Jharkhand High Court
Pramod Dutta @ Ludu Dutta vs The State Of Jharkhand on 5 February, 2024
Author: Navneet Kumar
Bench: Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 45 of 2017
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(Against the impugned judgement of conviction dated 17.11.2016 and order of
sentence dated 18.11.2016 passed by the learned Special Judge, Jamtara in S.C. /
S.T. Case No. 1 of 2016, arising out of Kundahit P.S. Case No. 44 of 2015,
corresponding to G.R. No. 517 of 2015, Jamtara Jharkhand)
Pramod Dutta @ Ludu Dutta
@ Prabodh Dutta @ Prabodh Ch. Dutta .... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Mr. Mahesh Tiwari, Advocate
For the State : Mrs. Vandana Bharti, A.P.P.
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JUDGMENT Dated: 5th February, 2024
Heard learned counsel Mr. Mahesh Tiwari appearing on behalf of the
appellant and Mrs. Vandana Bharti, learned A.P.P. appearing on behalf of the
State.
2. This appeal is, directed against the judgement of conviction dated
17.11.2016 and order of sentence dated 18.11.2016 passed by the learned
Special Judge, Jamtara in S.C. / S.T. Case No. 1 of 2016, arising out of
Kundahit P.S. Case No. 44 of 2015 lodged on 19.05.2015, corresponding to
G.R. No. 517 of 2015, registered for the offence under Sections 341, 323,
504, 354-B, 506 of the Indian Penal Code, Section 3(iv) (x) (xi) of the
S.C./S.T. (Prevention of Atrocity) Act, whereby and where under the learned
Trial Court has been pleased to hold the appellant guilty for having
committed offences under Sections 323 and 506 of the Indian Penal Code
along with Section 10 of the POCSO Act and has further been pleased to
sentence him to undergo Rigorous Imprisonment for six months for the
offence under Section 323 Indian Penal Code, rigorous imprisonment for one
year for the offence under Section 506 Indian Penal Code. The appellant has
further been sentenced to undergo Rigorous Imprisonment for five years for
the offence under Section 10 of the POCSO Act along with a fine amount of
Rs.20,000/- to be paid to the victim as compensation. The learned trial Court
has further been pleased to direct that in case of default of payment of fine,
the appellant shall undergo a further rigorous imprisonment for six months.
Cr. Appeal (S.J.) No. 45 of 2017
Further the learned Trial Court has been pleased to acquit the appellant
under Sections 376 (1), 504 of the Indian Penal Code, Section 3(x) (xi) (xii)
of the S.C./ S.T. (Prevention of Atrocity) Act. The learned Judge has been
pleased to hold that all the sentences shall run concurrently.
3. The prosecution story arose in the wake of written information of the
victim girl / prosecutrix addressed to the Officer-In-Charge Kundahit
wherein she stated that she was minor girl and was studying in Class-IX. She
has further stated that on 19.05.2015 at 10:00 A.M. when she was returning
to her home after attending her tuition class and in this course on the way,
she went to the shop of accused Pramod Dutta @ Ludu Dutta for purchasing
chips of Cell Phone. The accused took her into a room by seducing her and
proposed to marry with her and told that he loves her. She denied his
proposal, whereupon he started to do forcibly and threw her on Chowki and
threatened her not to cry, otherwise, he will kill her. He pressed her neck and
assaulted her, but she raised alarm. Then he left her and warned her not to
disclose the matter. On her hulla, some persons gathered there. On the basis
of written report of the prosecutrix, Kundahit P.S. Case No. 44 of 2015,
registered under Sections 341, 323, 504, 506, 354(B) of the Indian Penal
Code and 3 (iv) (x) (xi) SC/ST (Prevention of Atrocities) Act was registered
against the accused. After completion of investigation, the I.O. charge-
sheeted the accused for committing the offence under Sections 376(1), 323,
504, 506,341 of the Indian penal Code and Section 3 (iv) (x) (xi) ST/ST
(Prevention of Atrocities) Act and accordingly the cognizance was taken by
the learned A.C.J.M., Jamtara and case was committed to the court of
Special Judge for trial. After hearing on the point of charge, the accused was
charged under Sections 323, 504, 506 376 (1) of the Indian Penal Code,
Section 10 of the POCSO Act and Section 3 (1) (xi) (xii) of the SC/ST
(Prevention of Atrocities) Act.
4. The learned Court below after conducting the full-fledged trial passed
the impugned judgement of conviction dated 17.11.2016 and order of
sentence dated 18.11.2016 which is under challenge.
Arguments advanced on behalf of the appellant-
5. At the outset it is submitted on behalf of the appellant that the learned
Trial Court has passed the impugned judgement of conviction and order of
Cr. Appeal (S.J.) No. 45 of 2017
sentence on extraneous ground without any basis of evidence and the
impugned judgement of conviction and order of sentence is totally erroneous
and perverse. It has been pointed out that all the important witnesses
including the victim -P.W.-2 and her mother -P.W.-3 have been declared
hostile as they have not supported the case of the prosecution at all.
6. The learned defence counsel also pointed out that the statement of the
victim recorded under Section 164 of the Cr.P.C. is also in a ridiculous
manner where the learned Magistrate himself has stated that no certificate
has been given as to whether the statement of the victim was recorded
willingly or voluntarily or not ? and as such the mandatory provision of law
has not been followed and therefore, it is submitted that the version of 164 is
not a reliable deposition particularly in the light of the statement of the
victim recorded during the course of trial. Further it has also been pointed
out that the learned S.D.J.M. who had recorded the statement of the victim
under Section 164 of the Cr.P.C. has been relying upon the Bench Clerk for
giving the certificate that the statement recorded by the learned Magistrate
was read over to the victim before taking her signature on the statement of
the victim recorded under Section 164 of the Cr.P.C. as evident from para -3
and 4 of P.W.-6 who is a learned Magistrate and therefore, it is submitted on
behalf of the appellant that the version of the prosecutrix in the light of her
deposition during the course of trial does not substantiate the case of the
prosecution and it is pointed out that it was the obligation of the learned
Magistrate after recording the statement under Section 164 of the Cr.P.C. to
place before the victim who is supposed to give certificate that she has read,
understood and then signed on it but from the perusal of the statement
recorded under Section 164 of the Cr.P.C. i.e. Exhibit-5, it is evident that it
has never been read by the victim and the victim had put her signature after
going through the contents of her statement recorded under Section 164 of
the Cr.P.C. and therefore, her statement during the course of trial cannot be
brushed aside in the light of her earlier version recorded under Section 164
of the Cr.P.C. by the learned Court below where some major lapses are
found.
7. Further it has also been pointed out on behalf of the appellant that the
other witnesses who have been examined on behalf of the prosecution are
Cr. Appeal (S.J.) No. 45 of 2017
P.W.-1, Kanti Singh, P.W.-4, Santosh Kumar Sinha who have also been
declared hostile as they have not supported the case of the prosecution and
therefore, it is urged on behalf of the appellant that the impugned judgement
of conviction and order of sentence has been passed on whim of the learned
Trial Court without appreciating the deposition of the witnesses even the
deposition of the victim and her mother and passed the impugned judgement
of conviction and order of sentence in a mechanical manner, which is fit to
be set aside.
8. Learned defence counsel has also pointed out that the version of the
learned Magistrate vide para-6 where he has stated that it was not a fact that
he had not given any certificate that the victim had given her statement
voluntarily and willingly but this version of the learned Magistrate, on the
face of it, appears to be false and wrong as evident from Exhibit-5 which is
the statement of the victim recorded under Section 164 of the Cr.P.C. where
it is not written anywhere that the statement of the victim has been given
voluntarily and willingly and without any coercion and pressure.
Arguments advanced on behalf of State-
9. On the other hand, learned A.P.P. appearing on behalf of the State has
opposed the contentions raised on behalf of the appellant and submitted that
the learned Court below has rightly appreciated the deposition of the
witnesses examined on behalf of the prosecution and there is no illegality in
the impugned judgement of conviction and order of sentence. However, the
learned A.P.P. did not deny this fact that the victim -P.W.-2 and her mother
P.W.-3, both have been declared hostile.
10. It has been submitted on behalf of the State that the versions of the
victim, even after being declared hostile have supported the case of the
prosecution to some extent and therefore, the learned Court below has
rightly relied upon the version of P.W.-2, which has been supported by the
doctor P.W.-5 who being the medical officer had examined the victim and
found some injuries of bruise, swelling and abrasion on her body and
therefore, it is argued on behalf of the State that there is no legal point to
interfere in the impugned judgement of conviction and order of sentence
and therefore, this appeal is fit to be dismissed being devoid of merit.
Cr. Appeal (S.J.) No. 45 of 2017
Appraisal & Findings
11. Having heard learned counsel for the parties, perused the records of
this case including the Lower court Record.
12. In order to prove its case, the prosecution has been able to examine
altogether eight witnesses which are as under:
P.W.-1, Kanti Singh,
P.W.-2, Prosecutrix / victim,
P.W.-3, Sanodi Tudu,
P.W.-4, Santosh Kumar Sinha,
P.W.-5, Sarita Kachhap,
P.W.-6, Krishna Dutta Jha, (I.O. of the case)
P.W.-7, Manoranjan Kumar,
P.W.-8, Babulal Mondal.
13. Apart from the oral evidences the prosecution has proved some
documentary evidences also which are as under:
Exhibit-1- Signature of the prosecutrix on written report
Exhibit-1/1- Endorsement on Written Report
Exhibit-2- Signature of prosecutrix on statement under Section 164 of
the Cr.P.C.
Exhibit-3- Injury Report of victim
Exhibit-4- Formal F.I.R.
Exhibit-5- Statement under Section 164 of the Cr.P.C.
Exhibit-6- Serial No. 141 of the School Admission Register
14. On the other hand, some documentary evidences have also been
brought on record on the side of the defence which are as under:
Exhibit-A - Signature of prosecutrix on Compromise Petition
Exhibit-A/1- Signature of Sanodi Tudu on Compromise Petition
Exhibit-B - Requisition of the Medical Examination
Exhibit-B/1- Notice by I.O. to prosecution
15. P.W.-1, Kanti Singh examined on behalf of the prosecution has not
supported the case of the prosecution and he has been declared hostile.
16. P.W.-2, is the victim and she has also been declared hostile. The
learned Court below has relied upon the part version of P.W.-2 without any
substantive corroboration by anyone of the witnesses and passed the
Cr. Appeal (S.J.) No. 45 of 2017
impugned judgement of conviction and order of sentence.
17. From the testimonies of P.W.-2, it is found that she has categorically
stated that there was a quarrel between the appellant and her for purchasing
chips from the shop of the appellant, although subsequently she has stated in
para-2 that the alleged occurrence had taken place in the shop of the
accused. In para-9 she has stated that she has compromised with the accused
and her mother has also put signature on the compromise. It is quite
surprising that how did the learned Court below come to the findings on
scrutiny of the deposition of this witness that it was clear that she gave such
statement under pressure and she has been tutored as she has corroborated
the incident in her statement under Section 164 of the Cr.P.C. i.e. (Exhibit-5)
inasmuch as the statement of the victim under Section 164 of the Cr.P.C. vis-
à-vis statement of victim during course of trial creates a serious doubt in the
case of prosecution.
18. From the perusal of Exhibit-5, it is found that the learned Magistrate
did not follow the mandatory provisions of law. It has never been written by
the learned Magistrate who had recorded the statement of the victim i.e.
P.W.-2, under Section 164 of the Cr.P.C. that the victim had given the
statement willingly and voluntarily without any coercion and pressure from
any corner and therefore, the inference of the learned Court below that the
statement of denial of any kind of sexual assault by the victim i.e. P.W.-2
during the course of trial was under pressure and coercion is wholly bad and
perverse. There is no iota of evidence by which such inference can be drawn.
Further, it is also found from the version of P.W.-7, who is the learned
Magistrate who recorded the statement of the victim under Section 164 of
the Cr.P.C. by admitting that on the statement such certificate was not given
by him that the victim had given the statement voluntarily and willingly
under Section 164 of the Cr.P.C. meaning thereby her statement before the
Court where she has not supported the case of the prosecution and she has
been declared hostile is more trustworthy and reliable than her version
recorded under Section 164 of the Cr.P.C.
19. Further it is found from the testimonies of P.W.-2 in para-5 where she
has categorically stated that she had made a written request to the police
(Exhibit-B- Requisition of the Medical Examination & Exhibit-B/1- Notice
Cr. Appeal (S.J.) No. 45 of 2017
by I.O. to prosecution) that she did not want to go under medical
examination because nothing wrong had happened to her and the injuries
which are alleged to have been caused to her was because she fell down
while coming out from the shop and therefore, such injuries had taken place
and thus the whole prosecution story of causing sexual assault where she had
sustained injuries are not corroborated and substantiated by the categorical
version of the victim-P.W.-2 and therefore, in view of the aforesaid version
of the prosecutrix the finding of the learned Court below does not hold good.
20. Another witness examined on behalf of the prosecution is P.W.-3
Sanodi Tudu, who is the mother of the victim and she has also been
declared hostile. She has categorically stated in her version in her
examination in chief that her daughter (the victim-P.W.-2) had fallen and she
had sustained injuries and thus she has fully falsified the case of the
prosecution. She has also stated in para-6 of her cross-examination that her
daughter P.W.-2 has denied to go under medical examination because
nothing wrong was committed to her (Exhibit-B & B/1) and thus P.W.-3 who
is the mother of the victim has also not supported the case of the prosecution
and in para-7 of her cross-examination P.W.-3 stated that when she came to
know that Police had filed wrong case, then she had compromised with this
case. This witness P.W-3 had proved her signature and her daughter's
signature (P.W.-2) on Compromise Petition which has been marked as
Exhibit-A and Exhibit-A/1 respectively.
21. P.W.-4 is Santosh Kumar Sinha, who has also been declared hostile
as he stated that he had no knowledge about the incident.
22. P.W.-5, is the doctor Sarita Kachhap who had examined the bodily
injury of the victim-P.W.-2 and found simple injuries of abrasion, swelling
and bruise and thus the version of the victim-P.W.-2 and P.W.-3 are falling in
line that she had sustained the injuries while she was coming out from the
shop and not because of the alleged sexual assault by the appellant.
23. P.W.-6 is the I.O. Krishna Dutta Jha of this case and he has also
accepted that the victim had denied to go for medical examination and thus
the version of P.W.-2 that nothing wrong was committed to her and
therefore, she denied to go under medical examination is wholly
substantiated. The I.O.-P.W.-6 has stated in para-4 of the cross-examination
Cr. Appeal (S.J.) No. 45 of 2017
that in the re-statement the victim, did not tell that when she raised the
alarm several people gathered there and therefore, the appellant could not
make physical relationship with her and thus in the re-statement she has also
denied the version of the prosecution that the appellant had tried to commit
sexual assault for the offence punishable under Section 10 of the POCSO
Act.
24. Thus, from the very beginning the victim was not supporting the case
of the prosecution and therefore, the finding of the learned Trial Court that
she came under the pressure and coercion during the course of trial and
therefore, she has not supported the case of the prosecution in the Court
during the course of trial is not found true and convincing.
25. P.W.-7 is Manoranjan Kuamr, S.D.J.M. Jamtara who had recorded
the statement of the victim under Section 164 Cr.P.C. has not written that
the victim had given the statement willingly and voluntarily without any
coercion and pressure. The learned S.D.J.M. has been relying upon the
Bench Clerk for giving the certificate "that the statement recorded by the
learned Magistrate was read by the victim and then she put her signature on
her statement recorded under Section 164 of the Cr.P.C." therefore, the
version of the prosecutrix in the light of her deposition during the course of
trial appeared more reliable and trustworthy and does not substantiate the
case of the prosecution.
26. P.W.-8 Babulal Mondal is the Principal of Singhbahini +2
Uchavidyalaya, Kundahit and he was In-charge of Project Girl High School,
Kundahit, since 2011. From the school record he stated that the date of birth
of the victim i.e. P.W.-2 was 21.08.1998 and as such the age of the victim
was about 17 years at the time of occurrence. The serial No. 141 of the
Admission Register has been marked as Ext.6.
27. Recapitulating the evidences and testimonies of the witnesses
examined on behalf of the prosecution available on record, it is well founded
that the prosecution has failed to substantiate the charges levelled against the
appellant for the offence punishable under Section 10 of the POCSO Act. It
is evident from the version of P.W.-2 as recorded during the course of trial
and also under Section 164 of the Cr.P.C. that there are number of anomalies
and inconsistencies in the version of the prosecutrix. It is natural inference
Cr. Appeal (S.J.) No. 45 of 2017
from the version of P.W.-2 that there had been some dispute regarding
purchase of chips by the victim from the shop of the appellant and while she
was coming out from the shop she fell down and sustained injuries and this
version of the prosecutrix cannot be ruled out in view of the statement of her
mother P.W.-3 and her denial for medical examination as evident from
Exhibit-B and Exhibit-B/1.
28. It is admitted case of the prosecution that she was 17 (seventeen)
years old and from the version of her statement recorded under Section 164
of the Cr.P.C. it is found that the learned Magistrate has not written
anywhere in her statement recorded under Section 164 of the Cr.P.C.
(Exhibit-5) that she had given the statement voluntarily under Section 164 of
the Cr.P.C. and therefore, her version recorded during the course of trial that
no wrong was committed to her and she simply fell down while coming out
from the shop of the appellant and sustained injuries cannot be ruled out and
therefore, it is found that the prosecution has failed to substantiate the
charges levelled against the accused-appellant for the offence punishable
under Section 10 of the POCSO Act but the fact remains that the prosecution
has been able to substantiate the charges for the offence punishable under
Section 323 and 506 of the Indian Penal Code as held by the learned Courts
below & the appellant was found guilty for the offence punishable under
Sections 323 / 506 of the Indian Penal Code.
29. In view of the aforesaid discussions and findings this Court comes to
the conclusion that the impugned judgement of conviction dated 17.11.2016
and order of sentence dated 18.11.2016 passed by the learned Special Judge,
Jamtara in S.C. / S.T. Case No. 1 of 2016, arising out of Kundahit P.S. Case
No. 44 of 2015, so far as conviction under Section 10 of the POCSO Act is
concerned is bad in law and fit to be set aside.
30. Accordingly, this Court sets aside the conviction of the appellant for
the offence punishable under Section 10 of the POCSO Act passed by the
learned Special Judge, Jamtara in S.C. / S.T. Case No. 1 of 2016, arising out
of Kundahit P.S. Case No. 44 of 2015. Further on the basis of the evidences
adduced on behalf of the prosecution as discussed in the foregoing
paragraphs this Court upholds the guilt of the accused-appellant for the
offence punishable under Section 323 and 506 of the Indian Penal Code and
Cr. Appeal (S.J.) No. 45 of 2017
accordingly the conviction under Section 323 and 506 of the Indian Penal
Code against the appellant is sustained and upheld.
31. So far as sentence is concerned, it is found that the learned Court
below has sentenced to undergo rigorous imprisonment for six months for
the offence under Section 323 of the Indian Penal Code and rigorous
imprisonment for one year for the offence under Section 506 of the Indian
Penal Code.
32. It is found from the record that there is nothing in the record about the
criminal history of this appellant. Further it is found that this appellant has
already remained in jail for more than one year and thus the maximum
sentence awarded by the learned Court below for the offence punishable
under Section 323 and 506 of the Indian Penal Code i.e. one year has already
been served by the appellant who has remained in jail for 1 year and 2
months 25 days and thus no further sentence is awarded to the appellant for
the offence punishable under Section 323 and 506 of the Indian Penal Code
and the appellant is sentenced to imprisonment for a term of the period
already undergone by him under both the sections / counts under Sections
323 and 506 of the Indian Penal Code collectively by modifying the order of
sentence passed by the learned Court below in this case.
33. Since the appellant is on bail and therefore, he is discharged from the
liabilities of bail bond.
34. This appeal is allowed in part as above.
35. Let the Lower Court Records be transmitted to the learned Court below.
D.S./J.Minj (Navneet Kumar, J.)
