Criminal Appeal (SJ) No.299 of 2007 Against the judgment of conviction dated 15.01.2007 and order of sentence dated 17.01.2007 passed by Additional Sessions Judge-IX, Patna in Sessions Trial No.947 of 2005. BIRU MAHTO.... .... APPELLANT VERSUS STATE OF BIHAR.... .... RESPONDENT For the Appellant: Sri Rajeev Ranjan Sinha, Advocate. For the Respondent: Sri Ajay Mishra, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The solitary appellant was charged with committing offences under Sections 366A and 376 IPC by the learned Additional Sessions Judge-IX, Patna for being put on trial in Sessions Trial No.947 of 2005 and by judgment dated 15.01.2007 was held guilty of committing those offences. After being heard under Section 235 Cr.P.C. the appellant was directed to suffer rigorous imprisonment for seven years as also to pay a fine of Rs.2,000/-, else to suffer rigorous imprisonment for one year under Section 366A IPC. Besides, the appellant was to undergo rigorous imprisonment for ten years and was also to pay a fine of Rs.5,000/-, else to suffer further period of rigorous imprisonment for one and half years for his conviction under Section 376 IPC. The appellant has preferred the 2 present appeal to challenge the judgment of conviction and order of sentence. 2. For an occurrence dated 08.12.2004, the fardbeyan of P.W.5 Parwati Devi was recorded by the police in Kankarbagh area of Patna on 15.12.2004 at 7 P.M. in which it was stated by the informant that her daughter Neela Kumari went to bring some sweets from a sweet shop but did not return. In spite of search no trace of the victim could be found. Lastly, it appears that the lady came to know that because her daughter was on very friendly terms with the present appellant and the appellant was also infatuated for the lady it could be the present appellant who could have either taken or enticed away her daughter. The informant came to the house of the present appellant in order to making an enquiry from him about his daughter but the present appellant stated that his daughter had gone back long ago after having purchased the sweets. The informant went to the proprietor of the sweet meat shop who was certain Upadhaya Jee who also stated that her daughter had gone back after having purchased the sweet and having received the balance amount. The informant found that the present appellant had gone traceless and, as such, she started making enquiries about the present appellant from that particular Upadhaya Jee also, but he simply did not give any lead to the informant and on account of the fact that the appellant 3 was suspected to have put some greedy eyes upon the daughter of the informant, she inferred that it could be the present appellant who could have taken her daughter away. 3. On the basis of the fardbeyan(Ext-1)of P.W.5, the FIR(Ext-3)was drawn up and investigation was undertaken by P.W.6 who recorded the statement of victim and, lastly, on 17.12.2006 could get some clues indicating as if the victim and one Sonu Kumar had been seen in the slums in the backyard of Panchmandir area of Kankarbagh and accordingly, P.W.6 went there. He found the said Sonu Kumar and the victim Neela Kumari sitting comfortably in the backyard of a Jhopari. Seeing the police, Sonu Kumar attempted to run away but he was captured and arrested. The victim was also taken into custody by the police and was brought to the police station on 17.12.2004 and was produced before P.W.7 Dr. Shivani Mukherjee for her medical examination and also for the assessment of her age. The doctor did not find any external or internal injury on the person of the victim and further found that her hymen was ruptured. The Radiological reports indicated as if the lady could be aged somewhere in between 14 to 16 years as appears stated by P.W.7. 4. After her medical examination, the victim was produced before a Judicial Magistrate for recording her statement under Section 164 Cr.P.C and that was recorded 4 on 22.12.2004 as may appear from Ext-4, the original record of the statement of the victim under Section 164 Cr.P.C. After finding material sufficient the police submitted chargesheet sending the appellant up for his trial which ended in the impugned judgment. 5. Contention was that there was a belated report about a serious offence of taking or enticing away the victim as also subjecting her to sexual intercourse. The contention further was that in spite of being recovered on 17.12.2004, the lady was being kept at the police station as may appear from the evidence of P.W.5 when she stated that her daughter remained at the police for five days and thereafter she received the custody of her daughter. It was contended that the police was in fact tutoring the lady to make statement implicating the appellant. Contention further was that the evidence of P.W.6 in paragraph-5 indicates that he found the victim and co- accused Sonu Kumar sitting comfortably in the backyard of a Jhopari in the slum area near Panchmandir and that indicated that the lady was a willing companion not only of Sonu Kumar but all concerned. It was lastly contended that it appears that the lady for any particular reason, may be due to her liking for the appellant on account of her own distracted behaviour could have run away from her mother’s house with anybody and the police had implicated the appellant falsely. 5 6. Sri Ajay Mishra, the learned A.P.P. has also submitted by referring to the evidence on record that it does not appear a case in which the conviction of the appellant should have been recorded. The learned trial Judge appears not reading the evidence correctly and as such he appears falling in error of judging the facts so as to passing the erroneous judgment. 7. The evidence of P.W.3 is so consistently silent as regards her own conduct in disappearing from the shop where she had gone to purchase the sweets that it raises a very strong suspicion that the allegations which were slapped upon the appellant could genuinely be acceptable. The lady has stated that her brother-in-law (Bahnoi) had come to her house and it was in order to entertaining him that sweets were required to be offered to him in courtesy. She went to the shop for fetching the sweets but as the evidence indicates, she disappeared from the shop of one Upadhyaya Jee. The shop as may appear from the evidence of P.Ws.3 and 5 besides that of P.W.6 in paragraph-3, was located at a very busy place which was surrounded by many public places, like, a school and other shops of similar nature. There was a pucca road in front of the shop of Upadhyaya Jee and just opposite to the shop of Upadhyaya Jee, there was a petrol pump. This could probably indicate as to how busy the place would be from where the lady is said to be picked up and taken away. The 6 lady P.W.3 stated in her evidence that she was picked up by the three accused, namely, Upadhyaya Jee, the present appellant and the third co-accused Sonu Kumar and was put into a Maruti van and was taken to a secluded place where she was kept for seven days in a room in utter confinement. As may appear from her evidence that while she was being picked up or when she was being put into the Maruti van, she was maintaining a complete silence and she was neither raising a cry nor any alarm nor she was shouting for help and was probably a curious onlooker to her plight as appears from her evidence. She stated that it took her one hour to reach the secluded place but again she does not state that she ever raised any voice of dissent or resisted the act of the accused persons right from the stage of being picked up to the period of seven days of confinement in that particular room. The conduct of P.W.3 appears curious and that curious conduct in the light of the evidence and her silence throughout raises some sort of belief in my mind as if the lady was probably conniving with the accused persons in being picked up and being transferred to in that particular secluded room. This further appears probable when she stated in paragraph-3 that after seven days of her confinement she was picked up by the said Upadhyaya Jee to be brought to the same area from where she was picked up and to be put into custody of the present appellant and the co-accused 7 Sonu Kumar in whose company the police had found her in the backyard of a Jhopari. The evidence of P.W.6, the Investigating Officer in paragraph-5 indicates as if the lady was not aware or even concerned as to what could be the state of her mother on account of P.W.3 going traceless rather she appears enjoying the company of Sonu Kumar as both of them were found sitting together at another secluded place. 8. P.W.7 Dr. Shivani Mukherjee and the Radiologist who carried out the ossification test were of the opinion that P.W.3 could be aged in between 14 and 16 years. Jayamala Vrs. State of Jammu & Kashmir reported in AIR 1982 SC 1297 says that the age which could be determined by a doctor shall have to be calculated by adding two years to it. Thus, the lady could be somewhere around 18 years of age and her very conduct which I have noted presently, indicated as if she were quite a willing party in disappearing from the sweet meat shop into the company of persons known or unknown and further that her stony silence throughout was suggestive of the fact that all acts in which she had indulged could be consenting in nature. As such, both the offences under Sections 366A and 376 IPC could not be said to be constituted or established. 9. In the result, the appeal succeeds. The appellant is acquitted of the charges for which he had 8 been convicted. The sentence passed upon the appellant is also set aside. The appellant is in custody. He shall be released forthwith, if not wanted in any other case. Patna High Court, Dated, the 13th day of September, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)