Vishal Tanti vs The State Of Jharkhand
2024 Latest Caselaw 4717 Jhar

Jharkhand High Court

Vishal Tanti vs The State Of Jharkhand on 1 May, 2024

Author: Ananda Sen

Bench: Ananda Sen, Subhash Chand

          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   Cr. Appeal (D.B.) No. 400 of 2014
                                     ........
   (Against the judgment of conviction dated 21.05.2014 and order of
   sentence dated 24.05.2014 passed by learned Additional Sessions Judge-I,
   Chaibasa, Singhbhum West in Session Trial No.259 of 2012).
                                     .........
    Vishal Tanti                                                ..... Appellants
                                            Versus
    The State of Jharkhand                                      .... Respondent
                                 -----------
                                PRESENT
                     Hon'ble Mr. Justice Ananda Sen
                   Hon'ble Mr. Justice Subhash Chand
                                 .........
     For the Amicus Curiea : Mr. Rajesh Kr. Mahtha, Advocate
     For the State         : Mr.Shailendra Kr. Tiwari, Spl.PP

                              JUDGMENT

Per Ananda Sen, J.:

Heard learned counsel for the appellants, Mr. Rajesh Kr. Mahtha and learned counsel for the State, Mr. Shailendra Kr. Tiwari, Special Public Prosecutor.

2. The instant criminal appeal is directed against the judgment of conviction dated 21.05.2014 and order of sentence dated 24.05.2014 passed in Sessions Trial No. 259 of 2012 whereby the appellant has been convicted for the offence under Section 366 & 376 of the IPC and sentenced for rigorous imprisonment for ten years.

3. Amicus Curiae appearing on behalf of the appellant submits that the prosecutrix cannot be believed as she herself has stated that on an earlier occasion she had filed a case against another teacher of the School. He further submits that the place from where the prosecutrix was recovered, is claimed to be the house of this appellant by the prosecution, but the prosecution has not established with any documentary evidence that the house belongs to this appellant. There is dispute with regard to the place from where the prosecutrix was recovered. He further stated that the evidence of the prosecutrix and the doctor would clearly suggest that she was pregnant. The doctor stated that the pregnancy was of 12 weeks but surprisingly within a week the victim was recovered which clearly suggests that the allegation of sexual exploitation of the victim by the appellant is unbelievable. He lastly submits that the doctor found no marks of violence on the victim which demolishes the prosecution case. He submits that as per the statement of the victim she was taken to different places but surprisingly did not raise any hue and cry which would suggests that she was a consenting party.

4. Learned Special Public Prosecutor submits that admittedly the victim was of 13 years, so there was no concept of consent in these type of cases. The evidence would suggest that the victim was taken from lawful custody of parents and guardian by inducement which would attract the offence under Section 366A. Doctor also stated that sexual violence cannot be ruled out. So far as pregnancy of 12 weeks is concerned, the appellant cannot take benefit of the same as she has stated that this appellant had indulged in sexual intercourse with the victim. The evidence of the victim is clear, unambiguous which cannot be doubted. Further the recovery of the victim from the house of the appellant is conclusive proof of the guilt of this appellant. The appellant has also not challenged the recovery nor has stated nothing in his statement recorded under Section 313 Cr.P.C. Thus, this appeal is liable to be dismissed.

5. We have heard the learned counsel for the parties and we have gone through the records. The fardbeyan is Exhibit- 1 and the same is at the instance of Mikhail Devgam (father of the victim). In the fardbeyan informant has stated that his daughter, aged about 12 years is a student of Class-VIth in St. Xaviers English School, Potka. He further stated that on 28.04.2012 when he woke up and came in room in the morning at 4.00 A.M he saw that his daughter is not on her bed. Then he made search of his daughter and during the course of searching, he came to know that accused Vishal Tanti, who is driver of St. Xaviers School and used to drive the vehicle to transport students, including his daughter to School, has kidnapped her by giving her false promise and inducement.

6. On the aforesaid fardbeyan, Chakradharpur P.S. Case No. 67 of 2012 dated 16.05.2012 under Section 366A of the IPC was registered. The police after investigation submitted charge-sheet No. 117 dated 31.08.2012 under Section 366 A of the IPC. On 19.09.2012 cognizance was taken against accused Vishal Tanti under Section 366(A) of the IPC. Being the case Sessions triable, learned SDJM, Porahat at Chaibasa vide order dated 10.12.2012

committed this case to the Court of Sessions and during course of trial this case was transferred to the Court of Additional Sessions Judge-I, West Singhbhum, Chaibasa for trial and disposal. Charge was framed by the Trial Court u/s 366A and 376 of the IPC

7. Six witnesses have been examined in this case.

P.W.-1 (Mikhail Deogam) is the informant and father of the victim. He deposed that on 28.4.2012 he along with his wife were sleeping on the terrace of the house and his daughter was sleeping inside the room on her bed. When he woke up at 4.00 A.M and went to his daughter's bed room, she was not in her room and door of the room is open, then he told the said fact to his wife. Both of them started searching their daughter, but she could not be traced. Then he went to the house of accused Vishal Tanti, who was driver of Tata Magic Vehicle and used to carry and drop the informant's daughter from school to house. Family members of Vishal Tanti told that since morning Vishal Tanti is also traceless. He has also stated that at the time of occurrence his daughter was studying in St. Xaviers English School, Potka in Class-VI and was aged about 12 years. He has also stated that family members of Vishal Tanti did not tell as to where Vishal Tanti has gone.

P.W.-2 (Jaya Kumari) is the mother of victim. She along with her husband was sleeping on the terrace of the house and her daughter was sleeping in the room. At about 4.00AM when her husband came inside the room, he saw that her daughter is not in the room and door of the house is open. Then her husband called her and both of them started searching for her daughter, but she could not be traced out. Then, the police was informed. She further deposed that after one month, she came to know from police of Chakradharpur that victim has been recovered from the house of accused Vishal Tanti. Then she went to the police station and saw her daughter. She has also deposed that medical examination of victim was conducted and her statement was also recorded before the Magistrate. She has also deposed that on suspicion case was lodged against accused Vishal Tanti.

P.W.-3 (Dr. Sarita Lakra) is the doctor. She found the followings;- Secondary sexual characters were developed, mensuration in 2010, Uterus just palpable, hymen old ruptured, tenderness bleeding absent and Introits admits two fingers tight. There was no mark of violence on body or private

parts. No spermatozoa dead or alive was found. As per report submitted by Radiologist average age of victim is within 14 to 16 years.

She has also deposed that from the report of Ultrasonography, it appears that uterus is enlarged and shows a gestational sac. CRL measured 61mm. Corresponding to 12 weeks, 6 days +_ 2 weeks. She has opined that sexual intercourse took place. She is pregnant about 12 weeks and 6 days +_2 weeks and average age of victim is 14 to 16 years. She has proved her medical report, which has been marked as Ext-2.

P.W.-4, is the victim of the case. She deposed that occurrence took place on 28th of April, 2012, but could not recollect the month. She stated that at the time of occurrence she was in her house and woke up at about 3.000 A.M and was preparing her assignment of school, when accused Vishal Tanti came at about 4.00 A.M. She went out of her house to take water, Vishal Tanti met her and said that she will keep her very happily and also said to accompany him. She has further stated that on inducement of accused, she went with him and came to Lotapahar railway station and from there accused brought her to Mumbai and at Kalyan Station they left the train and accused provided food to her in a hotel and after that both of them returned from there by train and came at Jharsuguda. She has also stated that at Jharsuguda, accused kept her in a hotel and stayed there at about two weeks. In the hotel accused established sexual relationship with her. She has further deposed that after 2-3 weeks accused brought her at his village Hindkata when he came to know that father of this witness has lodged a case against him. Then on false pretext of working the accused left the village. She has also stated that police came to the house of accused Vishal Tanti and recovered her from there and brought her to the police station. She has further deposed that her statement was recorded before the Magistrate. She further deposed that her medical examination was conducted at Sadar Hosptial, Chaibasa. Accused Vishal was the driver of Tata Magic vehicle by which this witness used to go to her School. She has further deposed that when her medical examination was conducted she knew that she was pregnant, which was caused due to sexual inter-course committed by accused. She has identified the accused Vishal Tanti. She further deposed that her mensuration was started in the year 2010 while she was student of Class-V.

She further deposed that as per inducement of accused Vishal Tanti she had gone to Mumbai without informing anything to her parents and other people.

P.W. 5 (Manoj Kumar Sharma) is the Judicial Magistrate. who recorded statement under Section 164 Cr.P.C of victim with reference to G.R. No. 141 of 2012. He has proved statement of victim recorded under Section 164 Cr.P.C. in his evidence which has been marked as Ext.4.

P.W. 6 (Rajeshwar Ram) is the I.O. He deposed that during course of investigation, he recorded statement of informant Mikhail Deogam and inspected the place of occurrence. He has given full details of place of occurrence in his evidence, which is house of informant. He has further stated that he recorded statement of witnesses Thakur Singh Bhuiyan, Rai Singh Purty and Jaya Kumari and on 10.6.2012 got secret information that victim has been brought by accused Vishal Tanti and she is present in the house of Vishal Tanti. He then conducted raid on the house of accused, however, accused was not present in the house but victim was recorded from there. He also deposed that he recorded statement of the victim and sent her for medical examination and her statement under Section 164 Cr.P.C was also recorded by Magistrate. He also stated that after investigation he found sufficient evidence and submitted charge sheet against accused Vishal Tanti.

8. After conclusion of the evidence, the trial court found the appellant guilty thus convicted them under Section 366 and 376 of the IPC and sentenced them accordingly.

9. We have heard the parties and have gone through the entire records.

10. In this case, the Appellant has been charged under section 366A of the Indian Penal Code and also under section 376 of the Indian Penal Code. Section 366A of the Indian Penal Code reads as follows: -

"366A. Procuration of minor girl.- Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act 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 shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine."

11. Similarly section 376 of the Indian Penal Code reads as follows:-

"376. Punishment for rape:- 1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which 1 [shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine]. (2) Whoever,--

(a) being a police officer, commits rape--

(i) within the limits of the police station to which such police officer is appointed; or

(ii) in the premises of any station house; or

(iii) on a woman in such police officer's custody or in the custody of a police officer subordinate to such police officer; or

(b) being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or

(c) being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or

(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or

(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or

(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or

(g) commits rape during communal or sectarian violence; or

(h) commits rape on a woman knowing her to be pregnant; or

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(j) commits rape, on a woman incapable of giving consent; or

(k) being in a position of control or dominance over a woman, commits rape on such woman; or

(l) commits rape on a woman suffering from mental or physical disability; or

(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or

(n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.

Explanation.--For the purposes of this sub-section,--

(a) "armed forces" means the naval, military and air forces and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government;

(b) "hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;

(c) "police officer" shall have the same meaning as assigned to the expression "police" under the Police Act, 1861 (5 of 1861);

(d) "women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widow's home or an institution called by any other name, which is established and maintained for the reception and care of women or children.

[(3) Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine:

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this sub-section shall be paid to the victim.]"

12. To bring home the charge under section 366 A of the Indian Penal Code, the prosecution has to prove that the girl is below the age of 18 years and she was induced to go from one place or to do any other act with intent that such girl may be forced to seduce to illicit intercourse.

13. In this case, victim girl and her father clearly stated that the age of the girl is 12 years. The doctor examine the victim. She stated that the age of girl is within 14 to 16 years. The appellant has not challenged the aforesaid statement and had not brought any material on record nor put any question to any witnesses which can create a doubt in the mind of this court about the age of the victim. The evidence on the point of age of the victim is firm. Thus, we conclude the age of the victim is less than 18 years.

14. From the evidence of the victim, we find that she was induced by this Appellant to leave her house. She stated that in the morning this appellant came and induced her. She stated that this Appellant told to accompany him

and he will keep improperly. She was taken to different places. Ultimately she was recovered from the house of this Appellant. The father of the victim also stated that she was not found in the house in morning. Later on after some days she was recovered from the house of the Appellant. The fact that the victim was recovered from the house of the Appellant is also substantiated from the deposition of the investigating officer. Thus the prosecution has proved that this Appellant has induced the victim who was less than 18 years to leave her house and to go with him. This completes all the ingredients of section 366 A of the Indian Penal Code. Thus, we conclude that the prosecution has been able to prove the guilt of this Appellant which is punishable under section 366A of the Indian Penal Code.

15. The appellant has also been convicted under section 376 of the Indian Penal Code. The victim is less than 18 years. As per the doctor she is between 14 to 16 years and as per the victim and her father she is 12 years. Since the victim is a minor there cannot be any consent of the victim so far as sexual relationship is concerned. The victim also stated that she was forced to cohabit with the Appellant. The doctor, in her evidence stated that though there were no mark of violence and the hymen was old raptured, she stated that sexual intercourse took place. This sexual intercourse will come within the definition of rape, as the victim is minor and there cannot be any question of consent considering her age.

16. A plea has been taken by the defence that the girl was recovered within a month whereas the doctor found evidence of pregnancy of more than 12 weeks, thus the defence tried to project that the rape had taken place long ago and the story of kidnapping on 28/4/2012 is not believable. We don't accept the aforesaid argument. She may have been pregnant from much before but the fact which has been established is that the victim girl was kidnapped in April 2012 and thereafter she was recovered. The girl stated that in the meantime she was subjected to sexual intercourse by this Appellant. This suggests that even at the stage of pregnancy, this Appellant indulged in sexual intercourse with the girl, who was admittedly is a minor.

17. Considering what has been observed above, we find that the prosecution has been able to prove the guilt of the Appellant of committing offence punishable under section 366A and 376 of the Indian Penal Code beyond reasonable doubt. We find no merit in this appeal. This appeal is thus dismissed as there are no grounds to interfere with the impugned judgement which is well reasoned and justified.

18. Accordingly, the judgment of conviction and order of sentence passed in Sessions Trial No. 259 of 2012 (arising out of Chakradharpur P.S. Case No.67 of 2012, corresponding to G.R. Case No.141 of 2012) passed by the learned Additional Sessions Judge -I,Singhbhum (W) at Chaibasa do not warrant any interference by this Court and, hence, it is affirmed.

19. Accordingly, the instant Criminal Appeal is dismissed.

20. The trial court records were sent to the court below.

(Ananda Sen, J.)

(Subhash Chand, J.)

High Court of Jharkhand, Ranchi Dated 1st May, 2024 Anjali/NAFR