CRIMINAL APPEAL (SJ) NO.139 OF 2005 Against the judgment of conviction and order of sentence dated 25.01.2005 and 28.01.2005 passed by Additional Sessions Judge, Fast Track Court No.V, Sitamarhi in Sessions Trial No.479 of 2003/32 of 2003 arising out of G.R.Case No.21 of 2002. MD.MUNNA----------------------------Appellant Versus STATE OF BIHAR-------------------Respondent ----- For the appellant:- Sri Dinesh Jha, Advocate For the State:- Sri Ajay Mishra, A.P.P. P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J The present appeal is directed against the judgement and order of conviction dated 25.01.2005 by which the solitary appellant was found guilty of committing offence under Section 364 IPC. On hearing the appellant on sentence on 28.01.2005 the learned Presiding Officer of Fast Track Court No.V, Sitamarhi directed the appellant to suffer rigorous imprisonment for seven years and to pay a fine of Rs.1,000/- also and in case of default in making the payment of fine the appellant was to undergo simple imprisonment for two years. The appellant has questioned his conviction and the sentences passed upon him on that account. 2. The prosecution case is that the daughter of the informant (P.W.12), aged about four years and 2 playing on 23.01.2002 at a place in front of his house, went missing. In spite of hectic search, she could not be traced out. In the morning of 25.01.2002, the informant claimed to have learnt about the finding of a girl child by the police and further that the child was being kept at Tariyani police station. Accordingly, he went there and found his daughter, namely, Sunita Kumari aged four years and identified her. P.W.12 further found the man at the police station from whose custody the child had been recovered and who was allegedly taking away the child in a gunny bag for the purpose either of killing her or selling her. 3. On the report made by P.W.12, the case was instituted and investigation was taken up and after close of the same, the solitary appellant was sent up for trial which ended in the impugned judgment. 4. It was contended by Sri Dinesh Jha, learned counsel appearing for the appellant that there was no eye witness on taking away of the child and the witnesses except P.Ws.10 and 12 have all stated that on coming to know about the child having been recovered by the police and kept at Tariyani police station they went there and found the little girl sitting there. Accordingly, they identified her and also found the present appellant in the police lock up. P.W.10 Shankar Rai and P.W.11 Shivdeni Mandal are the only witnesses 3 who stated that they found a man carrying a gunny bag and on account of some movement in it, they suspected the man to carry something unusual in it. As such, they forced the man to untie the gunny bag and inside it was found a little girl. The man carrying the gunny bag, i.e., the present appellant was caught and the Chawkidar was informed and, accordingly, the appellant was handed over to him. Neither of the two witnesses, P.Ws.10 and 11 stated that they lodged any report. As regards other witnesses, like, P.Ws. 1, 2, 3, 4, 5 and 6 out of whom P.W.5 Banarsi Devi, was the mother of the child and P.W.6 her Mama. They stated that on having come to know about the child being recovered from the possession of a man and she being kept at the police station they went there to find her and, accordingly, identified her as the daughter of P.W.12. Some of the witnesses, like, P.Ws.4 and 7 stated in their respective para 5 and 6 that it appears to them as if the accused were insane but the witnesses, like, P.W.10 and others including the father of the child P.W.12 stated that the accused was behaving normally. So far as the evidence of P.Ws.1 and 2 Akhilesh Baitha and Kishore Baitha is concerned this court cannot consider the same inasmuch as their evidence was recorded by the trial Judge without appointing any counsel to defend the solitary appellant during the trial. As such, the 4 evidence of P.Ws. 1 and 2 appear inadmissible as no opportunity was rendered to the appellant to cross- examine the witness and as such that part of the trial appears completely vitiated. 5. As regards the evidence of other witnesses what I find from the record of the trial court is that the learned Judge could woke up all on a sudden on 19.12.2003 to identify his judicial duty of acting as per the recognize principles of administration of justice that no accused could go undefended and if he was not in a position to engage a counsel of his own choice on account of financial incapacity, then it was the duty of the court to engage a counsel on his behalf at the state expense. Accordingly, Sri Shyambihari Mahto, advocate was requested to act as a counsel for the appellant and he was, accordingly, appointed as may appear from the order passed by the trial court on 19.12.2003. On perusal of the evidence of witnesses, like, P.W.3 Nathuni Baitha and others who were cross- examined by Sri Mahto, it appears that it was quite competent a job discharge by the counsel appointed at the state expense and he cross-examined the witnesses with imagination and conducted the defence of the appellant with quite competence. 6. P.W.11 Shivdeni Mandal has supported P.W.10 by stating that a man was found carrying a gunny bag 5 and that some unusual movement in it raised a doubt in their minds that it might be containing some unusual things and accordingly the man was forced to untie the gunny bag and the girl child of four years was recovered from it. As regards the evidence of P.W.11 this court has some difficult in acting upon the evidence as the witness in paragraph-7 of his evidence stated that he had not made any statement at any point of time till he was deposing in the court below before the police. Thus, the evidence of P.W.11 appears inadmissible. The evidence of P.W.10 Shankar Rai does not appear suffering from any infirmity. He appears a witness who was telling a truth and who was withstanding while being cross-examined on all details of the occurrence. 7. Finding of the girl from the possession of the present appellant appears averred by the three Chawkidars who were examined as P.Ws.7, 8 and 9. There have some variances which do not appear material. Whereas, the witnesses show that the child was recovered from the possession of the appellant, P.W.9 Panchu Paswan would say that when he arrived at the village he found the appellant closet inside a room by the villagers in the house of Hari Prasad. The contention of the learned counsel was that the owner of the house, Hari Prasad, has not been examined. Thus, 6 leaving a gap in the proof of the fact. The prosecution case was that the man was taken after being arrested by the public directly to the police station. P.W.10 Shankar Rai said that after coming across the girl child being kept inside a gunny bag so as to be carried away, the man was detained by him and other villagers, and the Chawkidar was informed. This statement could necessary give out that the man must have been kept either by being confined or by simple detention at some place on the other. That part of the evidence to me, does not appear of much relevance. The relevance is that the present appellant was found with a gunny bag containing the child and that child was recovered from the possession of the appellant. Witnesses except P.W.10 have stated that when they reached at the police station or in the village, like the three Chawkidars, P.Ws.7, 8 and 9, they found the child either at the police station or at the village in custody of the man from whom the child had been recovered. Thus, the circumstances of being in possession of the child has directly been corroborated by witnesses, like, P.W.3 to P.W.10 and this court does not have the doubt in the least that it could be the appellant who was in possession of the little child. 8. By the above finding this could readily be inferred that the present appellant could be the person 7 who could have picked up the child. But evidence lacks on that. Witnesses have candidly stated that they had not seen any one picking up the child so as to taking her away. This is the evidence of witnesses, like, P.Ws.3, 4, 5, 6 and 12 which include the three important family members or relatives of the victim. But, as I have just noted, a person being found in immediate possession of the child could be inferred at least to pick up the child. That part of the prosecution story stands established by evidence to the hilt. 9. However, the main problem in the proof of the charge as regards offence under Section 364 IPC is that the prosecution in order to succeeding has to establish that the abduction or kidnapping was made either with a view to killing the person or with a view to so disposing him or her of as to render him or her dead. The very prosecution story from its inspection was that the child had been picked up by some unknown person or persons so as to be sold or for any like purposes. P.W.12 was pointing out in the FIR that the purpose for taking away the child was dual- either for butchering the child or for selling her off. That does not appear established and mere possession of the child may not raise that inference either. It could simply be a case from the evidence as produced by the prosecution 8 of kidnapping a minor from her lawful guardianship and that could make out a case under Section 363 IPC. 10. In the result, the conviction of the appellant is converted from that under Section 364 to 363 IPC and the sentence of seven years which was inflicted upon him with a fine of Rs.1,000/- is modified to that of rigorous imprisonment for five years with a fine of the sum which was inflicted by the court below, else with the same result as was directed by the learned Judge that the appellant shall have to suffer simple imprisonment for six months if he defaulted in paying the fine. The appellant was all along in custody. This court also did not grant bail to him. He has already served out more than seven years and as such, it is desirable that he be released forthwith as he has already served out his sentence including that which could accrue to him on account of not paying the fine. The release of the appellant shall be subject to not being wanted in connection with any other case. 11. The appeal is dismissed with the above modification in finding of guilt and sentence. Patna High Court, Dated, the 15th day of April, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.) 9