Nawal Kishore Singh vs The State of Jharkhand

Heard learned counsel for the parties.

The present appeal is directed against the judgment of conviction dated 15.12.2007 and order of sentence dated 20.12.2007 passed by learned Sessions Judge, Godda in Sessions Trial No. 209 of 2006, whereby and whereunder the appellant has been held guilty for the offence under Section 366A of the I.P.C. and sentenced to undergo R.I. for five years along with fine of Rs. 2,500/- with default stipulation.

The factual matrix giving rise to this appeal is that one Guru Charan Singh has submitted a written report on 02.05.2005 before the Officer-in-charge, Godda (M) P.S. alleging therein that on 09.4.2005 at around 8 a.m. when his minor daughter, Lata Kumari went out of her house and did not return. The informant started searching his daughter and to that effect, a Sahna Entry No. 389 dated 9.4.2005 was instituted and thereafter he got some information on 24.4.2005 (Sunday) from some resident of village Kakana Nepura and thus informant went to village-Pair, P.S.-Dhorai, District- Banka (Bihar), where the appellant Nawal Kishore Singh accepted his guilt in presence of the villagers and assured that he will bring the girl within two days. Again, the villagers assembled on 27.04.2005, but appellant Nawal Kishore Singh did not appear and fled away. The informant has alleged that appellant Nawal Kishore Singh has enticed his minor daughter to sell her or to solemnize her marriage with other person.

On the basis of written report of the informant, Godda (M) P.S. Case No. 135 of 2005 dated 02.05.2005 was registered under Section 366A of the I.P.C.

After investigation, the police submitted charge sheet against the appellant under the aforesaid sections vide Charge Sheet No. 48 of 2006 dated 20.06.2006. Thereafter, the learned Chief Judicial Magistrate, took cognizance of the offence on 22.06.2006 and committed the case to the court of Sessions, where S.T. No. 209 of 2006 was registered and charge has been framed for the offence under Section 366A of the I.P.C.

In course of trial, altogether eight witnesses were examined by the prosecution, apart from following documentary evidences:

On the other hand, no oral or documentary evidence has been adduced on behalf of the defence.

The learned trial court, after scrutinizing the evidence available on record, recorded findings about guilt of the appellant for the offence under Section 366A of I.P.C. and sentenced as stated above, which has been assailed in this appeal.

Learned counsel for the appellant assailing the impugned judgment and order of the appellant has submitted that there is no iota of concrete evidence against the appellant showing his involvement in kidnapping / abducting the minor girl of informant. Not a single witness has seen the appellant along with victim girl at any point of time. It is further submitted that Niranjan Prasad Singh (P.W.-6) has claimed in his examination-in-chief that he saw the appellant along with victim girl sitting in the middle seat and other person, who was driving the motorcycle while taking away the victim girl, but the attention of this witness drawn towards the statement under Section 313 of Cr.P.C., whether he has stated this fact before the police during investigation, he reiterates the same, but P.W.-8 the Investigating Officer of this case has clearly stated that P.W.-6 has not stated before him that he has seen the accused along with the victim girl while going on the motorcycle. It is further submitted that except the alleged extra-judicial confession of the appellant at Village-Pair, no cogent material has been brought on record to establish the involvement of the appellant in the alleged offence. Moreover, the extra-judicial confession has also not been proved by examining any of the witnesses of Village-Pair, who are alleged to have been attended the Panchayati, where the appellant confessed his guilt and undertook to produce the girl within two days. Therefore, the learned trial court has committed serious error of law while appreciating the evidence of witnesses examined in this case. Not a single witness of Village – Pair or any document / paper of Panchayati has been adduced in evidence by prosecution. The appellant was involved in this case merely on the basis of suspicion through a projected story of prosecution that the informant asked the appellant to tell about a suitable groom for marriage of his daughter and he replied that he will attempt to inform about the suitable boy. The further story was manipulated on the date of missing of girl, the appellant came to informant’s house, but without seeing the girl went away. It is further submitted that neither in the missing report nor in the F.I.R., it is mentioned that any talk about marriage of the victim took place between the informant and the appellant, therefore, the conviction and sentence of the appellant is absolutely illegal and beyond the weight of evidence available on record and the appellant deserves acquittal.

In alternative, it is submitted that out of five years imprisonment awarded to the appellant, he has already undergone two years custody. The case is of 20 years old. Merely on scanty evidence of alleged extra-judicial confession, there is nothing to fasten the liability of the appellant. It is also admitted by the Investigating Officer that the appellant had no criminal antecedent, therefore, taking a lenient view in the matter of sentence, the sentence passed against the appellant by the trial court may be reduced to the imprisonment already undergone by him.

Per contra, learned APP appearing for the State has vehemently opposed the aforesaid contentions raised on behalf of the appellant 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. It is further submitted during pendency of the appeal, the informant of this case has died and till date, the victim girl has not been traced out. There is no illegality or infirmity in the impugned judgment of conviction and order of sentence of the appellant and there is no merit in this appeal, which is fit to be dismissed.

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

For better appreciation of the case, brief resume of oral testimony of witnesses is required to be discussed.

P.W.1 Sushil Kumar Singh has been declared hostile by the prosecution.

P.W.-2 Sudarsan Singh has stated that victim girl was his cousin sister. He has further stated that accused used to come his village Kakana and house of informant. He claimed that he went to the village of the accused i.e. Pair, where villagers disclosed that the accused had brought the victim girl to his village, but he did not name any of such villagers. He further stated that the accused made extra-judicial confession that he brought the victim girl to his village and within two days, he will return the victim girl to her family members. But the accused absconded from the village and thereby victim girl could not be recovered.

P.W.-3 Bindu Kumari is the younger sister of the victim girl. According to her evidence, her father (informant of the case) has died. Her father died after the occurrence. She has stated that she has one brother and one sister. Her sister was missing from last two years. She has further stated that accused Nawal Kishore Singh used to come to her village from before. She came to know that Nawal Kishore Singh was instrumental in kidnapping and abducting of the victim girl. She has stated that the accused promised her father that the accused will return the victim girl within two days, but the accused did not return the victim girl to her father and thereafter, her father lodged this case. She has stated that she had occasion to see the accused Nawal Kishore Singh in the court also.

P.W.-4 Shibu Kumar Singh is the brother of the victim. He has stated that the victim girl is his sister, who is traceless for the last two years. He has stated that his father had talk with the accused regarding the marriage of the victim girl and the accused came to his village on that date and from that date, his sister was traceless. This witness has stated regarding the extra-judicial confession of the accused, who disclosed that he will return back the victim girl within two days, but the accused did not do so.

This witness in his cross-examination has clearly stated that whatever he disclosed before the Court, it was narrated to him by his father. He has stated that his father, informant of this case is no more. His father had gone to Village of the accused twice for recovery of his sister.

P.W.-5 Most. Santi Devi. She is the wife of the informant and mother of the victim girl. She has stated that the accused used to come to her village and there was talk with her husband regarding the marriage. She further stated that the accused Nawal Kishore Singh was to come to her house for seeing her daughter, the victim girl in connection with marriage and she alleged that the accused kidnapped and abducted her daughter. She has stated that her family members went to Village – Pair, the village of the accused and there it was revealed that the accused will return the victim girl within two days as per version of the accused, but the accused did not turn up to return the victim girl. Thereafter, her husband lodged this case.

In cross-examination, this witness has stated that whatever she gathered information regarding the accused Nawal Kishore Singh, she gathered from her husband, the informant of this case.

P.W.-6 Niranjan Prasad Singh. He has stated that the accused used to come to his Village – Kakna in connection with marriage negotiation. He has also stated that he also went to Village – Pair and before the Villager of Pair the accused made extra-judicial confession that he will return back the victim girl within two days, but the accused did not do so.

In his cross-examination, he has deposed that his statement was recorded before the police at Guru Charan Singh’s house approximately 20-25 days after the incident. He further stated that he had told the police that they had seen Nawal Kishore Singh going on a motorcycle with three people, one of whom was driving and a girl in the middle. This was Nawal Kishore Singh. He told the police that they had gone to Village – Pair on 24.04.2005. He also told the police that the local respectful person of that village – Raghavendra Ji had told to them to go for two days, the girl will arrive after two days. He had also stated before the police that they had gone to Village – Pair on 27^th April, 2005. He has further stated that he did not told the police that a paper was made in front of the villagers, in which the villagers signed and Raghvendra Singh also signed it in front of him.

This witness has denied the suggestion of defence that it was one Raj Kishore Singh with whom the accused had enmity from before, who was instrumental in falsely implicating the accused.

P.W.-7 Kailash Prasad Singh. This witness is a hearsay witness from one Sudarshan Singh. He has stated that he is not familiar with the accused Nawal Kishore Singh.

P.W.-8 Madan Tiwary, is a formal witness, has stated that the forwarding of the written application is in handwriting and signature of Ram Babu Mandal, Officer-in-Charge of Godda (M) P.S. which is marked as Exhibit-2. He has further proved the formal F.I.R., marked as Exhibit-4 to which he stated that it is in handwriting of Officer-in-Charge, Ramchandra Mahto.

Gokul Chandra Singh has been examined as Court witness under Section 311 of Cr.P.C. He is the Investigating Officer of the case and has proved the place of occurrence. He has further stated that witness Sushil Kumar Singh has stated before him that when he went to Pair Village along with Guru Charan Singh, then the people there invited everyone to the Manoranjan Room including accused Nawal Kishore, where accused Nawal Kishore has told that he had brought the victim girl and would return her after two days. However, when the father of victim girl again went to Village Pair on 27.04.2005, the accused Nawal Kishore fled away. Although the said Sushil Kumar Singh, examined as P.W.-1, has been declared hostile by the prosecution. This witness has also admitted that appellant has no criminal antecedent. The Investigating Officer has further admitted that he did not record the statement of any villager of Village – Pair and also admitted that witness Sudarshan Singh, Bindu Kumari, Shib Kumar Singh, Shanti Devi and Niranjan Singh have not stated these things as to implicate the appellant.

From discussion of above evidences, it appears that save and except the extra-judicial confession of the appellant, there is nothing on record against the appellant. It further appears that the informant of this case is no more and till date, the victim girl has not been traced out, therefore, there is no reason to take different view with the findings recorded by the learned trial court. Accordingly, the judgment of conviction of the appellant passed by the learned trial court is hereby affirmed.

So far sentence is concerned, it appears that the case is of the year 2005 and more than two decades have elapsed. The appellant is in custody for more than two years out of five years of sentence. The appellant is now aged about 83 years, therefore, further custodial sentence of the appellant is not required at this stage, as no useful purpose would be served to send the appellant again in jail. Therefore, imprisonment already undergone by the appellant would meet the ends of justice in this case, instead of undergoing further imprisonment awarded by the learned trial court.

In view of aforesaid discussion and reasons, the sentence awarded to the appellant by the learned trial court is hereby modified and reduced to imprisonment already undergone by him.

Accordingly, this appeal is dismissed on merits with modification in sentence, as stated above.

Appellant is on bail, as such he is discharged from the liability of bail bond. Sureties are also discharged.

Pending I.A., if any, stand disposed of.

Let a copy of this judgment along with trial court record be sent back to the court concerned for information and needful.