CRIMINAL APPEAL No.19 OF 1993(S.J.) (Appeal against the judgment and order dated 18.1.1993 passed by the Xth Additional Sessions Judge, Gaya in Sessions Trial No. 158/91/ 78/87) 1. GARIBAN YADAV, Son of Pati Yadav, Resident of Village- Bohia, P.S.- Tekari, District- Gaya. 2. Shobhi Yadav, Son of Late Ram Balak Yadav, Resident of Village- Manikpur, P.S.- Tekari, District- Gaya. 3. Rajnandan Yadav, Son of Sukhdeo Yadav, Resident of Village- Manikpur, P.S.- Tekari, District- Gaya :------------------(Appellants) -Versus- THE STATE OF BIHAR :------------------(Respondent) For the appellants : Mr. Surendra Kumar Singh, Senior Advocate. With Mr. Praveen Prakash, Advocate. For the State : Mr. Nitya Nand Tiwari, A.P.P. ======= P R E S E N T THE HON'BLE MR.JUSTICE V.N.SINHA V.N.Sinha,J. Heard learned counsel for the appellants and the State. 2 2. This appeal is directed against the judgment and order dated 18th January, 1993 passed by Xth Additional Sessions Judge, Gaya in Sessions Trial No. 158/91/ 78/87, whereunder the three appellants have been convicted for the offence under Section 366 of the Penal Code and have been sentenced to undergo rigorous imprisonment for five years and also to pay fine of Rs. 2,000/-. In case of non-payment of the fine they were directed to undergo further rigorous imprisonment for four months. 3. Prosecution case in brief, as it appears from the fardbeyan of Budhan Yadav, is that his daughter Shanti Devi was enticed away from his house on 1.5.1986 at 6 P.M. in the Railway Colony by the three appellants for the purposes of her second marriage with Shobhi Yadav as her husband deserted her. The factum of disappearance of Shanti Devi the informant learnt through her another daughter Kanti Devi after he came back to his house late in the evening after discharging duty. Fardbeyan was lodged on 1.5.1986 at 23 hours at Mukhlotganj Out Post. Sub-Inspector Md. Israil took up the investigation and during investigation the victim girl Shanti Devi was recovered from the house of Appellant No.2 Shobhi Yadav. Later on the basis of fardbeyan Civil Lines 3 P.S.Case No. 71 of 1986 dated 2.5.1986 for the offence under Sections 363 and 366 of the Penal Code was registered. Her statement was also recorded under Section 164 Cr.P.C. on 5.5.1986, which has been marked as Exhibit-A. 4. After investigation police submitted charge-sheet showing Budhan Yadav, father of the victim, Balmati Devi, mother of the victim, Kanti Devi, sister of the victim, Manju Kumari, another sister of the victim and Samundari Devi, sister-in-law of the victim as witnesses of the occurrence. 5. After commitment of the case, charges were framed for the offences under Sections 363 and 366 of the Penal Code against the three appellants. During trial prosecution examined seven witnesses, namely, P.W.-1, Balmati Devi, the mother of the victim, P.W.-2, Kanti Devi, sister of the victim, P.W.-3, Budhan Yadav, the informant and father of the victim, P.W.-4,Shanti Devi, the victim herself, P.W.-5, Manju Kumari, another sister of the victim, P.W.-6, Samundari Devi, sister-in-law of the victim and P.W.- 7, Padarath Upadhayay, Advocate’s clerk, who is a formal witness and has proved Exhibits 1,1/2, 2 and Exhibit-3. 6. It is submitted on behalf of the appellants 4 that the prosecution story as set out in the First Information Report that the victim was enticed away by the three appellants has been given a go by during recording of the evidence of the prosecution witnesses as the mother and sister of the victim, namely, P.Ws.- 1 and 2 while recording their evidence have stated in paragraph 4 and 1 of their Examination-in-Chief that the victim had gone along with Lila Devi, their neighbour, to her house, wherefrom she was taken to a shop by Lila Devi and from the shop Lila Devi and the victim went to Delha where it is said that the appellants took the victim in their custody. Later, the informant came to his house and learnt about the occurrence and informed the Mukhlotganj Out Post of the Gaya Civil Lines Police Station about the occurrence and with the assistance of the police authorities the victim was recovered late in the night at about 11 P.M. from the house of one of the appellants, namely, Appellant No.2 Shobhi Yadav. 7. There is controversy with regard to the place of recovery as well, as in this connection learned counsel for the appellants pointed out with reference to the evidence of P.W.-1 Balmati Devi that the victim was recovered from the house of Chandeshwar although P.W.-2 Kanti Devi, sister of the victim and 5 P.W.-3, Budhan Yadav, father of the victim informed the court that the victim was recovered from the house of Shobhi Yadav. 8. Learned counsel for the appellants submitted that the prosecution case as set out in the First Information Report that the three appellants enticed away the victim girl has not been corroborated by the witnesses in court as in court the stand taken is that the victim had gone with Lila Devi, mother of Chandeshwar and with reference to such contradiction it is submitted that the prosecution case should not be accepted, all the more when the victim herself has not come to the witness-box to support the occurrence and has been tendered. 9. It appears from the observation of the Presiding Officer recording the evidence of P.W.-4 that the victim was mentally ill when she appeared in court for recording her evidence. In the circumstances, the submission of the learned counsel that the victim has not supported the prosecution case cannot be accepted. 10. With reference to the evidence of P.Ws. 1,2 and 3 learned counsel for the appellants submitted that ingredients of the offence of abduction, as defined under Section 362 of the Penal Code have 6 not been proved against the appellants as according to him there is no evidence on record to suggest that it was the appellants who enticed away the victim from her house rather the prosecution evidence as recorded in the court is consistent that it was Lila Devi and Chandeshwar who had enticed away the victim and took her to the house of Lila Devi, wherefrom she was taken to a shop on the pretext of purchasing flour and therefrom she was taken by Lila Devi and Chandeshwar to Delha where she was handed over to the appellants. In support of such submission, learned counsel for the appellants has relied on the judgment of the Hon’ble Supreme Court in the case of Gabbu Vs. State of M.P., reported in AIR 2006 Supreme Court 2461, paragraphs 11,12 and 14. 11. True it is that the prosecution case, as set out in the First Information Report, has been given a go by to the extent that in court witnesses, namely, P.Ws. 1,2 and 3 have stated that on the date of occurrence victim was taken by Lila Devi to her house, wherefrom she went with Lila Devi to the shop on the pretext of purchasing flour and therefrom taken to Delha and then handed over to the appellants but the fact remains that she was recovered from the house of Shobhi Yadav, as has been asserted by P.Ws. 2 and 3. 7 The contradiction on the point of recovery between the evidence of P.W.1 on the one hand and P.Ws. 2 and 3 on the other hand is hardly of any significance as the three appellants are residents of the same village and neighbours, as such, recovery having been made either from the house of Shobhi Yadav or Chandeshwar does not make any dent in the prosecution case. 12. In view of the discussion above, the conviction of the appellants is upheld. 13. Then it was submitted that the occurrence took place on 01.05.1986 and the judgment of conviction was recorded on 18th January, 1993, whereafter the appellants were admitted to the privilege of bail, as such, at this belated stage if they are relegated to jail custody then it may be too harsh for them, as in the meanwhile more than two decades have passed. 14. Appreciating the aforesaid submission, while maintaining the judgment of conviction it is directed that the period already undergone by the appellants (1. Gariban Yadav, 2. Shobhi Yadav and 3. Rajnandan Yadav) may serve the cause of justice but the three appellants are directed to deposit the fine imposed on them i.e. Rs. 2000/- (Two thousand) each 8 in the court below within two months from today, failing which they must surrender to serve out the sentence. In the event amount of fine is deposited within the time indicated in this order then the appellants shall be discharged from the liabilities of their respective bail bonds. The amount of fine realized should be paid to the victim. 15. With the aforesaid modification in the sentence, this Cr. Appeal is dismissed. The Patna High Court The 17th day of December, 2008. P.K.P./N.A.F.R. (V.N.Sinha,J.)