Criminal Appeal (SJ) No.182 of 1997 Against the judgment and order of sentence dated 30. 06. 1997, passed by Shri Akhilesh Chandra, 1st Additional Sessions Judge, West Champaran, Bettiah, in Sessions Trial No. 258 of 1992/ 94 of 1995. = 1. Bindhabashani Prasad, son of Late Dwarika Prasad. 2. Shashi Bhushan Prasad alias Pintu, son of Bindhabashani Prasad. 3. Vidhya Bhushan Prasad alias Kangaru, son of Bindhabashani Prasad. All resident of Village- Ganj No. 2, Ladu Ram Gola, Police Station- Betia (Town), District- West Champaran. .... .... Appellants. Versus The State of Bihar .... .... Respondent. = For the Appellants : Mr. Suraj Narain Sinha, Senior Advocate. Mr. Rakesh Kumar Sinha, Advocate. Ms. Mira Kumari, Advocate. For the Respondent : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad,J. Heard learned counsel for the appellants and learned counsel for the State. 2. Appellant No. 1 has been convicted for offence under Section 384 I.P.C. and has been sentenced to undergo rigorous imprisonment for three years with fine of Rs. 10,000/- and in default to undergo rigorous imprisonment for one year. Appellant No. 2 and 3 have been convicted for offence under Section 363 I.P.C. with fine of Rs. 10,000/- and in default to undergo rigorous 2 imprisonment for one year and rigorous imprisonment for five years for offence under Section 496 I.P.C. Appellant No. 2 further convicted for offence under Section 385 I.P.C. and sentenced to undergo rigorous imprisonment for two years. However, all the sentences shall run concurrently. 3. The prosecution case as alleged by Priti Kumari, daughter of Ram Chandra Prasad that two accused persons Shashi Bhushan Prasad alias Pintu and Vidhya Bhushan Prasad used to chase her with ulterior motive and some days earlier when she was going to college then mother of Pintu who happens to be distant Mami in relation in Mohalla met her and told her father has become serious and went to Bus Stand to go to Patna and she has become ready to marry her with his son Pintu. The further case is that since she used to respect her as she is lady in Mohalla, therefore, she proceeded with her to see her father. Further case is that she took her to Officers Colony in a room and Bindhabashni Prasad was standing there outside the room and he closed her in a room. She became afraid and nervous. She found Pintu and Kangaru were inside in the room since before. The lady, mother of 3 Pintu tried requested to get some photograph with her son and begged her father will get her marry with him and when the informant denied then Bindhabashani Prasad pointed out pistol and threatened to kill her and her father then she got snaps with her son and even got several letters written. Thereafter, she came to her house and disclosed the fact to her father. She has further stated when her father learnt it, he lost temper and reported the matter to her maternal uncle and then her maternal uncle called Bindhabashani Prasad at his shop and enquired then Bindhabashani Prasad said that the matter is over and whatever is being done he will do. Ram Chandra Prasad may do anything he will neither give photographs nor negatives. He will return the photographs and negatives only on payment of Rs. 2,00,000/- and marriage of the informant will be solemnized with his son 4. However, F.I.R. was lodged on 19. 06. 1992, though, in the Fardbeyan, there is no mentioned about the date of alleged occurrence and it is only mentioned some date prior to the occurrence. On the Fardbeyan, F.I.R. was lodged. After investigation charge sheet was submitted under Section 384, 342 and 294 of the Indian Penal Code 4 and 27 of the Arms Act. Subsequently, supplementary charge sheet submitted under Section 366 of Indian Penal Code against all the accused persons. Cognizance taken and the case was committed to the Court of Sessions. However, after commitment, charge was framed under Sections 366, 384 and 294 as well as 342 of Indian Penal Code and 27 of the Arms Act against Bindhabashani Prasad. Further charge was framed against Madhu bharati, Shashi Bhushan Prasad alias Pintu and Vidhya Bhushan Prasad alias Kangaru for offence under Sections 366, 384 and 294 of the Indian Penal Code. 5. After submission of the charge sheet, six witnesses have been adduced on behalf of the prosecution. P.W. 1, Ram Chandra Prasad, P.W. 2, Baleshwar Prasad Gupta, P.W. 3, Govind Prasad Gupta, P.W. 4 Priti Kumari, P.W. 5, Ignisiyas Minz, I.O. and P.W. 6 Ashok Kumar Gupta. However, one witness was examined as court witness. 6. The defence has also adduced 10 witnesses as evidence. D.W. 1 Baidya Nath Prasad, D.W. 2, Jivendra Nath Jha, D.W.3 Madan Pandey, D.W. 4 Bimal Kumar, D.W. 5 Md. Rahmatullah, D.W.6 Anju Kumari, D.W. 7 5 Govind Prasad Gupta, D.W. 8 Udya Bhushan Gupta, D.W.9 Rajeev Ranjan Srivastava and D.W. 10 Jai Prakash Narayan. 7. Documentary evidence adduced Ext. 1 is Fardbeyan, Ext.2 F.I.R., Ext. 3 endorsement on Fardbeyan, Ext. 4 to 4/3 seizure lists, Ext. 5 photographs, Ext. 6, Admit card, Ext. 7 School Leaving Certificate and Ext. 8 Mark sheet. Documentary evidence adduced on behalf of defence Ext. A to A/7 some photographs, Ext. B to B/6 attendance register from the college showing absence of the informant, Ext. E series number of letters written by the informant, Ext. F is Expert Report , Ext. G negatives and Ext. H to H/30 large number of photographs. 8. After considering both oral and documentary evidence trial court convicted the appellants. However, acquitted Mami Madhu Bharati who led the victim to the room where photographs taken and letters were written against there is allegation that she leading to the victim at the place of occurrence which lead the occurrence. 9. While convicting the appellants learned lower court held “in the ordinary Hindu family the parent do not permit even their married son to have snaps in such a pose 6 with his record as Ext. 5 series, specially intimate the pair photographs mentioned earlier are ordinarily not possible to be taken in presence of the parents. In view of the above discussion, presence of Bindhabashani Prasad at this place of occurrence and his wife taking the informant from the road and bring to this place of occurrence become doubtful”. The lower court further held that “P.W. 1 Ram Chandra Prasad can not be a competent witness for alleged happening with his daughter because on the entire episode he is hearsay witness”. The lower court further held that all the prosecution witnesses have clearly denied that the informant and accused Shashi Bhushan Prasad had any affairs. The lower court held “that Ext. E series are letters of the informant addressed to accused Shashi Bhushan”. P.W. 4, D.W. 6 and 7 have denied writing of the letters Ext. E series which has been asserted by D.W. 3 on recall and D.W. 8 Vidhya Bhushan Prasad whose statement remained unchallenged and further writing of some of the letters compared with the admitted writing and signatures of the informant by D.W. 9, the expert, whose statement is worth acceptable and in his cross-examination there is nothing to rebut his assertion and has opined that there is 7 not option, but to hold that letters were written by the informant and from going through the letters, it is crystal clear that the informant developed love affairs with Shashi Bhushan Prasad alias Pintu, second son of Bindhabashani Prasad. Further in para 22 of his judgment learned lower court held that informant and Shashi Bhushan Prasad was in love and from the entire Ext. E series and further held that all these photographs indicates that there was some preparation for marriage of the informant and further held that victim was a minor girl under 18 years of age, fell into love with accused Shashi Bhushan Prasad, who taking undue advantage of the situation, even in a very planned manner allured and enticed the prosecutrix for going to a fixed place and there dominated upon her will, obtained some photographs with her, giving a view of pre and past marriage poses. Hence unsuccessful attempt made to marry with the prosecutrix against the wishes of her father and indirectly to succeed his property, hence acquitted Madhu Bharati and convicted Bindhabashani Prasad. 10. Learned counsel for the appellants however, contends that the prosecution case as alleged in Fafrbeyan that Madhu Bharati, the Mami of the victim informant led 8 her to place where snap taken and letter written on her persuasion but said Madhu Bharati acquitted and hence genesis of the case failed and further the allegation that snaps were taken and letters were written within two hours. But the photograph taken indicates that the photograph cannot be taken in such duress and 31 letters cannot be written in short span of time. 11. Learned counsel for the State however, supported the prosecution case proved. 12. However, five witnesses have been examined on behalf of the prosecution. However, P.W. 4 is the informant and in her statement has stated that in April 1992, on Monday at about 11 A.M. while she was going to college and reached at Sagar Pokhra then met with mother of Pintu who disclosed that father of informant was ill and is being taken to Patna and said that she will take her to Bus Stand then informant believe her and follow her and proceed for Bus Stand but informant was taken in a room where Bindhabashani Prassd standing there. He closed the room and wife of Bindhabashani Prasad persuaded her to get snap with her son Pintu. When she was not ready, then Bindhabashani Prasad threatened to kill her and her father 9 and then she got snaps out of fear and nervous. It is further stated that thereafter, several snaps in several poses were taken and even she was tease and pinch when she refused for snap or to write letters for blackmailing. However, in her cross-examination in para 22, she has stated that she proceeded on the date of occurrence at 11 A.M. from her house at that time her father and mother were in the house in good condition. However, it is strange that when she proceeded for college at 11 A.M. then her father was at home but on pretext of Madhu bharati that his father ill and going out, how she believed when her father was quite hale and hearty and hence the evidence of witness does not inspire confidence. She has further stated that when she returned her house she found her father in the house at 2.30 P.M. and she disclosed the occurrence to her mother and then to her father. She in her statement in para 29 said that she was kept in the room for two hours. She has further denied to have written 26 letters which have been produced by the defence. She further denied those letters written by her writing and do not identify the signature and writing and denied the suggestion that those letters in her writing. 10 13. Hence from the evidence of this witness, it is apparent that on the date of occurrence she proceeded from her house for college when her father and mother were in her house. However, she met in the way Madhu Bharati, the mother of Pintu who impressed that her father is ill and going to Patna by bus then she proceeded with Madhu Bharati the mother of Pintu while she was proceeding to college. The evidence of this witness does not inspire confidence when she has just proceeded from her house and her father and mother were in well condition in the house as per her own evidence then how she proceed with Madhu Bharati to place of occurrence on pretext of her father is ill and going to Patna and if this story of prosecution is disbelieve the whole genesis of prosecution story fails. However, P.W. 1, 2 and 3 are only hearsay witnesses and they have not witnesses of the occurrence. 14. However, to the contrary photographs adduced on behalf of the prosecution as well as adduced on behalf of the defence and 26 letters have been adduced which has been proved by the expert D.W. 9, though, the informant has denied that letters were written in her writing and the lower court has also found that evidence of 11 expert is worth acceptable as nothing in his cross- examination to rebut his assertion as he has no option, but to hold that letters were written by the informant. However, the victim herself denied to have written those letters during captivity in the room under duress. Hence, those letters bring on evidence disclose different story of the informant having in love with Shashi Bhushan Prasad alias Pintu and the photographs which has also adduced, suggest that photographs can not be taken under duress as alleged in the prosecution case, lower court has come to the finding that those photographs cannot have been taken before father and mother. Moreover, I perused the photographs Ext 5 and letters Ext. E series itself does not indicate that it was taken while the victim was under threat or duress and snap of those photographs does not suggest to have taken during the captivity of the victim in the room within two hours of captivity as alleged under duress. But the photographs and letters suggest something other than whatever alleged in the Fardbeyan or depose by the witness P.W. 4. However, accepting those letters and photographs that this photographs and letters were written otherwise than alleged then there was no question of 12 kidnapping of the victim for getting snap of photographs or letters written by threat of the victim It is apparent that it is a case of love affairs However, the prosecution story that victim taken by Madhu Bharati to room where photographs were taken and letters got written under duress failed the genesis of occurrence fail and hence the prosecution has not come with clean hand and suppress the material fact and the prosecution story itself about kidnapping and snapping photographs and getting letters written is falsified the allegation regarding demanding of Rs. 2,00,000/- fallen to ground in view of the fact that the letters were existing prior to the occurrence 15. Hence I find and hold that prosecution has not been able to establish the prosecution case as alleged and hence order of conviction and sentence recorded by the lower court is hereby set aside and the appeal is allowed. Patna High Court The 26th July, 2011. NAFR/m.p. ( Gopal Prasad, J.)