IN THE HIGH COURT OF JUDICATURE AT PATNA Against the judgment of conviction dated 15.06.2007 and order of sentence dated 16.06.2007 in Sessions Trial No.115 of 1990/40 of 2004(356 of 2006-Supplementary) and judgment of conviction dated 21.11.2006 and order of sentence dated 22.11.2006 in Sessions Trial No.115 of 1990/40 of 2004 passed by Additional Sessions Judge, Fast Track Court-V, Aurangabad. CRIMINAL APPEAL (SJ) NO.754 OF 2007 SUNIL KUMAR GUPTA, Son of Late Gopal Prasad Gupta, Resident of Rafiganj, P.S.-Rafiganj, District-Aurangabad.... .... Appellant Versus The State Of Bihar.... .... Respondent With CRIMINAL APPEAL (SJ) NO. 742 OF 2007 GANGOTRI SINGH, Son of Late Ram Ishwar Singh, Resident of Village-Nega Bigha, P.S.Madanpur, District-Aurangabad..... .... Appellant Versus State Of Bihar.... .... Respondent For the Appellant: Sri S.A.Ahmad, Amicus Curiae For the Respondent: Sri Ajay Mishra, A.P.P. (In CR. APP (SJ) No. 754 of 2007) For the Appellant: Sri Zaki Haider, Advocate For the Respondent: Sri Ajay Mishra, A.P.P. (In Cr.Appeal (SJ) No.742 of 2007) P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The two appellants, one in each of the two appeals, were jointly charged together with committing 2 offence under Section 367 IPC by the learned Additional Sessions Judge, Aurangabad by his order dated 21.07.1997. However, the judgments were delivered by the Presiding Officer of Fast Track Court-V, Aurangabad. So far as appellant Gangotri Singh is concerned he was convicted by judgment delivered on 21.11.2006 in Sessions Trial No.115 of 1990/40 of 2004 of committing the said offence and by order of sentence dated 22.11.2006 was directed to suffer rigorous imprisonment for seven years as also to pay a fine Rs.2,500/-, else to suffer simple imprisonment for one year and nine months. 2. It appears from orders dated 18.10.2006 and 20.10.2006 that after close of the prosecution evidence the record was fixed for recording the statement of the accused persons under Section 313 Cr.P.C., but appellant Sunil Kumar Gupta who was convicted in Sessions Trial No.356 of 2006(Supplementary) by judgment dated 15.06.2007 and was similarly punished as appellant Gangotri Singh, had absented himself and as such his bond was cancelled and warrant of arrest with processes under Sections 82 and 83 Cr.P.C. were issued. Subsequently, on the third day, i.e., on 03.11.2006 appellant Sunil Kumar Gupta was declared a permanent absconder under Section 299 Cr.P.C. without following the procedures laid down by that particular provision 3 for the purpose and, lastly, his case was separated from that of appellant Gangotri Singh by order passed on that very day, i.e., on 03.11.2006. The statement of appellant Gangotri Singh was recorded under Section 313 Cr.P.C. on 10.11.2006 and the judgment, as just pointed out, of conviction as against him was passed on 21.11.2006. 3. So far as appellant Sunil Kumar Gupta is concerned he appears arrested and produced before the court on 11.03.2007 and he was admitted to bail by this Court and thereafter his statement under Section 313 Cr.P.C. was also recorded in the supplementary record bearing Sessions Trial No.356 of 2006 (Suppl.) and he was also found guilty by judgment dated 15.06.2007 and was equally punished as appellant Gangotri Singh by the order of sentence on 16.06.2007. This is how the two appellants preferred the appeals separately. 4. The facts of the case is contained in the FIR Ext-1/1 given by P.W.2 Indu Bhushan, a boy of 14 years, who stated that while he was coming from his school one of the appellants met him on way back home and told him that he was his co-villager and allured him on different pretexts to bring him to Rafiganj by a train. P.W.2 was taken into the ruins of the house and was asked to undressed himself by the two appellants who refused to do so, upon which one of the two 4 appellants undressed him so that, as per the allegation, the appellants could satisfy their unnatural lust. It is alleged that the voice of a lady came suddenly from nearby hearing which the two accused persons ran away. The victim also came on the roads who again confronted the two accused persons who put him on rickshaw and came with the victim P.W.2 to a wine shop. The two criminals went inside the wine for taking wine while the victim kept sitting in the rickshaw and getting an opportunity, ran way to the police station to inform the police. 5. P.W.4 S.I. Vijay Singh was the officer-in- charge of Rafiganj police station who recorded the fardbeyan and himself took up the investigation of the case, during which course he recorded the statements of witnesses. It further appears from the evidence of P.W.4 that one of the appellants had already surrendered to the custody of the court and the other was absconding. P.W.4 submitted chargesheet for the trial of the two appellants which ultimately ended in the two judgments of convictions. 6. Five witnesses were examined, out of whom P.W.1 Pradeep Thakur and P.W.5 Santlal were declared hostile as they did not support the prosecution charges. P.W.2 Indu Bhushan Pandey, the victim of the offence supported the story in its full but when it 5 came to identifying the accused persons standing in the dock, he said that the two appellants were not the persons who had committed the offence with him. He further stated in paragraph-8 of his cross-examination that he did not know the names of the accused persons and he had not given their names in the FIR. It was the police officer who had put the names of the accused persons and the two who were standing on the day of his evidence in dock were not those persons who had committed the offence with him. It is clearly available from the evidence of P.W.4 S.I. Vijay Singh that he had not arrested any of the two appellants or any person in connection with the offence. However, the learned trial Judge has recorded that the appellants were arrested from the wine shop by P.W.4 which finding is contrary to the factual state of the matter. In fact, on perusal of the judgment and evidence, I find that it was quite doubtful that the two appellants could have been the real culprits. 7. It is true that some offence was committed and P.W.2 had been subjected to some sort of acts which could be constituting one offence or the other, but in absence of evidence which could be connecting the two appellants to commission of those offences, it could simply not be legal to uphold the conviction of the two appellants. 6 8. In the result, the two appeals succeed. The judgment of conviction and order of sentence passed upon the two appellants are hereby set aside. Appellant Gangotri Singh is on bail. He shall stand discharged from the liabilities of his bail bond. So far as appellant Sunil Kumar Gupta is concerned, he is in custody. He is directed to be released forthwith, if not wanted in any other case. 9. Sri S.A.Ahmad, learned Amicus Curiae(In Cr.Appeal(SJ)754 of 2007) has assisted this Court and he 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 him. Patna High Court, Dated, the 18th day of November, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)