Jharkhand High Court
Chand Turi vs The State Of Jharkhand on 11 February, 2025
Cr. Appeal (S.J.) No.1330 of 2006
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[Against the Judgment and order of conviction and sentence dated
04.05.2006 passed by learned 1st Additional Sessions Judge, Pakur in
Sessions Case No.116 of 2005]
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Chand Turi, son of Shri Hemchandra Turi, Resident of village-
Semal Jori, P.S.-Littipara, District-Pakur
.... .... .... Appellant
Versus
The State of Jharkhand .... .... .... Respondent
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For the Appellant : Mr. Rajeeva Sharma, Sr. Advocate
Mr. Neetu Singh, Advocate
Mrs. Maksuda Khatun, Advocate
Mr. Atulaya Shrestha, Advocate
For the State : Mr. Tarun Kumar, A.P.P.
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PRESENT
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
JUDGEMENT
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Dated-26/11/2024 Pronounced On: 11 /02/2025
Per-Pradeep Kumar Srivastava
1. The present appeal is directed against the judgment and order
of conviction and sentence dated 04.05.2006 passed by learned
1st Additional Sessions Judge, Pakur in Sessions Case No.116 of
2005 whereby and whereunder, the appellant has been held
guilty for the offences under section 366A of Indian Penal
Cr. Appeal (S.J.) No.1330 of 2006
Code and sentenced to undergo R.I. of 6 years along with fine
of Rs.2.000/- and further held guilty for the offence under
section 376 of Indian Penal Code and sentenced to undergo R.I.
of 7 years along with fine of Rs.3,000/- with default
stipulation. Both sentences are directed to run concurrently.
FACTUAL MATRIX
2. Factual matrix giving rise to this appeal is that on 14.04.2005,
the informant had gone to Heramanpur Hatia along with his
wife and returned in the evening at about 6:00 PM, then he
came to know that his minor daughter aged about 14 years has
been kidnapped by the co-villager Chand Turi and his friend
Jisu Kisku on motorcycle with intention to commit illicit
intercourse with her.
3. On the basis of written report of the informant, Littipara P.S.
Case No.21 of 2005 was registered for the offence under section
366A of IPC. After completion of investigation, charge-sheet
was submitted for the offence under sections 366A and 376 of
Indian Penal Code against both accused persons. The learned
court of C.J.M., Pakur found Jisu Kisku to be juvenile and his
case was separated and sent to Juvenile Justice Board and the
case of present appellant was committed to the court of
Sessions, where S.C. No.116 of 2005 was registered.
Cr. Appeal (S.J.) No.1330 of 2006
4. The trial was proceeded against the present appellant. He
denied from the charges and claimed for trial. In the course of
trial, altogether 8 witnesses were examined by the prosecution
including the victim girl.
5. After completion of the prosecution evidence, the statement of
the accused was recorded under section 313 of Cr.P.C. The case
of the defence is denial from the occurrence and false
implication by the father of the victim girl. It is also taken as
defence that there was love affairs between the victim girl and
the accused, which was being protested by her father, hence,
this false case was lodged. No oral or documentary evidence
has been adduced by the defence.
6. Learned trial court after considering the evidence available on
record has held the appellant guilty for the offence under
sections 366A and 376 of IPC and sentenced him as stated
above, which has been assailed in this appeal.
7. Learned counsel for the appellant has submitted that there was
delay of 48 hours in lodging the FIR in spite of the knowledge
of the informant that prior to the occurrence, the present
appellant and his friend have also threatened to kidnap the
victim girl. No reasonable explanation has been offered for
such inordinate delay. The evidence of the informant suffers
Cr. Appeal (S.J.) No.1330 of 2006
from material contradictions. Similarly, the victim girl has also
deposed that on 21.04.2005 in the night, she was recovered by
the police of Littipara Police Station but her statement was not
recorded and nothing was asked with her by the police. No
memo of recovery of the victim girl was prepared by the
Investigating Officer and no local persons were interrogated.
Therefore, the place of recovery of the victim girl also becomes
doubtful. The statement of the victim was recorded under
section 164 of Cr.P.C. under the influence of her father. It is
further submitted that the learned trial court has miserably
failed to appreciate the evidence available on record in right
perspective ignoring the necessary ingredients of section 366A
of IPC, which are absolutely lacking in this case. Similarly, the
victim girl herself has stated her age about 19 years showing to
be major on the date of occurrence and on her own accord, she
left her house and went somewhere. The prosecution has failed
to prove the second place of occurrence, where the victim is
alleged to be confined and ravished by the appellant. There is
also no evidence of commission of rape with the victim at any
particular time and place by the appellant. Therefore,
impugned judgment of conviction and sentence of the
appellant is absolutely illegal and not justified under law,
Cr. Appeal (S.J.) No.1330 of 2006
which is fit to set aside. Learned counsel for the appellant has
placed reliance upon reported judgment in Bibhishan Vs. State
of Maharashtra (2008) 3 SCC (Cri.163): (2007) SCC online SC
1156.
8. On the other hand, learned Additional Public Prosecutor
appearing for the State defending the conviction and sentence
of the appellant has submitted that the victim girl was in
between 14 to 16 years at the time of occurrence and her
consent, if any, does not have any legal value. The testimony of
the victim girl has remained consistent throughout and she has
also denied any love-affair with the accused /appellant rather
she was forcefully taken away on motorcycle and ravished for
five days by the accused/appellant, which also finds
corroboration from her medical examination report. There is
no reason to disbelieve the testimony of the victim girl and cast
any doubt on the prosecution story. Learned trial court has
very wisely in a threadbare manner analyzed and scanned the
prosecution evidence and arrived at right conclusion, which
suffers from no illegality or infirmity calling for any
interference in this appeal, which is devoid of merits and fit to
be dismissed.
Cr. Appeal (S.J.) No.1330 of 2006
9. For better appreciation of the case the brief resume of evidence
adduced during the trial requires to be discussed:
P.W.6 is the victim girl. According to her evidence, on
the date of occurrence at 5:00 PM, she had gone to wash her
hands near pond, where Chand Turi and Jisu Kisku forcibly
caught her, got boarded on motorcycle and went towards
Dhankutta at the residence of maternal aunt of Jisu Kisku,
where she was kept about 5 days and forcibly raped against
her will by both Jisu Kisku and Chand Turi. She was brought
by the police to Littipara Police Station from where she was
sent for medical examination. Thereafter she was brought to
court where her statement was recorded and she was handed
over to her father.
In her cross examination, she admits that at the time of
occurrence, no other villagers were present near the pond, her
mouth was gagged, hence, she could not raise any alarm. She
also admits that she was recovered by the police and brought
to police station along with brother of Chand Turi namely
Nemchand Turi. She stayed overnight at police station and
next day, she was sent for medical examination and her
statement was recorded under section 164 of Cr.P.C. before the
Magistrate. This witness has denied the suggestion of defence
Cr. Appeal (S.J.) No.1330 of 2006
that there was love-affair between this witness and the accused
Chand Turi prior to 1 ½ years and this witness has voluntarily
left her home due to scolding by her parents and she was not
kidnapped by the accused.
P.W.1 Dr. Anita Sinha has examined the victim girl on
22.04.2005 at 10:50 AM and found following:-
Presence of Axillary and pubic hair. No foreign hair
found. No Mark of violence over body or external genitals.
Hymen old torn.
Pathological Examination
* No semen was found because the patient was
bleeding( due to menstruation).
Opinion: No.(i) it may be a case of sexual
intercourse.(ii) Age to be decided by medical board.
2. On the same day, the Civil Surgeon constituted a
medical board. The members were Dr. Vinay Kumar, Dr. S.P.
Bhagat and myself.
Physical Examination:
(i) Average built, pulse-72/M, sexual character
fully developed (which develops at the age of
16years).
Cr. Appeal (S.J.) No.1330 of 2006
Radiological Examination: (a) X-ray wrist: Distal
area of radius not fused (which fuses at the age
of 16-17 years). (b) Distal end of ulna-almost to
fuse (which fuses at the age of 17 years). (c) X-
ray pelvis:- Epiphysis of 2/2 cresol not fused
(which fuses at the age of 17-19 age). (d) Head of
the femur furred (which fuses at the age of 14-17
years) (e) X-ray elbow: Olecranon process of
ulna fused (which fuses at the age of 15-16
years). (f) X-ray mandible: third molar ase not
seen and not erupted(which erupted at the age
of 17-21 years).
Opinion:
As per radiological examination, the age of victim is
between 14-16 years.
P.W.2 Gopichand Goswami is a hearsay witness and
uncle of the victim girl. According to his evidence, on the date
of occurrence, he returned from Hatia in the evening, then he
heard about missing of his niece aged about 14 years and also
came to know that Chand Turi and Jisu Kisku have kidnapped
her by motorcycle. He also admits that he has heard about the
occurrence from his brother Ram Prasad Goswami.
Cr. Appeal (S.J.) No.1330 of 2006
P.W.3 Ramavatar Goswami is also a hearsay witness,
who came to know about 6:00 PM hearing hulla in village that
daughter of the informant has been kidnapped by Chand Turi
and Jisu Kisku.
P.W.4 Nomita Devi is mother of the victim girl.
According to her evidence, she had gone to Hatia and when
she returned in the evening then came to know that her
daughter has been kidnapped by a motorcycle. She admits that
above incident was disclosed by her Bhaisur Gopichand
Goswami. She also admits that about two months prior to the
occurrence, accused persons have threatened to kidnap her
daughter. She has denied any love-affair between Chand Turi
and the victim girl.
P.W.5 Ramavatar Goswami is the informant-cum-
father of the victim girl. This witness is also not an eye-witness
of the occurrence but when he returned at evening at about
6:00 PM, he came to know that his minor daughter aged about
14 years has been kidnapped by Chand Turi and Jisu Kisku.
This witness searched his daughter but no clue was found. He
has also disclosed that about 2-4 months ago, the accused
persons have threatened to kidnap his daughter. He has
Cr. Appeal (S.J.) No.1330 of 2006
lodged this case at the police station and identified the accused
persons behind the dock.
In his cross-examination, he admits that at first, he
informed the village chaukidar about the occurrence,
thereafter lodged the case. He has not informed about the prior
threatening given by the accused persons at the police station.
He has also denied any love-affair between the accused person
and the victim girl.
P.W.7 Anil Kumar Mishra, JM 1st Class has recorded
the statement of the victim under section 164 of Cr.P.C on
22.04.2005, which is marked as Ext.2.
P.W.8 Ravi Shankar Prasad Srivastava is the
Investigating Officer of this Case and he has proved the
fardbayan of the informant along with endorsement of
registration of the case and formal FIR as Ext.3 and 3/1
respectively. He also inspected the place of occurrence, which
is a pond situated in village Simanjodi, from where the
accused persons kidnapped the victim girl on a motorcycle. He
made search of the accused and recovered the victim girl along
with accused persons, thereafter the statement of the victim
girl was recorded under section 164 of Cr.P.C and she was
Cr. Appeal (S.J.) No.1330 of 2006
medically examined. Finding sufficient evidence, this witness
submitted charge-sheet against the accused persons.
In his cross-examination, he admits that the recovery
memo of the victim girl was not prepared and her statement
was also not recorded by him. From the village Dhankutta on
21.04.2005 at night, the victim girl was brought at the police
station and her father was also present at the police station. He
has denied the suggestions of the defence that his investigation
is defective and he has not recovered the victim girl from the
village Dhankutta .
10. On the other hand, the case of the defence is denial from the
occurrence and plea of innocence. One defence witness has
also been examined namely Munsi Hansda (D.W.1), who has
deposed that there was love-affair between Chand Turi and
the victim girl and this fact was known to every villager
including the parents of the victim girl. The victim girl was
being scolded and assaulted by her father, mother and
brothers.
This witness has not been effectively cross-examined.
In cross-examination also, he has stated that he himself has
seen the accused and victim girl were expressing love for each
other.
Cr. Appeal (S.J.) No.1330 of 2006
11.From the aforesaid discussion of evidence available on record,
it appears that as per radiological report (Ext.1), the age of the
victim girl has been assessed between 14-16 years as was
disclosed by the informant as well as the victim girl at the time
of recording her statement before the learned Magistrate.
There is specific evidence of the victim girl that she was
ravished by the present appellant and other co-accused person
for five days at village Littipara in the house of maternal uncle
of Jisu Kisku. The victim girl has remained consistent
throughout her statement recorded under section 164 of
Cr.P.C. as well as her evidence during trial, which also finds
corroboration from the medical evidence of the victim girl. The
materials elicited during cross-examination regarding non-
raising alarm or no bodily injury internal and external
sustained by the victim girl, has no rational for constituting the
offence under section 376 of IPC. Similarly, same latches in
investigation as pointed out by learned counsel for appellant
cannot affect the unrebutted testimony of victim girl.
Therefore, charge under section 376 of IPC is proved beyond
doubt against the present appellant.
12.So far charge under section 366A is concerned, relevant
provision is extracted hereunder:
Cr. Appeal (S.J.) No.1330 of 2006
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.
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.
13. In the instant case, so far conviction of the appellant for the
offence under section 366A of IPC is concerned in the factual
aspects of the case as discussed above, the ingredients of
offence under section 366A is absolutely lacking in this case in
as much as there was no procuration of minor girl with
intention that she would be forced and seduced to illicit
intercourse with some other person. In the instant case, the
accused himself is alleged to have induced the minor girl and
Cr. Appeal (S.J.) No.1330 of 2006
taken her away with intention to establish sexual intercourse
with her.
14.So far as alternative plea of the appellant regarding reduction
of sentence is concerned, the factual aspects of the case as
brought on record clearly goes to reveal that there was
intimacy between the victim girl and the appellant prior to one
year of occurrence. The appellant was all along in judicial
custody throughout the period of trial and pendency of this
appeal about 2 years. Maximum sentence awarded to the
appellant is 7 years. Therefore, the appellant has sustained
considerable period of sentence during trial of the case. Now,
more than two decades had been lapsed from the date of
occurrence and the victim girl as well as the appellant have
mend their life in their own ways without indulging in any
other criminal activities.
15. In the aforesaid facts and circumstances, the conviction of the
appellant for the offence under section 366A of the IPC is set
aside but his conviction for the offence under section 376 of
IPC is maintained and upheld. So far, the quantum of sentence
is concerned, the sentence awarded by the learned trial court is
reduced to the sentence of imprisonment already undergone
by the appellant during trial of the case. Accordingly, this
Cr. Appeal (S.J.) No.1330 of 2006
appeal is partly allowed with modification in conviction and
sentence as stated above.
16.The appellant is on bail, hence, he is discharged from liability
of bail bond. The sureties are also discharged.
17. Pending I.A(s), if any, is also disposed of accordingly.
18. Let a copy of this judgment along with Trial Court Records be
sent back to the concerned trial court for information and
needful.
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court, at Ranchi
Dated: 11/02 /2025
Pappu/- N.A.F.R.
Cr. Appeal (S.J.) No.1330 of 2006
