Criminal Appeal (SJ) No. 305 of 2007 Against the judgment dated 14.2.2007 passed by Additional Sessions Judge, Fast Track Court, Banka in Sessions Trial No. 146/ 2005. Dilip Paswan, Son of Late Budhan Paswan, resident of village-Kathon, P.S., Rajoun, District Banka… …………………………………………Appellant Versus State of Bihar……………………………………………………………Respondent For the Appellant : Mr. Krishna Mohan, Advocate, Mr. Praveen Kumar, Advocate For the Respondent : Mr. Parmeshwar Mehta, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha, J. The present appeal arises out of the judgment dated 14.2.2007 passed by the learned Additional Sessions Judge, Fast Track Court, Banka in Sessions Trial No. 146 of 2005 by which the appellant Dilip Paswan was convicted for the offences under Sections 366A and 376 of the Indian Penal Code and by order passed on 23.2.2007, the appellant was directed to suffer rigorous imprisonment for 10 years and also to pay a fine of Rs. 5,000/- on each of the two counts. The substantive sentences were directed to run concurrently and there was no direction as to what was to happen in case the appellant failed to pay up fine. 2. The prosecution case is based on the typed report of Shaligram Shah (P.W. 2) presented before the Superintendent of Police, Banka on 30th of May 2003. After receiving the report the Superintendent of 2 Police, Banka directed the officer-in-charge, Rajaun police station to register a case and investigate the same. 3. It appears that on the day of the occurrence when the informant, his wife (not examined) victim Manju Kumari (P.W.3) and Krishna Kumari were lying in the Angan of the house, the present appellant along with co-accused Amrendra @ Arvind Paswan came there armed with a country made gun and lifted prosecutrix Manju Kumari (P.W.3) on gun point and took her away. The informant stated that he and his family members resisted the act of the appellant and other accused persons but they threatened them and their family members to be killed and further threatened that if they further proceed in the matter, they shall have to face serious consequences. The allegation was that the accused persons were criminals and a few days ago they had held out threats and in order to maligning their social prestige, they committed the occurrence on gun point. 4. The informant stated that he approached the local police station for lodging a report in respect of the occurrence, but he was driven away by the police officers who were not inclined to take steps for recovery of the girl and that was the reason for the delayed filing of the typed report. 5. On the basis of the said typed report and as per direction of the Superintendent of Police, Banka, Rajaun Police Station Case No. 54 of 2003 was registered under Section 366A of the Indian Penal Code and it was investigated into by A.S.I., Vijay Kumar (P.W.5) who stated in 3 his evidence that he made hectic search for the girl and recorded the statements of the witnesses and, lastly, could find out the girl on some secret information on 16.6.2003. He produced the girl before the Magistrate for getting her statement recorded under Section 164 Cr. P.C. and also, produced her before a Doctor for her medical examination and for assessing her age. Finding materials sufficient P.W. 5 submitted charge-sheet by sending up the present appellant for trial. 6. It appears that two accused who were named in the F.I.R. were separately sent up for trial. The trial of co-accused Amrendra @ Arvind Paswan was carried out by Fast Track Court No. –IV, Banka in Sessions Trial No. 164/2004 and on account of being convicted he had preferred Criminal Appeal (SJ) No. 1028 /2006 which appeal was also heard by me today itself and finally disposed of by acquitting the said convicted accused Amerendra @ Arvind Paswan. 7. The same set of witnesses have also come to support the prosecution charges in the present case and after considering the evidence of those witnesses, I find similar reasons for acquitting the present appellant, namely, Dilip Paswan. Some of the reasons which appear to me are that the lady was found aged 18-19 years by the Doctor who assessed her age and medically examined her. It is true that she was allegedly forcibly taken away at gun point as stated by the witnesses, but there is complete lack of evidence in spite of mere statement in the written report that some resistance was put to the 4 accused. It appears to me a case where either the lady was eloping herself with the accused persons or the parents were simply knowing it that it could have happened by their consent. The circumstances which I could identify out of the evidence is that as per the evidence of P.W. 3, the victim she was lifted at gun point and was taken to different places /village which was the maternal grand mother’s place of residence. The lady was neither raising any alarm nor was protesting, as may appear from her own evidence. She was taken to the Nani’s house of the appellant which appears completely unusual, as, if the grand son of an old lady had committed such serious offence of lifting an innocent lady so as to be taken away, then no saner women will approve of the act of her grand child. Not only that, the lady in spite of being kept in the house of Nani of the appellant, had all opportunity and occasions to inform the whole world by shouting out the story as to how, at the gun point, she was brought and confined in that house. But, she did not do that. The lady stated that she was, thereafter, shifted to Bhagalpur and was kept at different places in the township of Bhagalpur. The evidence of P.W. 5, the Investigating Officer has been discussed by the trial Court which is contained in paragraph 11 of the judgement indicating that the lady was recovered from a hut which was situated by the side of a railway level crossing. It may be noted that the very location of the hut may indicate that there could have been innumerable persons passing through that level crossing and if the lady had really been picked up and taken away at gun point then 5 she could have narrated her woes to all and sundry. But, she was not making any statement while living in the company of accused persons by the side of the railway track. The conduct of the lady appears unusual, besides being usual in terms that she was a willing partner in the act of elopement with the accuse persons. If this could be the view which I have taken on the evidence which appears reasonable then the very proof of the charge under Section 366A or 376 Indian Penal Code could not be upheld. 8. Above was the reason that the father of the victim was keeping silence for 19 days in spite of his daughter being lifted by criminals. Ordinary conduct of P.W 2, the informant of the case, would have been to go and unravel things to the police establishment by petitioning each and every authority as to how his daughter had been lifted by renowned criminals at gun point. But, he appears completely in deep slumber, probably, acquiescing with the accused in their acts. The reason which has been given by P.W. 2 for the delayed presentation of the report appears not acceptable specially when one of the officers of the police station to which he claims going for lodging a report, was very much in the dock and he could have put question to him that P.W. 2 had approached the police station and P.W. 5 or any other officer had driven him out of their place by refusing to register his case or even to record his statement. No question was put to the above effect to P.W. 5 and that further compounds the 19 days delay 6 and lends support to the view, I have taken on the informant acquiescing with the accused in their acts. 9. If these are the reasons flowing from the evidence, this appeal has also to be allowed and accordingly the same is allowed. The judgment of conviction and the order of sentenced passed upon the appellant are hereby set aside and the appellant is acquitted. The appellant is in custody. He shall be released, if not wanted in any other case. (Dharnidhar Jha, J.) Patna High Court, Patna dated 10th of August, 2011, Mkc / NAFR