Bijay Goswami vs The State Of Jharkhand

Heard the learned counsel for the appellant and the learned Spl.P.P. for the State.

The instant criminal appeal is directed against the judgment and order of conviction and sentence dated 14^th August, 2006 passed in S.T. No. 57 of 2002 by the learned Sessions Judge, Hazaribag, whereby and whereunder, the appellant has been convicted and sentenced to undergo R.I. for five years along with a fine of Rs. 5000/- under Section 366A of the IPC, with default stipulation.

The factual matrix giving rise to this appeal is that before one month of occurrence, accused person namely Vijay Goswami (appellant) along with Krishna Bahadur Giri came to the house of informant-Sushila Tigga with a proposal to solemnize marriage of informant’s daughter with Krishna Bahadur Giri. Upon this, the son of the informant objected the said proposal saying that who is he (informant) to solemnize marriage of his sister. Thereafter, on 09.07.2001, when the daughter of the informant was going to school, in the meantime, the accused person allured informant’s daughter and took her away with him for solemnizing marriage. The informant searched her daughter but did not find. Thereafter, the accused person gave a phone number of Nepal to the informant and told that informant can talk with her daughter. Therefore, it is alleged that accused persons Vijay Goswami and Krishna Bahadur Giri have taken her daughter to somewhere.

On the basis of above written report, Sadar P.S. Case No. 458 of 2001 was registered for the offence under Section 366A of the IPC. After completion of investigation, the charge-sheet was submitted against the accused person and after taking cognizance, the case was committed to the court of Sessions, where S.T. No.57 of 2002 was registered. The accused persons pleaded not guilty and claimed to be tried.

In course of trial, altogether seven witnesses were examined by the prosecution apart from documentary evidence.

On the other hand, no oral witness has been examined by the defence but several documentary evidence has been adduced.

Learned counsel for the appellant assailing the impugned judgment of conviction and order of sentence has contended that the offence committed by the appellant under Section 366A is not established against the appellant. Learned counsel for the appellant submitted that the appellant has only assisted the main accused Krishna Bahadur Giri with whom, the marriage of victim girl was to be solemnized. It has also been submitted that the main accused Krishna Bahadur Giri was juvenile at the time of occurrence, therefore, his case was separately inquired into and tried by the juvenile justice board wherein compromise was entered into between the parties and the accused Krishna Bahadur Giri was acquitted. There is no whisper in the entire testimony of the victim (P.W.-4) that the appellant has ever allured her in solemnizing marriage or for any other favour rather she was taken from lawful custody of her guardian with the assistant of the present appellant. Therefore, at best, the offence under Section 363 is applicable against the appellant.

In the alternative, it is submitted that the appellant has remained in custody for about 4 months during investigation, trial and post-conviction. The occurrence is of the year 2001. The appellant has no criminal background. However, learned counsel for the appellant submits that it was the first offence, hence, he may be released extending the benefit of section 4 of Probation of Offenders Act.

Learned Spl.P.P. has defended the judgment of learned trial Court on merits but so far as extension of benefit of Probation of Offenders Act is concerned, it is fairly admitted that it was the first offence of the appellant, hence, appropriate order may be passed.

I have gone through the record of the case along with the impugned judgment and order of conviction and sentence in the light of the contentions raised on behalf of both side.

I have also gone through the testimony of the witnesses especially the victim (P.W.-4) who in her examination-in-chief herself has stated that she was going to school, Bijay Goswami (appellant) and Krishna Bahadur forcibly took her to the house of Bijay Goswami where she lived for two days and thereafter Krishna Bahadur along with his parents took her to Nepal and after one month, they returned to Hazaribag. In her cross-examination, she also admits that the present appellant had come to the house of the victim with a proposal of marriage. From the evidence of the victim and other witnesses, it appears that accused appellant has facilitated in kidnapping the victim but required intention that victim girl may be or knowledge that she may be forced or seduced to illicit intercourse with another person has not been proved. It has also been submitted by the learned counsel for the appellant that the main accused Krishna Bahadur Giri who had taken the victim to Nepal has been acquitted due to compromise arrived at between the main accused and victim. Therefore, at best, the offence under Section 363 of the IPC is proved against the appellant and hence he is found guilty under Section 363 IPC instead of Section 366-A of the IPC.

So far as sentence of the appellant is concerned, considering the overall factual background, genesis, manner, place and nature of offence committed by the appellant, his age, character and antecedent, it appears expedient in the ends of justice to extend him the benefit of Section 4 of the Probation of Offenders Act, 1958, instead of awarding any sentence of imprisonment.

Accordingly, the appellant is hereby directed to be released on furnishing bond of Rs.5,000/- (Rupees Five Thousand) with one surety of like amount to the satisfaction of learned trial court under Section 4 of the Probation of Offenders Act, 1958 within two months from the date of this order for maintaining peace and be of good behavior for one year from the date of furnishing the bond.

If the bond is not furnished within above stipulated time, the learned trial Court shall issue notice upon the appellant to secure his attendance for furnishing the bond.

In case of violation of the terms and conditions of the bond, the appellant shall be called upon by the learned trial Court to receive the sentence of imprisonment under Section 363 of the IPC.

Pending I.A.(s), if any, is also disposed of, accordingly.

Let a copy of this judgment along with Trial Court Record be sent back to the court concerned immediately for information and needful.