Criminal Appeal (SJ) No.185 of 1996 **** Against the judgment and order, dated 07.08.1996, passed by Sri Madan Mohan Chaudhary, Additional Sessions Judge, I, Madhubani, in S. Tr. No. 64 of 1988/31 of 1992 **** 1. Devendra Prasad Mahto 2. Upendra Prasad Mahton, both sons of late Basudeo Mahto, resident of village Dip, Tole-Madhura, P.S. Madhepur, district Madhubani .. Appellanta Versus The State Of Bihar .. Respondent **** For the Appellant .. Mr. Chitranjan Sinha, Sr. Adv. with Mrs. Archana Minakshi, Adv. For the informant .. Mr. Manish Kr. No. 13, Adv. 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 the counsel for the appellants, the informant and the State. 2. The appellants have been convicted under Sections 366 and 376 of the Penal Code for three years and seven years respectively. 3. The prosecution case as alleged in the fardbeyan of the informant, Dularchandra Mahton, the father of the victim, on 15.02.1986 while he sleeping in his house with his wife and daughter, 2 in the night at 11.00 p.m. Upendra Prasad Mahto and Devendra Prasad Mahto came there and caught hold of her daughter, Budhani Devi, and started dragging her. On protest they were threatened to kill and both the appellants took away the victim. In the morning the informant disclosed about the occurrence to Ramnandan Mahto and Agari Mahto and the matter was reported in Panchayati, but, there was no decision in Panchayat so he reported the matter to the police on 17.02.1986. On the basis of the statement of the informant the first information report was lodged for offence under Sections 364 and 366 of the Penal Code. After lodging the first information report the investigation proceeded and after investigation the charge sheet was submitted for offence under Sections 452, 366 and 376/34 of the Penal Code, cognizance taken, case was committed to the Court of sessions and the charge was framed for offence under Sections 366 and 376 of the Penal Code. 4. During the trial six witnesses were examined on behalf of the prosecution, who are P.W. 1, Ramnandan Mahto, P.W. 2, Bindeshwar Mahto, P.W. 3, Budhani Devi, P.W. 4, Thakai Mahto, P.W. 5, Mahendra Mahto, and P.W. 6, Dularchandra Mahto, the informant. 5. The defence has also proved the documentary evidence, i.e., Exhibits ‘A’ and ‘B’, which are certified copy of the complaint petition and the statement of the complainant on solemn affirmation in the said case. 6. After considering the oral and documentary evidence the order of conviction and sentence, as stated above, was recorded against which this appeal is preferred. 3 7. The prosecution case as alleged in fardbeyan of the informant (P.W. 6) that he was sleeping with his daughter and wife then accused persons who are appellants came to the house at 11.00 p.m. and kidnapped or abducted his daughter (P.W. 3) and when he tried to shout he was threatened to kill. He narrated about kidnapping in the morning to the witnesses. In his evidence before Court this witness examined as P.W. 6. P.W. 6 has stated in his examination-in- chief that his daughter and wife were sleeping in a room and his wife disclosed him in the morning that accused persons have taken away his daughter and he did not see the occurrence from his own eyes. Hence, the P.W. 6, informant, given a go bye to the prosecution case to have seen the kidnapping of the victim, but, disclosed that he learnt from his wife in the morning and his evidence is hit by hear say. The wife has not come to depose as a witness and the evidence of P.Ws. 1, 2, 4 and 5 that in the morning P.W. 6, the informant, disclosed about kidnapping. Hence, when the informant is not an eye witness and he learnt from his wife then the evidence of P.Ws. 1, 2, 4 and 5 also hit by hearsay. However, this witness has,. Further, stated that marriage of his daughter taken place with brother-in-law (sala) of Maheshwar and occurrence took place after the said marriage. He has filed the case at the instance of Maheshwar. Hence, this witness in his evidence has given a complete go bye to prosecution case and his evidence is of no consequence for prosecution. 8. However, P.W. 3, the victim, in her evidence though has stated while she was sleeping along with her mother she was kidnapped by Upendra Mahto and Devendra Mahto and they took her 4 to Rahika and was kept in the house of Marlian and there is allegation that she was raped. She has, further, stated that she was shifted to Raxaul and there she was kept for two months and they used to rape and, thereafter, she managed to flee away from Raxaul and came to Mathura where her statement was recorded. However, in her cross examination she has stated that Lakhan Mahto is her husband and after 2-3 days of this case she got married and marriage was solemnized at her father’s place and she went to sasural on the next day and remained there along with her husband. This case has been instituted on 17.02.1986 and occurrence is dated 15.02.1986 and she says that after 2-3 days she got married and marriage was solemnized at her father’s place. This statement in the cross examination is contrary to the evidence in examination-in-chief where she stated that she was kidnapped and kept at Raxaul for 2-3 months and how it is possible for her that after 2-3 days of the occurrence she was married with Lakhan Mahto and the marriage was solemnized from the house of these appellants. However, she has also admitted that she has lodged the complaint case and alleged that in that case about the rape by Ram Nandan though she admitted that she has deposed before the Magistrate about the rape by Ramnandan. She is admitted to have filed a complaint case and deposed in which is Exhibit ‘B’. If this version is believed then the evidence of filing of the complaint case and her statement on solemn affirmation is quite contrary to the present case. In complaint case Exhibits ‘A’ and ‘B’ filed on 24.02.1986 alleging that Maheshwar and other kidnapped her on 09.02.1986 and kept her in room for 15 days. She managed to excape on 23.02.1986 and filed 5 complaint case and her statement recorded in said complaint on 24.02.1986. 9. However, it was stated that this case was filed at the instance of the informant. The appellants are sons of Basudeo and there is rivalry between Basudeo Mahto and Maheshwar with regard to a land, which has been purchased by Basudeo from one Raj Kumar and the same land was subsequently purchased by Maheshwar from Jai Narayan Pandey, the Pattedar of Raj Kumar and there is civil cases between Basudeo and Maheshwar as apparent from evidence of P.W. 3. 10. However, two cases, one police case by informant, the father of the victim in which son of Basudeo is accused and another case is filed by the victim in which Maheshwar along with the father of the victim are accused. However, victim P.W. 3 has stated that she had married with Lakhan, the brother-in-law (sala) of Maheshwar. It is suggested that the father of this victim is the labourer of Maheshwar. The informant and victim are being utilized by Basudeo and Maheshwar in their favour. 11. Hence taking into consideration the entire evidence the prosecution case in fardbeyan filed by the informant the father of victim is quite contrary to the complaint case filed by the victim, P.W. 3, which is Exhibits ‘A’ and ‘B’. The case in fardbeyan of this case is that occurrence took place on 15.02.1986 whereas the complaint case filed by the victim that she was kidnapped on 09.02.1986 and kept in a room and she managed to escape on 23rd February, 1986, to file a complaint and on complaint she gave her statement on oath on 24th February, 1986. If the version of complaint taken to be true then the 6 prosecution case of kidnapping on 15.02.1986 falls to ground. If the prosecution case of this case taken to be true then complaint case falls to ground as there is allegation that victim after kidnapping on 15.02.1986 was kept in captivity for two months. Hence, the evidence of the P.W. 3 is neither reliable nor trustworthy and the conviction recorded by the lower Court on evidence is not sustainable in eye of law as the prosecution has not been able to prove the charges beyond reasonable doubt. Hence, the order of conviction and sentence recorded by lower Court is set aside and the appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court, The 01st day of July, 2011, N.A.F.R. S.A.