2026:JHHC:10926-DB IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (SJ) No. 76 of 2004 [Against the judgment of conviction and sentence dated 18.12.2003 and 20.12.2003 passed by learned Sessions Judge, Dumka in Sessions Case No. 19 of 1999] -------- Subhash Soren, S/o. Late Lakhindra Soren, Village- Angaraidih, P.O.- Dumka, P.S.- Dumka (Mufassil), Dist.- Dumka. ... ... Appellant Versus The State of Jharkhand … … Respondent ----- P R E S E N T HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA -------- For the Appellant : Mr. Kaushalendra Prasad, Advocate Ms. Amrita Kumari, Advocate Ms. Sulekha Sharma, Advocate. For the State : Mrs. Nehala Sharmin, Spl.P.P. -------- JUDGEMENT C.A.V. on 09.03.2026 Pronounced on 16/04/2026 Per- Pradeep Kumar Srivastava, J: 1. Instant Criminal Appeal is directed against the judgment of conviction and sentence dated 18.12.2003 and 20.12.2003 passed by learned Sessions Judge, Dumka in Sessions Case No. 19 of 1999, whereby and whereunder the sole appellant has been held guilty and sentenced to undergo rigorous imprisonment for 10 years for the offences under Sections 366A and 376 of the Indian Penal Code. Factual Matrix:- 2026:JHHC:10926-DB 2 Cr. Appeal (S.J.) No. 76 of 2004 2. Factual matrix giving rise to this appeal in a narrow compass is that on 28.10.1997, at about 09:30 A.M., the victim girl had gone to her school and was attending her class, meanwhile on request of the present appellant, she went to Gyanda Cinema Hall and enjoyed a movie. It is alleged that on 28.10.1997, when daughter of the informant did not return home then he made hectic search of his daughter but no clue was found. The informant came to know that his daughter was seen by co-villagers namely Neelmani Hansda and Philip Murmu in the cinema hall with the present appellant. It is suspected that the appellant Subhash Soren with an intention to solemnize marriage with the informant’s daughter has induced and taken away her elsewhere. It is also alleged that at about two years ago, informant’s daughter was married to one Babulal Murmu of Village Kolho, P.S.- Gopikandar, Dist.- Dumka. 3. On the basis of written report of informant (father of the victim girl) F.I.R. was registered on 08.11.1997 against the present appellant for the offence under Section 366A of the I.P.C. 4. After completion of the investigation of the case, charge-sheet was submitted against the appellant for the offences under Sections 366A and 376 of the I.P.C. The case was committed to the Court of Sessions, where Sessions Case No. 19 of 1999 was registered. Charges were denied by the appellant and he claimed to be tried. 5. After conclusion of the trial, impugned judgment of conviction and sentence was passed which has been assailed in this appeal. 6. Heard Mr. Kaushalendra Prasad, learned counsel appearing on behalf of appellant and Mrs. Nehala Sharmin, learned Special P.P. 2026:JHHC:10926-DB 3 Cr. Appeal (S.J.) No. 76 of 2004 Submissions on behalf of appellant: - 7. Learned counsel appearing on behalf of the appellant assailing the impugned judgement has argued that the victim girl (PW-5) was major aged about 19 years old on the date of occurrence. They were in love affairs with each other, hence, the victim girl voluntarily associated with the appellant at her own accord and after solemnizing marriage with the appellant, started living as husband and wife. The victim in her earliest statement under Section 164 of the Cr.P.C. (Exhibit-A), has categorically admitted the appellant to be her husband. She has also admitted love affairs with the appellant since about one year prior to the occurrence. She has been found a major girl and there was consensual relationship after marriage between the appellant and the victim girl. It is further submitted that in the medical report of the victim (Exhibit- 1), no sign of rape has been found. The victim girl was influenced by her father (PW-6), who has lodged this case while he was not aware of the real facts and also opposing the marriage. Therefore, the victim girl has given false evidence during trial of the case. The appellant is absolutely innocent and has committed no offence at all. In the alternative, it is also argued that out of 10 years custody, the appellant has already undergone 06 years and 08 months imprisonment during investigation/trial and post-conviction and has been sufficiently punished for his guilt. As such, the quantum of sentence awarded to the appellant may be reduced to the extent of imprisonment already undergone by him. It is also contented that the learned Trial Court has wrongly assessed the age of victim below 18 years without any evidence on record, 2026:JHHC:10926-DB 4 Cr. Appeal (S.J.) No. 76 of 2004 although the victim girl was studying in a school but her age certificate was not brought on record. As such, the learned Trial Court has committed serious error of law and illegality in appreciating the evidence available on record and arrived at wrong conclusion which is liable to be set aside and appellant be acquitted from the charges levelled against him. Accordingly, this appeal may be allowed. Submissions on behalf of State:- 8. Per contra; learned Special P.P. defending the impugned judgment of conviction and sentence on merits has submitted that the learned Trial Court has very wisely and aptly considered overall aspects of the case and scrutinized the evidence available on record. As per the medical report of the victim, she was around 17-18 years old, therefore, she was minor at the date and time of occurrence. The appellant along with his sister enticed and induced her to leave the school while she was attending class and at first was taken to cinema hall and enjoyed movie and later on, she was kept for 23 days in the house of the appellant and forcibly solemnized marriage with her and, thereafter, established sexual relationship. The consent of the victim plays no role in case of minority of the victim. It is also surfaced in the evidence that the victim girl was already married on the relevant date of occurrence. Therefore, there is no illegality or infirmity in the impugned judgment of conviction and sentence of the appellant calling for any interference in this appeal, which is devoid of merits and fit to be dismissed. 2026:JHHC:10926-DB 5 Cr. Appeal (S.J.) No. 76 of 2004 9. We have gone through the records of case along with impugned judgment in the light of contentions raised on behalf of respective parties. 10. On the basis of rival points or arguments of the learned counsels, the only question for determination in this appeal emerges that “as to whether the impugned judgment and order of conviction and sentence of the appellant suffers from any serious error of law calling for any interference in this appeal or not?” Analysis, discussions and reasons: - 11. Before imparting our verdict on the above point, we have to apprise with the evidence adduced by the prosecution. 12. It appears that altogether 07 witnesses were examined in this case by the prosecution:- P.W.-1 Bahamuni Murmu (Mother of the victim) P.W.-2 Samual Soren P.W.-3 Neelmani Hansda P.W.-4 Dr. Aruna Chatterjee P.W.-5 Victim girl P.W.-6 Bhaital Marandi (Informant) P.W.-7 Anil Kumar ( I.O. of the case) 13. Apart from the oral testimony of above witnesses, following documentary evidence has also been adduced by the prosecution:- i) Exhibit-1: Medical report of the victim ii) Exhibit-2: Signature of informant in written report iii) Exhibit-3: Written report iv) Exhibit-4: Formal F.I.R. 2026:JHHC:10926-DB 6 Cr. Appeal (S.J.) No. 76 of 2004 v) Exhibit-A: Statement under section 164 of the Cr.P.C. 14. On the other hand, defence has also examined one witness, DW-1, namely, Gopal Kumar Roy, learned Judicial Magistrate, who has proved the statement of the victim recorded under Section 164 of the Cr.P.C., marked as Exhibit-A. 15. The learned Trial Court after scrutinizing the evidence of prosecution found the appellant guilty and convicted and sentenced to him as stated above. 16. The most important witness in this case is PW-5 victim girl, who was examined on 19.07.2003 and disclosed her age to be 21 years. According to her evidence on 28.07.1997 at about 11 to 12 hours, she was studying in her school, Municipal High School, Karharli, meanwhile, Subhash Soren (appellant) along with his Mausi, Neelmani Hansda, (PW-3) came to her school and asked about her from school peon. She was brought outside campus by the school peon, then both of them brought her to Innova Talkies, Dumka against her will and saw a movie. She has further alleged that in the evening while she was proceeding to her own home, then the appellant Subhash Soren forcibly took her to his own village Badhiya, where she stayed about 23 days and was also raped for several times by the appellant. She was recovered from the house of accused by police on 22.11.1997. She has denied any statement under Section 164 of the Cr.P.C. recorded by the learned Magistrate under Exhibit-A. Her attention has been drawn towards her statement under Section 161 of the Cr.P.C. made before police wherein she admitted to have said that the accused along 2026:JHHC:10926-DB 7 Cr. Appeal (S.J.) No. 76 of 2004 with his Mausi met in her school and brought her to a cinema hall. Thereafter, house of the accused, where she was raped. Her attention was also drawn towards the statement under section 164 of the Cr.P.C., which she denies including her signature over the same. She has also denied the suggestion of defence that she has voluntarily accompanied with the accused and also married with him and started discharging conjugal relationship and under influence of her parents, she is not disclosing the truth and giving false evidence. PW-6 Bhaital Marandi (informant) is the father of the victim girl. According to his evidence on 28.11.1997, his daughter went to school at about 9:30 AM, but did not return till 6-7 PM. Then he started searching her. He met with villager Philip Murmu, who disclosed that he had seen the victim girl along with Subhash Soren (appellant) and Neelmani Hansda at Innova Talkies, Dumka. This witness further went to the house of village Pradhan, Samuel Soren, who disclosed that in the evening victim girl along with Subhash Soren (appellant) had come to his house and were asking for Rs. 25/-, which was not given by him, then both of them went away. He has further deposed that his daughter was kept by the accused for 22 to 23 days, he lodged this case, then his daughter was recovered from the house of accused. He has proved his signature over the written report, which was scribed by his nephew, Narendra Kumar Marandi. In his cross-examination, this witness denied that the victim girl has solemnized marriage with Subhash Soren (appellant) in Shiv Pahar 2026:JHHC:10926-DB 8 Cr. Appeal (S.J.) No. 76 of 2004 Temple, Dumka. He has further denied that he has lodged false case and also influenced his daughter to give false evidence against the accused. PW-1 Bahamuni Murmu is the mother of victim girl. She has also stated that on the date of occurrence, her daughter aged about 13 years went to school but did not return. Thereafter, she, in course of search, came to know that her daughter was seen in the cinema hall with Subhash Soren (appellant), who has taken her away for solemnizing marriage. When her daughter was recovered by the police, she disclosed her that Subhash Soren (appellant) had forcibly taken her from her school and later on, he has taken her to his own house and committed rape upon her. In her cross-examination, she has stated that she cannot tell exact date of birth of her daughter and she has stated her age on guesswork. She also admits that on the date of occurrence, her daughter was married with one Babulal Marandi, but later on victim girl has solemnized marriage with Jaidev Murmu in village Lariyo, Palajori. PW-2 Samuel Soren, is the village Pradhan, who has simply stated that on the date of occurrence in the evening, Subhash Soren (appellant) along with victim girl came to his house and asked for Rs. 25/-, which was not given to him. Thereafter, both of them went away. He also accompanied with the informant to police station and has given his thumb impression over the written report. PW-3 Neelmani Hansda, has been declared hostile by the prosecution. She has also denied any statement before the police. Her attention has been drawn towards statement recorded by the Investigating 2026:JHHC:10926-DB 9 Cr. Appeal (S.J.) No. 76 of 2004 Officer, where she has denied the suggestion of prosecution that since the accused Subhash Soren is her nephew, hence in view to save him from the offence she has not disclosed the truth. PW-4 Dr. Aruna Chatterjee, has medically examined victim girl on 22.11.1997 at about 2:20 PM and found following:- I) Height-4’10’’, Weight- 93 lbs, Teeth- 14/14, Spaces for level molar partially appearing Arition on second molar plus. Gingival Attached CDT. The dental opinion was given by Dr. K.K. Choudhary, Dental Surgeon, Sadar Hospital, Dumka. II) No mark of injury found over her body externally. III) On internal examination- no mark of injury found over her private parts. No foreign hairs present. Hymen shows old nepture. IV) Vaginal swab was taken & sent to pathology for microscopic examination for preserve of spermatozoa. The pathological report shows spermatozoa not found, which was given by Dr. N. K. Thakur I/C. of Patho. of Sadar Hospital, Dumka. V) X-ray both iliac creates, both knee joints were advised. Due to non-function of X-ray plate at Sadar Hospital, Dumka, X-ray was done outside the hospital and X-ray plates were shown to Dr. S. N. Jha, ortho. Surgeon of Sadar Hospital, Dumka who gave his opinion on 23.11.1997 as follows :- X-ray of both iliac creates plates shows epiphysis of iliac creat is under process of appearance. X-ray of both wrist joints plates shows epiphysis of lower end of radius and ulna fused completely. 2026:JHHC:10926-DB 10 Cr. Appeal (S.J.) No. 76 of 2004 X-ray both knee joints plates show epiphysis of upper end of tibia and fubula fused completely. VI) According to the above findings, no definite opinion could be given whether the victim was raped or not. VII) As far age is convered, accordingly to secondary sex characters number of teeth and X-ray report, aged of the victim is between 17-18 years. VIII) This witness has proved this medical report which is marked as Exhibit-1. In her cross-examination, she categorically admits that age of the victim girl is assessed approximately and not exactly. PW-7 S.I Anil Kumar is the Investigating Officer of this case. He has proved formal F.I.R. as Exhibit-4. After assuming the charge of investigation of this case, he went to the house of the informant situated in village Angaradiha. Thereafter, he took re-statement of the informant and also interrogated with wife of the informant and other witnesses. He visited the place of occurrence, which is Government Middle School, Karahlin Municipal. He also sent the victim girl for medical examination and recovered the victim along with accused from his house. He also got the medical examination of the accused and finding sufficient evidence submitted charge sheet. In his cross-examination, he categorically admits that he was not interrogated with Head Master of the school or class teacher of the victim or any other teachers and employees regarding the occurrence. He has also 2026:JHHC:10926-DB 11 Cr. Appeal (S.J.) No. 76 of 2004 not seized the school register to ascertain the fact whether victim had attended the school at the relevant date of occurrence and also to inquire about her date of birth. He further admits that he has recorded the statement of victim girl on 23.11.1997 after recovering from the house of accused. He further admits that victim has not stated before him that the accused met her in school and forcibly took her away to his own house and forcibly committed rape upon her rather the victim told this witness that the accused induced her to solemnize marriage and brought her to his own home and established consensual relationship. He also deposed that charge-sheet has been submitted prior to the recording of statement of victim girl under section 164 of the Cr.P.C. 17. On the other hand, the defence has examined DW-1, Gopal Kumar Roy, learned Judicial Magistrate, who has proved statement of victim girl recorded under section 164 of the Cr.P.C., recorded by the then Judicial Magistrate Sri Anil Kumar Jha. 18. From the aforesaid discussions of oral as well as documentary evidence adduced by the prosecution, we find that on the basis of evidence, the admitted position is that on the date of occurrence, the victim girl was brought by the appellant to his own house on the pretext of marriage and lived with her as husband and wife for about 23 days. In the above period, the victim girl has raised no hue and cry to go to her own parental home. She has also not complained in her evidence during trial that in between aforesaid period, she was given any threatening for life or otherwise ill-treated, tortured or assaulted by the accused. In her statement recorded under section 164 of the Cr.P.C. (Exhibit-A), also her 2026:JHHC:10926-DB 12 Cr. Appeal (S.J.) No. 76 of 2004 age has been assessed to be 17-18 years by the learned Judicial Magistrate, but she has disclosed her age 19 years on 12.12.1997. She has further admitted that in a pre-planned manner, Subhash Soren (appellant) came to her school and she was under love affair with him since one year prior to the occurrence. She also admits that in the month of September, 8th or 10th day prior to the occurrence, she solemnized marriage with Subhash Soren (appellant) in Shivpahar Temple, Dumka without information to her parents. She herself came out from the school, Subhash Soren was also present outside. Thereafter, both of them went together to Gyanda Cinema Hall and fetched movie “Jang”. Thereafter, at about 5:00 PM, they went to the house of aunt of Subhash Soren and on 29.10.1997, she was brought to the house of accused Subhash Soren (appellant) where they lived together and also established physical relationship. She still resides in the house of Subhash Soren as his wife. It is also apparent that the charge sheet in the above case was submitted against the accused on 08.01.1998 by the then S.I. Anil Kumar (PW-7), who appears to have falsely stated during trial that the charge sheet in this case was submitted prior to the recording of statement of victim girl under section 164 of the Cr.P.C. 19. The learned Trial Court has led much emphasis in ascertaining the age of victim girl as to whether she was major or minor on the date of occurrence, which is based on guess work rather than any concrete evidence. The age of victim girl is the most crucial question in this case. The learned Trial Court has relied upon the evidence of medical officer (PW-4), who has assessed the age of victim in between 17-18 years in the 2026:JHHC:10926-DB 13 Cr. Appeal (S.J.) No. 76 of 2004 year 1997. Secondly, the victim girl while giving her evidence on 19.07.2003 disclosed her age to be 21 years. From this angle also the victim in the year 1997 was aged about 15-16 years. The further guess work was on 12.12.1997 when statement of victim was being recorded under section 164 of the Cr.P.C., she disclosed her age to be 19 years but the concerned learned Magistrate assessed the same in between 17-18 years. These facts definitely lead to conclusion that on the alleged date of occurrence, victim was minor below the age of 18 years. Therefore, consent of victim plays no role in this case. It was also observed that the exhibit-A alleged statement of victim under section 164 of the Cr.P.C. is also disputed one inasmuch as it was not sponsored by the Investigating Officer and dispute about the identity of the victim was also raised at the time of recording her statement. The learned Magistrate who recorded the statement himself was not examined to prove the same. Therefore, no credence can be attached to such type of statement which has been relied upon by the defence not by the prosecution. 20. We have given anxious consideration to overall aspects of the case in the light of the evidence available on record. It appears that there is consistent evidence of prosecution showing the age of the victim below 18 years on the date of occurrence. The victim girl (PW-5) in her evidence has categorically stated that she was induced and forcibly taken away by the accused from her school and kept in his house for petty long period and she was subjected to sexual intercourse against her will and without her consent. The theory of consent as 2026:JHHC:10926-DB 14 Cr. Appeal (S.J.) No. 76 of 2004 projected by defence has not been proved by any cogent and reliable evidence. Even if, it may be assumed that victim girl was above 18 years old, it cannot be assumed that there was consent on the part of the victim girl as per the evidence available on record. The very basis of the defence lies in the statement of victim under section 164 of the Cr.P.C. recorded by learned Magistrate has not been proved authentically. Moreover, the statement under section 164 of the Cr.P.C. is not categorized as substantive piece of evidence. 21. In view of the above discussions and reasons, we don't find any serious error of law in the impugned judgment calling for any interference. 22. So far as quantum of sentence imposed upon the appellant is concerned, keeping in view the factual aspects of the case and also in view of the fact that the occurrence is of the year 1997, as such about three decades have been lapsed and both parties have settled in their life with their family. The appellant has also undergone imprisonment of six years and eight months during trial of the case and post-conviction. Therefore, it appears that appellant has been sufficiently punished for his guilt and sending the appellant to undergo rest part of the imprisonment awarded to him would serve no useful purpose. 23. In view of the above discussions and reasons, we uphold the conviction of the appellant, but so far as sentence is concerned, which is hereby modified to the extent of imprisonment already undergone by the appellant during trial and post-conviction, i.e., 06 years and 08 months instead of R.I. for 10 years awarded by the learned Trial Court. 2026:JHHC:10926-DB 15 Cr. Appeal (S.J.) No. 76 of 2004 Accordingly, this is criminal appeal is dismissed on merits with modification in sentence as stated above. 24. The appellant is on bail. He is discharged from the liability of bail bond and sureties are also discharged. 25. Pending I.A., if any, stands disposed of. 26. Let the copy of this judgment along with trial court records be sent back to the concerned Trial Court for information and needful. (RONGON MUKHOPADHYAY, J.) (PRADEEP KUMAR SRIVASTAVA, J.) High Court of Jharkhand at Ranchi Date 16/04/2026 Rahul/ N. A. F. R. Uploaded on 17/04/2026