Jharkhand High Court
Jasbir Singh @ Bapi vs State Of Jharkhand on 11 April, 2025
2025:JHHC:11295
Criminal Appeal (S.J.) No. 685 of 2007
[Against the Judgment of conviction and Order of sentence dated
24.04.2007, passed by learned Additional Sessions Judge-III, East
Singhbhum, Jamshedpur in Sessions Case No. 139 of 2005 .
Jasbir Singh @ Bapi, son of Shri Jaspal Singh, resident of
H.N. 32, Parkhidih Bastee, Birsanagar Zone, No. 7,
Jamshedpur, P.S.-Golmuri, District - East Singhbhum.
... ... Appellant
Versus
State of Jharkhand ... ... Respondents
.....
For the Appellant : Mr. A.K. Sahani, Advocate.
For the Respondent : Mrs. Vandana Bharti, A.P.P.
.....
P R E S E N T
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
JUDGMENT
C.A.V. on 27.01.2025 Pronounced on 11.04.2025
1. Heard learned counsel for the parties.
2. The present appeal is directed against the judgment of
conviction and order of sentence dated 24.04.2007
passed by learned Additional Sessions Judge-III, East
Singhbhum, Jamshedpur in Sessions Case No. 139 of
2005, whereby and whereunder the appellant has
been held guilty for the offence under Section 376 &
366A of the I.P.C. and sentenced to undergo R.I. for
seven years along with fine of Rs. 5,000/- for the
offence under Section 376 of the I.P.C. and further
sentenced to undergo S.I. for one year for the offence
under Section 366A of the I.P.C. Both the sentences
were directed to run concurrently.
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FACTUAL MATRIX
3. The factual matrix giving rise to this appeal is that on
30.04.2004 at about 7:00 AM, the informant left his
daughter (victim girl) at K.M.P.M. Inter College. The
daughter of the informant also requested to send her
brother at about 11:00 AM for returning back to
home. It is further alleged that informant’s son Vivek
reached at the said College at 10:45 AM and was
waiting for his sister till 12 O’ Clock, but she did not
come out from the College, then he returned to home
and narrated the above matter to his parents. In the
course of search of his daughter, the informant has
come to know that one Bapi (appellant) along with his
family members has enticed and taken away the
victim girl for solemnizing marriage with her.
Accordingly, F.I.R. being Bistupur P.S. Case No. 90 of
2004 was registered for the offence under Sections
366/34 of the I.P.C. against five accused persons
including the appellant.
4. During course of investigation, the victim girl
surrendered before the police and her statement was
also recorded. She was sent for medical examination.
After completion of investigation, charge-sheet was
submitted against the above-named appellant and
accordingly, after cognizance, the charges were
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framed for the offence under Sections 376 / 366A /
120(B) of the I.P.C. The appellant denied the charges
leveled against him and claimed to be tried. After
conclusion of trial, the impugned judgment and order
was passed.
5. Learned counsel for the appellant assailing the
impugned judgment and order of the appellant has
vehemently argued that in the instant case, altogether
six witnesses were examined by the prosecution, but
the Investigating Officer has not been examined.
6. It is further submitted that except the victim girl
(P.W.-6), there is no eye-witness of the occurrence.
7. It is further submitted that there was love affairs
between the appellant and the victim girl since one
year prior to the occurrence. The victim girl was major
at about 19 years, which is admitted by her in her
evidence. The victim has also identified love letters
written by her to the appellant, which has been
marked as Exhibit-B & B/1 and photographs, which
have been marked as Exhibit-A Series. She has also
identified her signature on Exhibit-C series, the
applications filed by her before the Marriage Office in
Purulia, although she has denied that she has
attended the said Marriage Office.
8. It is further submitted that the appellant has also
examined D.W.-1, Nand Dulal Ghosh, Teacher, A.D.L.
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Sunshine School, Jamshedpur, who has proved the
admission register of the victim girl i.e. Exhibit-G,
Exhibit-E and E/1 are birth certificates of victim girl
and Exhibit-F is the Marriage Certificate. All the above
evidences available on record not only indicates that
the victim being a major girl voluntarily and on her
own sweet will has accompanied the appellant to
solemnize marriage with him and she had been
residing for a long period without any resistance and
protest, but she erred on the desire of her parents,
who have lodged a false case against the appellant
and manufactured a story of commission of rape.
9. It is further submitted that the factual background, in
which the incident took place does not invoke the
offence under Section 376 of the I.P.C. and provision
of Section 366A of the I.P.C. is not applicable in the
facts and circumstances of the present case. The
learned trial court has miserably failed to properly
appreciate the evidence of the victim, which is solitary
basis for the conviction of the appellant and ignoring
her all voluntary conducts, who has duped her father
and voluntarily accompanied with the appellant and
also solemnized marriage with him are sufficient to
exculpate the appellant from the charges leveled
against him. Therefore, the impugned judgment of
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conviction and order of sentence is not sustainable
under law, which is liable to be set aside and this
appeal may be allowed.
10. 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. Mere non-examination of
Investigating Officer does not materially affect the
prosecution case. In a case of rape, the solitary
evidence of victim girl is sufficient to convict the
accused. There is no illegality or infirmity in the
impugned judgment of conviction and order of
sentence of the appellants and there is no merit in
this appeal, which is fit to be dismissed.
11. I have gone through the record the case along with
impugned judgment in the light of contentions raised
on behalf of both side.
12. For better appreciation of the case, brief resume of
oral testimony of witnesses is required to be
discussed.
13. The most important witness in this case is victim girl,
who has been examined as P.W.6. According to her
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evidence, on 30.04.2004, she had gone to K.M.P.M.
Inter College Bistupur for appearing in the
examination along with her father at about 7:00 AM.
She requested her father to send her brother at 10:45
AM after expiry of the examination period. She has
further deposed that at about 10:00 to 10:15 AM, she
came out from examination hall and started waiting
for her brother. Meanwhile, Bapi met her and
expressed his apology for some altercation previously
happened between them in front of Chappan Bhog
and he also told that her maternal uncle has come to
his home and is calling her then she proceeded
towards the vehicle and found that it was not Sumo
vehicle belonging to her maternal uncle. She has also
stated that present appellant was driver of Sumo
vehicle of her maternal uncle. She has further
deposed that when she reached near the vehicle,
meanwhile, the appellant gaged her mouth, forcibly
got her boarded in the Sumo vehicle, wherein already
2-3 persons and a lady were present, 3-4 persons
were also surrounding the vehicle from outside, who
were pushing this witness to sit into the vehicle. She
has further deposed that a person boarding inside the
vehicle pulled her in and pasted a white colour tape
on her mouth and another person whipped out a
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pistol and pointed towards her head and commanded
to do what he says, otherwise consequences would be
very bad. That person was brother of Bapi namely,
Tinku. She also identified one person as Banti, one as
Chandan Singh and one as Harpal and the lady was
mother of Bapi and her name was Paramjeet. She has
further testified that when the vehicle proceeded a few
distance then two persons boarding on the vehicle
alighted and Bapi said to them to keep vigil on the
parents and brother of this witness. The mother of
Bapi was saying that her son has been humiliated by
her parents hence she will take revenge by performing
marriage of Bapi with this witness. She has further
stated that in the way the vehicle was stopped at a
place for taking dinner. She was not ready, then Bapi,
Chandan and Harpal Singh forcibly took her into a
room of the restaurant at instance of receptionist
Yaspal, then she was kept alone along with Bapi and
Chandan and Harpal went away. She has further
deposed that in the said room Bapi forcibly committed
rape on her inspite of her violent protest and also
assaulted her. Thereafter, she was again got boarded
in the vehicle and one Safique also boarded in the
vehicle and mother of Bapi left the place. Thereafter
she was brought to Kolkata at Hotel Park and kept by
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accused Bapi about 20 days, where she was daily
assaulted and forcibly raped by accused Bapi. It is
further stated that one day Tinku, Banti, Safique and
Chandan Singh also came to said Hotel and
threatening this witness to do everything what Bapi
says to her, otherwise they will also commit rape with
her. After 20 days, she was brought to Purulia and
she was forced to put her signature on some paper
saying that these papers are meant for Court
Marriage. She declined to sign on the said paper, then
Bapi attempted to strangulate her putting a gamcha
on her neck and also threatened to kill her brother
and father, then she put her signature on that paper.
From Purulia she was brought to a Punjabi Family in
the night where a lady disclosed that it is Bhatia Basti
Tata and the house belongs to elder father of Bapi
namely Sukha Singh, where she was kept for 10 days
and the accused committed rape on her and also got
3-4 letters written by her with contents that “I Love
You and solemnize marriage with consent and also
come with Bapi voluntarily”. One day father and
mother of Bapi came there and told that father of this
witness has lodged a case and police is searching
them so that they should surrender before the police.
In the next day morning, she was brought before
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Superintendent of Police, Jamshedpur, from where
Police Inspector of Bistupur brought her to police
station. Thereafter, she was sent to MGM Hospital for
medical examination. She has identified the accused
Bapi present behind the dock.
In her cross-examination, she admits that she
was acquainted with accused since about one year
ago. She also admits two letters marked as Exhibit-B
& B/1 written by her. Exhibit-B was written by her to
her father and Exhibit-B/1 was written to Bapi. She
also states that the said letters were forced to be
written by her. She has also admitted the photograph
Exhibit-A Series, wherein she admits that in
Photograph Exhibit-A/1 she is not along with Bapi,
but in Exhibit-A/2, Exhibit-A/3 and Exhibit-A/4 she
was along with Bapi, but she could not say where
these photographs were taken. She has also identified
her signature as Exhibit-C, Exhibit-C/1 and Exhibit-
C/2 on three page application, but she denied that
the said application was presented by her before the
Court in this case. She has also admitted that she
was all along with accused about one month and in
the aforesaid period she has not complained to
anyone that the accused has kidnapped her and
sexually exploited her. She also states that she has
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never given her birth certificate to the accused, which
might be forged and fabricated by him for some
ulterior purpose. She never went before Marriage
Officer at Purulia. She returned home on 03.06.2004.
On the same day, she was medically examined and
her statement was recorded by police. She has also
denied any letter written by her addressing to the
court that Jasbir Singh @ Bapi is her legally wedded
husband. She has also identified her writing on
photocopy of a letter admitting her marriage with the
accused, which is marked as Exhibit-D with objection,
but she states that when this letter was written, she
could not recollect. She has denied the suggestion of
defence that she has voluntarily performed marriage
with the accused due to love affairs with him, which
was protested by her parents. Hence, at the instance
of her parents and brother, she is giving false
evidence against the accused regarding solemnization
of marriage and free and voluntarily physical relation
with him. She was not kidnapped by the accused
rather she voluntarily accompanied him from the
College.
14. P.W.-4 Dr. Mariya Madhu Bara is the Doctor who has
examined the victim on 04.06.2004 in a medical
board. She has deposed that she along with other
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doctors have examined the victim and found that
there was no injury all over the body. According to
them their opinion was:-
(i) On the basis of clinical, radiological and
dental the age of the girl is above 17 years
but below 18 years.
(ii) There is evidence of sexual intercourse, but
not recent on the basis of hymen tear.
(iii) There is no evidence of any pregnancy on
pelvic exam and ultrasound.
In cross-examination, she states that whether
ossification test was done or not, she cannot say.
15. P.W.-5 Dr. Arun Kumar Verma is one of the members
of medical board. He examined x-rays of victim girl.
The x-ray was done in his Department. He has further
said that :-
(i) Both wrist joint A.P. & lateral view, the
epiphyses distal and of both radius & ulna
appeared and recently fused, the fusion
sclerotic line is still visible.
(ii) Both elbow A.P. view – The epiphysis found
of the medial and lateral A.P. epicondeyles of
the humerus, trochilia, head of radius and
olecranom process of the ulna appeared and
already fused.
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(iii) Pelvis A.P. View – The epiphysis of the Iliac
crest appeared but not completed the fusion.
Opinion – On the basis of above radiological finding
the age of the girl estimated more than 17 years and
less than 18 years.
In cross-examination, he has said that x-ray plate
is not before me at this time. Ossification can only be
tested by X-ray.
16. The remaining witnesses of facts are father, mother
and brother of the victim girl.
17. P.W.-2 is the informant-cum-father of the victim girl.
He has proved the contents of written report and
submitted that on 30.04.2004 at about 7:00 AM, he
left his daughter at K.M.P.M. Inter College for
appearing in the examination. It is further alleged that
on request of his daughter (victim girl), he sent his
son Vivek at about 11:00 AM to bring his daughter
from the College. His son went to College at 10:45 AM
and waiting for his sister for a long time, but she did
not return, then he started searching his daughter
and came to know that a boy namely, Bapi, resident
of Birsanagar, Jamshedpur has enticed and taken
away his daughter for solemnizing marriage with her.
He has further stated that on 03.06.2004, the
accused Bapi surrendered at Bistupur P.S. along with
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his daughter then he received telephonic message
from the concerned police station. He has also
identified the accused Bapi present behind the dock,
who is driver of his brother-in-law. He has also proved
his written report as Exhibit-1.
During cross-examination of this witness, a
photograph was shown marked as “X” for
identification wherein he said that there is no
photograph of his daughter. In this photograph, his
daughter is not present. He also admits that in
Exhibit-A to A/4 photographs his daughter is also
present. He has denied the suggestion of defence that
the victim girl was born in 1985, but he has reduced
her age by two years at the time of admission in the
school. He has also denied any love affair between his
daughter and accused Bapi and her marriage with
accused on her own accord.
18. P.W.-3 is the brother of the victim girl. He has simply
stated that on 30.04.2004, he went to bring back his
sister from College at 12:30 PM, but she was not
present there. Then he returned to home and narrated
the same to his parents. There is nothing else in his
evidence.
19. P.W.-1 is the mother of the victim girl. She has also
corroborated the contents of FIR and deposed that on
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30.04.2004 at about 7:00 AM her daughter had gone
to K.M.P.M. College for appearing in the examination.
She has further deposed that her daughter also
requested to her father to send his brother at about
10:00 AM to bring back to her, then her son Vivek
went to the College, but victim girl was not present
there. In course of search, it was found that on some
pretest, accused Bapi has taken her daughter from
the College. Her daughter returned to home on
03.06.2004 then she disclosed that Bapi has forcibly
taken her on false pretext that her maternal uncle has
called her. She has also disclosed the age of the victim
girl to be 16 years on the date of occurrence and her
date of birth is 15.07.1987.
In her cross-examination, she has denied that the
victim girl was born in the year 1985. She admits that
in the five photographs Exhibit-A to A/4 her daughter
is present with accused Bapi. She also admits that
she is matric pass. She is acquainted with Bapi since
one year prior to occurrence. He used to come to her
house along with her brother because he was driver of
the vehicle. She has further admitted that now her
daughter has been married with another person. She
denied the suggestion of defence that the victim girl
voluntarily accompanied with the accused and such
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type of statement was given by her in the court of
Magistrate.
20. On the other hand, the defence has also examined
one witness namely, Nand Dulal Ghosh (D.W.-1),
Teacher, A.D.L. Sunshine School, Jamshedpur, who
has produced the Admission Register of 1989 of the
said School on the instruction of Principal of the said
School. It is proved that at Sl. No. 1244, the name of
victim with her parentage and address has been
entered showing the date of admission on 08.03.1989
in Nursery Class and the date of birth of the victim
girl is on 01.02.1985, which is in the hand-writing of
the then Clerk, Smt. V. Sumati, which has been
marked as Exhibit-G without objection. No cross-
examination has been conducted by prosecution
touching the genuineness of the aforesaid document.
It is simply illustrated in cross-examination that the
said document was not written in presence of this
witness and he does not know the student, for whom
admission register is produced.
21. The defence has also got exhibited following
documents during evidence of the victim girl herself:-
Exhibit-A to A/4 : Five Photographs of Victim Girl
without objection.
Exhibit-B & : Letter written by Victim Girl to
B/1 her father (without objection).
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Exhibit-C, : Signatures of the Victim Girl on
C/1 & C/2 application dated 04.06.2004.
Exhibit - D : Photocopy of application dated
04.06.2004 marked with
objection.
Exhibit-E & E/1 : Birth Certificates of the Victim
Girl.
Exhibit-F : Marriage Certificate of the
Victim Girl dated 06.05.2004.
Exhibit-G : Entry in the Admission
Register.
22. From the testimony of prosecution witnesses, as
discussed above, it is crystal clear that except the
victim girl, other witnesses are only hearsay
witnesses, as regards factual aspect of the case. The
victim girl is the sterling witness in this case. She
admits her acquaintance with the appellant prior to
one year of the occurrence. The appellant was working
as a driver of the vehicle owned by maternal uncle of
the victim girl. Since the overall prosecution story is
based upon the solitary testimony of victim girl,
therefore, it is desirable to scrutinize her evidence
cautiously and carefully.
23. The victim girl (P.W.-6) has specifically stated that on
the date of occurrence, she had gone to K.M.P.M.
Inter College for appearing in the examination with
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examination will be end at 10:45 A.M. and requested
to send her brother to bring back her to home. The
other attending circumstances admitted by the victim
girl in her evidence as regards letters written to her
father (Exhibit-B & B/1) are admitted one along with
photographs with the accused prior to the date of
occurrence, which clearly goes to show that she has
expressed her deep love with the appellant with full
consciousness and shared her emotions with the
appellant through the said letters. She was fully
conscious about protest of her marriage by her
parents and family members. Under the aforesaid
background, she called her brother to bring back from
the College at 11:00 A.M. indicates that she has
already managed to elope with the appellant prior to
coming of her brother. She had categorically admitted
that at about 10:10 A.M., she came out of the College,
where appellant Bapi was waiting for her with Sumo
Vehicle and his mother, brother and some other
persons were also there in the said Vehicle. Bapi
expressed his apology for his previous mis-behaviour
at Chappan Bhog Restaurant and then proceeded
with her in the said Vehicle. At this juncture,
although the victim girl says that she was forcibly got
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into fear and also under pretext that her maternal
uncle is calling her, cannot conceived to be true and
genuine version of the victim. She has also admitted
her signature on application for marriage under
Special Marriage Act before Marriage Officer, Purulia,
but later on denying her presence, although Marriage
Certificate has been issued within stipulated time of
its presentation before the Marriage Officer (Exhibit-F)
which has not been challenged by the victim girl
before any court of law claiming it to be obtained by
fraudulent means. The Original Birth Certificate
issued from the Registrar, Birth & Death,
Jamshedpur N.A.C. (Exhibit-E & E/1) was also
submitted at the time of solemnization of marriage
before the Marriage Officer showing her date of birth
03.02.1985. Later on, it was disclosed in the School
Character Certificate, Admit Card and Mark Sheet
issued by Jharkhand Academic Council, her date of
birth is shown as 01st July, 1987. That document was
not disputed by the prosecution.
24. Under the aforesaid circumstances, the real age of the
victim is proved to be more than 18 years at the time
of occurrence, but as per Certificate, Admit Card and
Character Certificate of High School, her age was 16½
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with the present appellant after solemnization of
marriage with him for one month as his wife. She also
admits that when her father-in-law came to know
about the institution of FIR against the accused then
he suggested her to surrender before the police along
with her husband. Thereafter, they surrendered
before police. These facts also indicate the consensual
relationship between accused and the victim girl after
solemnization of the marriage. At the earlier occasion,
the statement of the victim has not been recorded
under Section 164 of the Cr.P.C. and brought on
record by the prosecution. Therefore, the victim girl
under the influence of her parents, who were against
her marriage, has bent upon during trial to state
against the genuineness of the marriage and
kidnapping by the accused on enticement and false
statement that her maternal uncle is calling her. The
occurrence is of the year 2004 at that time, the
offence of rape as defined under Section 375 I.P.C. is
extracted as hereunder :-
375. Rape.- A man is said to commit “rape” who,
except in the case hereinafter excepted, has sexual
intercourse with a woman under circumstances falling
under any of the six following descriptions:-
First.-Against her will.
Secondly.-Without her consent.
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Thirdly.-With her consent, when her consent has been
obtained by putting her or any person in whom she is
interested, in fear of death or of hurt.
Fourthly.-With her consent, when the man knows that
he is not her husband and that her consent is given
because she believes that he is another man to whom
she is or believes herself to be lawfully married.
Fifthly.-With her consent when, at the time of giving
such consent, by reason of unsoundness of mind or
intoxication or the administration by him personally
or through another of any stupefying or unwholesome
substance, she is unable to understand the nature
and consequences of that to which she gives consent.
Sixthly.-With or without her consent, when she is
under sixteen years of age.
Explanation.- Penetration is sufficient to constitute
the sexual intercourse necessary to the offence of
rape.
Exception.- Sexual intercourse by a man with his own
wife, the wife not being under fifteen years of age, is
not rape.”
25. From the aforesaid provisions also, it is apparent that
sexual intercourse by a man with his own wife, when
the wife is not under fifteen years of age, is not rape.
26. Similarly, if the rape has sexual intercourse with a
woman above the age of 16 years with her free
consent is not rape as it falls under the clause sixthly.
27. In the instant case admittedly, at worst, the victim
was more than 16½ years at the time of occurrence.
The overall conduct shown by the victim clearly
indicates her willingness and voluntarily accompany
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the accused appellant for performance of marriage in
a temple and thereafter court marriage, does not
constitute the offence of rape under Section 376 of the
I.P.C.
28. Similarly, offence under Section 366A of the I.P.C. is
also not applicable here in this case. The relevant
provision of Section 366A of the I.P.C. is reads as
follows:-
366A. 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.
29. The essential ingredients for applicability of offence
under Section 366A of the I.P.C. are as follows:-
(1) that the accused induced a girl;
(2) that the person induced was a girl under the age of
eighteen years;
(3) that the accused has induced her with intent that
she may be or knowing that it is likely that she will be
forced or seduced to illicit intercourse;
(4) such intercourse must be with a person other than
the accused;
(5) that the inducement caused the girl to go from any
place or to do any act.
30. The key ingredient of Section 366A of I.P.C. is that
inducement of minor girl for illicit intercourse with
another person. Herein, this accused is alleged to
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have taken the victim girl for solemnizing marriage
with her and not for any illicit intercourse with
another person, therefore, the ingredients of Section
366A of the I.P.C. is also not applicable against the
appellant.
31. Considering over all aspects of the case, it transpires
that the learned trial court has failed to properly
consider the ingredients of offence of Section 366A of
the I.P.C., which is also not attracted and complied
with in this case.
32. In my considered view, both the charges under
Sections 376 and 366A of the I.P.C. levelled against
the appellant has not been conclusively proved
against him. Therefore, the appellant deserves
acquittal from the charges levelled against him.
33. Accordingly, the impugned judgment of conviction
and order of sentence dated 24.04.2007 passed by the
learned Additional Sessions Judge-III, East
Singhbhum, Jamshedpur in Sessions Case No. 139 of
2005 is set aside and the appellant is acquitted from
the charges levelled against him.
34. This appeal is allowed.
35. Appellant is on bail, as such she is discharged from
the liability of bail bond. Sureties are also discharged.
36. Pending I.A., if any, stand disposed of.
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37. Let a copy of this judgment along with trial court
record be sent back to the court concerned for
information and needful.
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court, Ranchi
Dated, the 11 t h April, 2025.
Sunil / N.A.F.R.
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