Criminal Appeal (SJ) No. 547 of 2006 --------- Against the judgment and order of conviction and sentence dated 4.4.2006 passed by the Additional Sessions Judge, FTC I, Muzaffarpur in S.T. No. 443 of 1989. ------- 1. Laxminiya Devi, wife of Late Prameshwar Das, 2. Bhola Das, son of late Prameshwar Das, both residents of village – Harpur Ladaura, Police station – Gaighat, District – Muzaffarpur ……………. Appellants Versus The State of Bihar …………… Respondent --------- For the Appellants : Smt. Bela Singh, Advocate For the State : Shri Ajay Mishra, APP ------ PRESENT THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA ------------- Dharnidhar Jha, J. The written report (Ext.4), said to be written by the Mukhia of Grampanchayat, Talboari, is the basis upon which the FIR (Ext. 2), was drawn up and the case, i.e., Gaighat P.s. Case no. 131 of 1988 was registered and investigated into by P.W.5 Purushottam Kumar Singh, who submitted charge sheet and this is how the two appellants Laxminiya Devi and Bhola Das were put on trial by being charged under sections 366 and 376 IPC. The Presiding Officer, F.T.C. I, Muzaffarpur found the appellant Laxminiya Devi guilty of committing the offence under section 366 IPC and directed her to suffer rigorous imprisonment for ten years and also to pay fine of rupees five thousand, else to suffer 2 rigorous imprisonment for three months. So far appellant Bhola Das is concerned, he was held guilty of committing the offences under sections 366 and 376 IPC and was directed to suffer rigorous imprisonment for ten years as also to pay a fine of rupees five thousand on each of the two counts and in case of non-payment of fine, was directed to suffer rigorous imprisonment for a further period of six months again on each of the counts with a further direction that the sentences were to run concurrently. The two appellants assail the judgment and order of conviction and sentence dated 4.4.2006 in this appeal. 2. P.W. 2 Krishna Devi happens to be the wife of the brother of P.W. 3 Sunita Devi, who is victim of the present case. P.W. 2 Krishna Devi stated that while she was watching the sugarcane field, one Binod Das had taken away Sunita Devi from her house and when she made enquiries from the said Binod Das, he did not give any clues. Ultimately, she approached the mukhia of the village who drew up Ext. 4, which was presented by her before P.W. 5 S.I. Purushottam Kumar Singh and, accordingly, the case was lodged. 3. P.W. 5 Purushottam Kumar Singh would say that after having drawn up the FIR, he set out for searching the girl and investigating the case and during that course, he came to the house of one Baijnath Das situated at village Barhetta under Police station – Kalyanpur in the district of Samastipur and recovered Sunita Kumari from there and produced her before the magistrate for recording her statement under section 164 Cr.P.C. The recorded statement of P.W. 3 has been marked as Ext. A. P.W. 5 would further say that he produced 3 the girl before the doctor, i.e., P.W. 4 Dr. Madhuri Srivastava for her medical examination and determination of age and the evidence of P.W. 4 would point out that the victim Sunita Kumari was aged below 17 years on 8.12.1988. Some of the findings recorded by P.W. 4 Dr. Madhuri Srivastava is that hymen of the girl was bearing an old rupture and further that no evidence of rape was found after examining P.W. 3. The medical report prepared by Dr. Shrivastava has been marked as Ext. 1. 4. In his evidence, P.W. 1 has stated that he saw Binod Das going while he was working in the field and victim P.W. 3 was accompanying him and he wanted to know the reason for taking away Sunita Devi who simply kept silent and asked her to hasten her steps. Later on, he came to the village to tell as to what he had seen while working in the field. P.W. 2 states that it was Mohan Das who had informed her about P.W. 3 accompanying Binod and, as such, she made an enquiry from Binod Das who has not been put on trial, but he kept silent and simply did not budge from his position to disclose any thing, which forced her to approach the Mukhia, who drafted the report on behalf of P.W. 2, which was presented in the police station on which a case was instituted. 5. P.W. 3, the victim, names the said Binod Das as the person who had enticed her away from her father’s house so as to take her to Ladaura from where the two appellants are said to have taken her to Barheta, which was a place where her mother’s brother was married. P.W. 3 further stated that it was also a place where appellant Bhola was 4 married and it was a house of his father in law. Laxminiya Devi is the mother of appellant Bhola Das. It is admitted by P.W. 3 in her evidence that she was sleeping with Laxminiya Devi while Bhola ravished her which fact appears contrary to ordinary human conduct and, as such, not acceptable to any reasonable person. Besides this fact that appellant Bhola had raped her, nothing was stated by her. In addition to the above, she states that she had been tutored by one Sukhram Das of Gaighat to make statement as was told by him and, accordingly, she narrated the story before the magistrate. It appears from the cross examination of P.W. 3 that she had never stated before the magistrate that Laxminia Devi or Bhola were persons who had ever taken her away after blandishment or on account of enticement by both of them or either of them. 6. What I find after considering the evidence of the prosecution is that Binod was a person who had allegedly enticed P.W. 3. Said Binod Das was not put on trial nor was he produced for supporting any fact that it could be the two appellants who could be held responsible for the acts. In addition to the above, the story which was told in court by P.W. 3 appears not true in context of her initial statement under section 164 Cr.P.C. to which attention was drawn to some of the important facts which indicate that it was altogether an improbable story, which was being propounded by P.w. 3 during trial. Her initial statement under section 164 Cr.P.C. as also her admission during the course of trial indicate as if she had attempted to run away from her house only in order to marry a person whom she liked and as such went to the house of one 5 of her own relatives and stayed with appellant Laxminia Devi. If this could be the inference which could be coming out from the evidence of P.W. 3 and other material evidence, then the charge under which the two appellants have been convicted, could never be sustained, as a result of which their conviction for those particular charges is hereby set aside. 7. As regards conviction of appellant Bhola Das under section 376, I have already extracted with reference to the evidence of P.W. 3 given in court as also with reference to her statement under section 164 Cr.P.C. that it was altogether a new story and she had admitted in paragraph 3 of her cross examination that she had never stated before the magistrate that she was raped by appellant Bhola Das. In that view, conviction of appellant Bhola Das under section 376 IPC fails and accordingly, is set aside. The sentence passed upon the two appellants is also set aside. 8. The appeal succeeds in the terms as indicated above. Appellant Laxminia Devi is on bail. She shall be discharged from the liabilities of her bail bonds. As regards appellant Bhola Das, he is in custody. He shall be released forthwith if not wanted in any other case. (Dharnidhar Jha, J.) Patna High Court, The 11th July, 2011 NAFR/Anil/