CRIMINAL APPEAL (SJ) NO.330 OF 2007 Against the judgment of conviction dated 14.12.2006 and order of sentence dated 15.12.2006 passed by Additional Sessions Judge, Fast Track Court-V, Aurangabad in Sessions Trial No.135 of 2005/43 of 2005. ARVIND KUMAR @ ARVIND PASWAN.... APPELLANT VERSUS STATE OF BIHAR .... RESPONDENT With CRIMINAL APPEAL (SJ) NO. 164 OF 2007 SANOJ KUMAR.... .... APPELLANT VERSUS STATE OF BIHAR.... .... RESPONDENT For the Appellants : S/Sri Om Prakash Upadhyay Mithilesh Kumar Upadhyaya, Advocates. (In Both the Appeals.) For the Respondent : Sri Ajay Mishra, A.P.P. For the State: - S/Sri Ajay Kumar Thakur & Kamalendra Prasad Singh, Advocates. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J The two appeals arise out of the judgment of conviction passed by the Presiding Officer of Fast Track Court-V, Aurangabad in Sessions Trial No.135 of 2005/43 of 2005 by which the appellants were held guilty of committing offences under Sections 366A, 120B and 376 IPC and after being 2 heard on sentence on 15.12.2006, the two appellants were directed to suffer rigorous imprisonment for ten years as also to pay a fine of Rs.5,000/-, else to suffer simple imprisonment for two and half years on each of the three counts they were held guilty of. 2. The written report filed by P.W.4 was the basis of the prosecution. It was alleged that the two appellants had kidnapped the sister of the informant Sangeeta Kumari. It was stated by P.W.4 that at about 4 A.M. his sister went out to attend to the call of nature, but did not come back and in spite of making a hectic search for the lady, nothing came out of it. After 2-3 days of the disappearance of the lady, the informant found out that the two appellants were also not in their respective houses and inferred on that account the appellants along with one Bijendra Prasad had kidnapped his sister and taken her away. He further stated that he came to learn that his sister had been kept at the house of one Ramnath Paswan at village-Badarpur and from which she was shifted to other places but could not exactly know as to where the lady had been confined by the appellants and others. 3. On the basis of Ext-1, the FIR of the 3 case was drawn up and the investigation was carried out which ultimately culminated into the impugned judgment. 4. The defence of the appellants appears very straightforward, from the perusal of the cross-examination part of evidence of P.W.5, the prosecutrix. The defence appears pointing out that it was a free flight of the lady out of her own free will on account of infatuation the lady was carrying in her heart for Sanoj Kumar and they, after living at a couple of places initially, like, at Badarpur and Gaya, finally reached Bombay where they lived in together for two months and any act which was being categorized or alleged to be an act of rape was simply a consented intercourse not amounting to the said offence. 5. Six witnesses appear examined during the course of the trial in support of the charges. P.W.1 Mamta Devi was the wife of the informant Ravindra Prasad and she was also making the same statement which was made by her husband P.W.4 that the victim Sangeeta Kumari disappeared from the house in the wee hours on 06.03.2004, not to be traced again unless she was found in Aurangabad after more than two months of her disappearance. Both the witnesses stated that it were the 4 appellants and the third accused Bijendra Kumar who had taken the lady away. P.W.2 Parvati Devi was the mother of the prosecutrix and she had also stated the same facts as was stated by P.Ws.1 and 4. P.W.3 Mohan Chauhan is a co-villager and probably a neighbour of P.W.4 and has stated that the police came to his village on 03.06.2004 and asked him to lead them to the house of appellant Arvind Kumar @ Arvind Paswan and, accordingly, he accompanied the police party up to the house of the said appellant and found that it was vacant. But the doors were opened by the mother of appellant Arvind Kumar in the night and the police who carried out some paper work there noted down the name of P.W.3. This witness P.W.3 was declared hostile as he was not supporting any material part of the occurrence and as such in cross-examination in paragraph-5 was pointing out many facts which this court has difficulty in accepting as admissible evidence as the statements made in paragraph-5 may tantamount to opinion of that particular witness when the witness was stating that the lady was carrying on illicit relationship with many persons in the village and as such she had run away from her parents’ house. P.W.5 is the prosecutrix herself and because I am to discuss her evidence and 5 propose to record my findings on that basis, I could be discussing it a bit later. 6. P.W.6 is the doctor, Nandani Kumari, who had examined the prosecutrix on 04.08.2004 and had issued her medical report Ext-3/1 and had also at the same time tendered in evidence the medico legal opinion as regards the assessment of age of the prosecutrix by Dr.Bina Bhatiya(not examined)through Ext-3. As per the evidence of P.W.6 the prosecutrix was habituated to sex as vagina admitted two fingers easily and the hymen was bearing old ruptures. She did not find any injury and was of the opinion that the lady had been produced and examined by her after many days of her return from her alleged captivity. There could be some chances that she has taken bath and washed herself. However, on the basis of the medico legal opinion after carrying out the ossification test P.W.6 was of the opinion that the prosecutrix Sangeeta Kumari was aged in between 18-20 years. 7. Now, coming to the evidence of P.W.5 after having supported the initial story as contained in the written report she stated that after being kidnapped she was brought to village- Badarpur and was kept there by the appellants at the residents of one of their relatives and from 6 there the prosecutrix was brought to Gaya. In cross-examination paragraphs-18, 19 and onwards the lady has stated that for taking the lady away the appellants had used a jeep and she was taken from Badarpur to Gaya also by the same jeep. While being confined in the house of the relatives of the appellants, the lady resided for a couple of days and during those nights she had spent there, she was eating, sleeping and living with the ladies of that particular household. The defence has put some very direct questions to the lady as to whether she indicated to any of the lady that she had been forcibly taken away and had been confined by the appellants in that particular house. While deposing initially and being cross-examined on the initial facts which were stated in paragraph-1 of her deposition, the lady does not appear stating that she was sexually assaulted by the appellants in particular house at Badarpur and that was the reason that the prosecutrix was recalled for re- examination by the prosecution as may appear from paragraph-43 onwards. During that re-examination she was leveling the allegation that while being confined in the above noted house at Badarpur, both the appellants had ravished her by turn. When this court contrasted the two statements of P.W.5 which 7 are contained in paragraphs-1 and onwards as regards her confinement at village-Badarpur and those appearing subsequently in paragraphs-43 and onwards, the court can simply not accepting the evidence of P.W.5 when she was stating that the appellants had committed rape upon her by taking turn. The simple reason is that the lady had very categorically stated that while staying in that particular house, she lived with the ladies as also slept with them. This is the most glaring improbability in the evidence of P.W.5 as regards the commission of rape upon her. 8. There is no dispute, because the appellants also do not challenge the evidence of P.W.5, that she was not kept at village-Badarpur and that she was not removed from there to be brought to Gaya from where appellant Sanoj Kumar and the prosecutrix P.W.5 took a train to Bombay. There is no whisper in the initial evidence of P.W.5 right from paragraph-1 to 42 that any stupefying substance was administered by the appellants for rendering the prosecutrix unconscious, she appears travelling in the train and she has stated at the relevant part of her cross-examination that the bogey was being occupied by other co-passengers. She was cross-examined in 8 paragraph-7 and onwards when has stated that she was working in the house of a particular man in Bombay. The couple was well off and the land lady was very free in interaction with her. Questions were put to the lady very directly as to whether she had complained to the land lady of the house in Bombay about the acts of the appellants and the lady was replying that she had not. It has been admitted by her that she was probably running the kitchen of the house and she was cooking meals, etc as she was spending her days and nights with appellant Sanoj Kumar while residing in a particular house in Bombay, probably that was the house which was part of the house of that particular man in whose house hold P.W.5 was working as a domestic help. That simply appears incompatible with the ordinary human conduct of P.W.5 that he had forcibly been taken away from her parents’ house as appears to be made out by her brothers and herself. It was accepted as to how she had been brought to Bombay and confined by appellant Sanoj Kumar. These circumstances simply give sufficient reasons to reject that part of the prosecution story that the lady was forcibly taken away. 9. The doctor P.W.6, has stated that the 9 lady was aged in between 18 and 20 years. There is no challenge to that evidence of P.W.6 by the prosecution nor the prosecution produced any clinching material during the trial of the case so as to rebutting the age assessed by the doctor to point out that she could be less than 18 years of age on the date of occurrence. It is admitted by P.W.5 in paragraph-31 that she lived in Bombay for about two months and her evidence points out that she was willingly travelling with appellant Sanoj Kumar from Gaya to Bombay. There is no element of ‘enticing away’ or ‘taking away’. She appears a willing party who was moving out of her parents’ house so as to accompanying the appellant Sanoj Kumar in going to various places. As such the conviction of the appellants under Section 366A IPC appears not sustainable. 10. If the main act of committing the kidnapping under the conspiracy hatched by the appellants fails then the conspiracy could never be established because the ingredients are of doing an illegal act by legal means or a legal act by illegal means and that too after having decided to indulge into commission of the act. If the act which is said to be illegal, appears not established by evidence then the ingredients of 10 commission of an offence as a result of conspiracy hatched by two or more than two persons disappears and as such appellants’ conviction under Section 120B IPC may also not be sustained. 11. I have noted earlier that the evidence of P.W.5 was not containing any statement that she was forcibly raped while she was living with the appellant or appellants either at Badarpur or in Bombay. The fact was brought on record for the first time by re-examining the lady on 01.02.2006 which evidence started from paragraph-43 onwards. I have already pointed out the circumstances under which the lady was living with the appellant. I have also pointed out some of the circumstances as to how the couple was spending their days in Bombay. P.W.5 was working as a domestic help in some businessman’s house. P.W.5 stated that while she was being taken from Badardpur to Gaya by a jeep she was passing through many villages and towns. She was also coming across police stations but she was not complaining or raising any alarms. Likewise she was travelling in the compartment of the train and was in the accompany of fellow passengers. She was again not complaining to any one. While working in Bombay as a domestic help in the house of a businessmen and being so free with 11 the landlady, she was not complaining to her as well as to how she had been kidnapped to be brought to Bombay. She lived there for two months and she stated that appellant Sanoj Kumar used to leave the house at 10 A.M. to come back at around 4 P.M. But, she never complained to any person in the neighbourhood about any act of the appellant rather she appears enjoying the life and sharing the hardship of it with appellant Sanoj Kumar. This could be probably indicating the deep bond of affection the lady was carrying for appellant Sanoj Kumar which could have been only catalysed allowing the access by appellant to Sanoj Kumar to her physique. The act was consented and consensuous and, as such, anathema to rape, considering which the finding of guilt recorded against appellants of committing offence under Section 376 IPC specially against Sanoj Kumar appears not sustainable. Appellant Arvind Kumar @ Arvind Paswan simply appears roped in the case. The lady had been raped by Sanoj Kumar also. I have already pointed out that there was quite absence of basic allegations in the examination-in-chief and subsequent evidence of P.W.5 and this was the reason that the defence was drawing the attention of P.W.5 in paragraph-32 to suggest to her that she had never alleged 12 commission of rape by either of the two appellants upon her either before the police or before the Magistrate. Non-examination of the police appears detrimental to the defence also and this could be the additional reason to set aside the judgment of conviction and the sentence passed upon the two appellants. 12. In the result, the two appeals are allowed in the above terms. Appellant Sanoj Kumar is on bail. He shall be discharged from the liabilities of his bail bonds. Appellant Arvind Kumar @ Arvind Paswan is in jail. He shall be released forthwith, if not wanted in any other case. Patna High Court, Dated, the 8th day of September, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)