-12-1994
she was abducted and taken away to Jaunpur at U.P. and then brought
back and informant does not lodge FIR on the pretext of she being
unmarried and it was prestige issue. Thereafter, she was again kidnapped
on 26-1-1995 and this time she had been away for 20-25 days. It would
indicate that in the first instance she was away for 5-6 days and in the
second instance she was away for 20-25 days and father of the girl or
informant traced her after such a long delay and ultimately FIR was
lodged on 22-2-1995 which raises doubt in the prosecution case. The
delay in lodging FIR is indicated consistently right from the beginning to
the end and has not been explained by the prosecution.
18. Therefore, I come to the conclusion that the victim girl was more
than 18 years of age and she was not induced by the appellant to go to
Jaunpur. Hence, prosecution has failed to prove the charge under section
366-A of IPC against the appellant. Regarding conviction under section
376 of IPC, I find that charge under section 376 of IPC against the
appellant is not exclusive but, it is related and dependent on charge under
section 366-A of IPC, in the facts and circumstances of the case. As,
discussed in preceding paragraphs, on failure of charge under section
366-A of IPC against the appellant, the charge under section 376 of IPC
also fails. Moreover, willingness of the girl to go and evidence that girl
being major and opinion of P.W.-6 or the Doctor that there was no sign of
rape also raises doubt in the prosecution case as to conviction of the
appellant under section 376 of IPC.
19. Therefore, for the aforesaid reasons, the appellant Lalta Prasad @
Lalta Yadav is given benefit of doubt and acquitted of the charges leveled
against him under section 366-A IPC and under section 376 IPC and also
discharged from the liability of bail-bonds.
20. Accordingly, the judgment of conviction and order of sentence
dated 29.6.1999 passed by the learned Sessions Judge ,Bokaro in
connection with S.T. No. 18 of 1995 arising out of B.S.City P.S.-Case no. 94
of 1995, G.R. no. 276 of 1995 are set-aside.
21. Hence, the appeal is allowed.
(RATNAKER BHENGRA,J)
Jharkhand High Court,Ranchi
dated: 15.01.2021 (KNR)/NAFR
