Hirmain Kumari vs Arjun Toppo

I.A. No.3957 of 2019.

Heard, Learned counsel for the appellant and learned Additional Public Prosecutor for the State.

The aforesaid I.A. has been filed for granting leave to file Acquittal appeal for setting aside the judgment dated 14th March, 2019 passed by learned Additional Sessions Judge-I-cum-Special Judge, Gumla in Special POCSO No.843 of 2017 whereby the respondent- Arjun Toppo has been acquitted from the charge framed under Sections 363/365/366A/370/371/376 IPC, Section ¾ POCSO Act, Section 75 J.J. Act, Section 16/18 Bonded Labour Act and Section 14 of the Child Labour Act, 1986.

Learned counsel for the appellant, Mrs. Sunita Kumari has submitted that no notice has been served upon the informant, as such she could not adduce evidence in the trial court. Learned trial court without recording evidence of the informant/victim has closed the prosecution case in haste without receipt of service of notice and acquitted respondent- Arjun Toppo from the charge framed against him. Learned counsel for the appellant has further submitted that even though the victim/informant has given statement during investigation under Section 164 Cr.P.C. but the same has also not been considered by the learned trial court, as such the impugned judgment of conviction and order of sentence is bad in law and the same is fit to be set aside.

Learned counsel for the State has opposed the prayer and has submitted that the present case has been instituted against the respondent who remained in custody for a long time approximately of one year and after acquittal, on 14.03.2019 the present appeal has been preferred on 12.04.2019 just to harass him. Learned counsel for the State has further submitted that the learned trial court has issued notice to the informant/appellant but she has not adduced her evidence and the learned trial court has rightly acquitted the respondent from the aforesaid charge. Learned counsel for the State has further submitted that prosecution has examined only one witness namely, Chadru Munda (P.W.1), who has categorically stated that the appellant/victim Hirmain Kumari is his niece and she was taken by the respondent, who is his brother-in-law (Sarhu) and sold her in Delhi. The victim returned after a long time. She did not disclose anything to him rather she might have disclosed all these things to her father. Learned counsel for the State has further submitted that neither the victim nor her father has been examined in this case and learned trial court has rightly acquitted the accused persons from the charge on the ground that prosecution has failed to prove the charge levelled against the respondent. As such the respondent was acquitted from the charge as he was not found guilty of the same and accordingly, the judgment of acquittal has been passed in this case. Learned counsel for the State has further submitted that there is no perversity in the finding recorded by the learned trial court and in a case of acquittal there is double presumption of innocence in favour of the accused as he has been acquitted from the learned trial court on the basis of materials brought on record and the court of appeal may not interfere unless and until there is a glaring miscarriage of justice.

Accordingly the appeal preferred by the appellant is fit to be dismissed.

Heard, learned counsel for the appellant and learned counsel for the State and perused the materials brought on record including the FIR as well as the order impugned herein. FIR is based upon Complaint Case No.116 of 2017, dated 12.06.2017 instituted by the victim which was sent to the police station under Section 156 (3) Cr.P.C. On the basis of that the FIR of AHTU (Duamri) P.S. Case No.21 of 2017 dated 12.09.2017 has been registered against the respondent. During investigation police has recorded the statement of the victim under Section 164 Cr.P.C., where she has categorically stated that at the age of 12 years while she was studying in Class-VI, which is five years ago. Her own maternal uncle (Mausa), on false pretext has taken her to Delhi from the village where she went to attend marriage ceremony and there she was forced to do wrong thing. She has further stated that Tara Madam and Arjun have taken money and no money has been given to her. She has also alleged that Arjun has done wrong with her in the village as well as in Delhi. She has further stated that Arjun Toppo- respondent has taken Rs.35,000/- from her parents when her mother went to Delhi in search of victim. She has further stated that her brother has also been taken by Arjun Toppo to Delhi, who has not returned as yet.

It appears that respondent was taken in custody on 16.12.2017 and thereafter the charge was framed against the respondent on 13.06.2018 and the notice has been issued by the learned trial court fixing the date for evidence. Thereafter on 07.07.2018 non-bailable warrant of arrest has been issued against the informant and D.O. letter has also been issued to the Superintendent of Police vide order dated 27.07.2018 but the informant/complainant has not taken any interest. The accused person remained in custody for a long time since 16.12.2017 and one of the witness, who is non-else than own uncle of the victim, has been examined as P.W.1. He has categorically stated that after returning from Delhi, his niece has not disclosed anything to him rather she might have disclosed the same to her own father. The family members have not taken any steps to adduce the evidence including the victim. Apart from all these facts the present case has been filed after five years (i.e. 2012 to 4th May, 2017) during the period no information was given to any authority. Informant did not adduce her evidence though her uncle has been examined as P.W.1. None of the witnesses have been examined except P.W.1 when accused is his own relative and was in custody for such long period. The further conduct of the informant shows that she was well acquainted with the proceeding of the case as no sooner the judgment of acquittal was passed on 14.03.2019 by the trial court, requisite was filed to obtain certified copy, which was handed over to her on 06.04.2019 and present appeal was filed on 12.04.2019. The learned trial court on the basis of the evidence brought on record decided the matter on 14.03.2019, as there was no legal evidence against the respondent. Learned trial court has therefore, rightly acquitted the accused/respondent- Arjun Toppo from the aforesaid charge.

From perusal of the same, it appears that there is no illegality or perversity in the impugned finding recorded by the learned trial court and the judgment of acquittal. As such, we are not inclined to grant leave to the appellant, which has been sought for vide I.A. No.3957 of 2019.

Accordingly the aforesaid I.A. stands dismissed.

Consequently Acquittal Appeal (DB) No.55 of 2019 also stands dismissed, as the same is devoid of any merit.