Criminal Appeal (SJ) No. 99 OF 1997 Against the judgment and order dated 31.03.1997 passed by Sri Kanhaiya Prasad Verma, Additional District & Sessions Judge, Muzaffarpur in S.Tr. No. 246/93/93/93. ************ Uma Rai, S/o Sri Yogendra Rai, resident of Mohalla-Sikandarpur, Police Station & Town/District-Muzaffarpur. ……(Appellant) Versus THE STATE OF BIHAR-------(Respondent) With Criminal Appeal (SJ) No. 103 of 1997 Sheela Devi, W/o Pradeep Kumar Mahto, resident of Mohalla-Mithanpura, District-Muzaffarpur. Versus The State of Bihar. ************* For the Appellants : Ms. Kumari Jyoti, Adv. : Mr. Om Prakash, Adv. For the State : Ms. Gulnar Begam, APP. : Mr. Anil Kumar, APP. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. The appellants have been convicted under Section 363 IPC and sentenced to RI for five years by the 1st Additional Sessions Judge, Muzaffarpur in S.Tr. No. 246 of 1993/93/93 by a judgment dated 31.03.1997. 2. The case of the prosecution according to Kauleshwar Mahto is that on 24.07.1992 at about 8 P.M. P.W. 7 his daughter did not return home he along with his family members started to search her and in course of search he learnt that the appellants had enticed away his daughter and the three accused persons were missing from their house. During course of investigation the victim P.W. 7 was recovered from the house of the brother-in-law of the appellant, Uma Rai at Ranchi along with him and then 2 brought to Muzaffarpur for his examination under Section 164 Cr.P.C. 3. During trial the victim was examined as P.W. 7 who no doubt stated that she had been forcibly kidnapped by the accused persons and taken on a tempo but her evidence appears to be highly unreliable for the reason that it does not appear probable that a girl of 16-17 years would be taken on tempo from Muzaffarpur to Patna and then to Ranchi where she should be kept confined for five days without any alarm being raised about her confinement. She did not support the factum of rape by the appellant Uma Rai and, therefore, she was declared hostile by the prosecution. In effect the most important witness of the prosecution had been declared hostile and, therefore, to place reliance on part of her statement would be unsafe. Also for the reason that the defence has brought on record letters of the victim having been written to the appellant Uma Rai which reveals that there was some kind of a relation-ship between the two before the occurrence. The prosecution also examined P.W. 1 who is allegedly an eye-witness but his evidence also is not trustworthy since even though he has stated that he had seen the accused persons kidnapping the victim and he conveyed this fact to the informant but the same does not find mention in the First Information Report which was instituted five days later. P.W. 2 and P.W. 3 were informed of the occurrence by the informant and the speculation that the victim had been kidnapped by the accused persons. P.W. 4 is the brother of the victim but he has also been declared hostile. P.W. 5 is the 3 mother of the victim whereas P.W. 6 is the father of the victim was also only on the point that it was suspected that the appellants had kidnapped her and that the girl had been recovered from Ranchi. P.W. 8 is the Investigating Officer on the point of recovery of victim. P.W. 9 is the Doctor who examined the victim and was of the opinion that she was aged about 16-17 years. Giving benefit of two years the girl would be major on the date of occurrence and, therefore, for the reasons stated above the appellants are given benefit of doubt and acquitted of the charges. 4. In the result, the appeals are allowed and the judgment dated 31.03.1997 passed by the 1st Additional Sessions Judge, Muzaffarpur in S.Tr. No. 246 of 1993/93/93 is, hereby, set aside. The appellants are acquitted of the charges and discharged of the liability of their bail bonds. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 5th July, 2011. NAFR/Vikash/-