(Against The Judgment Of ... vs The State Of Jharkhand
2023 Latest Caselaw 2938 Jhar

                                       1

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  (Criminal Appellate Jurisdiction)
                  Cr. Appeal (SJ) No. 889 of 2003
(Against the judgment of conviction dated 15.04.2004 and the order of
sentence dated 19.04.2004, passed by the learned Additional District &
Sessions Judge, Fast Track Court No. VIII, Jamshedpur, in S.T. No. 317 of
2002)

Suman Dhar                                                 .....   Appellant
                                 Versus
The State of Jharkhand                                     ..... Respondent
                               ---------

CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Appellant              : Mr. Amit Kr. Choubey, Advocate
For the Resp.-State            : Mr. Sardhu Mahto, APP
                               --------
16/ 17.08.2023     Heard learned counsel for the parties.

2. The instant appeal is directed against the judgment of conviction and order of sentence dated 15.04.2004 & 19.04.2004, respectively passed by the learned Additional District & Sessions Judge, Fast Track Court No. VIII, Jamshedpur, in S.T. No. 317 of 2002; whereby the appellant was convicted and sentenced to undergo rigorous imprisonment for 5 years and fine of Rs.1,000/- under Section 363 of the Indian Penal Code and in default of payment of fine, further to undergo simple imprisonment for six months.

3. The prosecution case in brief is that on 29.07.2002 at about 11 A.M., the daughter, namely, Khushboo Kumari of the informant left her house for Kerala Girl School and when her daughter did not return till 5 P.M. then the informant's wife informed the informant. Thereafter, informant searched her daughter from the place of his relatives but nothing could be traced out. The informant gave a written information to Mango police station wherein he has stated that she went with Punnu Kumari. On 31.07.2002 in the evening, the informant came to know that her daughter-Khushboo Kumari and Punu Kumari had gone with the appellant and since then his daughter is traceless. The informant has raised his suspicion against the accused Suman that he kidnapped his daughter and Punu Kumari.

4. Learned counsel for the appellant made following submissions:

(i) Even in kidnapping of minor, enticement is an essential ingredient to constitute offence under Section 363 which is not established in the present case.

(ii) There are major infirmities in the prosecution story, as both the victims have given completely opposite statements about the culpability of the appellant.

(iii) Even though material independent witnesses were available; they were not examined, as a result of which there is no independent witnesses on record who supported the prosecution story.

(iv) The story of P.W. 6-Khusboo Kumari who is the victim, that the appellant enticed her cannot be trusted and / or accepted blindly, as she in para 2 of her examination has stated that the appellant had sexual intercourse with her and P.W. 3, but the same has been negated by the medical examination as well as by her in para 32 of her cross- examination, as she has stated that the appellant did not have sexual intercourse with her. This shows serious contradiction in the statement of P.W. 6

(v) Since there are several infirmities in the prosecution story, there was an immense need for the prosecution to have examined the independent witnesses namely the members of the locality who saw the appellant allegedly kidnapping the victims and the neighbors of one Subhash Mahto whose house was near alleged place of occurrence.

5. Relying upon the above contentions, learned counsel for the appellant prays for acquittal.

6. Learned A.P.P. for the State submits that no error has been committed by the learned trial court, as such no interference is required.

7. Having heard learned counsel for the parties and after going through the documents available on L.C.R. it appears that in the present case there is no solicitation or persuasion on the part of the accused. As per the statements of PWs, it appears that both the victims and the appellant were neighbors and both P.W. 3 and P.W. 6 voluntarily got into the tempo with the appellant. The plan was collective. There was no solicitation or persuasion solely on the part of the appellant.

8. The story of P.W. 6 - Khushboo Kumari, who is one of the victims, that the appellant enticed her cannot be considered reliable as she herself on the one hand at para 2 has stated that the appellant had sexual intercourse with her but at the same in para 32 of her cross-examination, she has stated that the appellant did not have sexual intercourse with her which has also been corroborated by the medical examination. This shows

the serious contradictions in the statement of P.W. 6.

9. It further transpires from her cross-examination at para 14, where she has accepted that when police found them this appellant was not present and the door of the house was closed from the inside.

It is also evident from her deposition / cross-examination at para 17 and para 18, that the appellant regularly after leaving the alleged victims at the house went for work for around 6 hours; even then no attempts were made by the victims to raise alarm and/or escape from alleged captivity. In para 34, P.W. 6 has also stated that the appellant even asks her to return back to her house, but she chose not to return to her parents.

This clearly goes to show that the appellant did not solicit or persuade the victim, to live with him and did not forcefully make her live with him. Therefore, the action of the appellant cannot come within the ambit of enticement. Hence, the appellant cannot be held liable under Section 363.

10. In the case of Moniram Hazarika vs. State of Assam reported in (2004) 5 SCC 120, the Hon'ble Apex Court while referring to the case of S. Varadrajan vs. State of Madras reported in (1965) 1 SCR 243 the Hon'ble Apex Court has discussed the scope of the term "enticement". Para 7 & 8 of the judgment is quoted herein below:

"7. It is on the basis of the said finding that the minor in that case walked out of the house of her guardian without any inducement from the accused; this Court came to the conclusion that the accused in that case was not guilty of the offence. It is also worthwhile to notice what this Court said about the act of the accused in such cases which amounts to enticement which is found in para 10 of the said judgment and which reads thus: (AIR p. 945) "10. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so."

(emphasis supplied)

8. It is clear from the above observations of this Court that if the accused played some role at any stage by which he either solicited or persuaded the minor to abandon the legal guardianship, it would be sufficient to hold such person guilty of kidnapping."

The Hon'ble Apex Court held that solicitation or persuading the minor by the accused would amount to enticement.

Further, the Hon'ble Supreme Court in Mafat Lal and Anr v. State of Rajasthan, reported in (2022) 6 SCC 589 has held that kidnapping would

necessarily involve enticing or taking away any minor under eighteen years of age. Thus, to establish the appellant's culpability it has to be established that the appellant enticed the victims. Para 9 of the judgement is quoted herein below:

"9. Kidnapping would necessarily involve enticing or taking away any minor under eighteen years of age, if a female, for the offence under Section 363IPC. In the present case, the abductee had clearly stated that she was neither taken away nor induced and that she had left her home of her own free will."

After going through the aforesaid judgement of the Hon'ble Apex Court and looking to the facts and circumstances of this case it is evident that enticement by the appellant not established.

11. It further appears that the prosecution did not examine the material witnesses, inasmuch as, in the present case, P.W. 4, at para 7 of his cross- examination has stated before the learned trial court that members of Paradih locality saw the alleged appellant kidnapping his daughter. But no attempt, whatsoever, was made by the prosecution to examine any of the members of the locality who saw the appellant kidnapping the daughter of P.W. 4.

In addition to this, P.W. 9, who is the investigating officer of the case, at para 12 of his cross-examination has accepted that even though many people lived beside the bungalow of one Subhash Mahto, the place where allegedly the appellant kept both the victims for five days, he did not question even a single person about the incident.

12. Further, in the instant case, there is severe inconsistency between the statement of the two victims. One of them has completely denied the prosecution case whereas the second victim has completely supported it. Also, the parents of P.W. 3 have completely denied the prosecution story and the parent of P.W. 6 has completely supported it. Since there was huge infirmity in the prosecution story; there was an immense need for the prosecution to have examined the independent witnesses i.e., the members of the locality who saw the appellant allegedly kidnapping the victims and the neighbors of one Subhash Mahto. Though there were material witnesses available, but were not examined.

Reliance in this regard may be made to the judgment of the Hon'ble Apex Court rendered in the case of Takhaji Hiraji vs. Thakore Kubersing

Chamansing reported in (2001) 6 SCC 145 wherein it has been held that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. Para 19 of the judgment is quoted herein below:

"19. So is the case with the criticism levelled by the High Court on the prosecution case finding fault therewith for non- examination of independent witnesses. It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself -- whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. In the present case we find that there are at least 5 witnesses whose presence at the place of the incident and whose having seen the incident cannot be doubted at all. It is not even suggested by the defence that they were not present at the place of the incident and did not participate therein. The injuries sustained by these witnesses are not just minor and certainly not self-inflicted. None of the witnesses had a previous enmity with any of the accused persons and there is apparently no reason why they would tell a lie. The genesis of the incident is brought out by these witnesses. In fact, the presence of the prosecution party and the accused persons in the chowk of the village is not disputed. How the vanity of the Thakores was hurt leading to a heated verbal exchange is also not in dispute. Then followed the assault. If the place of the incident was the chowk then it was a sudden and not premeditated fight between the two parties. If the accused persons had reached their houses and the members of the

prosecution party had followed them and opened the assault near the house of the accused persons then it could probably be held to be a case of self-defence of the accused persons in which case non-explanation of the injuries sustained by the accused persons would have assumed significance. The learned Sessions Judge has on appreciation of oral and circumstantial evidence inferred that the place of the incident was the chowk and not a place near the houses of the accused persons. Nothing more could have been revealed by other village people or the party of tightrope dance performers. The evidence available on record shows and that appears to be very natural, that as soon as the melee ensued all the village people and tightrope dance performers took to their heels. They could not have seen the entire incident. The learned Sessions Judge has minutely scrutinised the statements of all the eyewitnesses and found them consistent and reliable. The High Court made no effort at scrutinising and analysing the ocular testimony so as to doubt, if at all, the correctness of the several findings arrived at by the Sessions Court. With the assistance of the learned counsel for the parties we have gone through the evidence adduced and on our independent appreciation we find the eyewitnesses consistent and reliable in their narration of the incident. In our opinion non-examination of other witnesses does not cast any infirmity in the prosecution case."

13. At the cost of repetition, since no independent witness has been examined; though available looking to the fact and circumstances of the case, non-examination of material witnesses would draw an adverse inference against the prosecution story. Therefore, the appellant deserves the benefit of doubt.

14. With the aforesaid observations and discussions made herein above, the instant criminal appeal stands allowed and the judgment of conviction dated 15.04.2004 and the order of sentence dated 19.04.2004, passed by the learned Additional District & Sessions Judge, Fast Track Court No. VIII, Jamshedpur, in S.T. No. 317 of 2002, is hereby, quashed and set aside.

15. The appellant shall be discharged from the liability of his bail bond.

16. Let a copy of this order and the lower court record be sent to the court concerned forthwith.

(Deepak Roshan, J.)

Pramanik/