Sohgi Kumari Vs. State of Jharkhand and - Court Judgment

Excerpt:
- what remains to be seen is as to whether pinki died an un-natural death within seven years of her marriage and whether her death was attributable to the demand of dowry and further whether she was dealt with cruelty soon before her death. if these ingredients are proved by the prosecution then the conviction of the accused under section 304b, ipc will be complete.[para 9] the question is, in the absence of corpus delicti, could it be presumed that the accused persons alone were responsible for the death of pinki. we must hasten to add here that the accused persons have already been acquitted of the murder charge. [para 9] it is clear that pinki's death was caused because of the burns and not in the normal circumstances. the finding of the trial court and the appellate court in that behalf is correct. for this reason we are not impressed by the argument of the learned counsel that in the absence of corpus delicti, the conviction could not stand. [para10] it is clear that the prosecution has not only proved the offence under section 304b, ipc with the aid of section 113b, indian evidence act but also the offence under section 201, ipc. [para 15] held: we have gone through the judgments of the trial court as well as the appellate court carefully and we find that both the courts have fully considered all the aspects of this matter. we, therefore, find nothing wrong with the judgments and confirm the same. the appeal is, therefore, dismissed.[para 16]orderd.k. sinha, j.1. this criminal revision is directed against the judgment and order dated 6.12.2008 by which o.p. no. 2 mantu yadav juvenile in conflict with law, has been acquitted for the charge under sections 376/504/506 of the indian penal code by the juvenile justice board koderma in g.r. no. 613 of 2007 corresponding to e.r. no. 28 of 2008.2. the prosecution story in short was that while prosecutrix/complainant sohgi kumari was on way to attend the call of nature in the field towards northern side of her home, she was overpowered by the juvenile mantu yadav who caught hold her and ravished on the point of gun after gagging her mouth with the help of towel. again on 30.1.2007 she was ravished while she had been to her khalihan to bring paddy straws and similar offence was repeated on 15.2.2007 by the juvenle/o.p. no. 2, as a consequence the prosecutrix became pregnant. the juvenile/o.p. no. 2 with the help of the other accused triad to terminate her pregnancy with the consultation of dr. sarla singh who refused to do so. it was alleged that when the doctor declined to terminate her pregnancy, all the accused including the juvenile o.p. no. 2 escaped after leaving the prosecutrix in the clinic. the prosecutrix was a minor girl and finding no way out she narrated the entire occurrence to her mother whereupon a panchayati was convened but the accused declined to accept her. the prosecutrix then filed a complaint before the c.j.m. koderma which was referred under section 156(3) cr.p.c. to the concerned police station and consequently koderma (chandwara) p.s. case no. 724 of 2007 was registered against the o.p. no. 2 and four order named accused who were the members of his family for the alleged offence under sections 376/504/506 of the indian penal code. after investigation of the case, the investigating officer submitted charge sheet only against the o.p. no. 2 mantu yadav for the alleged offence under the aforesaid sections and accordingly, cognizance of the offence was taken by the c.j.m. having been satisfied with the grounds taken by the o.p. no. 2 mantu yadav of his juvenility in a preliminary enquiry, the learned c.j.m. koderma referred the matter to the juvenile justice board where again enquiry was conducted and the o.p. no. 2 was found to be a juvenile upon determination of his age on the alleged date of occurrence. after explaining him the substance of accusation enquiry was initiated by the juvenile justice board, koderma against the juvenile mantu yadav but since no witness could be produced and examined on behalf of the prosecution, the juvenile alleged to be in conflict with law was acquitted from the alleged accusation. he was earlier admitted to bail by the juvenile justice board after his detention in the 'bal bhawan' for about four months during enquiry.3. the learned counsel appearing for the petitioner-prosecutrix submitted by assailing the impugned order that at no point of time she or any of the witnesses named in the charge sheet/complaint petition received summons after substance of accusation was explained to the o.p. no. 2 mantu yadav to depose before the juvenile justice board(in short j.j. board). the lower court records would indicate that even the execution report of the bailable warrants of arrest non-bailable warrants of arrest that were issued against the witnesses were not brought on the record and the evidence of the prosecution was closed without considering the gravity of the accusation against the o.p. no. 2. the learned counsel further submitted that it would be evident from the enquiry report that determination of age of the o.p. no. 2 was also made in a slip shod manner and the school leaving certificate as well as the admission register of the school which was not first attended by him was considered in violation of guidelines given in rule 22(5) of the jharkhand juvenile justice (care and protection of children) rules 2003. in that manner the petitioner was denied justice since the very beginning, though such order could not be challenged. the learned counsel finally contended that without giving an opportunity to her or other witnesses to adduce evidence as against accusation the order of acquittal of the o.p. no. 2 tantamounts to violation of natural justice, 'audi alteram partem' 4. heard mr. rajesh lala, learned counsel appearing for the o.p. no. 2 who submitted that in spite of summons being served upon the witnesses the prosecution did not care to produce any of them during enquiry before the board. mr. lala further pointed out that it would be false to say that no opportunity was given to the prosecutrix. she had executed vakalatnma and she was represented through her lawyer in the j.j. board, apart from prosecutor appearing for the state and therefore, it would be false to say that no opportunity was given to the prosecutrix to adduce evidence. the j.j. board acquitted the o.p. no. 2 for want of evidence against the accusation and therefore, the revision may be dismissed.5. having regard to the facts and circumstances of the case, i find that the main contention of the petitioner is that no opportunity was given to the prosecution witnesses to adduce evidence before the juvenile justice board, koderma. however, upon examination of the lower court records i find that summons were issued to the witnesses nos. 1 toll for the first time on 16.6.2008 and thereafter without obtaining service report of the summons, bailable warrants of arrest were issued against them on 20.8.2008. however, in remarks column of the order sheet of the record of juvenile justice board i find the endorsement 's/r of summons to the witness attached 01/09/08' which indicates that service report of the summons that were issued to the witnesses nos. 1 to 11 on 16.6.2008 were received in the court on 1.9.2008. however on perusal of the service; report, i find that single printed form of summons contained the names of all the 11 witnesses with the common address by which all of them were called upon to appear before the board on 9.7.2008 for evidence. the overleaf service portion of the summons indicated that process server visited the address of the witnesses on 13.8.2008 and came across only witness no. 3 who received the summons on behalf of all the witnesses which in any manner cannot be held as valid service against the remaining ten witnesses. i further find that the members of the juvenile justice board without considering the gravity of the accusation closed the evidence on behalf of the prosecution and acquitted the o.p. no. 2 by an ex-parte order without taking effective steps to bring the witnesses in the witness box which cannot be sustained under law. even the execution reports of either bailable warrants of arrest or non-bailable warrants of arrest issued against the witnesses could be brought on the record prior to recording final order of requital. the most unfortunate part was that the juvenile justice board dealt with a serious case leisurely without ensuring that summons could be property served upon the witnesses. the (sic) reports of warrants of the arrest that were issued against the witnesses were also not executed. in the facts and circumstances. i find that the order impugned dated 6.12.2008 recorded by the juvenile justice board in e.r. no. 28 of 2008 arising out g.p. no. 613 of 2007 by which the o.p. no. 2 mantu yadav was acquitted cannot be sustained under law, accordingly, such acquittal is set aside and the case record is remanded back to the juvenile justice board, koderma to inquire the matter afresh after giving notice to the juvenile in conflict with law and according opportunity to the prosecutrix and other witnesses to adduce evidence within a reasonable period preferably within two months and to pass final order after heating the parties in accordance with law.6. this cr. revision is allowed in the manner indicated above.

Judgment:
ORDER

D.K. Sinha, J.

1. This Criminal Revision is directed against the judgment and order dated 6.12.2008 by which O.P. No. 2 Mantu Yadav Juvenile in conflict with law, has been acquitted for the charge Under Sections 376/504/506 of the Indian Penal Code by the Juvenile Justice Board Koderma in G.R. No. 613 of 2007 corresponding to E.R. No. 28 of 2008.

2. The prosecution story in short was that while prosecutrix/complainant Sohgi Kumari was on way to attend the call of nature in the field towards northern side of her home, she was overpowered by the Juvenile Mantu Yadav who caught hold her and ravished on the point of gun after gagging her mouth with the help of towel. Again on 30.1.2007 she was ravished while she had been to her Khalihan to bring paddy straws and similar offence was repeated on 15.2.2007 by the Juvenle/O.P. No. 2, as a consequence the prosecutrix became pregnant. The Juvenile/O.P. No. 2 with the help of the other accused triad to terminate her pregnancy with the consultation of Dr. Sarla Singh who refused to do so. It was alleged that when the Doctor declined to terminate her pregnancy, all the accused including the juvenile O.P. No. 2 escaped after leaving the prosecutrix in the clinic. The prosecutrix was a minor girl and finding no way out she narrated the entire occurrence to her mother whereupon a Panchayati was convened but the accused declined to accept her. The prosecutrix then filed a complaint before the C.J.M. Koderma which was referred Under Section 156(3) Cr.P.C. to the concerned police station and consequently Koderma (Chandwara) P.S. Case No. 724 of 2007 was registered against the O.P. No. 2 and four order named accused who were the members of his family for the alleged offence Under Sections 376/504/506 of the Indian Penal Code. After investigation of the case, the Investigating Officer submitted charge sheet only against the O.P. No. 2 Mantu Yadav for the alleged offence under the aforesaid sections and accordingly, cognizance of the offence was taken by the C.J.M. Having been satisfied with the grounds taken by the O.P. No. 2 Mantu Yadav of his Juvenility in a preliminary enquiry, the learned C.J.M. Koderma referred the matter to the Juvenile Justice Board where again enquiry was conducted and the O.P. No. 2 was found to be a juvenile upon determination of his age on the alleged date of occurrence. After explaining him the substance of accusation enquiry was initiated by the Juvenile Justice Board, Koderma against the Juvenile Mantu Yadav but since no witness could be produced and examined on behalf of the prosecution, the juvenile alleged to be in conflict with law was acquitted from the alleged accusation. He was earlier admitted to bail by the Juvenile Justice Board after his detention in the 'Bal Bhawan' for about four months during enquiry.

3. The learned Counsel appearing for the petitioner-prosecutrix submitted by assailing the impugned order that at no point of time she or any of the witnesses named in the charge sheet/complaint petition received summons after substance of accusation was explained to the O.P. No. 2 Mantu Yadav to depose before the Juvenile Justice Board(in short J.J. Board). The lower court records would indicate that even the execution report of the bailable warrants of arrest non-bailable warrants of arrest that were issued against the witnesses were not brought on the record and the evidence of the prosecution was closed without considering the gravity of the accusation against the O.P. No. 2. The learned counsel further submitted that it would be evident from the enquiry report that determination of age of the O.P. No. 2 was also made in a slip shod manner and the school leaving certificate as well as the admission register of the school which was not first attended by him was considered in violation of guidelines given in Rule 22(5) of the Jharkhand Juvenile Justice (Care and Protection of Children) Rules 2003. In that manner the petitioner was denied justice since the very beginning, though such order could not be challenged. The learned Counsel finally contended that without giving an opportunity to her or other witnesses to adduce evidence as against accusation the order of acquittal of the O.P. No. 2 tantamounts to violation of natural justice, 'audi alteram partem'

4. Heard Mr. Rajesh Lala, learned Counsel appearing for the O.P. No. 2 who submitted that in spite of summons being served upon the witnesses the prosecution did not care to produce any of them during enquiry before the Board. Mr. Lala further pointed out that it would be false to say that no opportunity was given to the prosecutrix. She had executed vakalatnma and she was represented through her lawyer in the J.J. Board, apart from prosecutor appearing for the State and therefore, it would be false to say that no opportunity was given to the prosecutrix to adduce evidence. The J.J. Board acquitted the O.P. No. 2 for want of evidence against the accusation and therefore, the revision may be dismissed.

5. Having regard to the facts and circumstances of the case, I find that the main contention of the petitioner is that no opportunity was given to the prosecution witnesses to adduce evidence before the Juvenile Justice Board, Koderma. However, upon examination of the lower court records I find that summons were issued to the witnesses Nos. 1 toll for the first time on 16.6.2008 and thereafter without obtaining service report of the summons, bailable warrants of arrest were issued against them on 20.8.2008. However, in remarks column of the order sheet of the record of Juvenile Justice Board I find the endorsement 'S/R of summons to the witness attached 01/09/08' which indicates that service report of the summons that were issued to the witnesses Nos. 1 to 11 on 16.6.2008 were received in the court on 1.9.2008. However on perusal of the service; report, I find that single printed form of summons contained the names of all the 11 witnesses with the common address by which all of them were called upon to appear before the Board on 9.7.2008 for evidence. The overleaf service portion of the summons indicated that process server visited the address of the witnesses on 13.8.2008 and came across only witness No. 3 who received the summons on behalf of all the witnesses which in any manner cannot be held as valid service against the remaining ten witnesses. I further find that the members of the Juvenile Justice Board without considering the gravity of the accusation closed the evidence on behalf of the prosecution and acquitted the O.P. No. 2 by an ex-parte order without taking effective steps to bring the witnesses in the witness box which cannot be sustained under law. Even the execution reports of either bailable warrants of arrest or non-bailable warrants of arrest issued against the witnesses could be brought on the record prior to recording final order of requital. The most unfortunate part was that the Juvenile Justice Board dealt with a serious case leisurely without ensuring that summons could be property served upon the witnesses. The (sic) reports of warrants of the arrest that were issued against the witnesses were also not executed. In the facts and circumstances. I find that the order impugned dated 6.12.2008 recorded by the Juvenile Justice Board in E.R. No. 28 of 2008 arising out G.P. No. 613 of 2007 by which the O.P. No. 2 Mantu Yadav was acquitted cannot be sustained under law, accordingly, such acquittal is set aside and the case record is remanded back to the Juvenile Justice Board, Koderma to inquire the matter afresh after giving notice to the juvenile in conflict with law and according opportunity to the prosecutrix and other witnesses to adduce evidence within a reasonable period preferably within two months and to pass final order after heating the parties in accordance with law.

6. This Cr. Revision is allowed in the manner indicated above.