Jharkhand High Court
Uttam Biswas vs The State Of Jharkhand on 12 February, 2025
Criminal Appeal (S.J.) No. 124 of 2006
[Against the Judgment of conviction dated 07.01.2006 and Order of
sentence dated 09.01.2006, passed by learned 2nd Additional
Sessions Judge, Jamtara in Sessions Case No. 266 of 2001 / 34
of 2005 ].
1. Uttam Biswas.
2. Sufal Biswas.
Both sons of Chitranjan Biswas @ Chitta
Biswas, Resident of Village - Mohara, P.S. - Jamtara,
District - Jamtara.
... ... Appellants
Versus
1. The State of Jharkhand
2. Sahdeo Bauri, S/o Late Ranu Bauri, R/o Village -
Mohra, P.O., P.S. & District - Jamtara.
... ... Respondents
.....
For the Appellants : Mrs. Vani Kumari, Advocate.
For the Respondent : Mr. Prabir Chatterjee, Spl.P.P.
.....
P R E S E N T
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
JUDGMENT
C.A.V. on 26.11.2024 Pronounced on 12.02.2025
1. Heard learned counsel for the parties.
2. The present appeal is directed against the judgment of
conviction dated 07.01.2006 and order of sentence
dated 09.01.2006 passed by learned 2nd Additional
Sessions Judge, Jamtara in Sessions Case No. 266 of
2001 / 34 of 2005, whereby and whereunder the
appellants have been held guilty for the offence under
Section 366A & 376 of the I.P.C. and sentenced to
undergo R.I. of five years along with fine of Rs.
1,000/- for both the offences under Section 366A &
376 of the I.P.C. with default stipulation. Both the
sentences were directed to run concurrently.
FACTUAL MATRIX
3. The facts giving rise to this appeal is that on
28.06.2001, both appellants enticed the minor
daughter of the informant Sahdeo Bauri and taken
away her for illicit intercourse on pre-text of marriage.
Accordingly, Jamtara P.S. Case No. 133 of 2001 dated
28.06.2001 was registered on the basis of written
report of the informant for the offences under Sections
366A / 34 of the I.P.C.
4. In course of investigation, the victim girl was
recovered and her statement under Section 164 of the
Cr.P.C. was recorded and she was subjected to
medical examination and after conclusion of
investigation, charge-sheet was submitted against the
above-named appellants under Sections 366A / 376 /
34 of the I.P.C. The case was committed to the court
of Sessions for trial.
5. In course of trial, apart from documentary evidences,
altogether 12 witnesses were examined by the
prosecution. The defence has also examined two
witnesses and adduced some documentary evidences.
6. Learned counsel for the appellants assailing the
impugned judgment and order of the appellants has
vehemently argued that in this case two girls were
missing from the School, who happens to be the
daughter of P.W.-1 Anil Bouri and P.W.-2 Sahdeo
Bouri respectively, who have admitted in clear terms
in their evidence that both the victim girls were
recovered by the police from the house of Professor
Ashok Kumar Verma situated near the School, where
both the girls were studying. The trial court as well
as the High Court declined the payer of appellants to
summon and examine Professor Ashok Kumar Verma,
who ought to be examined. Therefore, Hon'ble High
Court has disposed of the Misc. Petition of the
appellants with observation that in case of non-
examination of Professor Ashok Kumar Verma benefit
of doubt can go in favour of the appellants, but the
learned trial court has miserably failed to appreciate
the above aspect and direction issued by Hon'ble High
court. The evidence of P.W.-1 and P.W.-2 also finds
corroboration from the evidence of P.W.-3 Dukhi
Bouri, who is mother of one of the victim girls.
7. It is further submitted that one of the victim, who is
daughter of P.W.-4 Amrawati Bouri, was married on
the date of alleged occurrence and according to P.W.-4
appellant Sufal Biswas brought her daughter from her
sasural on pretext of solemnizing marriage with her.
She has also admitted that her daughter was not
ready and willing to go to her sasural. P.W.-4 has
herself disclosed the age of her victim daughter to be
more than 18 years on the date of occurrence.
8. It is further argued that one of the victim P.W.-5 has
also admitted love affair with appellant - Uttam
Biswas and due to love affair and her consent, she
does not raised any alarm at any point of time. Sexual
intercourse has also taken place with consent of both
parties. Similar statement was given by the victim
P.W.-5 in her statement recorded under Section 164
of the Cr.P.C.
9. It is further argued that P.W.-6 is another victim, who
was under love affairs with the appellant-Sufal
Biswas. She also admits that prior to two years of the
occurrence her marriage was solemnized with another
person, but she never like to go with her husband and
she voluntarily left her matrimonial house and
returned back to solemnize marriage with the
appellant-Sufal Biswas.
10. It is further submitted that the main witnesses of
facts have clearly admitted love relationship as well as
one of the victims was also married. Therefore,
ingredients of offence under Section 366A of the I.P.C.
are absolutely lacking in this case. Similarly, since
both the victims were major and have clearly admitted
in their evidence about consensual sexual
intercourse, therefore, no offence under Section 376 of
the I.P.C. is attracted in this case. The evidence of
both the victim girls further fortifies with the evidence
of P.W.-12 Dr. Aruna Chatterjee, who has medically
examined them and on the basis of radiological and
clinical examination found that hymen was old
raptured, but there was no recent sign of rape or
sexual intercourse. The age of victim was also found
in between 18-19 years.
11. It is further argued that the occurrence is alleged to
have taken place on 24.06.2001, but the FIR was
registered on 28.06.2001 without offering any
reasonable explanation for such inordinate delay. In
view of above facts and circumstances, admitted by
the prosecution as well as non-examination of
material witness viz. Professor Ashok Kumar Verma,
the appellants are entitled for acquittal. Accordingly,
impugned judgment and order is fit be set aside and
this appeal may be allowed.
12. Per contra, learned APP appearing for the State has
vehemently opposed the aforesaid contentions raised
on behalf of the appellants and submitted that the
prosecution has proved its case beyond all reasonable
doubt. Learned trial court has very meticulously
examined the evidence adduced by the prosecution as
well as defence. Mere non-examination of Professor
Ashok Kumar Verma, who admittedly was not aware
about the fact that both the victims were residing in
the office of his School for 4-5 days, as appears from
the evidence of victim girls, hence, non-examination of
this witness does not materially affect the prosecution
case. The consent of the minor girls for the purpose of
sexual intercourse has no legal relevance to exculpate
the accused persons from the liability. There is no
illegality or infirmity in the impugned judgment of
conviction and order of sentence of the appellants and
there is no merit in this appeal, which is fit to be
dismissed.
13. I have gone through the record of the case along with
impugned judgment in the light of contentions raised
on behalf of both side.
14. For better appreciation of the case, brief resume of
oral testimony of witnesses is required to be
discussed.
15. P.W.-1 Anil Bouri is the father of one of the victims.
He has deposed that on the alleged date of occurrence
at 4:00 PM, he was not at his house and had gone for
doing work. The mother of victim had also gone to do
the work and when they returned to the house, they
found that the victim girl was not at house. He started
searching and during course of search, he got
information that one another girl was also missing. He
has further deposed that he got information that
Uttam, Sufal and two victim girls had gone towards
the Benapathak. They came at Jamtara, in course of
search and got clue that both the girls were kept in
the house of one Professor. Thereafter, they went to
police station and informed to the police. Police came
at the house of Professor and recovered both girls,
who were brought at police station. Both the victim
girls have stated that Uttam and Sufal have
kidnapped them to solemnize marriage. He has
further deposed that the age of his daughter was 15-
16 years.
In cross-examination, he has also stated that
police had recorded his statement and both the girls
told that accused Uttam and Sufal took away them to
perform marriage.
16. P.W.-2 Sahdeo Bouri is the informant of the case and
father of another victim girl. He deposed that
occurrence took place one year ago. On the date of
occurrence, he came at his house and saw that his
daughter was not present. He started searching and
in course of search, he got information that his
daughter and another victim went towards
Benapathak and Sufal Biswas and Uttam Biswas were
also with them. He went to the house of Uttam and
Sufal, but they were not present at their house.
Thereafter, he lodged the case. His statement was
recorded. He has further deposed that at that time,
his daughter was aged about 14 years. Police
recovered both the girls and informed him. He has
further deposed that his daughter has told him that
both Uttam and Sufal took her daughter and another
victim and kept in a house at Jamtara. He has further
deposed that his daughter has told him that both
Uttam and Sufal told them that they will marry with
them. Both the girls were sent for medical
examination and thereafter, his daughter was handed
over to him on Jimanamma and another victim girl
was also handed over to her father on Jimanamma.
He has further deposed that both the girls told that
accused persons had enticed them to marry with
them.
17. P.W.-3 Dukhi Bouri is the mother of the one of the
victims. She has also deposed the same line as of
P.W.-1 Anil Bouri.
18. P.W.-4 Amrawati Bouri is the mother of another
victim. She has also deposed the same line as of
P.W.-2 Sahdeo Bouri.
19. P.W.-7 Jamruddin Ansari - He has deposed that on
the date of occurrence, when he was returning from
Jamtara Market, he saw the victim girls along with
Uttam Biswas and Sufal Biswas near the Benapatak.
On the next day, father of one of the victims enquired,
then he told him that he had seen her daughter with
the accused persons. They were going towards
Jamtara.
20. P.W.-8 Jainul Ansari - He is a hearsay witness.
21. P.W.-9 Mustkim Ansari - He has deposed that on the
date of occurrence, while he was returning from
Jamtara Market, then Sahdeo Bouri (P.W.-2) and Anil
Bouri (P.W.-1) told him that Uttam Biswas and Sufal
Biswas took away their daughter to anywhere. Both
the girls were recovered after 4-5 days.
22. P.W.-10 Rabindra Prasad Singh - He is witness to
the seizure list.
23. P.W.-11 Satyendra Narayan Singh is the I.O. of this
case. He has deposed that on 28.06.2001, he was
posted at Jamtara Police Station. Surya Bhusan
Sharma was the Officer-in-Charge. He has also proved
the formal FIR. He has also proved the written report
which is in the writing of Surya Bhusan Sharma. He
has further deposed that investigation was handed
over to him and in course of investigation, he has
recorded the statement of informant and visited at
Village Mohara and recorded the statement of
Amrawati Bouri, Anil Bouri and Dukhi Bouri. On
29.06.2001, he recovered the victim girls from the
house of Professor Ashok Kumar Verma situated of
both the girls and seizure list was prepared by Surya
Bhusan Sharma. Both the girls were sent for medical
examination and their statement were recorded under
Section 164 Cr.P.C. He received the medical reports
and after completion of investigation submitted
charge sheet. He has also proved the requisition for
medical examination.
24. The most important witnesses in this case are victim
girls i.e. P.W.5 & P.W.-6.
25. P.W.-5 is the first victim girl in this case.
According to her evidence, on the date of occurrence,
it was Sunday and in the evening at about 4:00 PM,
she was alone in her house, meanwhile, Uttam Biswas
came to her home and assuring her to solemnize
marriage, took away from her house and in the way,
another victim girl and appellant Sufal Biswas also
meet them, then all the four came to Jamtara and
were kept in a house of an Officer, adjacent to the
Jamtara Police Station. Both victims were brought by
the accused persons on assurance of solemnization of
marriage and all over the day, the accused persons
used to go outside and return in night. She also
admits that in the night Uttam used to establish
physical relation with her. She also admits that due to
love affair with the accused, she was living in the
house of the Officer. After two days, she was brought
by police. She along with another victim girl was
brought by Jamtara Police to Dumka, where both
were medically examined and their statements were
recorded by Magistrate and handed over to their
respective parents, who were also present in the
Court. She was also provided food, drinks and other
articles by the accused persons.
She also admits in the cross-examination that
since six months ago, she was under love affairs with
the accused Uttam Biswas.
She also denied the suggestion of defence that on
the date of occurrence, she was about 19 years old
and on tutoring by her parents, she has disclosed her
age before Court to be 15 years.
26. P.W.-6 is another victim, who was under love affair
with appellant Sufal Biswas. According to her
evidence also on the date of occurrence at about 5:00
PM Sufal Biswas came to her house allured her to
solemnize marriage and took away with him. Another
victim was also brought by Uttam Biswas. All the four
came to Jamtara and were living in a room of a
Professor of the School situated near the police
station. She has also deposed that both the accused
persons used to come in the night and were providing
food and drink to them and also having sexual
intercourse in the night. She along with another
victim (P.W.-5) were recovered by Jamtara Police and
brought to Dumka and her statement was also
recorded by Magistrate and medical examination was
conducted at Dumka. She also admits in her cross-
examination that prior to two years of occurrence, she
was married with a boy of Village - Gabra. She was
living at her matrimonial home and just one day prior
to occurrence, she has come to her parental home.
She has also admitted in her cross-examination
that prior to occurrence, she was under physical
relation with the accused and another victim was also
under physical relation with the Uttam Biswa.
She has also denied the suggestion of defence
that on the date of occurrence she was more than 20
years old and due to love affairs she eloped with the
accused Sufal Biswas and she was never kidnapped
or forced for sexual intercourse.
27. P.W.-12 Dr. Aruna Chatterjee was the Member of the
Medical Board constituted for examination of the
victim girls of this case. According to her evidence,
she has examined the victim girl (P.W.-6) on
30.06.2001 at about 11:05 AM. No internal or
external injury was found on her body or private part.
Hymen shows old rapture. As per x-ray report of the
victim conducted by Dr. S.N. Jha, Orthopedic
Surgeon, the age of victim girl (P.W.-6) was about 15
years. However, no definite opinion can be given as to
whether the victim was raped or not?
On the same day, another victim girl (P.W.-5) was
also examined at about 10:55 AM, no internal or
external injury was found. As per X-ray report, the
age of victim girl (P.W.-5) was assessed to be 18-19
years. However, no definite opinion can be given as to
whether rape was committed or not?
In her cross-examination, she admits that the
finding about age of the victim is based on x-ray
report, but the x-ray report and plate is not available
before her. The reports about age of the victims have
been given as per x-ray report conducted by
Orthopedic Surgeon.
28. From the discussion of the evidence, as stated above,
it appears that one of the victim girls (P.W.-6) was
already married and aged about 18 to 19 years,
therefore, no offence is committed either under
Section 366A or under Section 376 of the I.P.C. as per
admitted consensual relationship due to love affairs.
So far, another victim girl (P.W.-5) is concerned, as
per the evidence of father of victim girl (P.W.-5), was
15-16 years on the date of occurrence and as per X-
report also the age of victim girl (P.W.-5) was assessed
to be 15 years, but no Ossification test was conducted
to assess the actual age of the victim girls, which
leaves room for ample doubt with regard to the correct
age of the victim girls. The benefit of the aforesaid
doubt must naturally go in favour of the accused
persons. From the evidence of victim girls itself, it
appears that they have voluntarily accompanied with
the accused persons / appellants due to love affairs
with them and prior to occurrence also, as admitted
by P.W.-5 and P.W.-6 in their evidence, there was
physical relationship between the victim girls and
accused persons.
29. It appears that the trial court has committed error of
record while appreciating the evidence of witnesses in
true and proper perspective and arrived at wrong
conclusion about guilt of the appellants, therefore, I
find substance in the argument advanced by learned
counsel for the appellants. This appeal has merit,
which is hereby allowed.
30. The judgment of conviction dated 07.01.2006 and
order of sentence of dated 09.01.2006 of appellants is
hereby set aside.
31. Appellants are on bail, as such they are discharged
from the liability of bail bond. Sureties are also
discharged.
32. Pending I.A., if any, stand disposed of.
33. Let a copy of this judgment along with trial court
record be sent back to the court concerned for
information and needful.
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court, Ranchi
Dated, the 12 t h February, 2025.
Sunil / N.A.F.R.
