IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.Appeal (SJ) No. 536 of 2006 ------ Rajiv Routh Son of Sri Manik Routh Resident of Mouza Shantipur, P.O/P.S. District- Jamtara, Jharkhand. ... …. Appellant Versus The State of Jharkhand .... .... Respondents ------ For the Appellant : Mr. Mahesh Tiwari, Advocate : Mr. Shubham Kumar, Advocate For the State : Mr. V.S. Sahay, Addl.P.P. ------ P R E S E N T Coram: HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA JUDGMENT C.A.V. On:- 18.11.2024 Pronounced on:- 28 /01/2025 Heard Mr. Mahesh Tiwari, learned counsel appearing for the appellants as well as Mr. V.S. Sahay learned Addl.P.P. appearing for the State. 2. This present appeal is directed against the judgment and order of conviction and sentence dated 08.02.2006 & 13.02.2006 passed by Sessions Judge Civil Court), Jamtara in Sessions Case No. 431 of 2001 whereby and whereunder the appellant has been held guilty for the offences under Section 366(A) of the I.P.C. and sentenced to undergo R.I. for four years. Factual Matrix 3. The factual matrix giving rise to this appeal as depicted in the F.I.R. is that informant’s niece aged about 14 years was residing with him since her childhood. On 29.01.2001 at about 08:00 Am, the victim girl went to school on the occasion of Saraswati Puja, but did not return till 05:00 PM. On search by the informant and other family members, he met with a friend of the victim, who told that the victim girl was talking with the present appellant (Rajiv Routh) at her school. The appellant was also not found at his house. There was also a rumor of love affair between the appellant and the victim girl. Accordingly, on the basis of suspicion F.I.R. was lodged which was registered as Jamtara P.S. Case No. 23/2001 dated 30.01.2001 for the offence under Section 366A of the I.P.C. 4. After conclusion of investigation, charge-sheet was submitted against the accused/appellant for the aforesaid offence and after taking cognizance, the case was committed to court of Sessions. The trial proceeded for the charge under Section 366A of the I.P.C. and after conclusion of trial, the impugned judgment and order was passed. 5. Assailing the impugned judgment and order of sentence of appellant, learned counsel for the appellant has vehemently argued that the prosecution has miserably failed to prove the ingredients of Section 366A of the I.P.C. The victim girl in her statement under Section 164 of Cr.P.C. has stated that she had gone with the present appellant out of her own will after making a plan for solemnizing marriage and she was never induced or seduced for the purpose of illicit intercourse by any other person or for any other purposes as mentioned in the said Section. In this connection, learned counsel for the appellant has placed reliance upon reported judgment in the case of “Iqbal versus State of Kerala (2008) 3SCC (Cri 321)”. It is further submitted that the case falls under Section 363 of the I.P.C. and the appellant has remained in custody during trial of the case about one year and has sufficiently been punished for his guilt. Accordingly, impugned judgment and order of conviction may be set aside and appellant may be sentenced for the imprisonment already undergone. 6. On the other hand, learned A.P.P. appearing for the State has defended the impugned judgment and order on merits and refuted the contentions raised on behalf of the appellant, as well as opposed from interference in the matter of quantum of sentence also. 7. I have gone through the record of the case along with impugned judgment and order in the light of the contentions raised on behalf of both side. 8. It is apparent that during the course of investigation, victim was recovered along with the present appellant and her statement under 164 of the Cr.P.C. was recorded (Exhibit-1) wherein she has disclosed her age as 15 years and also admitted that she was in love affair with the appellant and she voluntarily eloped with the appellant with a view to solemnizing marriage with him because her mother and aunt (Fufu)/informant were not convinced for the marriage. She also stated that they had solemnized marriage in a temple on 30.01.2001 and in the next day morning returned to Madhupur and visited her mother and from there she was brought to her fufu’s (informant) house because she had lodged police case. The victim girl in her evidence during the trial has also reiterated the facts as was disclosed earlier in her statement under Section 164 Cr.P.C. She was not forced to illicit intercourse by the appellant or with any other person and she has disclosed her date of birth as 29th October, 1987 as per her school certificate. 9. The victim was medically examined by P.W.5 Dr. (Mrs) Arun Chhatterjee on internal and external examination, no mark of injury was found on the body of victim rather hymen was found old raptured. On the basis of radiological test, the age of the victim was assessed in between 17-18 years. P.W.6 S.I. Bindheshwar Ram:- is the I.O. of the case whose evidence goes to show that he has not made any investigation regarding solemnization of marriage of the victim in a temple disclosed by her in her statement or not at the place where the victim resided with the present appellant. He has simply charge- sheeted the accused for the offence under Section 366A of the I.P.C. 10. For better appreciation of the case, relevant provision of the I.P.C. is extracted as under:- Definition of Section 366A:- Procuration of minor girl:- “Procuration of minor girl.—whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act 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, shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine” From the aforesaid provision, it emerges that in order to bring home the charge for the offence under Section 366A, the prosecution is required to prove through cogent and reliable evidence that a victim girl under the age of 18 years was induced to go from one place to another with the intention that such girl may be forced or seduced to have illicit intercourse with another person. 11. In the instant case, the evidence available on record as dealt above does not reveal any such intention of the accused/appellant. The factum of illicit intercourse either by the accused or by any other person has also not been proved by the victim girl. The deposition of victim girl (P.W. 1) gives clear shape and true picture as regards the incident which happened. The main motto of both of them was to solemnize marriage which was protested by the mother of the victim. Thus, the essence for the offence under Section 366A of the I.P.C. is absolutely lacking in this case. Therefore, the conviction for the offence under Section 366A of the I.P.C. is not warranted under law which is hereby set aside. However, it cannot be ignored from consideration at this juncture, that on the date of occurrence, the victim girl was minor below the age of 18 years and she was taken away by the accused/appellant without consent of her guardian. In the instant case, the consent of the victim has no relevance at all in legal perspective. Therefore, the ingredients of Section 363 of the I.P.C. is well proved in this case against the appellant which involve an act of kidnapping of any person from the lawful guardianship as defined under Section 361 of the I.P.C., where it is stated that whoever taken or enticed any minor under the age of 16 years, if a male or under 18 years if a female or any person of unsound mind, out of the keeping of lawful guardian of such minor or person of unsound mind, without the consent of such guardian is stated to kidnapping such person. 12. In the instant case, the learned trail court has not framed any charge under Section 363 of the I.P.C., but taking into consideration the provision of Section 222 of the Code of Criminal Procedure, the accused/appellant may be convicted for a minor offence inspite the fact no charge has been framed for that offence. 13. In view of the aforesaid discussions and reason, the conviction of the appellant for the offence under Section 366A of the I.P.C. is set aside, but he is being held guilty for the offence under Section 363 of the I.P.C. 14. It further transpires that the appellant has also remained in custody during trial of the case more than one year. Considering the offence committed by the appellant and the circumstances under which the same was committed and also in view of the fact that more than two decades has been lapsed from the date of alleged commission of offence, I am of the firm view that imprisonment already undergone by the appellant is sufficient punishment to meet the ends of justice in this case. Therefore, punishment for the offence under Section 363 of the I.P.C. is also sentenced to imprisonment already undergone. In view of the above, this appeal is partly allowed with modification in sentence. 15. Let a copy of this judgment along with trial court records be sent back to the court concerned for information and needful. 16. Pending I.As, if any stands disposed of. (Pradeep Kumar Srivastava, J.) Jharkhand High Court At Ranchi Dated: 28/01/2025 Amar/- N.A.F.R.