1 IN THE HIGH COURT OF JUDICATURE AT PATNA - - - - Criminal Appeal (SJ) No.737 of 2007 - - - - Against the judgment of conviction and order of sentence dated 17.7.2007 and 22.7.2007, respectively, passed by Additional Sessions Judge, Fast Track Court II, Buxar, in Sessions Trial No. 210 of 2006. ===================================================== 1. Hiraman Kumhar 2. Binod Kumhar Both sons of Gajadhar Kumhar, residents of Village Chilahar, P.O. Indaur, P.S. Itarhi, District Buxar .... .... Appellants Versus The State Of Bihar .... .... Respondent with Criminal Appeal (SJ) No. 847 of 2007 ===================================================== Sri Niwas Ram @ Ram Niwas Ram son of Sukhari Ram, resident of Village Nuaon, P.S.Nuaon,District Kaimur(Bhabua) .... .... Appellant Versus The State Of Bihar .... .... Respondent ===================================================== Appearance : (In CR. APP (SJ) No. 737 of 2007) For the Appellants : Shri Sanjay Kumar, Advocate Shri Surendra Kumar Chaubey . (In CR. APP (SJ) No. 847 of 2007) For the Appellant : Shri Ashwini Kumar Rai. For the Respondent : Shri Ajay Mishra, A.P.P.. ( in both the appeals) ===================================================== CORAM: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA ORAL JUDGMENT (Per: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA) - - - - The two appeals arise out of judgment dated 17.7.2007 passed by the learned Additional Sessions Judge-cum-Presiding Officer, Fast Track Court II, Buxar, in Sessions Trial No. 210 of 2006, by which the three appellants were held guilty of 2 committing the offences under Sections 366A, 368,, 372,376(2)(g) of the Indian Penal Code and by order of sentence dated 22.7.2007 they were directed to suffer rigorous imprisonment for ten years each on each of the three counts. In addition to the above, appellant Hiraman Kumhar ( in Cr. Appeal No. 737 of 2007) was separately convicted of the offence under Section 372 of the Indian Penal Code and directed to suffer rigorous imprisonment for ten years. The appellants have preferred these two appeals to challenge their conviction. 2. It is a long narration and it does not appear prudent to put all the facts as have been narrated in the four page hand written report of P.W.2, the informant and the victim of the case, which is the basis of the F.I.R. Suffice it to mention that the allegation was that one Arvind Singh who had earlier got killed the father of the informant and had put a greedy eye upon her mother, had got the lady abducted through his brother Pintu Singh, Sheo Bihari Gor, Miya Gor, Hiraman Kumhar, Binod Kumhar, Guddu Kumhar, Manoj Kamkar, Awadhesh Kumhar, Jairama Ram and Subhas Ram. It is stated that the lady was abducted by Pintu Singh, gagged and was taken away on a motorcycle. It is further stated that she was raped repeatedly by the two appellants, namely, Hiraman Kumhar and Binod Kumhar for about two months in a house where she was confined by them, who also invited others to indulge in the act. Subsequently, she was sold to appellant Sri Niwas Ram alaias Ram Niwas Ram who was running a Band Party who transferred her to a Nach Party where she was beaten up as she was not competent enough to dance as a result of which she narrated the facts to one Raju Yadav who brought her to village Bheria and kept in the house of Nanhak Yadav where she came into contact with the M.C.C. persons and they gave shelter to her and kept her at a different place and, lastly, the police conducted a raid at the hideout of the M.C.C. during which she was recovered and had given her 3 fardbeyan. 3. Six witnesses were examined during the trial, out of whom P.W. 4 Suraj Singh was a witness of formal character who was identifying the writings of the F.I.R. as that of the Investigating Officer. The other witnesses, like P.Ws. 1, 3 and 5 were declared hostile as they were not supporting any part of the prosecution story. P.W. 2, Sangita Devi, the victim, supported her story as regards her abduction as also commission of rape upon her by different persons including the appellants. Besides, she was stating that appellant Ram Niwas Ram purchased her and subjected her to sexual intercourse himself and also pledged her after soliciting clients. He used to receive Rs. 500-600 per client for offering the lady to them. But, when her statements are contrasted to her evidence which appear from paragraph 21 onwards, what one could find is that she was shifting her stand and changing her statement which she had earlier made before the police or before the Judicial Magistrate. She was stating in paragraph 33 of her evidence that she had not stated before the police that appellant Sriniwas Ram had committed rape upon her. Similarly, she was changing her statement and denying to have made any such statement like that the appellant and others had committed rape upon her in the manner as alleged, as may appear from her cross- examination. During her cross examination it came to light that the lady was a freewheeler, moving to different places and in fact had come from Delhi to her Village via Patna from where she alleged being kidnapped by the two appellants, namely, Hiraman Kumhar and Binod Kumhar. But her statement initially made in the F.I.R. also appears resiled by the lady in her cross-examination when she was stating that such statement was never made by her in the F.I.R. For giving colour of truth to her statement the lady stated that the Officer who recorded her statement had not perfectly recorded her statement, but in the same paragraph 21 4 she stated that whatever statements she had made to the police were true. It is admitted by P.W. 2 in paragraph 20 of her evidence that the two appellants Hiraman Kumhar and Binod Kumhar were full brothers and were her neighbours and there was land dispute between these two appellants and her family. 4. On perusal of the evidence of P.W. 2 what appears is that the witness was always shifting her position and changing her statement. In spite of having admitted in examination in chief that her statements were truly and correctly recorded she was denying the same statement in cross examination which may appear from paragraphs 22,23,24, 27, etc. She appears to be a witness who could not be relied upon for upholding the judgment recorded by the trial court. 5. In the result, the two appeals are allowed by setting aside the judgment of conviction and order of sentence passed by the trial court upon the appellants who are acquitted of the charges for which they were convicted. 6. All the three appellants are continuing in custody. They shall be released forthwith, if not wanted in any other case. ( Dharnidhar Jha, J.) Patna High Court The 15th September, 2011 Kanth/N.A.F.R.