Criminal Appeal (SJ) No. 367 of 2007 ------- Against the judgment of conviction and sentence dated 21.2.2007 and 23.2.2007 passed by Shri Narayan Prasad Singh, Additional Sessions Judge, Fast Track Court IV, Sheikhpura in S.t. No. 99 of 2006 / 90 of 2007. --------- Baleshwar chouhan, son of late Chauthi Chauhan, resident of village – Birdawan, Police station – Ariari (Kajar), District – Sheikhpura ……………….. Appellant Versus The State of Bihar …………………. Respondent -------- For the Appellant : Smt. Amrita, Advocate (Amicus Curiae) For the State : Shri Ajay Mishra, A.P.P. -------- P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA --------- Dharnidhar Jha, J. The solitary appellant Baleshwar Chouhan was tried by the learned Presiding Officer of Fast Track Court IV, Sheikhpura after being charged of committing offences under sections 363, 366 and 366A IPC and, by judgment dated 21.2.2007, was held guilty of committing the offence only under section 366A of the Penal Code, and was directed to suffer RI for seven years and to pay a fine of rupees one thousand. In default of payment of fine, the appellant has been ordered to undergo RI for one month. The appellant has preferred the present appeal to challenge the correctness of the findings and propriety of sentence recorded and passed against him. 2. Written report of P.W. 2 Naresh Pandit was the basis of the case. It was stated by the informant, who happened to be the father of Soni Kumari (P.W.4) that his daughter who was mentally deficient, strayed away from his house four days prior to the submission of Ext. 1. He made a search for his daughter at all possible places including those of the relatives but, could not find her out. On 17.6.2005, Vikas Kumar (C.W. 1) told him that Soni Kumari was being taken away by the present appellant to Bengal for being subjected to sexual intercourse or for being offered in that behalf. C.W. 1 sighted 2 the present appellant and P.W. 4 while they were about to board the train and, as such, came near the victim to make an enquiry as to where she was heading to, upon which the present appellant is said to have questioned his authority of making such enquiries and that ultimately resulted into some wordy duel. It is stated that the victim pointed out to C.W. 1 that the appellant was taking her to Bengal. On account of the duel between the appellant and C.W. 1, people were attracted there and there was some exchange of blows between the appellant and C.W.1 as well, whereafter the victim (P.W. 4) was brought to the police station. The police informed the informant regarding the incident and accordingly, the informant presented the written report, on the basis of which FIR of the case (Ext.2) was drawn. 3. Investigation was taken up by P.W. 6, namely, S.I. Devendra Paswan, who stated that he recorded the further statement of the informant and went to hold the inspection of the place of occurrence, which was a house located west of Hanuman temple in Sheikhpura. It was a house consisting of four rooms and the informant was residing with his family in one of those rooms. The I.O. stated that after having completed the investigation, he sent up the appellant for trial. 4. During the course of trial, six witnesses were examined by the prosecution. P.W. 1 Subodh Kumar had stated that he leant about the victim Soni Kumari being found and on that account being brought to the police station and, as such, he accompanied the informant up to the police station where Soni was present and the appellant was also sitting there. P.W. 1 stated that C.W. 1 Vikas Kumar pointed out the whole story as to how he located the victim and how he came to know that the appellant was attempting to take her to Bengal and on account of the query made by C.W. 1, some scuffle ensued between the appellant and C.W. 1 and thereafter the lady was brought to the police station. P.W. 2 is the informant of the case and he has stated that his daughter who was residing with him in the room described by the I.O., disappeared from there four days prior to lodging of the report and that C.W. 1 came to tell him about the lady being found and brought to the police station, whereafter he went to the police station to find his daughter sitting there along with the present appellant. In 3 cross-examination, the witness has stated that his daughter had run away from his house on prior occasion also and on the day he was deposing in the court, the lady had again run away from the house. P.W. 3 has also stated about the finding of Soni Kumari and on that account lodging of the report at the police station. P.W. 4 is the victim herself, who stated that when she went to the tube-well for fetching water, this appellant came and allured her to go with him and, accordingly, giving up the bucket, she had brought from the house for taking water, she accompanied the appellant who took her to his house and offered some thing to eat there. He gave some imitation jewellery also and while he was taking her to Bengal by train, she met C.W. 1 Vikas Kumar, who inquired from her as to where she was heading to, upon which, there was scuffle between Vikas Kumar and the appellant whereafter she was brought by Vikas Kumar to the police station where her father came and lodged the report. In paragraph 3, the victim also stated that on two earlier occasions also she had left her father’s house and had gone to other places. She has further stated that while she was being taken to the railway station, she met many persons but she did not tell any of them that the present appellant was taking or enticing her away to Bengal nor did she state anything to any passenger in the train. P.W. 5 Raju Pandit has stated that Soni Kumari was taken away by a person when she went to fetch water from the tube well and was attempted to be taken to Bengal for being sold there. He brought her to the police station. 5. C.W. 1 Vikas Kumar is the witness who had brought the lady from the railway station to the police station while she was attempting to board the train. The evidence of C.W. 1 indicates that when the lady was attempting to board the train, the present appellant was not accompanying her. He has stated that on account of the train being stopped by disrupting its vacuum connection, he found the lady attempting to enter into a bogie. It does not appear from the evidence of C.W. 1 that at that particular moment when P.W. 4 was attempting to board into a bogie, this appellant was anywhere near her. In fact, the appellant was found in the last bogie of the train and C.W. 1 made enquiries about the victim being taken away to Bengal by the appellant and that resulted in the scuffle between the two persons. 4 6. This appears admitted from the record and specially the evidence of father of the victim as also from her own evidence that the victim was bearing the history of running away time and again from her parents’ house. The father stated that on earlier occasion than the present occurrence, the lady had run away from his house. On the day when P.W. 2 was deposing in court, he was making the statement before the court that the lady had run away again from the house and he did not make any effort to trace her out. P.W. 4 herself has stated in paragraph 3 that prior to the present occurrence, she had digressed from her father’s house thrice. Thus, what appears to me is that the lady was habitually a deserter from parents’ house and used to go to any place. The present occasion also appears one of the examples of that act of the lady because the informant stated that his daughter had run away from his house whereas the lady had stated that while she went to fetch water from the hand pump, this appellant came to allure her to go with him, which is completely contrary to the evidence of P.W. 2, the father of the victim, who does not say that the lady was duped or enticed away or was forced to go away with the appellant, when she had gone to fetch water. This appears a vital conflict between the evidence of P.W. 2 and P.W. 4. Moreover, when I consider the evidence of C.W. 1, who is the star prosecution witness, I find from his evidence itself that when the lady was attempting to board the train, the present appellant was no where near her. Thus, there could be a doubt that the lady was being taken to any place and, as such, the appellant had taken her to the railway station and the story that the appellant was accompanying the lady appears doubtful. There is absolutely no evidence to point out that it was the present appellant, who had taken away the lady from her parents’ house. The story of disappearance as told by her father and also by her is completely contrary to each other, thus, creating a situation of doubt regarding the very story that the lady could have been taken away by the present appellant. There is, as such, a complete lack of evidence of motive and intent for which the lady was taken away. The lady, I have already noted, appears a habitual deserter from her parents’ house and might be that she had, as appears from the evidence of her father, left her father’s house to go to any other place. 5 7. In view of the evidence, which is available on record of the lower court, I find that it could not be said with certainty that it was an intentional act of the present appellant that the lady had been taken away by her. In that view of the matter, I find it a case in which the appellant deserves to be acquitted on account of being given the benefit of doubt. 8. In the result, the appeal succeeds and the same is allowed. The judgment of conviction and sentence is set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case. 9. Smt. Amrita, learned amicus curiae has assisted this court immensely and, as such, she deserves one fee of argument, which is directed to be paid by the Patna High Court Legal Services Committee, for which purpose, let a copy of the first and the last pages of the judgment be made over to her. (Dharnidhar Jha, J.) Patna High Court, The 9th September, 2011, NAFR/Anil/