CRIMINAL APPEAL No.172 OF 1993 Against the judgment of conviction and order of sentence dated 4th May, 1993 passed in Sessions Trial No. 24 of 1992 by Sri Ashok Kumar Verma, the then 6th Additional Sessions Judge, Ara. SUSHILA DEVI------------------------------------------------------(Appellant) Versus STATE OF BIHAR--------------------------------------------------(Respondents) For the appellant : Ms. Juhi Kumari, Amicus Curie For the State : Mr. Jharkhandi Upadhaya, A.P.P. P R E S E N T THE HON'BLE MR. JUSTICE ABHIJIT SINHA Abhijit Sinha,J: Piro P.S Case no. 127 of 1987 under sections 366A and 372 IPC as also sections 5 and 6 of the Suppression of Immoral Traffic in Women and Girls Act (hereinafter referred to as “the Act”) were registered against Sushila Devi and Gauhar Devi on the basis of a fardbeyan given by one Raj Pati Ram at around 7 P.M. on 22.8.1987 in respect of an occurrence which allegedly took place at around 2 P.M. on 20.8.1987. According to the informant he is a cobbler who stitches shoes at the chowk in Piro and as usual he had come to his work on 20.8.1987. His daughter Dhanamuni Kumari, aged about 12 years, came at around 2 O’clock to wear bangles and to take vegetables for the home. The father gave the bangles and vegetables to her but in the meanwhile co- villager Sushila Devi arrived and told him that she was also returning to the village and asked Dhanamuni to accompany 2 her. It is alleged that when the informant returned home he did not find his daughter and on inquiry he learnt that she has not returned from Piro. Search was made for her but she and Sushila were found absent. The informant got suspicious and apprehended that Sushila may have kidnapped her. Subsequently Sushila was found at the house of her bhaisur (brother – in – law) in the district of Rohtas and she admitted that she had sold his daughter to dancer Gauhar for a consideration of Rs. 150/-. The informant brought Sushila to the P.S. where she reiterated her statement of having sold Dhanamuni to Gauhar for getting illegal work done from her. It is further alleged that Gauhar had purchased Dhanamuni for prostitution. After due investigation a chargesheet under sections 363 and 372 IPC and sections 5 and 6 of the Act were submitted against the two accused and after cognizance the case was eventually committed to the Court of Sessions whereas it was numbered as Sessions Trial No. 24 of 1992. Before the Sessions Court, Sushila was charged for offences under sections 366A and 372 IPC whereas Gauhar was charged for offences under sections 5 and 6 of the Act. After a full dressed trial Sushila was convicted under section 363 IPC and sentenced to undergo R.I. for 5 years whereas Gauhar was acquitted of the charges framed against her. This appeal has been preferred by Sushila Devi from the Central Jail, Ara where she was kept in custody. By 3 order dated 14.9.1993, her appeal from jail was admitted for hearing and she was directed to be enlarged on bail. The short point raised in the appeal is that appellant Sushila had been falsely implicated in this case and the learned Trial Judge in the facts and circumstances of the case and the evidence available on record had wrongly convicted and sentenced her. I have perused the impugned judgment and order as also the material available on record and it appears therefrom that six witnesses had been examined by prosecution in support of its case of whom P.W. 6 (Murat Ram) is a formal witness who has proved FIR (Ext. 1) whereas P.W. 1 (Pradeep Kumar) and P.W. 2 (Ajit Kumar) have been declared to be hostile. P.W. 4 is the informant, Rajpati Ram, who has stated that on the date of occurrence he was polishing shoes etc. and his daughter brought his meals and after taking the meals he purchased vegetables and gave the same to her and her daughter also took bangles but in the meantime Sushila arrived and his daughter accompanied Sushila for going back to the village home. He has stated that when he returned home in the evening he found that his daughter has not reached home till then so he searched for Sushila who could not be found and on the following morning the informant went to village Karup and there he found Sushila in the house of her relative. Sushila was brought back to the 4 village from where she was taken by the Chaukidar to the P.S. In course of his cross examination he admitted that apart from him no one else had seen his daughter going with Sushila. The defence has not been able to elicit anything from this witness so as to make the Court disbelieve his testimony or something which would be advantageous to the defence. P.W. 5 is the victim girl, Dhanamuni, who stated that after her father had taken meals and he has had given vegetables and churi to her, Sushila arrived and wanted that she should accompany her to the village to which she readily agreed. She further stated that enroute home Sushila gave some sweets to her for eating and after travelling for some distance Sushila volunteered to take her home by bus and instead took her by a bus to Ara and left her there, telling her that she would return but she never returned. Dhanamuni started weeping and in the meantime a lady came there and took her to the P.S. where the policeman asked her to give Dhanamuni to her father when he came. Dhanamuni stated that Daroga had recovered her from the house of Gauhar while raiding it. She identified Sushila during her evidence in court but could not identify the other lady. In her cross examination she has stated that the lady who had collected her at Ara had taken her to her home from where the police recovered her. The sum result which arises from the deposition of P.W. 5 is that it was Sushila who had 5 taken her to Ara by a bus instead of taking her home. The statement of P.W. 5 does not disclose that accused Gauhar had procured Dhanamuni for the purposes of prostitution or that Sushila had seduced Dhanamuni with intent of inducting her into sexual intercourse with any other man. The evidence of P.W. 3 Malti Devi only shows that Dhanamuni was recovered from her house who had been handed over to her by Gauhar. From the evidence adduced by the prosecution at the trial, the learned Trial Judge had rightly acquitted Gauhar of the charges framed against her but I am of the opinion that Sushila ought to have been conferred with similar benefits since the evidence of the victim P.W. 5 does not in any manner indicate that Dhanamuni had been kidnapped from lawful guardianship. In her deposition Dhanamuni has disclosed her age as 16 years whereas the Court has assessed her age as 17 years which would mean that she was at the borderline between being a minor and a major. That apart Dhanamuni has not been recovered from the custody of Sushila nor has the fact of her having sold Dhanamuni to Gauhar for a consideration of Rs. 150/- been established by the prosecution. It is true that Sushila had taken Dhanamuni to Ara instead of to the village home without the consent of her guardian and had left her there. That by itself, to my mind, would not make out an offence under section 363 IPC in the absence of there being the existence of criminal 6 intention. It also appears that the Investigating Officer has not been examined in this case which to my mind is prejudicial to the defence case since there is great discrepancy in the statement of the witnesses in respect of the place of recovery of Dhanamuni. Whereas the fardbayan talks of Dhanamuni being recovered from the house of Gauhar, P.W. 3 Malti Devi has stated that the girl was recovered from her house as Gauhar had handed over the girl to her. It does not appear from the impugned judgment as to whether Dhanamuni on her recovery had been examined medically. Due regard being had to the facts and circumstances of the case I am of the opinion that the prosecution has miserably failed to prove the charges against Sushila. As such the judgment of conviction and order of sentence cannot be upheld. Accordingly the judgment of conviction and order of sentence recorded by the Trial Judge is hereby set aside and the appeal is allowed. As stated above, Sushila had been enlarged on bail under orders of this Court. She is accordingly discharged from the liabilities of her respective bail bonds. Patna High Court, Patna. Dated : The 13th of August, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)