CRIMINAL APPEAL No. 49 OF 1998 ( In the matter of an application under Section 374 (2) of the Code of Criminal Procedure against the judgment of conviction dated 27th January, 1998 and order of sentence dated 28th January, 1998 passed in Sessions Trial No. 316 of 1994/T. R. No. 357 of 1998 by Satya Deo Prasad, Additional District and Sessions Judge, Naughchai) ********** GANESH MANDAL, SON OF RAM DAS MANDAL, RESIDENT OF VILLAGE NAYATOLA NAUGACHIA, POLICE STATION NAUGHCHIA, DISTRICT BHAGALPUR …………… ……………… ………APPELLANT VERSUS STATE OF BIHAR …………………………………………………………..RESPONDENT ************ FOR THE APPELLANT :- MR. ARUN KUMAR TRIPATHI, AMICUS CURIAE FOR THE S T A T E :- MR. RAJENDRA NATH JHA, A.P.P. ************* P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan, J. This appeal is directed against the judgment of conviction dated 27.01.1998 and order of sentence dated 28.01.1998 passed by the Additional District and Sessions Judge, Naughchia in Sessions Trial No. 316 of 1998/T. R. No. 357 of 1998 by which the sole appellant has been convicted to - 2 - undergo rigorous imprisonment for ten years under Section 366 of the Indian Penal Code. This is one of those rare cases where the Trial Court has completely gone of the mark in passing the impugned order and judgment and as such has not taken the relevant evidence into consideration and only on the basis of his own perception of social and moral values, convicted the appellant. The prosecution case by the informant Upendra Kumar Sharma who is the father of the victim lady Sapna Devi is that his daughter who was married to one Hardeo Sharma, was sleeping in the house in the night of 11/12th October, 1991. Her husband, the father, the mother and other family members were also present in the house and were sleeping in the verandah whereas Sapna Devi was sleeping in her own room. It is said that she ran away and was seen running away with the appellant Ganesh Mandal by Ghanshyam Sharma, PW 2 and Parshuram Sharma, PW 4. The informant searched for his daughter and thereafter lodged the First Information Report on 13.10.1991. Altogether, six witnesses have been examined in this case on behalf of the prosecution. PW 1 is Nirmala Devi who is the mother of the victim lady. PW 2 Ghanshyam Sharma is the relation of the informant. PW 3 Upendra Sharma is the father of the victim lady and also the informant of this case. PW 4 Parshuram Sharma is a hostile witness. PW 5 Abhimanyu - 3 - Singh and PW 6 Raghu Raj Tiwary are the Investigating Officers of this case. The most relevant fact is that the victim lady Sapna Devi has not come forward before the Trial Court to examine herself as a witness to support the case that she was abducted by the appellant for the purpose of marriage. PW 3 Upendra Sharma who is the father of the victim lady and the informant of this case has stated in the examination-in-chief that “SAPNA DEVI BHAG GAYEE”. He also produced letters that his daughter was living in Uttar Pradesh. This witness has stated that her husband was present at the time when she ran away from the house and also has stated fairly that the son-in- law has re-married. The husband or the In-Law of Sapna Devi has never come to look for her. The evidence of this witness was taken on 22.08.1998 i.e. after seven years of the alleged occurrence which would indicate that the victim lady has not come back to her house and the matter was actually compromised between the parties i.e. the father of the victim lady and the appellant. For this purpose, Exhibit-B has been brought on record to show that the matter was compromised between the informant and the appellant. However, the Court has rejected the petition for compromise on the ground that the lady has not signed on it. Two affidavits have also been brought on record which relate to an affidavit filed on behalf of Ganesh Mandal, stating that he and Sapna Devi have got married. Infact, in this case all the witnesses have stated that - 4 - the lady had run away from her house rather than alleging that the lady was abducted by the appellant. The Investigating Officers who have conducted the investigation appear not to know much about the alleged occurrence. PW 2 claims that he had seen Sapna Devi with the appellant at 3 AM near the railway station. PW 2 happens to be closely related to the informant and it has been argued that it is most improbable that this witness will be near the railway station at 3 AM for the purpose of plucking flowers for puja. Normally, persons who perform puja in the morning do not commence to do so till 4-5 in the morning, so the presence of PW 2 at or around the railway station seems to be improbable. Abduction is defined under Section 362 of the Indian Penal Code and it envisages “that wherever by force compels, or by any deceitful means induces, any person to go from any place is said to have abduct that person.” In this case, the prosecution has completely failed to prove that any force was used or circumstances to show that deceitful means were utilized for abducting Sapna Devi. For making out an offence under Section 366 of the Indian Penal Code, there must be a finding of the Court that criminal intimidation or any other method of compulsion is used for kidnapping/abducted a person. The requirement is that there must be kidnapping or abduction. In the absence of such proof, it can not be held that - 5 - the ingredients of Section 366 of the Indian Penal Code are made out. In the present case, the evidence itself suggests that the lady left her house of her own free will and as such I find that the prosecution has failed to make out a case under Section 366 of the Indian Penal Code for the purpose of conviction of this appellant. In the result, this appeal is allowed and the judgment and sentence is set aside. The appellant is also discharged from the liabilities of the bail bonds furnished before the Trial Court in this case. ( Sheema Ali Khan, J. ) Patna High Court Dated, the 27th March, 2009 A.F.R./Anand