IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) NO.148 OF 2007 Against the judgment and order of conviction dated 08.01.2007 passed by Additional Sessions Judge, Fast Track Court-III, Sitamarhi in Sessions Trial No.240 of 2004/39 of 2004. 1. MD. HANIF, Son of Late Shamsher, 2. MD. RASSUL, Son of Late Vakil Both are resident of village-Ram Nagar, P.S.- Runnishaidpur, District-Sitamarhi .... .... Appellants Versus State Of Bihar.... .... Respondent For the Appellants: Abhimanyu Sharma, Amicus Curiae For the Respondent: Sri Ajay Mishra, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J Nagina Khatoon(P.W.4)had gone to field to scrap grass on 27.01.2004. P.W.7 Md. Saheem subsequently came to her father’s house to inform him that his daughter had been taken away by the present appellants. 2. Receiving the information P.W.5, Md. Suleman, who happened to be the father of Nagina Khatoon lodged the written report to the above effect and on that basis Runnisaidpur P.S.case No.22 of 2004 was instituted by the police. During investigation, witnesses like the family members or others supported that the appellants had forcibly taken Nagina Khatoon away, as a result of which the police found sufficient 2 material for submitting chargesheet in the case. However, before submitting the chargesheet the victim was found in the court premises in Sitamarhi in company of the two appellants, one of whom had himself called the police, who took the victim to a Magistrate’s Court where her statement under Section 164 Cr.P.C. was recorded. 3. She was also produced before P.W.6 Dr. Sudha Jha for medical examination and determination of her age. The doctor found that P.W.4 Nagina Khatoon was aged some where in between 17-18 years. 4. During trial of the appellants, the prosecution examined as many as nine witnesses, out of whom P.W.6, as just noted, was the doctor who examined the victim and P.W.9 Surendra Singh was the investigating officer of the case. P.Ws.1, 2, 3 and 4 all stated to the fact that Nagina Khatoon was taken away by the appellants and they had heard about it. P.W.5 the informant of the case claimed to have learnt about the incident from P.W.7 and further appears improving upon his story by telling that on that very day Nagina Khatoon had disappeared, he received a telephonic message from somewhere by which the caller was asking him to pay up Rs.5,00,000/- for getting his daughter returned. These facts were not stated by him earlier before the police. 3 5. P.W.4 Nagina Khatoon was stating that she was forcibly taken away by the two witnesses from the field where she was scrapping grass and that appears just outside her village. She stated that after being forcibly taken away, she was kept for five days at village-Mobarakpur and from there she was taken to village-Mobarakpur and to Patna and also to Jogbani and was again brought back to Dumra(Sitamarhi) and from there she was shifted to Luchipur, a place somewhere in Nepal as may appear from her evidence, paragraph-8 in her cross-examination. She was being transported or shifted from one place to the other by bus. It appears from the evidence that she was not traveling alone rather there were other passengers also and while she was crossing the Indo Nepal border, She admitted having crossed through the security check posts, but does not appear raising any voice for seeking any help from any one by pointing out that she was being taken away forcibly by the two appellants. 6. That apart, what appears further from the evidence is that when she was brought to Dumra where the Civil Courts, Sitamarhi are located, one of the appellants himself brought her to the police station and the lady stated to the police that she had not been taken away by the appellants rather she had herself run away from her house because her parents had assaulted 4 her. When the police wanted to record the statement, she refused making any statement and asked the investigating officer to produce her directly before a Magistrate. This was how, she was produced before a Magistrate for recording her statement and she admitted in cross- examination that she had made the same statement that she had not been taken away by the appellants rather she had herself run away from her house on account of being beaten up by her parents. 7. Dr. Sudha Jha(P.W.6)opined that the lady was somewhere in between 17-18 years. If the court adds two years to 18 years she could be somewhere around 20 years and that was the age, she had pointed to the Magistrate, when she was giving her statement under Section 164 Cr.P.C. Her statement is an admission that she had run away out of her own free will from her parents’ house and it was simply disproving the charges under Sections 363 and 366 of the IPC for which the two appellants had been convicted. 8. In view of the discussion of evidence of witnesses, especially of P.W.4 Nagina Khatoon, the appeal is allowed. The conviction of the appellants for the charge under which they were inflicted the sentences are also set aside. The two appellants are in custody. They shall be released forthwith, if not wanted in any other case. 5 9. This court records appreciation of the assistance rendered by Sri Abhimanyu Sharma, the learned Amicus Curiae who offered to assist this Court in absence of the counsel who was not appearing in spite of name appearing in the cause list and, as such, this court feels that Sri Sharma is entitled to one fee of hearing which has to be paid by Patna High Court Legal Services Committee. Patna High Court, Dated, the 28th day of September, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)