Criminal Appeal (SJ) No.300 OF 1996 (Appeal against the Judgment and Order dated 30.11.1996 passed by the 1st Additional Sessions Judge, Madhepura, in Sessions Trial No. 116 of 1995.) ------- 1. SANJAY SINGH SON OF MAHESH SINGH 2. MADHAV SINGH SON OF NARESH SINGH BOTH RESIDENT OF VILLAGE KUMARKHAND, P.S. KUMARKHAND, DISTT. MADHEPURA 3. TIRAN MIAN @ MD. TIRAN SON OF KHUDABUX RESIDENT OF SIKARHARTI, P.S. KUMARKHAND, DISTT. MADHEPURA. --------APPELLANTS Versus THE STATE OF BIHAR --------RESPONDENT --------- For the Appellants :Mr. Shekhar Kr. Singh, Adv. For the State :Mr. Madan Kr. A.P.P. --------- Criminal Appeal (SJ) No.138 OF 2001 (Appeal against the Judgment and Order dated 28.2.2001 passed by the 3rd Additional Sessions Judge, Madhepura, in Sessions Trial No. 34 of 1997.) RAJENDRA YADAV SON OF LATE RAM DAS YADAV RESIDENT OF VILLAGE KHUMARKHAND, P.S. KHUMARKHAND, DISTT. MADHEPURA. --------APPELLANT Versus THE STATE OF BIHAR ----- RESPONDENT. ------- For the Appellant :Mr. Radhey Shyam Prasad, Adv. For the State :Mrs. Anita Singh, A.P.P. ------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. The Appellants Sanjay Singh, Madhav Singh and Tiran Singh @ Md. Tiran have been convicted under Sections 366A, 376 and 448 of the Indian Penal Code and sentenced to rigorous imprisonment for five years each under Section 366A and 376 of the Indian Penal Code and one year rigorous imprisonment 2 under Section 448 of the Indian Penal Code by the 1st Additional Sessions Judge, Madhepura, in Sessions Trial No. 116 of 1995 by a judgment dated 30.11.1996. 2. The case of the prosecution according to the PW-6, the father of the victim is that on 29.1.1995 the present Appellants and one Rajendra Yadav dragged the victim to their houses and after the First Information Report was instituted, on the next date she was recovered from the house of Rajendra Yadav. 3. During trial, the prosecution examined nine witnesses out of whom PW-1, PW-3, PW-6 and PW-8 are on the point of kidnapping. Out of these witnesses, PW-8 is the victim herself and PW-6 is the Informant. PW-2, PW-5 and PW-9 who is the Investigating Officer are on the point of recovery of the victim from the house of Rajendra Yadav. PW-7 is a Doctor who examined the victim girl had opined that she was 17 years of age. PW-9 is the Investigating Officer who had also got the statement of the victim recorded during investigation. 4. On going through the evidence of the material witnesses namely, PW-1, PW-3, PW-6 and PW-8, I have no reason to doubt that in fact, the victim had been kidnapped in full public view by the accused persons. The fact that she was gang raped by the accused persons is also supported by PW-8, the victim herself and there is no reason to doubt her version. The fact that she was recovered from the house of accused Rajendra Yadav is also borne out from the evidence of PW-2 and PW-5 as also the Investigating Officer. 3 5. However, I find that the Appellants have remained in custody for about 37 months and, therefore, the period of sentences modified to the one already undergone by them during trial. 6. In the result, the Criminal Appeal No. 300 of 1996 is dismissed with modification in sentence as aforesaid. 7. The Appellant Rajendra Yadav (Cr. Appeal (SJ) 138 of 2001) was convicted by a separate Judgment dated 28.2.2001/1.3.2001 passed by the 3rd Additional Sessions Judge, Madhepura, by which he had been sentenced under Section 448, 366(A) and 376 of the Indian Penal Code and sentenced to rigorous imprisonment for a period of one year and five years and a fine of Rs. 2,000/- and ten years and a fine of Rs. 3,000/- respectively in Sessions Trial No. 34 of 1997. 8. The case of the prosecution has already been enumerated above. 9. During trial of this Appellant, the prosecution examined eight witnesses out of whom PW-2 is the Doctor whereas PW-8 is the Investigating Officer and PW-1 and PW-7 are on the point of recovery of the victim from the house of the Appellant. PW- 5 and PW-6 have been declared hostile. In the present trial, the prosecution did not examine the victim since she had gone missing. PW-4 is the Informant who is on the fact that the Appellant kidnapped his daughter but was declared hostile since he did not support the case with regard to the rest of the accused persons and also on the point of being hear say with regard to the date of kidnapping of his daughter. PW-3 also did not name the Appellant 4 as one of the miscreants, who kidnapped the victim and, therefore, only the evidence of PW-4 is subsisting with regard to the kidnapping by the Appellant. The Court witness No. 1 is the Magistrate who recorded the statement of the girl under Section 164 Cr. P.C. but in the absence of the examination of the said girl, this statement has no meaning since it is not substantive evidence. 10. On a careful consideration of the evidence adduced on behalf of the prosecution, the only evidence that has transpired against the Appellant is that he had forcibly kidnapped the victim in the presence of the Informant (PW-4) and therefore his conviction under Sections 448 and 366A of the Indian Penal Code is maintained. However, the conviction of the Appellant under Section 376 Indian Penal Code is set aside since there is no direct evidence in this regard. 11. It appears that the Appellant has remained four years in custody and, therefore, the period undergone by him would be sufficient sentence for his conviction under Sections 448 and 366(A) of the Indian Penal Code. 12. In the result, the Appeal is dismissed with the aforesaid modification in conviction and sentence. (Anjana Prakash, J.) Patna High Court, Patna. Dated, the 16th May, 2011. NAFR/S.ALI