Criminal Appeal (SJ) No. 281 of 1996 Against the judgment and order dated 14th October, 1996 passed by Shri Awadhesh Kumar Verma, Ist Additional Sessions Judge, Aurangabad in Sessions Trial No. 135/92/9/94. ****** Ram Chandra Yadav, Son of Late Paltan Yadav, resident of village – Butai Bigha, Police Station – Ankorahi Gola, District – Rohtas. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. ****** With Criminal Appeal (SJ) No. 277 of 1996 Dulari Devi, wife of Nandkeshwar Singh, resident of village – Dehri, Police Station – Kutumba, District – Aurangabad. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. ****** For the Appellants : Mr. Manish Kumar No. 13, Amicus Curiae. Mrs. Vimala Kumari, Amicus Curiae. For the Respondents : Mr. Sujit Kumar Singh, A.P.P. ****** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Nobody appears on behalf of the appellants. Mr. Manish Kumar and Mrs. Vimala Kumari, Advocates, are appointed as amicus curiae to assist this Court in Cr. Appeal No. 281 of 1996 and Cr. Appeal No. 277 of 1996 respectively. 2. These two appeals are being heard together and disposed of by 2 the common judgment and order as both the appeals arise out of the common judgment and order dated 14th October, 1996 passed by Sri Awadhesh Kumar Verma, Ist Additional Sessions Judge, Aurangabad in Sessions Trial No. 135/92/9/1994 by which appellant Dulari Devi in Cr. Appeal No. 277 of 1996 has been convicted for the offence under Section 366/A of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and further convicted for the offence under Section 120B of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years. However, it was ordered that both the sentences shall run concurrently. Ram Chandra Yadav in Cr. Appeal No. 281 of 1996 is convicted for the offence under Section 368/366A of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years. 3. The prosecution case as alleged in the fardbeyan of the informant, Subadar Singh is that on 21.04.1992 at about 10 P.M. his daughter Madhu Kumari aged about ten years has been enticed away by his tractor driver Bihari Yadav. It is further alleged by Ganesh Singh that the driver of Subadar Singh brought the engine of the tractor and took away Madhu Kumari, the daughter of the informant and Niru Kumari the daughter of Nand Kishore Singh and then took the tractor to the school where the daughter of Nand Kishore got down and was succeeded in kidnapping and taking away his daughter. 3 4. On the fardbeyan of the informant the F.I.R. was lodged. After investigation the police submitted charge-sheet. Cognizance was taken and case was committed to the court of Sessions. After commitment the charge was framed against five accused persons, namely, Bihari Yadav, Ramchandra Yadav, Nandkeshwar Singh, Niru Kumari and Dulari Devi for offence under Section 366 A of the Indian Penal Code and 120 B of the Indian Penal Code and further the charge was framed for offence under Section 376 of the Indian Penal Code against Bihari Yadav. During the trial ten witnesses were examined on behalf of the prosecution and after considering the oral and documentary evidence the order of conviction and sentence recorded by the learned lower court as stated above. 5. As per the prosecution case in the fardbeyan the victim was alleged to be kidnapped by Bihari Yadav the driver of the informant and it is alleged that co-villager Ganesh Singh disclosed that the victim and the daughter of Nand Kishore was seen going on the tractor. However, the names of the appellants are not mentioned in the fardbeyan and they have been implicated during the investigation. 6. P.W. 4 the informant in her evidence has stated that on the date of occurrence she was at the house of her uncle. On that day in the evening Niru Kumari and his mother Dulari Devi said that they have to go to Amba to visit the Yagya and they asked the victim to follow 4 them. The victim denied. Then Niru Kumari disclosed that Bihari Yadav will come along with the engine of the tractor at the time the Tilak ceremony of his uncle will be going on. She has further stated that Niru Kumari came at the time and disclosed that Bihari Yadav has come along with engine of tractor then victim came along with Niru Kumari to the house of Niru Kumari. There Bihari Yadav came along with the engine of the tractor. Thereafter this witness with Niru Kumari and her mother Dulari Devi came out and saw the engine was there then Niru Kumari and P.W. 4 got over the engine and then the mother of Niru Kumari stated to Bihari Yadav that do not leave them alone. Thereafter the mother of Niru Kumari returned back. The tractor proceeded but at the school Niru Kumari got down from the tractor and Bihari Yadav took the victim to Amba. She has further stated that Bihari Yadav took her to Delhi and thereafter they returned, brought her to Parasthua, committed rape with her at Parasthua and then took her to his house. She has further stated that she disclosed about the kidnapping and rape with the sister-in-law (Bhabhi) of Bihari Yadav but she chided her and thereafter Bihari Yadav took her to her house and left them. She has further stated that Ram Chandra Yadav is the elder brother of Bihari Yadav and he used to chide her and told her not to disclose her correct name to any outsider and used to keep her in a room under lock. The police discovered her from the house of Bihari Yadav. 5 7. However, the attention of this witness has been drawn with regard to her earlier statement before police as well as her statement under Section 164 of the Cr.P.C. and though she has stated that she disclosed these facts to the police but her statement in 164 Cr.P.C. is otherwise than her evidence in court i.e. contradictory to her evidence in court. 8. However, P.W. 10 the I.O. in his evidence has stated that he raided the house of Bihari Yadav at 1:50 P.M. but he has not disclosed that who pointed the house of Bihari Yadav and he has not written the boundaries of the house of Bihari. The attention of the I.O. has been drawn and he has stated in para 61 of the deposition that the victim has not disclosed that Ram Chandra Yadav used to keep her in a room under lock and key and in her statement under Section 164 of the Cr.P.C. also there is nothing to suggest about the hand of Ram Chandra Yadav and Dulari Devi either kidnapping. However, she has stated in her statement under Section 164 of the Cr.P.C. that Niru Kumari the daughter of Dulari Devi disclosed that her driver has come and then they sat on the tractor to visit the Yagya. There is no averment or any role attributed to Dulari Devi. In her further statement she has stated that when Bihari Yadav took her after taking to Delhi and Patna and after having been brought to his house she disclosed to the brother and sister-in-law of Bihari Yadav that Bihari Yadav has kidnapped her and 6 taken her then the brother of Bihari Yadav and the sister-in-law of Bihari Yadav chided Bihari Yadav and since then Bihari did not commit any rape on her and he left her and Bihari Yadav fled away the next day leaving her there. 9. Hence, the victim though has stated in her evidence about the role attributed to Dulari Devi and Ram Chandra Yadav but in her statement before police as well as before the Magistrate under Section 164 of the Cr.P.C. the evidence regarding the implication of Dulari Devi and Ram Chandra Yadav are found missing and hence the evidence of victim regarding implication of the appellants is in contradiction with her earlier statement before police and statement under Section 164 of the Cr.P.C. This part of the evidence about implication of the appellants has not been corroborated by the evidence of accused other witness or any other evidence and hence that part of the evidence does not inspire confidence to be relied upon. However, there is no evidence about the meeting of mind of the accused persons to infer the conspiracy for kidnapping and the evidence regarding the role of Dulari Devi as well as the role of Ram Chandra Yadav as per the evidence of the victim has not been corroborated by any other evidence rather found in contradiction to her evidence statement recorded by the police as well as her statement recorded under Section 164 of the Cr.P.C. and hence under the facts and circumstances the 7 appellants are entitled for benefit of doubt and hence I give the appellants benefit of doubt and hold that the prosecution has not proved the charge beyond reasonable doubt and hence the order of conviction and sentence recorded by the learned lower court against the appellants is hereby set aside and the appeal is allowed. 10. Mr. Manish Kumar and Mrs. Vimala Kumari, shall be supplied a copy of this judgment and they shall be entitled for the fee of hearing payable by Patna High Court Legal Aid Services Committee. (Gopal Prasad, J.) Patna High Court, Patna, Dated, the 21st July, 2011. N.A.F.R./Kundan.