Jharkhand High Court
Sumitra Mandal vs The State Of Jharkhand on 11 April, 2025
2025:JHHC:11210
Cr. Appeal (S.J.) No.1652 of 2006
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[Against the judgment and order of conviction and sentence dated
29.11.2006 passed by learned 1st, Additional Sessions Judge, Rajmahal
in S.C. No.134 of 2005]
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1. Sumitra Mandal, wife of Munilal Mandal
2. Ratan Mandal, son of Munilal Mandal
All resident of village-Barari, P.S.-Barharwa, District-
Sahibganj
.... .... .... Appellants
Versus
The State of Jharkhand .... .... .... Respondent
With
Cr. Appeal (S.J.) No.86 of 2007
1. Prem Mandal @ Prem Kumar Mandal
2. Jatan Mandal
Both sons of Munilal Mandal, residents of village-Barari, P.S.-
Barharwa, District-Sahibganj
.... .... .... Appellants
Versus
1. The State of Jharkhand
2. Nimai Ghosh .... .... .... Respondents
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For the Appellants : Mr. Gautam Kumar, Advocate
[In both cases]
For the State : Mr. V.S. Sahay, Addl. P.P.
[In Cr. Appeal (SJ) No.1652 of 2006]
Mrs. Vandana Bharti, A.P.P.
Cr. Appeal (S.J.) No.1652 of 2006
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Cr. Appeal (S.J.) No.86 of 2007
1
2025:JHHC:11210
[In Cr. Appeal (SJ) No.86 of 2007]
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PRESENT
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
JUDGEMENT
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CAV On 13/02/2025 Pronounced On: 11/ 04 /2025
1. The above appeals arise out of common judgement, hence
heard together and are being disposed of by common
judgment.
2. The present appeals are directed against the judgment and
order of conviction and sentence dated 29.11.2006 passed by
learned 1st, Additional Sessions Judge, Rajmahal in S.C. No.134
of 2005 whereby and whereunder, the above appellants have
been held guilty for the offence under section 366A read with
34 of Indian Penal Code and sentenced to undergo R.I. of 6
years along with fine of Rs.5,000/- each with default
stipulation.
FACTUAL MATRIX
3. Factual matrix giving rise to this appeal is that on 26.06.2004,
the informant, Nimai Ghosh lodged an FIR at Barharwa Police
Station stating inter alia that on 17.06.2004 at about 7 PM, the
accused, namely, Sumitra Mandal, Munilal Mandal, Ratan
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Mandal, Jatan Mandal had kidnapped his minor sister aged
about 13 years from the house with intention to solemnize her
marriage with one Prem Mandal. It is further alleged that the
victim girl was taken to Farrakah by a car by the accused
persons. It is further alleged that the informant returned to his
home from his shop then he was informed by his wife about
the said occurrence. According to the informant, so many
villagers have seen the occurrence and he has proved the
written report as Ext.4.
On the basis of above information, the FIR being
Barharwa P.S. Case No.36 of 2004 was registered for the
offence under sections 366 (A)/34 of IPC against all six accused
persons. After completion of investigation, charge-sheet was
submitted against all the accused persons for the offence under
sections 366A r/w 34 of IPC. The case was committed to the
court of Sessions where S.C. No.134 of 2005 was registered.
Charge was also explained to the accused persons, who have
pleaded not guilty and claimed to be tried. After conclusion of
trial, the impugned judgment of conviction and order of
sentence was passed, which has been assailed in this appeal.
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Cr. Appeal (S.J.) No.86 of 2007
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4. Learned counsel for the appellants has submitted that during
pendency of the appeal, appellant No.2, namely, Munilal
Mandal of Cr. Appeal (S.J.) No.1652 of 2006 has died and to
this effect, a report being Letter No.232/2019 dated 29.05.2019
has also been received from the learned Additional Sessions
Judge-I, Rajmahal.
5. Considering the same, the appeal stands abated, so far
appellant No.2, namely, Munilal Mandal of Cr. Appeal (S.J.)
No.1652 of 2006 is concerned.
6. Learned counsel for the appellants, namely, Sumitra Mandal,
Ratan Mandal, Prem Mandal @ Prem Kumar Mandal and Jatan
Mandal assailing the impugned judgment and order has
vehemently argued that it is a case where it is alleged that the
victim girl was kidnapped by the accused persons and she was
kept with accused, Prem Mandal for one month after
kidnapping. There is no complaint of the victim girl that any
illicit intercourse was committed with her. It is also admitted
case of the prosecution that the victim girl was not married
with Prem Mandal. Therefore, ingredient of offence under
section 366A of IPC is not proved against any of the accused
persons. At best, it may be a case falling under section 363 of
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IPC alone. The appellants have remained in custody for
considerable period during trial of the case. No specific overt
act has been attributed against the appellants, namely, Sumitra
Manda and Ratan Mandal. Further, the appellants, namely,
Prem Mandal and Jatan Mandal have remained in custody for
more than 2 years and have sufficiently been punished.
Therefore, the appellants deserve acquittal from the charges
leveled against them and as such, the impugned judgment and
order of conviction and sentence of the appellants is liable to
be set aside, allowing this appeal.
7. On the other hand, learned Additional Public Prosecutor
appearing for the State defending the impugned judgment and
order of conviction and sentence of the appellants have
submitted that there are ample positive evidence against the
appellants constituting the offence under section 366A of IPC.
It is also submitted that considering the gravity of offence
wherein a minor girl aged about 15 years was kidnapped with
a view to commit illicit intercourse with her by another person
i.e. co-accused Prem Mandal. Hence, learned trial court has
committed no error of law and there is no legal force in the
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contentions raised on behalf of the appellants, hence, this
appeal has no merits and is fit to be dismissed.
8. For better appreciation of the respective arguments of the
learned counsel for the parties, a brief resume of prosecution
evidence appears necessary.
9. In order to substantiate the charge levelled against the
appellants, altogether 10 witnesses have examined by the
prosecution.
The sterling prosecution witness is the victim girl, who
has been examined as P.W.6. According to her evidence, on the
date of occurrence at about 7 PM, she was in her house and her
two sisters-in-laws were cooking food inside the kitchen,
meanwhile, Prem Kumar, Munilal Mandal, Gautam Mandal,
Sumitra Mandal, Ratan Mandal, Shyamli Mandal and Jatan
Mandal came in a white taxi and Sumitra Mandal called her
then she came out and Prem Kumar Mandal gagged her
mouth with handkerchief and said that he will solemnize
marriage with her. She has further deposed that Prem Kumar
Mandal, Shyamli Mahdal caught hold of her hands and
forcibly boarded her in a taxi and put vermillion on her head.
Thereafter, she was brought to Banna, where she was kept in
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the house of Anand Mandal and locked. She has further
deposed that when she went out to discharge the nature call,
Sumitra Mandal used to follow her. This witness was kept
there for a month. Thereafter she was brought to Rajmahal
Court where her brother also arrived then she told that she
will go with her brother then Sumitra Mandal forbade her. The
brother of this witness has also gone to police station along
with her and her statement was recorded under section 164 of
Cr.P.C and she has proved her signature as Ext.2. This witness
was medically examined. This witness was studying at
Dharamdenga High School.
In her cross-examination, this witness categorically
states that she does not know Hindi and cannot understand
and talk in Hindi rather she can speak in Bangla language. She
also admits that while the accused persons were taking her
from her house then her elder sister-in-law, Lata Ghosh was
standing near grill. This witness also raised alarm when her
mouth was not gagged. This witness has denied the suggestion
of defence that she was not satisfied with her engagement
settled by her parents, hence, she went to the house of her
maternal grand-mother and resided there for one month and
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her brother has lodged this false case against the accused
persons.
P.W.1-Lal Chand Mandal is an independent witness.
He has corroborated the prosecution story and deposed that
on the date of occurrence at about 7 PM, he was standing
outside of his house then he saw that the victim girl was
kidnapped by Prem Mandal, Sumitra Mandal, Ratan Mandal,
Munilal Mandal and Jatan Mandal in a white car. There is
nothing in his cross-examination to rebut the aforesaid
contents.
P.W.2 Anil Sarkar is a hearsay witness of the
occurrence. He has only heard that the victim girl was taken
away by some accused persons.
P.W.3-Mangal Mandal has been declared hostile by
the prosecution.
P.W.4 Dost Mohmaad is a headmaster of
Dharamdenga High School and he has proved the School
Leaving Certificate of the victim girl as Ext.1 showing her date
of birth as 15.03.1993. According to his evidence, the victim girl
was a student in his school.
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In his cross-examination, he admits that the said date
of birth is mentioned on the basis of certificate issued by the
Barari Primary School, which is not on record.
P.W.5 Namita Ghosh is sister-in-law(Bhaghi) of the
victim girl. According to her evidence, at the time of
occurrence, she was sitting in her shop situated in his house
itself and the victim girl was doing some work inside the
house. According to her, the accused persons, namely, Prem
Kumar, Sumitra Mandak, Ratan Mandal, Jatan Mandal and
Munilal Mandal came on a taxi and eloped with her sister-in-
law(nanad) and she disclosed the incident to her husband
upon his arrival from the shop situated at Futani Chawk. The
victim was aged about 12 years on the date of occurrence.
In her cross-examination, she admits that at the time of
occurrence, she was alone in the house and her gotni and
brother-in-law were not present in the house. There is nothing
in her cross-examination to discredit the aforesaid testimony.
P.W.7 Dr. Bhagwat Marandi, who has examined the
victim girl.
In cross-examination, this witness admits that on the
direction of superintendent, Sahibganj the Medical Board was
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constituted. The doctors had not prepared separate reports.
The exact age of the victim was not determined.
This witness has not mentioned in any report as to
who had identified the victim. The victim had consented for
medical examination. This witness mentioned in his report. It
is not a fact that my report is vague.
P.W.8 Nimai Ghosh is the informant. According to his
evidence, he has corroborated the contents of the written
report and deposed that on the date of occurrence dated
17.06.2004 at about 7 PM, he had gone to his shop and when he
returned in the night then he came to know from his wife that
all the accused persons had kidnapped his minor sister with
intention to forcibly solemnize her marriage. This witness
searched his sister at the house of accused persons but they
have locked their door and fled away from the house then he
lodged a written report before the police station about the said
occurrence. This witness has proved the signature of his
brother namely Ratan Ghosh marked as Ext.4.
In his cross-examination, he admits that the occurrence
took place on 17.06.2004 but the FIR was lodged on 26.06.2004
and in between this period he was searching his sister. This
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witness had denied the suggestions of the defence that he was
involved in a case of extortion wherein the accused persons
have given statement against him before the police, hence, due
to enmity, he has falsely implicate the accused persons.
P.W.9 Yogesh Kumar, Judicial Magistrate First Class,
has proved the statement of the victim recorded under section
164 of Cr.P.C , which is marked as Ext.2/A.
In the cross-examination, this witness admits that the
victim has narrated the incident in Hindi, therefore, no
interpreter was appointed.
P.W.10 Niwaran Chandra Saha is the Advocate Clerk
and formal witness, who has proved the signature of the then
officer-in-charge of Barharwa Police Station on formal FIR as
Ext.5. He has also proved the endorsement on the written
report for the registration of the case as Ext.4/A. He also
admits that both above documents were not written in his
presence.
10.So far charge under section 366A is concerned, relevant
provision is extracted hereunder:
366A. Procuration of minor girl.--
Whoever, by any means whatsoever, induces any
minor girl under the age of eighteen years to go from
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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. From bare perusal of above provision to attract section 366A,
essential ingredients are (1) that the accused induced a girl; (2)
that the person induced was a girl under the age of eighteen
years; (3) 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; (4) such intercourse must be with
a person other than the accused; (5) that the inducement
caused the girl to go from any place or to do any act.
12. So far as the charge under section 366A of IPC against the
appellants is concerned, in such an offence what is required to
be proved by the prosecution is that there is cogent and
reliable evidence to prove and establish that a minor girl under
the age of 18 years was induced to go from one place to other
with intention that such girl may be forced to have illicit
intercourse with another person. Therefore, in such an offence,
the chief ingredient is that the girl is made to go from one place
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to other with intention or knowledge that she may be forced to
illicit intercourse.
13. In the instant case the evidence on record does not reveal any
such intention. Moreover, the victim girl herself in her
testimony has not stated that she was subjected or forced to
illicit intercourse by accused-Prem Kumar Mandal. It was
bounden duty of the learned trial court to cull out grain from
the chaff, but learned trial court failed to discharge it
responsibility while appreciating the evidence of the victim
girl herself. The vital ingredients of offence under section 366A
of IPC is lacking in this case. Therefore, the conviction and
sentence of the appellants is not warranted under law.
14. The court is conscious to deal with the cumulative effect of the
materials facts proved against the appellants in order to
ascertain their criminality. Here in this case, the minor girl
under the age of 18 years has been induced/enticed to go
away from the custody of lawful guardian. The involvement of
the appellants is categorically proved that they have come on a
white taxi and forcibly got her boarded in the said taxi and
ultimately brought her to the house of Anand Mandal, where
she was confined for about one month. Therefore, the offence
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punishable under section 363 of IPC is well proved against the
appellants.
In view of the above discussion and reasons, the
conviction and sentence of the appellants for the offence under
section 366A of IPC is set aside and they were held guilty
under section 363 of IPC.
15. It appears that the appellants, namely, Sumitra Mandal and
Ratan Mandal have remained in custody for some months
whereas the appellants, namely, Prem Mandal and Jatan
Mandal have remained in custody for more than 2 years
during course of trial and pendency of this appeal.
16. In the facts and circumstances of the case, the appellants have
sufficiently been punished for their guilt.
17. Considering the facts that just after one year of the incident,
the victim girl was married with another person and leading
her happy marital life and the main accused Prem Kumar
Mandal is also married and living his life in his own way.
Other accused persons, namely, Sumitra Mandal, Ratan
Mandal and Jatan Mandal have their minor role in the said
offence. The occurrence is of the year 2004 more than two
decades have been lapsed and both the parties have settled in
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peaceful manner without any involvement in other case till
date.
18. In view of the aforesaid factual aspects of the case and the
reasons, all the appellants are sentenced to undergo
imprisonment already undergone during the trial of the case
for the offence under section 363 of IPC.
19.In view of the above, these appeals are partly allowed with
modification in conviction and sentence as stated above.
20.The appellants are on bail, hence, they are discharged from
liability of bail bond. The sureties are also discharged.
21. Pending I.A(s), if any, is also disposed of accordingly.
22. Let a copy of this judgment along with Trial Court Records be
sent back to the trial court for information and needful.
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court, at Ranchi
Dated: 11/04/2025
Pappu/- N.A.F.R.
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