Patna High Court
Lalu Kumar @ Lalo Kumar vs The State Of Bihar on 7 August, 2024
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.3683 of 2022
Arising Out of PS. Case No.-1 Year-2020 Thana- PURNIA COMPLAINT CASE District-
Purnia
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Lalu Kumar @ Lalo Kumar Son of Badiyal Rai R/V- Dhobgiddha, P.S-
Rupauli, Dist- Purnea
... ... Appellant/s
Versus
1. The State of Bihar
2. Mausam Kumari D/O- Angad Rai R/O Vill.- Dhobgiddha, P.S.- Rupauli,
Distt.- Purnea
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Bhola Prasad, Advocate
: Mr. Indrajeet Kumar, Advocate
For the Respondent/s : Ms. Anita Kumari Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 07-08-2024
This appeal has been preferred by the
appellant/convict under Section 374(2) of the Code of
Criminal Procedure (hereinafter referred to as 'the
Code') challenging the judgment of conviction dated
13.10.2022
and order of sentence dated 14.10.2022
passed by learned Additional District and Sessions Judge
Patna High Court CR. APP (SJ) No.3683 of 2022 dt.07-08-2024
7th -cum-Special Judge (POCSO), Purnea in C.A.
(POCSO) Case No. 01 of 2020 (arising out of Complaint
Case No. 01 of 2020), whereby the concerned Trial
Court has convicted the appellant/convict for the
offences punishable under Section 366 of the IPC and he
has been sentenced to undergo rigorous imprisonment
for three years and fine of Rs. 5,000/- and in default of
payment of fine, further undergo simple imprisonment
for three months.
2. As per the case of complainant/victim/P.W.
1, it appears that on 31.12.2019 at about 9:30 PM
appellant/convict alongwith other co-accused persons
came to the courtyard of the complainant and called her,
who by that time was sleeping with her mother. She
denied to accompany them and after said denial the
appellant dragged her to his house as to solemnize
marriage with her. One Mukesh Rai cousin of
appellant/convict informed mother of victim/P.W. 2 on
her mobile phone regarding alleged occurrence,
Patna High Court CR. APP (SJ) No.3683 of 2022 dt.07-08-2024
whereafter she came to the house of appellant, which
was just after 4-5 houses and protested the proposed
marriage. P.W. 1/victim, thereafter, brought to her
house by P.W. 2/mother.
3. To substantiate its case, the prosecution has
examined altogether five witnesses. They are:-
Prosecution
Witnesses Names
No(s).
P.W. 1 Victim
P.W. 2 Lalita Devi (mother of
victim)
P.W. 3 Ravindra Rai (maternal
uncle, mama)
P.W. 4 Suman Kumar (elder
brother of victim)
P.W. 5 Saurabh Kumar
(younger brother of
victim)
4. On the basis of evidence as surfaced during
the trial, the learned trial court has examined the
appellant/convict under Section 313 of the Code, where
he completely denied his involvement by denying the
incriminating evidences and circumstances surfaced
Patna High Court CR. APP (SJ) No.3683 of 2022 dt.07-08-2024
during the trial and stated that he was implicated with
this case falsely and claimed his innocence.
5. Three defence witnesses were also examined
by appellant/convict during the trial in defence but no
document was exhibited in support. Defence witnesses
are:-
Defence Names
Witnesses No(s).
D.W. 1 Kumod Rai
D.W. 2 Sita Ram Rai
D.W. 3 Sikandra Rai
6. Taking note of the evidence and
circumstances as surfaced during the trial and
arguments as advanced by the parties, the learned Trial
Court has convicted appellant/convict for the offences
under Section 366 of IPC and sentenced him to under
go for rigorous imprisonment for three years alongwith
fine of Rs. 5,000/-.
7. Being aggrieved with the aforesaid judgment
of conviction and order of sentence, the
Patna High Court CR. APP (SJ) No.3683 of 2022 dt.07-08-2024
appellant/convict has preferred the present appeal.
8. Hence, the present appeal.
Argument on behalf of the appellant/convict:
9. Learned counsel appearing on behalf of
appellant/convict submitted that present prosecution was
not initiated on the basis of police report, rather same
was based upon complaint case, which was lodged with
the delay of 9 days as afterthought, in the background
of land dispute. It is submitted that the deposition of
prosecution witnesses are full of contradictions, negating
any such occurrence. It is also pointed out that during
the trial complainant failed to established that she was
kidnapped, as to seduced or forced to solemnize her
marriage with "any person" against her will, which is an
essential ingredient as to bring the offence within the
meaning of Section 366 of the IPC. In support of his
submissions learned counsel relied upon the legal report
of Hon'ble Supreme Court as held in the matter of
Kavita Chandrakant Lakhani Vs. State of
Patna High Court CR. APP (SJ) No.3683 of 2022 dt.07-08-2024
Maharashtra and Another, reported in [(2018) 6
SCC 664].
10. While concluding the argument it is also
pointed out that in view of such evidences and legal
propositions present judgment of conviction as recorded
by learned trial court is fit to be quashed and set aside.
Argument on behalf of State:
11. Learned APP, while opposing the appeal
submitted that victim/P.W. 1 deposed specifically as to
kidnap her from her house by appellant as to solemnize
marriage with her against her will and as such there is
no occasion to interfere with the finding of learned trial
court, while recording the judgment of conviction which
is under appeal.
12. I have perused the trial court records
carefully and gone through the evidences available on
record and also considered the rival submissions as
canvassed by learned counsel appearing on behalf of the
parties.
Patna High Court CR. APP (SJ) No.3683 of 2022 dt.07-08-2024
13. As to re-appreciate the evidences, while
disposing the present appeal, it would be apposite to
discuss the evidences available on record, which are as
under:-
14. From the perusal of records it appears that
most important witness of the occurrence is victim/P.W.
1, herself. It appears from her deposition, while she was
sleeping with her mother on 31.12.2019 co-accused
Rubi Devi asked her to accompany and later on she was
forcefully taken by this appellant/convict to his house
which was situated after 4-5 houses in between. It
appears from her deposition that one Badiyal Rai, who is
none but the father of appellant/convict and one Jano
Rai, asked appellant to put vermilion on her forehead. It
nowhere appears from her deposition that on said
instigation any act furtherance thereof was committed by
this appellant, which suggest that he step out from
solemnization of forcefull marriage with victim. It also
appears from her deposition that the occurrence was
Patna High Court CR. APP (SJ) No.3683 of 2022 dt.07-08-2024
witnessed by her younger brother/P.W. 5 and her
maternal uncle/P.W. 3. From her testimony it also
appears that she was well acquainted with
appellant/convict prior to this occurrence and they
usually on different occasions visited house of each
others. It was categorically stated by victim that she did
not saw any preparation in courtyard of appellant, which
may suggest that there was any preparation for
solemnization of marriage. It was stated that she
remained in courtyard of appellant on the night of the
occurrence for about one hour.
15. P.W. 2 Lalita Devi, mother of victim stated
that she was informed regarding occurrence by one
Mukesh through her mobile phone. She failed to depose
about the details of said mobile no. through which she
was informed. It appears from her cross-examination
that she came to know about the occurrence from her
daughter after returning home, casting serious doubt
regarding the manner of occurrence as deposed by her.
Patna High Court CR. APP (SJ) No.3683 of 2022 dt.07-08-2024
It appears from her deposition that appellant is her
cousin brother and this marriage was not ethically
possible.
16. P.W. 3 Ravindra Rai maternal uncle
(mama) of victim deposed that he visited place of
occurrence after two hours of the visit of P.W. 2/mother
of victim. He stated to brought victim and P.W. 2 with
him from the courtyard of appellant.
17. From the deposition of P.W. 4 Suman
Kumar (elder brother of the victim), who at the time of
occurrence was present in Gujrat. He appears to be a
hearsay witness and his entire deposition is based upon
hearsay input as he received over phone by P.W.
2/mother regarding crime in question.
18. P.W. 5, Saurabh Kumar (younger brother
of the victim), who stated to sleep with victim/P.W. 1 on
the night of the occurrence, contrary to the statement of
P.W. 1/victim that she was sleeping with her
mother/P.W. 2.
Patna High Court CR. APP (SJ) No.3683 of 2022 dt.07-08-2024
19. From the aforesaid evidence, it can be
gathered safely that P.W. 2, P.W. 3 & P.W. 4 are not
eye-witness of the real occurrence. Albeit, they projected
themselves to be an eye-witness of the occurrence. From
the deposition of P.W. 1/victim and other prosecution
witnesses, it appears that alleged kidnapping of P.W. 1
was not taken place with an intention to solemnize her
marriage with "any person".
20. It would be apposite to reproduce Section
366 of the IPC, for better understanding of position of
law, which reads as under:-
366. Kidnapping, abducting or
inducing woman to compel her
marriage, etc.--Whoever kidnaps or
abducts any woman with intent that she
may be compelled, or knowing it to be likely
that she will be compelled, to marry any
person against her will, or in order that she
may be forced or seduced to illicit
intercourse, or knowing it to be likely that
she will be forced or seduced to illicit
intercourse, shall be punished with
imprisonment of either description for a
Patna High Court CR. APP (SJ) No.3683 of 2022 dt.07-08-2024
term which may extend to ten years, and
shall also be liable to fine; 1 [and whoever,
by means of criminal intimidation as defined
in this Code or of abuse of authority or any
other method of compulsion, induces any
woman to go from any place with intent that
she may be, or knowing that it is likely that
she will be, forced or seduced to illicit
intercourse with another person shall also be
punishable as aforesaid].
21. It would be apposite to reproduce the
para nos. 16 and 17 of the Kavita Chandrakant
Lakhani Case (supra), in aforesaid context which
reads as under:-
16. In order to constitute the offence of
"abduction", a person must be carried off
illegally by force or deception, that is, to
compel a person by force or deceitful means
to induce to go from one place to another.
The intention of the accused is the basis and
the gravamen of an offence under this
section. The volition, the intention and the
conduct of the accused determine the
offence; they can only bear upon the intent
with which the accused kidnapped or
abducted the woman, and the intent of the
Patna High Court CR. APP (SJ) No.3683 of 2022 dt.07-08-2024
accused is the vital question for
determination in each case. Once the
necessary intent of the accused is
established, the offence is complete,
whether or not the accused succeeded in
effecting his purpose, and whether or not
the woman consented to the marriage or the
illicit intercourse.
17. Apart from this, to constitute an offence
under Section 366 IPC, it is necessary for
the prosecution to prove that the accused
induced the complainant woman or
compelled by force to go from any place,
that such inducement was by deceitful
means, that such abduction took place with
the intent that the complainant may be
seduced to illicit intercourse and/or that the
accused knew it to be likely that the
complainant may be seduced to illicit
intercourse as a result of her abduction.
Mere abduction does not bring an accused
under the ambit of this penal section. So far
as charge under Section 366 IPC is
concerned, mere finding that a woman was
abducted is not enough, it must further be
proved that the accused abducted the
woman with the intent that she may be
compelled, or knowing it to be likely that
she will be compelled to marry any person
Patna High Court CR. APP (SJ) No.3683 of 2022 dt.07-08-2024
or in order that she may be forced or
seduced to illicit intercourse or knowing it to
be likely that she will be forced or seduced
to illicit intercourse. Unless the prosecution
proves that the abduction is for the
purposes mentioned in Section 366 IPC, the
court cannot hold the accused guilty and
punish him under Section 366 IPC.
22. Besides above, it appears that complaint
was lodged with an unexplained delay of 10 days. The
statement of appellant/convict under Section 313 of
Cr.P.C. also appears to be recorded by learned trial court
in very cryptic and mechanical manner without putting
incriminating evidences as surfaced during the trial.
23. In view of aforesaid factual discussion
and established legal ratio, it can be said safely that
prosecution failed to answer material questions as to
establish guilt of appellant/convict within the meaning of
Section 366 of the IPC.
24. Accordingly, the appeal stands allowed.
25. The impugned judgment of conviction
dated 13.10.2022 and order of sentence dated
Patna High Court CR. APP (SJ) No.3683 of 2022 dt.07-08-2024
14.10.2022 passed by learned Additional District and
Sessions Judge 7th -cum-Special Judge (POCSO), Purnea
in C.A. (POCSO) Case No. 01 of 2020 (arising out of
Complaint Case No. 01 of 2020) is, hereby, set aside.
26. Accordingly, above named appellant is
acquitted from the charges levelled against him.
27. Appellant is on bail, upon acquittal bailors
and sureties stands discharged from their liabilities.
28. Office is directed to send back the trial
court records along with a copy of the judgment to the
court below forthwith.
(Chandra Shekhar Jha, J.)
S.Tripathi/-
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 08.08.2024
Transmission Date 08.08.2024
