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Judgment
This appeal is directed against the judgment of conviction dated 27.02.2006 and order of sentence dated 02.03.20006 passed by Sri Rai Bhawani
Nandan Sahai, Additional Sessions Judge-I, Sahibganj, in Session Case No. 234 of 1997 whereby and whereunder the appellant no. 2, Gunadhar
Thakur has been charged under Section 368 of the Indian Penal Code and convicted for the same offence and appellant no. 1, Dhiren Thakur has
been charged under Section 366(A), 379 and 376 of the Indian Penal Code and has been convicted for the said Sections.
The prosecution story put on trial as reflected from the charge framed against the appellants, which is quoted below:
“ CHARGE WITH ONE HEAD
FORM NO. 33 (I) SCHEDULE II, ACT 2, 1974
(Sections 211, 212, 213, Code of Criminal Procedure)
* Name and Office of Magistrate, etc I, * ADJ 1st Anant Kr. Singh
* Name of accused person hereby charge you Gunadhar Thakur As follows:-
That you on or about the That you alongwith Kesho Thakur on or above the 19th day of Dec. 1990 and onwards at difference place like Karamtola,
Gilha, Banjhi etc in furtherance common intention of all wrongfully concealed or confined Dhanwanti Devi who was kidnapped or abducted by Dhiren
Thakur and and thereby committed an offence under section punishable of the 368 Indian Penal Code, and within my cognizance and I hereby direct
that you be tried by me on the said charge.
The contents of charge has been read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried.
Sd/
Magistrate/Judge
Dated the 17th day of March 2004
“ CHARGE WITH THREE HEADS
FORM NO. 32 (M) SCHEDULE II, ACT 2, 1974
(Sections 211, 212, 213, Code of Criminal Procedure)
* Name and Office of Magistrate, etc I, * ADJ 1st Anant Kr. Singh
* Name of accused person hereby charge you Dhiren Thakur
As follows:-
FIRST -That you on or about the 19th day of Dec. 1990 at about 9 P. M. of village Karamtola, P. S Barhait Distt. Sahibganj committed theft of
ornaments and cash amounting Rs. 5000/- by taking it out of the possession of the informant Bhawani Pandit intending to take the said thing
dishonestly without his consent and thereby committed an offence punishable under Section 379 of the Indian Penal Code, and within my cognizance.
SECONDLY- That you, on or about the same day of time and place induced Dhanwanti Devi a girl under eighteen years of age to go from the house
of the informant Bhawani Pandit wih intent that the said dhanwanti Devi will be forced to illicit intercourse with Dhiren Thakur and thereby committed
an offence punishable under Section 366 A of the Indian Penal Code, and within my cognizance.
THIRDLY â€" That you, on or about the same day of time and place onwards at different places committed rape on Dhanwanti Devi and thereby
committed an offence punishable under Section 376 of the Indian Penal Code, and within my cognizance and I hereby direct that you be tried by me
on the said charge.
The contents of charge has been read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried. .
Sd/
Judge
Dated the 17th day of March 2004
On conclusion of trial, the appellants were examined by the Magistrate under Section 281 of the Cr. P. C. The contents of the examination is as
follows:
“FORM OF RECORDING EXAMINATION OF ACCUSED EXAMINATION OF ACCUSED PERSON (Section 281 of the Criminal
Procedure Code.)
The examination of aged about 35 years taken before me Magistrate of the Class at on the 18 day of 6 2005 in the
Language interpreted by My name is my father’s name is My age is 35 years, I am
by religion My nationality is and I belong to Scheduled Caste/ Scheduled Tribe. I am by occupation My home is at
Mauza Police Station District
:- ?
:-
:- 19.12.90 9.00 -
- , -
?
:-
:-
?
:-
:- 5,000/-
?
:-
:- ?
:-
SD/-
(Signature of Magistrate)
The above examination was taken in my presence and hearing and contains a full and true account of the statement made by the accused. It was read
over to the accused or interpreted to him in the language which he understands and was admitted by him to be correct.
SD/-
(Signature of Magistrate)â€
“FORM OF RECORDING EXAMINATION OF ACCUSED EXAMINATION OF ACCUSED PERSON (Section 281 of the Criminal
Procedure Code.)
The examination of aged about 55 years taken before me Magistrate of the Class at on the 18 day of 6 2005 in the
Language interpreted by My name is my father’s name is 0 My age is 55
years, I am by religion My nationality is and I belong to Scheduled Caste/ Scheduled Tribe. I am by occupation
My home is at Police Station District
:- ?
:-
:- 19.12.90
- ?
:-
:- ?
:-
SD/-
(Signature of Magistrate)
The above examination was taken in my presence and hearing and contains a full and true account of the statement made by the accused. It was read
over to the accused or interpreted to him in the language which he understands and was admitted by him to be correct.
SD/-
(Signature of Magistrate)â€
From perusal of the above accusation and the prosecution story developed in the trial negates the necessary ingredients of Section 366 (A) of the
Indian Penal Code. Section 366 (A) of the Indian Penal Code has been introduced in the year 1923 for giving effect to certain Articles of the
International Convention for the Suppression of Traffic in Women and Children signed by various nations at Paris on May 4, 1910.
This section gets attracted only when the accused induces a minor girl to go from any place 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, meaning thereby with a person other than accused. As the accusation
lacks necessary ingredient of Section 366 (A) of the Indian Penal Code, the appellant no. 1, Dhiren Thakur is discharged from the said Section and the
judgment of conviction dated 27.02.2006 and order of sentence dated 02.03.20006 passed by Sri Rai Bhawani Nandan Sahai, Additional Sessions
Judge-I, Sahibganj, in Session Case No. 234 of 1997 for the said Section is, hereby, set aside.
The prosecution story as disclosed in the FIR by the informant, P.W.-3, Bhawani Pandit that his daughter (prosecutrix), who was sleeping with her
younger sister and brother has been kidnapped by the appellant no. 1, Dhiren Thakur for the purpose of marriage along with jewellery and five
thousand rupee on 19.12.1990. The FIR has been lodged on 22.12.1990. 14 witnesses have been examined by the prosecution and 3 witnesses have
been examined by the defense. P.Ws. -1, 2, 5 and 13 have been declared hostile. P. Ws. â€" 6, 7, 8 and 12 are the hearsay witnesses and P. W. -14 is
a formal witness. P. W. -3 is the father of the victim and informant. P. W. -4 is the mother of the victim. P. W. -8 is the brother of the victim, P. W.-9
is the victim girl and P. W. -11 is the sister of the girl and P. W. -10 is the Medical Officer.
The age of the girl has been disclosed 14 to 15 years in the FIR while the prosecutrix i.e. P. W. -9 has declared her age as 16 years and the
medical evidence proved by the doctor i.e. P. W. -10 suggests the age of victim girl is around 17 years. Thus the evidence on record suggests that the
girl was above 16 years of age. The law prevalent in the year 1990 requires that any sexual intercourse below 16 years of age is rape whether with
consent or without consent. As per evidence on record, the girl was above 16 years and as such, the only point is required to be decided in the present
case “Whether sexual intercourse between the appellant no. 1, Dhiren Thakur and prosecutrix was with consent or without consent.
From perusal of the deposition of prosecutrix (P. W. -9), she has alleged that the entire incident has taken place against her will and under threat.
To appreciate the deposition of the prosecutrix, para-6, 7, 8 and 13 of the deposition is quoted hereinbelow:
“(6)
0
, ,
(7)
(8) 0
6.00-7.00 8.00 , ,
0
(13) 4
â€
To the question put in her cross-examination, it has been answered by the prosecutrix that she was in house with closed door. Her sister, P. W. -11,
has deposed that she was sleeping with her sister. The prosecutrix was present in the house with her brother, sister and parents. Prosecutrix has come
out of her house without sound, rather in silence with jewellery and money. Thereafter they have travelled to an Advocate for the purpose of
marriage. As per suggestion of the Advocate, they performed marriage in temple with the assistance of pujari. Thereafter they get photographs in
Studio and moved to the Court for Registration.
Sometimes conducts speaks louder than bald statement. In the present case bald statement of the prosecutrix that it was against her will, is not
supported by her conduct as disclosed by her on oath in Court.
In the present case, Investigating Officer has not been examined and Medical Officer has not found any injuries.
In view of the above discussion, this Court finds that the prosecution has failed to prove the allegation that sexual intercourse with prosecutrix by
the appellant no. 1, Dhiren Thakur was without consent, which is a necessary ingredient for conviction under Section 376 of the Indian Penal Code.
Thus, appellant no. 1, Dhiren Thakur is, hereby, discharged from the charges under Section 376 of the Indian Penal Code and accordingly, the
judgment of conviction dated 27.02.2006 and order of sentence dated 02.03.20006 passed by Sri Rai Bhawani Nandan Sahai, Additional Sessions
Judge-I, Sahibganj, in Session Case No. 234 of 1997 under Section 376 of the Indian Penal Code is, hereby set aside.
So far as conviction under Section 379 of the Indian Penal Code is concerned, as discussed above, conduct of the prosecutrix shows that she has
willingly taken out her belongings and money for facilitating marriage with the appellant no. 1, Dhiren Thakur and as such, conviction of the appellant
no.1, Dhiren Thakur under Section 379 of the Indian Penal Code is not sustainable and the same is also set aside.
So far as conviction of the appellant no. 2, Gunadhar Thakur under Section 368 of the Indian Penal Code is concerned, it was dependent upon the
conviction of the appellant no. 1, Dhiren Thakur under Section 366-A of the Indian Penal Code. Since the conviction of the appellant no. 1, Dhiren
Thakur has already been set aside, the conviction of the appellant no. 2, Gunadhar Thakur also fails. In the result, the judgment of conviction dated
27.02.2006 and order of sentence dated 02.03.20006 passed by Sri Rai Bhawani Nandan Sahai, Additional Sessions Judge-I, Sahibganj, in Session
Case No. 234 of 1997 under Section 368 of the Indian Penal Code is, hereby set aside.
Since, the appellants, above named, are already on bail, they are discharged from the liability of their bail bonds.
Accordingly, the instant Appeal stands allowed.
All pending I.As. are also disposed off.