Criminal Appeal (SJ) No.62 of 1999 **** Against the judgment, dated 12.03.1999, passed by Shri Bipin Bihari Singh, Additional District and Sessions Judge, II, Chapra, in S. Tr. No. 363 of 1992/82 of 1993 **** 1. Brajesh Rai 2. Mahesh Rai, both sons of Raghu Nath Rai, residents of village Chhitarwalia, Tola Chhitauni, P.S. Ekma, district Saran at Chapra .. Appellants Versus The State of Bihar .. Respondent **** For the Appellants .. Mr. Arun, Adv. For the Respondent .. Mr. Sujit Kumar Singh, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and the State. 2. The appellants have been convicted under Section 366 read with 34 of the Penal Code and sentenced to undergo rigorous imprisonment for three years. 3. The prosecution case, as alleged, is that the case proceeded on the basis of complaint filed by the complainant, Radhika Devi, that her husband works in Delhi and the complainant lives with her daughter, Kanta Kumari, aged 15 years, her village and works as 2 labourer (maid) for her livelihood. It is alleged that accused no. 1 is ex-land lord, accused no. 2 is his daughter-in-law, accused no. 4 and 5 are book vendors, accused no. 6 is the nephew and the land on which the house of the complainant stands belongs to Madan Pandit, the ex- land lord and so the complainant used to work for him as labourer (maid). On 29.03.1989 it is alleged that Mst Naraini Kunwer asked the complainant to send Kanta for cooking food and she, again, called Kanta on 30.03.1989 and on the next day the informant found the house locked and no one was present. It is, further, alleged that the witnesses went to enquire at Gorakhpur and then they returned with Mahesh Rai and Brajesh Rai and they admitted that they have taken Kanta to marry her and the marriage will be solemnized with one Pradip Pandey. 4. On the complaint, first information report was lodged and after investigation the charge sheet submitted and cognizance taken. 5. The charge was framed for offence under Section 366 of the Penal Code. However, during the trial nine witnesses were examined by the prosecution. The trial Court took into consideration the evidence of the witnesses. P.W. 1 is the complainant and she is not an eye witness to the kidnapping. P.Ws. 2, 4 and 7 have been declared hostile and P.Ws. 1, 3, 5 and 6 were found to be not an eye witnesses to the occurrence and they are only hear say witnesses regarding the kidnapping. However, the trial Court, taking into consideration the evidence of the victim, P.W. 8, that Madan Pandit 3 said her to accompany him to Ekma so that the clothes could be purchased for her and Madan Pandit, Naraini Kunwer along with other accused took her to Ekma after tying her mouth. She was sold to an old lady of Lucknow for a consideration of Rs.7,000/-. The old lady sold her to Ramswaroop. Ramswaroop married her, but, subsequently kicked her out and then the neighbours brought her to Ekma. The trial Court taking the evidence convicted and sentence the appellants. 6. The defence of the accused persons is of false implication for getting correction in the sale deed. 7. The learned counsel for the appellants, however, contended that the only evidence regarding kidnapping against these appellants is evidence of P.W. 8. However, the whole prosecution story appears to be absurd and improbable and, further, the statement of this witness regarding the implication of the appellants suffers from contradiction from her statement recorded under Section 164 of the Criminal Procedure Code by the Magistrate on 03.09.1992. 8. From the perusal of the record, it appears that the police after investigation submitted charge sheet, cognizance was taken and case was committed to the Court of sessions and record of the case received in the Court of sessions 18.07.1992. However, the statement under Section 164 of the Criminal Procedure Code recorded by the Magistrate is attached in a supplementary record of lower Court's record in Ekma P.S. Case No. 77 of 1989 and in the said supplementary record, the order sheet, dated 03.09.1992, shows that 4 the original record received with instruction of the Sessions Judge, Saran, for recording the statement of the victim under Section 164 of the Criminal Procedure Code on a petition filed before the Sessions Judge, Saran, through Public Prosecution, Saran, and in the said statement the victim stated that she used to work as a maid in the house of Madan and he asked to follow him to Ekma for purchase of clothes and he sold her to a woman at Ekma, who took her to Lucknow and sold her for a consideration of Rs.7,000/- to one person whose name was Ramswaroop. However, she stated that Madan Pandit belong to village Chitauni, Madan Pandey, Ram Narain Pandey, Brij Bihari Pandey, Akhilesh Rai and Mahesh Rai had sold her. Having regard to the fact the only evidence regarding the kidnapping is the evidence of P.W. 8. However, the evidence of P.W. 8 regarding the implication of the appellants, Brajesh Rai and Mahesh Rai, suffers from contradiction with regard to her (P.W. 8) earlier statement before Magistrate. Investigating officer, examined, stated that he did not record the statement of any witness and the investigating officer, who has recorded the statement of the witness, not examined as a witness in this case. However, the prosecution case in the complaint does not make out a story regarding the sale by two appellants in collusion with others. However, the evidence of the witness making out another case stand contrary to the prosecution case in the fardbeyan and not corroborated by any other evidence and, hence, the evidence of P.W. 8 does not inspire confidence, under the facts and circumstances, the appellants are entitled to benefit of doubt. 5 9. Hence, I extend the benefit of doubts to the appellants and hold that the prosecution is not able to prove the charge beyond reasonable doubts. 10. The order of conviction and sentence, recorded by the lower Court, is set aside and the appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court, The 08th day of December 2011, N.A.F.R., S.A.