CRIMINAL APPEAL No.1 of 1998 (Against the judgment and order dated 9.12.1997 and 12.12.1997 passed by Shri Bipin Bihari Singh, the learned 2nd additional District and Sessions Judge, Chapra (Saran) in Sessions Trial No. 369 of 1992/84 of 1993) 1. IRSHAD HUSSAIN, SON OF MURAD HUSSAIN, 2. MOTI MANJHI SON OF LAXMAN MANJHI, BOTH RESIDENTS OF REVELGANJ, P.S.- REVELGANJ, DISTRICT-SARAN -----------Appellants Versus STATE OF BIHAR--------------------------------------------------Respondent WITH CR. APP (SJ) No.11 of 1998 (Against the judgment and order dated 9.12.1997 passed by Shri Bipin Bihari Singh, the learned 2nd additional District and Sessions Judge, Chapra (Saran) in Sessions Trial No. 369 of 1992/84 of 1993) SATRUGHAN MANJHI, SON OF SRI RAM PRAVESH MANJHI, RESIDENT OF VILLAGE REVILGANJ, P.S.- REVILGANJ, DISTRICT- CHAPRA -------------------Appellant Versus STATE OF BIHAR--------------------------------------------------Respondent For the appellants : Mr. Rana Pratap Singh, Sr. Advocate. Mr. Siya Ram Sahi, Advocate Mr. Prabhat Kumar, Advocate For the State : Mr. Mayanand Jha, APP P R E S E N T THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL Kishore K. Mandal, J Both the appeals arise out of and are directed against the judgment and order dated 9th December, 1997 recorded by the learned 2nd Addl. District & Sessions Judge, Chapra in Sessions Trial No. 368 of 1992/84 of 1993 whereby the appellants have been found guilty under sections 363, 366A and 120B of Indian Penal Code and sentenced for diverse periods. Present order shall govern these appeals. 2. The back ground facts, in a nutshell, are as under: 2 The case germinates out of Revelganj P.S. case no. 95/1991 lodged on 16.8.1991 on the basis of written report (Ext. 3) filed by one Sukhdev Prasad (since dead) at 12.30 p.m. His daughter namely Asha Kumari @ Sanju Kumari (P.W. 5) had gone to market along with appellant Shatrughan Manjhi who was running a business of tailoring close to the house of the informant and therefore was frequenter and well acquainted to the family members of the informant. When she did not return home, a search was carried out and queries were made from the people available in the local bazaar but no information was gathered. Next day, he went to Chapra in search of his daughter and thereafter lodged a written report alleging therein that appellant Shatrughan Manjhi had enticed away his daughter who was minor. On the basis of said written report, a formal F.I.R. (Ext. 2) was drawn up and the investigation was taken up. On 19.8.1991, the victim (P.W. 5) returned home. The investigating Officer produced her before the Magistrate on 19.8.1991 for recording her statement under section 164 of Code of Criminal Procedure which was recorded on the same day by one Rajendra Kumar, Judicial Magistrate, 1st Class, Chapra (P.W. 10). Her said statement is on record as Ext. 7. She was also produced for medical examination. Upon conclusion of investigation, a charge sheet was laid whereupon the learned Chief Judicial Magistrate, Chapra took cognizance of the case and subsequently on 23.6.1992, the case was committed to the Court of Sessions for trial. On 2.3.1991, the record was transferred to the file of the 3 present Trial Judge for hearing and disposal. The trial Court framed charges against the appellants under sections 363, 366A and 120B of Indian Penal Code which were read over and explained to the appellants who abjured the guilt and thus claimed to be tried. 4. In order to drive home the charges, the prosecution produced as many as 10 witnesses. It is to be noted here that the informant of this case (father of the victim) had died before the trial and as such he has not been produced as a witness in the present case. P.W. 1 Rajesh Kumar Gupta is the elder brother of the victim. P.W. 2 Sanjay Kumar Gupta is an independent witness whose name appears in the F.I.R.(Ext. 2). P.W. 5 Indu Devi is the elder sister of the victim. P.W. 4 Sudama Devi is the mother of the victim. P.W. 5 Asha Kumari is the victim herself. P.W. 6 Lakhan Manjhi is the elder brother of the appellant Shatrughan Manjhi who has been declared hostile.. P.W. 7 Gopal Das is a formal witness who has proved the fardbeyan (Ext.3) and the formal F.I.R. (Ext.2). P.W. 8 Deo Krishna Prasad Srivastava is again a formal witness who has proved paragraphs 1 to 69 of the case diary (Ext.4). At this point, it is noted that I.O. of the present case has not been examined and as such this witness has proved the prosecution report (Paragraph nos. 1 to 69 of the case diary). P.W. 9 Satendra Kumar is yet another formal witness who has proved the signature of Dr. (Ms.) Gita Prasad marked as Ext.1/3 as also the medical report prepared by Dr. (Ms.) Gita Prasad and a team of doctors constituting the 4 Medical Board (Ext. 6). P.W. 10 is Rajendra Kumar Tiwary, Judicial Magistrate, 1st Class, Chapra who has proved statement of the victim (P.W. 5) recorded under section 164 Cr.P.C. (Ext. 7). 5. The defence did not adduce any evidence but it appears that they produced a bunch of letters which have been admitted to have been written by the victim (P.W. 5) as would appear from her deposition. Those letters are on record as Ext-A. 6. Sri Rana Pratap Singh, learned Senior Counsel appearing in Cr. Appeal (S.J.) No. 11/1998 and Mr. Siya Ram Shahi, learned Counsel appearing in Cr. Appeal(S.J.) No. 1 of 1998, while assailing the judgment under appeal, made elaborate submissions in order to prove the innocence of the appellants. On the contrary, Dr. Maya Nand Jha, learned A.P.P. supported the judgment and order of conviction recorded by the learned Trial Court and submitted that the prosecution has been able to prove their case beyond reasonable doubts and as such the judgment under appeal requires no interference. 7. Both the learned counsels appearing on behalf of the appellants in both the appeals have submitted that the relevant witnesses to be scanned by this court would be P.W. 1 Rajesh Kumar Gupta, P.W.-4 Sudama Devi and P.W. 5 (victim). According to them, the other witnesses namely P.W. 2 Sanjay Kumar Gupta, P.W. 3 Indu Devi (elder sister of victim), P.W. 6 Lakhan Manjhi have either been tendered or declared hostile by the prosecution. Counsel for the State also does not dispute this 5 position. In fact, while supporting the judgment and order under appeal, he too referred to the depositions of P.Ws 1, 4 and 5. 8. Before proceeding further, this court deems it appropriate to take note of certain documents/exhibits which are on record. P.W. 7 Gopal Das, as noticed above, has proved the ferdbeyan/written report as well as formal F.I.R. (Exts. 3 and 2 respectively), P. W. 8 has proved the prosecution report (case diary) as Ext.4. P.W. 9 has proved the opinion of the medical team/board (Ext.6) and P.W. 10 has proved the recording of statement of the victim(P.W. 5) under section 164 Cr.P.C.. According to the Medical Board‟s report/opinion submitted on 23.8.1995, the victim (P.W. 5) was found aged about 19 years. The written report (Ext.3) declares that the girl (P.W. 5) at the time of occurrence was aged about 13 years. The Magistrate (P.W. 10) while recording the statement of the girl (P.W. 5) on 19.8.1991 under section 164 Cr.P.C. (Ext.7) assessed her age about 15 years. There is yet another document in the shape of medical report submitted on 3.9.91 by the Medical Officer, Sadar Hospital, Chapra appearing at paragraph 44 of the case diary (Ext. 4) wherein the doctor on the basis of medical examination based on radiological tests found the victim (P.W. 5) below 18 years of age. 9. Both the counsels appearing in support of the two appeals referring to the depositions of P.Ws 1 and 4 submitted that from a bare reading of their depositions, it would appear that they are not eye witnesses to the occurrence. P.W. 1 Rajesh 6 Kumar Gupta (elder brother of the victim) in his deposition has disclosed that on the date of occurrence, his sister (P.W. 5) had gone to Revelganj bazaar and thereafter did not return. Appellant Shatrughan Manjhi had kidnapped her. He thereafter named appellants Irshad Mian and Moti Manjhi who, as per his deposition, assisted/facilitated appellant Shatrughan Manjhi in kidnapping of his sister. In paragraph 2, he has stated that the informant of this case (father of this P.W.) has died and as such he proved his signature appearing on the written report(Ext. 1 & 1/1). He further deposed that his sister (P.W. 5) subsequently returned home along with Lakhan Manjhi (P.W. 6) on 19.8.1991. Referring to paragraph 7 of his deposition, it has been pointed out that this witness has categorically stated that he could know about kidnapping of his sister (P.W. 5) from his mother (P.W. 4). In paragraph 10, he has stated that he had disclosed to Chhati Lal Prasad and Raju about the kidnapping of his sister by the appellant. Those witnesses have not been examined in this case. Learned counsels then referred to the deposition of the evidence of P.W. 4 Sudama Devi who is mother of the victim (P.W. 5). In her examination-in-chief, this witness has stated that appellant Shatrughan Manjhi had close ties with her family. On the date of occurrence, her daughter had gone to Revelganj bazar for purchase of bangles and thereafter she did not return. From the people at the Revelganj bazaar, she could know that her daughter had been kidnapped by the present appellants. This factum has been repeated by her in paragraph no. 5 of her 7 deposition wherein she has disclosed her inability to name the persons in the bazaar from whom she could gather the information that her daughter was kidnapped by the present appellants. She has gone to the extent of saying that in fact she had not gone herself to the bazaar and the guardians of the girl had gone to bazaar for making necessary inquiries. On the basis of these statements appearing from their evidence, it has been submitted that P.W. 1 owes information about the occurrence through P.W. 4. P.W. 4 Sudama Devi admits that she could gather about the occurrence and kidnapping of her daughter by the present appellants from the people at the Revelganj bazaar. She is not able to name any of them. In fact, the prosecution has not adduced evidence of any person/witness from the Revelganj bazaar who could say that he or she had seen the occurrence and had disclosed the factum of kidnapping of the victim by the present appellant(s) to her (P.W. 4). Thus, these witnesses cannot be held to be either hear say and/or eye witness to any part of the occurrence. Counsel for the State has not been able to dispute this position appearing from the record. In that view of the matter, this Court is also of the view that the evidence of P.Ws 1 and 4 cannot be referred to and relied upon in order to convict the appellants. 10. Now, therefore, the prosecution case hinges on the solitary evidence of the victim girl (P.W. 5). The proposition of law is well settled. The Court should not look to the quantity but to the quality of the evidence appearing before it in order to come to 8 a just conclusion in the particular facts of the case. The rule of prudence, however, definitely commands that there has to be some corroboration to the testimony of the solitary evidence and that the evidence of the sole witness is by all standards above board. 11. This Court is, therefore, under bounden duty to minutely scan the evidence of P.W. 5 with reference to the different documents (Exhibits) that have been proved and brought on record by the parties. Statement of Asha Kumari (P.W. 5) was initially recorded on 19.8.1991 under section 164 Cr.P.C. by P.W. 10. Her such statement is on record as Ext. 7 and attention of the witnesses appears to have been drawn to her such statement as would appear from paragraph no. 2 of her deposition. In her such statement (Ext. 7), she has stated that on 16.8.1991 about 12.30 hours, she had gone to Revelganj bazaar for making certain purchases. She had gone alone. At the bazaar, appellant Moti Manjhi and Irshad Manjhi met her and commanded to accompany them. She was even threatened in the event of disobedience of the command. They, thereafter, made her sit on a Tracker and thereafter brought her to Chapra where appellant Shatrughan Manjhi was present from before and both the appellants namely Moti Manjhi and Irshad thereafter returned. Appellant Shatrughan Manjhi thereafter took her to Patna on a bus and from Patna both of them took a train destined for Calcutta. Next morning, they reached Howrah station at about noon time where elder brother of appellant Shatrughan Manjhi 9 namely Lakhan Manjhi (P.W. 6) was found present. Appellant Shatrughan Manjhi having seen his brother escaped from the scene whereafter Lakhan Manjhi brought her back to the father‟s place on 19.8.1991. In her deposition before the Court recorded on 23.11.1994, she has deposed to the effect that on 16.8.1991 at about 12 noon, she was at home. She went to Revelganj bazaar after obtaining consent of her mother. All the three appellants met her at the bazaar and they insisted on her to accompany them. As she was unwilling, appellant Shatrughan Manjhi whipped out a dagger and under the threat to her life, she was made to sit on a Tracker. She raised alarm but thereafter succumbed to the command. She was brought to Chapra Bus Stand wherefrom appellant Shatrughan Manjhi took her to Patna on a bus where they reached in the evening on the same day. From Patna, they boarded a train and reached Calcutta. The next morning, they reached Howrah station at about 1 p.m. where elder brother of appellant Shatrughan Manjhi was waiting from before. On seeing his brother, appellant Shatrughan Manjhi managed to escape from the station whereafter his elder brother (P.W. 6) brought her back to Chapra where she was forced to write certain papers and the following morning, she was handed over to her parents. In paragraph 2, she has stated that her statement was recorded by the Police Officer and thereafter she was produced before the Magistrate for recording her statement under section 164 Cr.P.C. Paragraph 6 of her deposition assume some significance. In this paragraph, 10 she has categorically admitted that she knew appellant Shatrughan Manjhi from before. So far as appellants Irshad Hussain and Moti Manjhi are concerned , they were not known to her from before. In her subsequent deposition, she is emphatic in saying that she did raise alarm in high pitch at the Revelganj bazaar but nobody turned up, although Revelganj bazaar is a comparatively small suburb bazaar housing 10-15 shops. In her further deposition, she has stated that due to threat to her life, she boarded the tekkar. From her deposition appearing at paragraph 8, it can further be gathered that the police station was situated close to the place from where she was threatened and made to sit on a tracker. It can further be gathered therefrom that the tekkar (public transport vehicle) was carrying several passengers apart from this witness and the appellant(s). She has stated that she disclosed to the driver and other co-passengers that she was being forcibly taken away by the accused(s) but nothing happened. From Revelganj bazaar up to Chapra, she did not raise any alarm/cry. In paragraph 9 she has deposed that that the Chapra Bus-stand where she de-boarded the tekkar was full of passengers. At the Bus stand also, she raised alarm but no body turned up for her rescue. The bus, she took to reach Patna was again packed to its capacity. She, however, could not raise alarm as appellant Shatrughan Manjhi was wielding a „Chura‟ in presence of passengers of the said bus. She raised alarm but no passenger or driver or conductor of the bus rescued her. At Patna Junction, she again raised alarm but no one came to 11 rescue her. While appellant Shatrughan Manjhi was busy in buying train tickets and was at the counter, she made an attempt to escape but was unsuccessful as no body helped her. In paragraph no. 12, she admits that after purchasing train tickets they (P.W. 5 and appellant Shatrughan Manjhi) had to wait for at least one hour on the platform before the train arrived and they boarded thereon. Next morning, they reached Calcutta station where the elder brother of the appellant had arrived to receive them. She did not apprise P.W. 6 Lakhan Manjhi about the manner by which she was forced to leave the parents‟ house and brought to Calcutta. P.W. 6 then took her back to Chapra where she was made to sign certain papers, the details of which she did not remember. This witness, looking to the bunch of letters purported to have been written by her and addressed to appellant Shatrughan Manjhi, admits that they have been written by her but adds that she was forced to write those letters. Those letters are before the Court in the shape of Ext.A. A perusal of the these letters give impression to the Court that P.W. 5 (victim girl) was neck deep in love with appellant Shatrughan Manjhi and, in fact, she was insisting on him to take her away as she was feeling loneliness in the family. In paragraph 17, when an attention was drawn to her previous deposition made before the Investigating Officer, she admits that she did not allege before the police that she was made to write certain documents before restoring her back to her parents. To a suggestion given to her, this witness, in paragraph no. 18, asserts that in fact she had stated before the 12 Investigating Officer in her statement that appellant Shatrughan Manjhi had wielded a „Chura‟ and she was threatened. Paragraph 20 indicates the possible case put up by the appellant Shatrughan Manjhi as, to a suggestion thrown to her that she had on her own accompanied appellant Shatrughan Manjhi up to Calcutta, she denied. 12. Mr. Shahi, learned counsel for the appellant appearing in Cr. Appeal (S.J.) 1/1998 submits that there is material contradictions in the evidence/material on record with regard to the participation of the present two appellants in the offence. According to him, the F.I.R (Extr 2) discloses that the victim (P.W. 5) had gone to the Revelganj bazaar along with appellant Shatrughan Manjhi and from there, she did not return. As per her statement made under section 164 Cr.P.C. (Ext. 7), she had gone to the bazaar alone and at the bazaar, she could find the present two appellants who cajoled her to accompany them and also subsequently threatened her whereafter she accompanied them up to Chapra bazar on public transport vehicle where appellant Shatrughan Manjhi was present from before. These appellants thereafter returned back to Revelganj. In her deposition before the Court, she has deposed to the effect that at the Revelganj bazaar itself, appellant Shatrughan Manjhji and these two appellants were present and they insisted on her to accompany them and subsequently appellant Shatrughan Manjhi whipped out a dagger and commanded her to board the tekkar (public transport vehicle) in which appellants Moti Manjhi 13 and Irshad Hussain made her to sit. All of them accompanied her up to Chapra and from Chapra, these two appellants returned home. In paragraph 6, she further admits that she did not know appellants Moti Manjhi and Irshad Hussain from before, although she was well acquainted with appellant Shatrughan Manjhi who used to frequently visit her home. In the back drop of these contradictions appearing from the record and the deposition of the victim (P.W. 5) , it has been argued that the solitary deposition of P.W. 5 cannot be said to be very truthful and/or above board and as such this part of the prosecution case where she has named and implicated the present appellants as facilitators should not be readily relied upon and believed in order to convict the two appellants. 13. Mr. Rana Pratap Singh, learned Sr. Counsel for the appellant Shatrughan Manjhi in Cr. Appeal (S.J.) 1/1998 made the identical submissions so far as P.Ws. 1 and 4 are concerned. Learned counsel further highlights few facts which stand somewhat crystalised from the materials on record including the deposition of P.Ws 4 and 5. Both P.Ws 4 and 5 as also the father of the victim namely Sukhdev Prasad in his written report (Ext. 3) admit one fact and that is the present appellant was living in the neighbourhood and was well acquainted to the family inasmuch he is/was a regular visitor. Referring to Ext. A, it has been submitted that these documents speak voluminously about the fact that the victim and appellant Shatrughan Manjhi were having a kind of love affairs going on between them. Referring to 14 few letters which is/are part of Ext.A, it has been submitted that in fact there was a strong breeze of love blowing between them in so much so that P.W. 5 requested appellant Shatrughan Manjhi to draw some plan which can be acted upon in order to escape from the home where she was being ill treated. Referring to paragraph 17 of the deposition of P.W. 5, it has been submitted that this witness did not state before the police in her statement that before restoring her back to family, she was made to sign certain papers. Learned counsel then drew attention of this Court to few facts that peep through the material on record. According to the written report (Ext.3) girl was aged about 13 years. Soon after her coming back home on 19.8.1991, she was medically examined by a doctor in order to ascertain her age and the fact as to whether she was subjected to any sexual inter-course. The doctor after medically examining her and subjecting her to radiological tests, opined that she was below 18 years of age. The said medical report is part of the case diary (Ext. 4). The victim appeared before the Court for her deposition on 23.11.1994. In her examination-in-chief, she did not claim that she was ever produced before the doctor for her medical examination. After closure of her evidence, report of the Medical Board dated 23.8.1995 appears to have been brought on record and proved as Ext.6.which found her aged about 19 years as on the date of report i.e. 23.8.1995. It has been submitted that neither the Investigating officer of the case has been examined in this case nor any of the doctors who authored the said Medical 15 Board report (Ext. 6) was produced before the Court. Admittedly, such board, if any, was constituted subsequent to the evidence of P.W. 5 and as such she did not state anything about the said fact. According to learned counsel, non-examination of the Investigating Officer as also the doctors who submitted the Medical Board report has caused prejudice to the appellant namely Shatrughan Manjhi . One thing which is more than apparent is that the prosecution definitely made an attempt to keep out of picture the first Medical report ascertaining the age of P.W. 5. No witness has stated that she was ever produced before the doctor for her medical examination in course of investigation of the present case. The submission of the learned counsel carries weight. The Court is conscious of the fact that the deposition of P.W. 5 will ultimately decide the fate of the appellants. 14. Referring to her deposition and juxtaposing the same with her earlier version made before the Court under section 164 Cr.P.C. (Ext. 7), it has been submitted that there is absolutely no allegation whatsoever that the girl (P.W. 5) was forced or seduced to illicit intercourse with any