Criminal Appeal (SJ) No.362 of 1998 **** Against the judgment, dated 28.07.1998, passed by Shri Arbind Srivastava, Additional Sessions Judge, IV, Bhojpur at Arrah, in S. Tr. No. 222 of 1991 **** 1. Ved Prakash Singh, son of Shri Rajendra Prasad Singh 2. Rajendra Singh @ Rajendra Prasad Singh, sonof late Ram Chabila Singh, both residents of village Dumariya, P.S. Tarari, district Bhojpur .. Appellants Versus The State Of Bihar .. Respondent **** For the Appellants .. M/S Vikramdeo Singh and Manoj Kumar, Advs. For the Respondent .. Mr. Parmeshwar Mehta, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and the State. 2. The appellant no. 1 has been convicted under Section 364 of the Penal Code and sentenced to undergo rigorous imprisonment for ten years with a five of Rs.10,000/- and in case of non-payment of fine to undergo further imprisonment for six months. He has, further, been convicted under Section 498A of the Penal Code and sentenced to undergo rigorous imprisonment for four years with a fine of Rs.2,000/- and for non-payment of fine to undergo rigorous imprisonment for two 2 moths. He has, further, been convicted under Section 3 of the Dowry Prohibition Act and sentenced to undergo rigorous imprisonment for five years and to pay a five of Rs.15,000/- and in case of non-payment of payment of fine to undergo rigorous imprisonment for six months and has, further, been convicted under Section 4 of the Dowry Prohibition Act and sentenced to undergo rigorous imprisonment for one year with a fine of Rs.5,000/- and for non-payment of fine to undergo rigorous imprisonment for three months. The appellant no. 2, however, convicted under Sections 498A of the Penal Code and 4 of the Dowry Prohibition Act, but, taking into consideration his age, 65 years, has been released on Probation of Offenders Act on executing a bond of Rs.5,000/- for keeping peace and good behaviour for two years and shall appear in Court as and when required to face the case. 3. The Penal Code is that appellant no. 3 was married with Meera Devi, the daughter of the informant, Ramshakal Singh, P.W. 4. The marriage of Meerage Devi was solemnized with appellant no. 1, Ved Prakash Singh, in the year 1985, on 21st May, 1985. The informant called his daughter from sasural in July, 1985. It is alleged that the victim Meera Devi was called for the reason that the appellant no. 1 and his parents used to subject her to cruelty and threatened to kill her. On 04.09.1989 at about 08.00 a.m. appellant no. 1 came and disclosed that his mother found sitting in Udwantnagar Bus Stand and was being taken to Patna for treatment and she requested to send Meera Devi, along with appellant no. 1. The informant sent the victim, Meera Devi, along with his brother, Bhikhari Singh, P.W. 1, and his son, Anil Singh, P.W. 2. 3 They found Ved Prakash Singh sitting along with his mother and they also said that they want to take the victim to Patna. In the meantime, the bus from Sasaram to Patna reached there and all the three persons sat on the bus and went to Patna. On 07.09.1989, in afternoon, at about 03.00 p.m. appellant came and informed that the victim has been lost from Veena Cinema Hall and could not be traced. He has reported the matter to Kotwali Police Station on 08.09.1989. The prosecution party, however, brought that the conduct of the accused persons was doubtful and they always used to demand dowry and they did not take the victim on vidai since 1985 till the date of occurrence and, hence, they must have taken the victim with intention to kill or to sell with some antisocial elements. 4. On the fardbeyan the first information report lodge and after investigation the charge sheet submitted. 5. During the trial seven witnesses have been examined by the prosecution. P.W. 1, Bhikhari Singh, is the uncle, P.W. 2, Anil Singh, is the brother, P.W. 3, Basanti Devi, is the mother, P.W. 4, Ramsakal Singh is the father, P.W. 5 is Shanker Dayal Singh, a co- villager, P.W. 6 is a villager of the victim and they have supported the prosecution case that the marriage solemnized in the year 1985 and there was demand of motor cycle and television in the year 1988 and, thereafter, on the date of occurrence, i.e., 04.09.1989, they came, took the victim in the pretext of treatment and the witnesses P.Ws. 1 and 4 took her to the Bus Stand got them seated on the bus of Patna. 4 6. The defence of the accused persons is that the victim was not having a fit condition of mind and she lost from the Veena Cinema Hall at Patna and they immediately reported the matter to the Police Station. 7. The investigating officer in the evidence stated that during the investigation he did not investigate regarding the bus in which the victim was taken to Patna and he did not talk with the driver, cleaner or any staff of the bus and he did not enquire Ved Prakash Singh and his mother on the date of occurrence. He did not go away to any other place. However, he stated that during investigation he perused the Station Diary Entry no. 2114, dated 05.09.1989 in Kotwali Police Station and he has kept it, which has been marked as Exhibit ‘A’ and he enquired and investigated about Meera Devi being a lady of mentally retarded and recorded the statement of the witnesses and also investigated that the mother of appellant, Ved Prakash Singh, married and was treated at Kanke. 8. The learned Court of Additional Sessions Judge, Bhojpur at Arrah, after considering the evidence of the witnesses that the marriage of Meera Devi was solemnized in 1985 and Meera Devi remained in maike till 04.08.1989, itself, indicates and comes under the definition of cruelty and held that she was subjected to cruelty for demand of motorcycle. The trial Court, further, held that since there is evidence that the appellant came and took the victim in the pretext for taking her to Patna for her treatment and his mother is waiting at the Bus 5 Stand, hence, it comes under the definition of abduction by deceitful means and, hence, convicted and sentenced, as mentioned above. 9. The learned counsel for the appellants, however, contends that there is no evidence that any force was used for taking the victim and the uncle of the victim went to Bus Stand and found the accused-husband with his mother there. Only evidence is that the victim went with appellant no. 1 who was none else than the husband. There is allegation that there was demand and subjecting cruelty since 1985, but, there is no report to any authority or any person regarding the said demand and there is no allegation that the husband had taken the victim to sasural and, hence, the learned trial Court has convicted the appellants merely on suspicion, hence, the finding recorded by the learned lower Court suffers from conjuncture and surmises. 10. The learned counsel for the State, however, contends that that the witnesses have supported that the victim was taken on 04.09.1989 reported to have been missing on 04.09.1989, itself, from cinema hall. However, the informant, P.W. 4, sent the victim along with P.Ws. 1 and 2 and P.Ws. 1 and 2 went to the Bus Stand found the mother of the appellant and they get them seated in the bus and the bus moved for Patna and this is the only evidence against the appellants. Appellant no. 1 is the husband and the legal guardian of the victim. However, the trial Court while convicting the appellants held that the victim was taken to Patna in pretext of treatment as a deceitful means, however, there is no evidence or purpose for giving any inference that a deceit was perpetuated and merely because the victim was missing is not sufficient 6 to hold that the appellants practiced deceitful means, except the fact that the victim found missing on 04.09.1989, there is no material on record or there is no evidence to suggest that the deceit was practiced. The investigating officer also failed in duty to make the proper investigation as per his evidence he said that he did not enquiry about the bus in which the appellants has ride for Patna with the victim. He did knot investigate that whether Ved Prakash Singh on the date of occurrence went to Patna or any other place and, hence, whatever is there on record there is no evidence about the kidnapping or abduction, except the suspicion. 11. However, it is the cardinal principle of the criminal jurisprudence that the prosecution has to prove the case by cogent, reliable and unimpeachable evidence. There is great distance between may be proved and must be proved and this distance must be traveled by cogent, reliable, truthful and unimpeachable evidence. 12. However, having regard to the facts and circumstances, the victim was taken by appellant no. 1 who is none else than her husband and the victim lost from the cinema hall at Patna and the appellants reported the matter to Kotwali Police Station, which has been proved as Exhibit ‘A’ bearing Kotwali Station Diary Entry no. 2114, dated 05.09.1989, is apparent from the evidence of the investigating officer and the investigating officer also perused the same. By the fardbeyan also the appellant informed on 07.09.1989 about the missing of the victim shows his bona fide and nothing has been found during investigation against the appellants of any ill motive or any act of commission or omission regarding the kidnapping or any motive against 7 the appellants and merely because the victim remained in maike without any evidence of subjecting cruelty the husband can not be fastened the liability for offence under Section 498A of the Penal Code. More over, it is alleged that there was demand from 1985 to 1989, but, the matter about the demand of dowry or subjecting to cruelty not reported before any authority or before any person and, hence, the order of conviction and sentenced passed based on material, which is only a suspicion and, hence, I find and hold that the prosecution has not been able to prove the charge beyond reasonable doubts. 13. Hence, the order of conviction and sentenced, recorded by the lower Court, is hereby set aside and the appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court, The 14th day of September, 2011, N.A.F.R., S.A.