Babua Sao vs The State Of Jharkhand
2022 Latest Caselaw 3455 Jhar

                                       1            Cr. Appeal (SJ) No.208 of 2006




                 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                           Cr. Appeal (SJ) No.208 of 2006
                                       With
                                I.A. No. 380 of 2019

          (Against the Judgment of Conviction dated 25.01.2006 and order of
          sentence dated 30.01.2006, passed by learned Additional Sessions Judge-
          cum-Fast Track Court-II, Giridih, in S.T. No. 378 of 2000, arising out of
          Jamua P.S. Case No. 126 of 1997, corresponding to G.R. No. 1177/1997,
          Giridih, Jharkhand)

                 Babua Sao                             ...      Appellant
                                       Versus
                 The State of Jharkhand                 ...    Respondent
                                        ---

CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR

---

                 For the Appellant          : Mr. B.M. Tripathy, Sr. Advocate
                                              Mr. Prashant Kumar Rai, Advocate
                 For the State              : Mr. Sardhu Mahto, A.P.P.

11/30.08.2022         This appeal is directed against the Judgment of Conviction

dated 25.01.2006 and order of sentence dated 30.01.2006, passed by learned Additional Sessions Judge-cum-Fast Track Court-II, Giridih, in S.T. No. 378 of 2000, arising out of Jamua P.S. Case No.126 of 1997, corresponding to G.R. No. 1177/1997, whereby and where under the accused appellant Babua Sao was convicted for the offence punishable under Section 366-A of the Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and he was sentenced to undergo rigorous imprisonment (hereinafter referred to as the R.I.) for 7 (seven) years and also to pay a fine of Rs.10,000/- (Rupees Ten Thousands only) and in default of payment of fine, he was further directed to undergo simple imprisonment (hereinafter referred to as the S.I.) for 1 (one) year.

2. The prosecution story arose in the wake of written report dated 17.07.1997 of the informant Md. Nizamuddin (P.W.-4), addressed to Officer In-Charge of Jamua Police Station. In his written report dated 17.07.1997 he alleged that last night on 16.07.1997 at about 2 Cr. Appeal (SJ) No.208 of 2006

11.30 p.m., his sister (hereinafter referred to as 'victim') was found missing from her house. It has further been stated that she was taken away after removing the tiles of the roof of his house. It has also been alleged that four days before the occurrence, accused Babua Sao was found scaling over the boundary wall of his house, and he was scolded. Thereafter, the guardian of victim informed the matter to the guardian of Babua Sao, but the guardian of Babua Sao did not take any action and threatened them to kidnap the victim. It has further been alleged that lastly, the accused persons took away the victim and in the process of taking away, Amitabh Bachchan, S/o Shiv Narayan Ram of village Kharagdiha and Sarju Sao, elder brother of accused Babua Sao, had also participated in the commission of the offence.

3. On the basis of the said written report of the informant, a case u/s 366 A of the I.P.C. was registered as Jamua P.S. Case No.126 of 1997 dated 17.07.1997 and thereafter formal FIR was drawn up and the police started investigation of the case and after completion of the investigation, the police submitted charge-sheet on 30.09.1997 vide charge-sheet no. 159 of 1997, against this appellant Babua Sao along with other co-accused persons Sarju Sao and Amitabh Bachchan for the offence punishable under Section 366-A/34 of the I.P.C. in the court of C.J.M., Giridih and later on the learned C.J.M., Giridih took the cognizance under the aforesaid offences on 15.10.1997. It further appears that vide order dated 09.11.2000, the case of accused Amitabh Bachchan was separated from the case of remaining accused, because he absented from the Court for a long time. Thereafter on 14.12.2000, the case of the accused Babua Sao and Sarju Sao was committed to the Court of Sessions. After commitment, the charges u/s 366A/34 of the I.P.C. was framed by the learned IVth Addl. Sessions Judge against the accused person along with other co-accused on 25.01.2002, which was read over and explained to them in Hindi, to which, they pleaded not guilty and claimed to be tried and the learned trial court after 3 Cr. Appeal (SJ) No.208 of 2006

conducting the full-fledged trail, passed the impugned judgment of conviction and order of sentence, which is under challenge in this appeal.

4. Heard Mr. B.M. Tripathy, the learned Sr. Counsel appearing on behalf of the appellant assisted by Mr. Prashant Kumar Rai and Mr. Sardhu Mahto, APP appearing on behalf of the State.

Arguments advanced on behalf of the appellant

5. Assailing the impugned judgment of conviction and order of sentence, the learned defence counsel contended that the findings of the learned court below is bad in law as well as on facts, as the learned trial court did not appreciate the deposition of the victim in totality, ignoring the earlier statement of the victim recorded under Sections 161 and 164 of the Cr.P.C. (hereinafter referred to as the Cr.P.C.) It has been pointed out that the Investigating Officer (hereinafter referred to as the I.O.) in this case has not been examined and therefore the veracity and truthfulness of the victim-P.W.-10 could not be appreciated in view of the fact that there had been a complete departure from her earlier statements either recorded under Sections 161 or 164 of Cr.P.C. It has further been submitted that Judicial Magistrate, who has recorded the statement of the victim P.W.-10 under Section 164 of Cr.P.C., has also not been examined, although the victim has proved her signature on the statement recorded under Section 164 of Cr.P.C., which has been marked as Ext. A, but the learned trial court did not pay attention to the statement of the victim recorded under Section 164 of Cr.P.C. and totally relied upon her version recorded during the course of trial which need to be corroborated in the light major contradictions found in her earlier statement and subsequent statement. It has further been pointed out that from the evidences, it is found that the victim was major at the time of occurrence and it is evident from the version of the doctor and 4 Cr. Appeal (SJ) No.208 of 2006

from the version of the victim herself as recorded under Section 164 of the Cr.P.C. and also before the Court that she was major at the time of the occurrence and therefore the offence under Section 366-A of the I.P.C. is not attracted at all. Learned defence counsel pointed out that there was no whisper of any inducement or any kind of force or seducing used by the accused appellant in the F.I.R. in order to take away the victim (P.W.-10) with intent that she may be, or knowing that it is likely that she would be forced or seduced to illicit intercourse with another person and therefore the subsequent version of the victim before the Court is not reliable and convincing and hence the impugned judgment of conviction and order of sentence passed by the learned court below solely based on her testimony is wholly bad in law and therefore is fit to be set-aside.

Arguments advanced on behalf of the State

6. On the other hand, the learned APP appearing on behalf of the State opposed the contentions raised on behalf of the appellant and submitted that the victim PW 10 examined on behalf of the prosecution categorically supported the case of prosecution and the learned trial court has rightly appreciated her testimony as recorded during the course of trial and therefore there is no legal evidence to interfere in the impugned judgement of conviction and order of sentence and this appeal is fit to be dismissed being devoid of merit.

Appraisal & Findings

7. Having heard learned counsels for the parties and perused the record including the lower court records.

8. It is found that in order to prove its case, the prosecution had examined altogether 11 witnesses which are as under:

1. P.W. 1- Md. Nayemuddin,

2. P.W. 2- Md. Barik,

3. P.W. 3- Sayeed Akhtar,

4. P.W. 4- Nijamuddin (the informant), 5 Cr. Appeal (SJ) No.208 of 2006

5. P.W. 5- Dr. Sujata Jha (who examined the victim girl),

6. P.W. 6- Shamim,

7. P.W. 7- Sabbir Ahmad,

8. P.W. 8 Amanat Ali,

9. P.W. 9- Hazra Khatoon,

10. P.W. 10- 'victim' and

11. P.W. 11- Narayan Yadav.

Apart from the oral evidences, the prosecution has also adduced some documentary evidences which are- the signature of Md. Nijamuddin on the written report as Ext. 1, endorsement on the written report as Ext. 1/1, medical examination report of the victim as Ext. 2 and the formal F.I.R as Ext. 3.

The defence has not examined any witnesses in support of its defence, but the statement of the victim recorded under section 164 of the Cr.P.C. has been proved and exhibited, which have been marked as Ext. A/1 and the signature of victim (P.W.-10) on it marked as Ext. A.

9. To substantiate the charges levelled against the accused it is necessary to mention the ingredients of section 366-A of I.P.C., which are-

i. That the accused induced a girl; ii. That the person induced was a girl under the age of eighteen years;

iii. That the accused has induced her with intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person iv. That the inducement caused the girl to go from any place or to do any act.

10. At the outset, it is found that for the conviction of the offender under section 366-A of the I.P.C., the said provision of the I.P.C. mandates that the victim must be under the age of 18 years, but from 6 Cr. Appeal (SJ) No.208 of 2006

the evidences adduced on behalf of the parties, it is emanating that the victim (P.W.-10) was major at the time of occurrence. The occurrence is said to have been taken place on 16.07.1997 and her statement was recorded under section 164 of Cr.P.C. on 05.08.1997 (Ext. A and Ext. A/1), where the age of victim is 21 years as stated by herself and the learned court of Judicial Magistrate had estimated her age as 19 years. Further P.W. -5 Dr. Sujata Jha, who had been examined been on behalf of the prosecution had categorically opined that the age of the victim girl was about 18 years and in the cross examination, the doctor PW-5 stated that her age may be more than 20 years at the time of occurrence and as such, the doctor has also explicitly opined that she was major at the time of occurrence. By further analyzing the testimony of P.W. 9- Hazra Khatoon, who is mother of victim, had stated during the course of trial at the time of her examination as a witness that in the year 2002, she (mother of victim) was at the age of 50 years and she had married at the age of 12 to 13 years and the first child was born after 3 to 4 years of marriage and the victim was her third child and the gap between two children was 1-3 years only and in this view of the matter, it has been pointed out that it is clear that the victim was born, when her mother was about 22 years old and victim would be at the age of about 28 years in the year 2002, which clearly showed that the victim was about 20 years at the time of incident and she was not minor. In view of the aforesaid glaring evidence, it is found that the learned trial court has grossly erred in convicting the appellant for the offence punishable under section 366-A of I.P.C., for which there is a mandate that the victim should be minor, but in the present case, the victim was major at the time when the alleged occurrence took place. The victim (P.W.-10) herself has stated in her deposition vide paras 32 and 27 that she had married and children were also born to her.

11. It is further found that it is admitted case of the prosecution 7 Cr. Appeal (SJ) No.208 of 2006

that there was no eyewitness of the occurrence and the learned trial Court passed the impugned judgment of conviction and order of sentence solely on the version of victim- (P.W.-10) which appears wholly unreliable. From the perusal of the testimony of the P.W. 10- victim vis-a-vis her statement recorded under section 164 of the Cr.P.C. vide Ext. A and Ext. A/1, it is well founded that there is a complete departure in a dramatic way with respect to the charges against the sole appellant. In her testimony, the victim had fully supported the case of the prosecution stating that she was taken away by the accused appellant and she was sexually assaulted also, although her statement is vague, as she has not taken any specific name of anyone of the accused persons about the commission of the offence of rape upon her while there were three accused persons in total as per the prosecution (Ext.-3), even the appellant has not been specifically named for committing rape upon her and just a sweeping statement has been given that she was sexually assaulted. In her statement recorded under section 164 of the Cr.P.C. she did not utter a single word about any kind of coercion, pressure or kidnapping or abduction by anyone of the accused persons including this appellant, rather she stated that neither the appellant (Babua Sao), Sarju Sao, nor Amitabh Bachchan took her away. She had stated that her mother used to send her forcibly to her brother in law (Jijaji), but she did not want to go to her Jijaji who lived in Bombay and her mother used to keep her sister at village itself, therefore she willingly and voluntarily on 16.07.1997, left her house and went to Jhajha (Bihar) by bus all alone and thereafter she came to Jasidih (now in Jharkhand) from Jhajha and from there after catching the train, she reached to Kolkata, where her mausi was staying and she stayed with mausi for 15 days and she further stated that when she came to know about the information of her kidnapping / abduction or of her being traceless, she came back to Giridih and thereafter the police apprehended her. She categorically stated in her 8 Cr. Appeal (SJ) No.208 of 2006

last sentence that she had left her house willingly and voluntarily and recorded her statement without any pressure and coercion. In view of such an unequivocal statement recorded under section 164 of the Cr.P.C., the veracity and truthfulness of her subsequent statement in her testimony during the course of trial is not sustained and her credibility about her earlier statement and subsequent statement could not be tested and verified for want of examination of I.O. and the Sub- divisional Judicial Magistrate and thus this Court finds that the learned trial court committed error in passing the impugned judgment of conviction and order of sentence solely based on her testimony inasmuch as the appellant was debarred from his valuable right to test the I.O. in this case during the course of examination about the truthfulness of her (victim) earlier statement vis-à-vis her subsequent statement. The learned counsel appearing on behalf of the appellant has drawn the attention of this Court with respect to earlier statement of the victim recorded under section 161 of the Cr.P.C. also vide para 85 of the case diary, where it is also found that there was no whisper of any kind of any inducement or any kind of force or seducing used by the accused appellant to take away the victim (P.W. -10) with intent that she may be, or knowing that it is likely that she would be forced or seduced to illicit intercourse with another person which is the prerequisite for proving the commission of an offence under Section 366-A of the I.P.C. Since the I.O. in this case has not been examined and therefore the earlier statement recorded in para 85 of the case diary during the course of investigation, could not be verified and testified and as such it has caused serious prejudice to the defense of the appellant to ascertain the credibility of the version of the victim (P.W.10). In such a drastic variation of statements of the victim, either recorded under Sections 161 or 164 of the Cr.P.C. vis-a-vis her statement during the course of trial, the non-examination of the I.O. is really fatal to the case of prosecution when admittedly there is no 9 Cr. Appeal (SJ) No.208 of 2006

eyewitness to the occurrence

12. Further in absence of examination of I.O. neither the place, nor the time nor the date of occurrence has been formally proved. P.W. 11- Narayan Yadav is a deed writer who had brought on record the formal FIR, which has been marked as Ext. 3 and endorsement of the officer in-charge, which is marked as Ext. 1/1 and this witness has categorically stated in the cross examination that this formal FIR was neither drawn in his presence nor he had an opportunity to work with the concerned police station and therefore neither the FIR nor the written statement of the informant has been proved as per the prescribed procedure of law due to non-examination of the I.O. in such a serious offence of u/s 366-A of the I.P.C.. Even another witnesses examined on behalf of the prosecution do not draw the confidence of this Court to substantiate the version of the victim P.W.-10 in the light of the glaring inconsistencies and contradictions found in the statement of the victim as discussed above.

13. P.W.-1 to P.W.-4 are close relatives of the informant and admittedly nobody had seen the appellant taking away the victim with him on the alleged date and time of occurrence and their versions are full of contradictions as evident from their testimonies as under :

14. PW -1 Md. Nayeemuddin being the uncle of the informant as well as the victim stated a different story from the allegations as set-out in the FIR. In para 3 of his examination-in-chief he had stated that he came to know that the police during the search found that the victim was in Kolkata and the victim had married in the Court which is in consonance with the version of victim recorded under section 164 of Cr.P.C. falsifying the charges leveled against the appellant. This witness had stated about one incident alleged to have taken place on 13.07.1997 (four days before the day of present occurrence) where it is said that the appellant was caught by the informant hiding in the house of the informant who had chased and caught the appellant but 10 Cr. Appeal (SJ) No.208 of 2006

neither any information to the police nor any legal action was taken by the informant and the appellant was said to have been set free by the one or two co-villager.

15. P.W. 2 - Md. Barrik has stated that on 16.07.1997 between 11p.m. the victim was taken away. He had further deposed that at that time he was in his house and on hulla he had gone to the place of occurrence and where he came to know from the mother of the victim that room of victim is bolted from inside. He has further deposed that after breaking the door of the room he found that the tiles of the roof of the room were removed and victim was traceless. This witness had also stated about one incident alleged to have taken place on 13.07.1997 (four days before the day of present occurrence) when the appellant was alleged to have been sitting in the house of the informant who chased and caught the appellant but no action was taken.

16. P.W. 3 - Sayeed Akhtar was also a hearsay witness and he heard about the occurrence in the morning on 17.7.1997. He had further deposed that Nijamuddin had told him that Babua Sao had taken away his sister (the victim). This witness had also stated about one incident alleged to have taken place on 13.07.1997 (four days before the day of present occurrence) when the appellant was alleged to have been sitting in the house of the informant who chased and caught the appellant but some people reached there and they set him free and no action was taken.

17. P.W. 4 -Md. Nijamuddin was the brother of the victim and he also stated about the incident of 13.07.1997 when the appellant was alleged to have been sitting in his house then he caught the appellant but several people gathered there and they set him free but no legal action was taken. This witness being the informant of this case had admitted that the statement of the victim was recorded in the court and also the victim was sent to the remand home and he did not support the version of victim (P.W. 10), which was recorded during the course 11 Cr. Appeal (SJ) No.208 of 2006

of trial particularly the commission of the offence of rape by the appellant with victim. Although this witness stated that the victim had told him that the appellant had taken her away but she did not whisper to this informant witness about the incident of rape of with her and thus the mandate of 366-A is not substantiated. He proved his signature on the written report which has been marked as Ext.-1.

18. Thus from the testimonies of aforesaid witnesses viz P.W.1, P.W.2, P.W.3 and P.W.4 (informant) it is found that none of the witnesses had seen the occurrence that the appellant had taken away the victim nor any one of them even mumbled about the alleged fact that they even came to know about the fact that the victim was raped by this appellant or the victim was taken away from the house of the informant with an intent that the victim P.W.10 may be, or knowing that it is likely that she would be forced or seduced to illicit intercourse with another person contrary to the disclosure of facts by the victim P.W.10. in her testimonies before the court. Hence the subsequent version of the victim before the Court contrary to her earlier version under section 164 of the Cr.P.C. and also contrary to the versions of P.W.1, P.W.2, P.W.3 and P.W.4 (informant) is not reliable and convincing and hence the impugned judgment of conviction and order of sentence solely based on her testimony is wholly perverse and bad in law.

19. P.W. 5- Dr. Sujata Jha was the doctor and she deposed that on 04.08.1997 she was posted as C.A.S. in Sadar Hospital, Giridih and on that day she had examined the victim at 02:00 p.m. and she found the following-

Height- 5', weight- 41 kg., Hair- auxillary and pubic present, teeth- upper 16 and lower 16, breast -developed, and no injury over the body.

She had further deposed that on examination of the genitalia, she found, no injury, no semen, no foreign pubic hair, hymen- old torn, and vagina admitted two fingers. On vaginal swab examination by the 12 Cr. Appeal (SJ) No.208 of 2006

pathologist, no spermatozoa was found. She had also deposed that X- Ray of pelvis (plate No. 3697) showed iliac crest fused and X-Ray plate no. 3798 showed the lower end of radius and ulna fused. She had given her opinion that the age of the victim girl is about 18 years on the basis of clinical, radiological, and physical appearance as well as dental finding. She had proved her writing and signature on the medical report, which has been marked as Ext-2.

In the cross examination she categorically stated with respect to the age of victim that she may be of 20 years age at the time of occurrence. She had also deposed that at the time of examination, no recent sexual intercourse was found. Thus her detailed medical examination report wholly substantiates the fact that the victim was above 18 years of age and thus the conviction under section 366-A of I.P.C. is bad in law and not sustainable.

20. P.W. 6- Shamim, P.W. 7- Sabbir Ahmad and P.W. - 8 Amanat Ali are the co-villagers, who did not support the case of the prosecution and they have been declared hostile.

21. P.W. 9 - Hazara Khatoon is the mother of victim. She had deposed that after the occurrence she did not see her daughter (victim) which appears to be highly improbable in the Indian context. It means the version of the victim as recorded under section 164 of Cr.P.C.(Ext.- A&A/1) is true because the victim stated in her statement recorded under section 164 of Cr.P.C. (Ext.- Ext.-A&A/1) that she left her house voluntarily and willingly because of the pressure from her parents who were compelling her to go to Bombay to live with her Jijaji whose wife (sister of the victim) was living in the village and therefore even after coming back she did not meet her mother as told by her mother (P.W. 9) herself in para 4 of her examination-in-chief. Even the victim (P.W. 10) stated explicitly in her examination-in-chief that she had no place to live anywhere permanently, she did not live at any place. It establishes that P.W.9 being the mother of the victim (P.W. 10) was 13 Cr. Appeal (SJ) No.208 of 2006

totally ignorant of the welfare her daughter (P.W.10). And P.W.9 simply stated that the occurrence took place five years ago and at that time victim was 16 years old. She had deposed in para 11 that she had not seen victim going with Babua Sao (the accused-appellant). She stated that on the next day morning of the incident, they came to know that the victim was missing from house and therefore victim's version as recorded under section 164 of Cr.P.C. is substantiated and appears to be more probable than the subsequent version of victim. Since the I.O. in this case has not been examined therefore the statement of the victim that due to pressure and threat, her statement was recorded under section 164 of Cr.P.C. could not be appreciated in the right perspective and it has caused serious prejudice to the case of defense. Further her statement under section 161 of Cr.P.C. also as recorded in the case diary vide para 85 also could not be confronted and corroborated due to non-examination of the I.O.

22. Having taking into consideration the aforesaid evaluation of evidences adduced on behalf of the parties and recapitulating the same, it is well founded that the learned trial court committed gross error in appreciating the evidences, particularly the statements of the victim (P.W. 10), when her subsequent statement has completely changed away and departed from her earlier statement recorded under sections 164 (EXT.-A/1) and 161 of the Cr.P.C. vide Para 85 of the C.D. (case diary) and in such a case, non-examination of the I.O. has caused serious prejudice to the defence of the appellant and the trial of the case is vitiated. Further the case of the prosecution has also not been substantiated and corroborated by any of the impartial witnesses because P.W.1 and P.W.2 are the uncles of the victim(P.W.10) , P.W.4 is the informant-brother of the victim and P.W.9 is the mother of the victim and other co-villagers (independent witnesses PW 6 Shamim, PW 7 Sabbir Ahmad and PW - 8 Amanat Ali) have not supported the case of the prosecution and in this way, non-examination of the I.O.

14 Cr. Appeal (SJ) No.208 of 2006

has caused serious prejudice to the accused. In the present case, where there are conflicting depositions on the point of inducement or any kind of force or seducing used by the accused appellant to take away the victim (PW -10) with intent that she may be, or knowing that it is likely that she would be forced or seduced to illicit intercourse with another person, as the testimonies of P.W.1, P.W.2, P.W.3, P.W4, P.W9, and P.W.10 (victim) are not in conformity either with case made out in the FIR(Ext.-3), or with the statement of the victim P.W.10 as recorded under section 164 of the Cr.P.C (Ext.-A/1) or also with medical evidence (Ext.-2) as discussed above. The non examination of the Investigating Officer is fatal for the prosecution as the accused appellant was deprived of the opportunity to effectively cross-examine the I.O. and to bring out contradictions in their earlier statements before the police. The examination of the I.O. is necessary in order to bring on record the contradictions in the statement of witnesses particularly of P.W.10, and such a right is a valuable right of the accused. Non-Examination of I.O. is a serious infirmity in the present case so far as it deprives the accused of an opportunity to show that the witnesses were not reliable by proving contradictions in the earlier statements particularly when the witnesses were only partisan witnesses and thus the accused suffered serious prejudice on account of being deprived of opportunity to point out the material contradictions in their earlier statements and as such the appellant had suffered serious prejudice.

Thus the correctness of the statement of the witnesses examined during the course of the investigation and subsequently in the trial, particularly P.W.9 & P.W.10 and also P.Ws1,2 3 and 4 upon which the learned trial court has relied upon, had not been tested by cross-examining the Investigating Officer and since the learned Trial Court has convicted the appellant relying only upon the statements of P.W.9 &P.W.10, and also P.Ws1,2 3 and 4 the impugned judgment of 15 Cr. Appeal (SJ) No.208 of 2006

conviction has occasioned great miscarriage of Justice for the sole Accused-appellant due to non-examination of I.O.

It is also well proved from the statements/ depositions of the witnesses examined on behalf of the prosecution particularly, of the doctor (P.W. -5) and of the victim (P.W. -100 and her mother (P.W.9) that the victim was not under 18 years of age and she was major and therefore the conviction of the appellant under section 366-A of I.P.C. is not tenable in the eyes of law. Further it is also found neither in the F.I.R. nor in the depositions of P.W.s 1, 2, 3, 4, 9 there was even whisper of any kind of force, coercion, inducement, or seducement by the appellant for taking her (the victim) away from the place of occurrence with intent that victim (P.W.10) may be, or knowing that it is likely that she would be forced or seduced to illicit intercourse with another person. It is a case under section 366-A of the I.P.C., which is a major offence of taking away a girl under the age of 18 years for the purpose of compelling her for illicit intercourse with any another person, therefore such disclosure is the essence to constitute offence under section 366-A of I.P.C.. It becomes more significant when her statement recorded under section 164 of the Cr.P.C. does not whisper about any kind of ingredients to constitute the offence punishable under section 366-A of I.P.C. where she stated that she left her house voluntarily and willingly because of the pressure from her mother P.W.9 and father who were compelling her to go to Bombay to live with her Jijaji whose wife (sister of the victim) was living in the village and the said Jijaji was living in Mumbai. In view of the aforesaid findings, this Court comes to the conclusion that the impugned judgment of conviction dated 25.01.2006 and order of sentence dated 30.01.2006 passed by learned Additional Sessions Judge-cum-Fast Track Court-II, Giridih, in S.T. No.378 of 2000, is bad in law as well as on facts and fit to be set-aside.

23. Accordingly the impugned judgment of conviction dated 16 Cr. Appeal (SJ) No.208 of 2006

25.01.2006 and order of sentence dated 30.01.2006, passed by learned Additional Sessions Judge-cum-Fast Track Court-II, Giridih, in S.T. No.378 of 2000, arising out of Jamua P.S. Case No.126 of 1997, corresponding to G.R. No.1177/1997, against the sole appellant under Section 366-A of the I.P.C. is set-aside.

24. Consequently, this appeal is allowed.

25. Since the sole appellant- Babua Sao is in jail, he is directed to be released forthwith in this case if not wanted in any other case and the appellant is acquitted from all the charges leveled against him. And the I.A. No. 380 of 2019 also gets disposed of accordingly.

26. Let a copy of this judgment along with the Lower Court Record be sent back forthwith to the concerned court below for compliance of the order and do the needful.

(Navneet Kumar, J.)

Jharkhand High Court, Ranchi, Dated the 30.08.2022/NAFR R.Kumar/-