IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (U/S) No.4 of 2011 YOGENDRA MALAKAR son of late Darogi Malakar, resident of Village Rasok, Police Station, Morkahi, District Khagaria … … Appellant Versus 1. THE STATE OF BIHAR 2. Narayan Malakar son of late Santoshi Malkar 3. Manish Malakar son of Narain Malakar 4. Dilip Malakar O.P. No. 2 and 3 are residents of Village Jamalpur, Police Station Gogri, District Khagaria, at present residents of Mohalla Kashipur, Police Station Samastipur Sadar, District Samastipur. O.P. No. 4 resident of Village Latti Pokhar Police Station Gopalpur, District Bhagalpur … … Respondents. For the Appellant: Shri Nazmul Hoda. ----------- 2. 1.3.2011 Heard Shri Najmul Hoda, learned counsel appearing on behalf of the appellant. The case relates to the alleged kidnapping of P.W. 3 Nikki Kumari alias Sunaina on 15.2.200 when P.W. 3 and the complainant of Complaint Case No. 1265 of 2000 were at the house of Gyani Malakar, who was the brother-in-law of the complainant, of Village Barari, in the district of Katihar. The allegation is that the respondents attempted to snatch P.W.3 from the custody of the complainant P.W. 4, because P.W. 3 was the solitary eye witness to the murder case of her father which was committed also allegedly by the same set of accused being respondents 2, 3 and 4 herein. The occurrence had allegedly taken place on 15.2.2000. The accused persons failed in getting P.W. 3 in their custody, but still continued holding out threats telephonically to the complainant, P.W. 4, and again they snatched an amount of Rs. 535/- and a wrist watch from the complainant on 11.7.2000. The complaint petition, thus, was 2 filed on 12.7.2000 for an occurrence which had taken place as far back as on 15.2.2000. There is virtually no explanation as to why the complainant was not approaching the Police Officer in spite of such a serious occurrence taking place and he continued with his stony silence for about four months when he came out with a complaint petition on 12.7.2000. What I find further from the impugned judgment is that in spite of the above frailties in the prosecution case, most devastating defect which the learned trial Judge was recording in his judgment in paragraph 15 was that the solitary eye witness to the murder trial who was the victim had not been examined in the enquiry under Section 202 Cr. P.C. An attempt was made to reconcile the above defect in the prosecution case by submitting that because she was the only witness so her examination could not have been material as was made out by the learned trial Judge. In the opinion of this Court, the crux did not lie there that P.W. 3 could be the material witness in such a complaint case and her examination during the inquiry may not be meaningful, but what this Court finds is that the principle of fair trial which has to be guaranteed to the accused has been violated or snatched by the prosecution. The defence was kept in complete dark as to what was the version which was coming out from the victim if she would have been produced before the learned Magistrate for recording her statement as to how she was attempted to be kidnapped by the accused persons. This is the 3 reason upon which I could say that the trial was vitiated, least to talk of charge being not proved. As I have noted down at some earlier part of the present judgment, the occurrence was occurring on 15.2.2000 and the complaint petition was being presented before the Chief Judicial Magistrate after about four months on 12.7.2000. In between what happened was never heard from the complainant nor any report appears made to the police of such a serious incident and, probably, after creating evidence the complainant filed the complaint petition after four months of the occurrence. My above view gets strengthened from P.W. 3 when she was stating in her cross-examination that she did not remember any date, time and any place of the occurrence of murder of her father because she was a little baby. If this was the truth coming out from the mouth of the victim then the submission that because she was a child.. She was precluded from being produced in the inquiry under Section 202 Cr. P.C. could not be accepted. These are the reasons upon which, I could hold that the judgment which was passed by the learned trial Judge was the only judgment which could have been passed and there appears no error in it. In view of the above, there is no merit in this appeal. It is dismissed. Kanth ( Dharnidhar Jha, J.)