CRIMINAL APPEAL No.640 OF 2004
Against the judgment and order dated 11.8.2004, passed by Sri Anil Kumar Verma,
District & Sessions Judge, Buxar in Sessions Trial No. 162 of 2003, arising out
of Itarhi P.S. Case No. 83 of 2002
MOHAN RAI, son of Ram Deo Choudhary, Village+P.S.- Dumraon, District- Buxar
------ Appellant
Versus
STATE OF BIHAR ------Respondent
For the Appellant :- Arun Kumar Tripathy, Advocate, Amicus Curiae
For the State :- Mr. Rajendra Nath Jha, Advoate
P R E S E N T
THE HON’BLE JUSTICE SMT. SHEEMA ALI KHAN
S.A. Khan, J. This is a jail appeal in which this
Court has appointed Arun Kumar Tripathy to
appear amicus curiae.
The sole appellant Mohan Rai who has
spent about more than six years in jail custody
in a case under Section 366A of the Indian Penal
Code has challenged the order dated 11.8.2004
passed by District & Sessions Judge, Buxar.
The prosecution case is that the
occurrence took place 2½ years prior to the
lodging of the First Information Report. The
First Information Report was lodged on
19.10.2000 by Urmila Devi, mother of the so
called victim girl Dharmshila Devi. In the
2
First Information Report it is alleged that
Anandi Devi, mother of the present appellant had
come to the house of the informant in the
morning at about 3 a.m. and asked Dharmshila
Devi to accompany her for the purpose of
attending the call of nature. The informant
found that her daughter had not returned hom and
began to look for her. She went to the house of
Anandi Devi but was told that Anandi Devi does
not know the whereabouts of Dharmshila Devi. In
the First Information Report it is also alleged
that the informant went again to the house of
Anandi Devi but on each and every occasion she
was repelled by her. The informant claims that
there was a ‘Panchayati’ in the village and
Anandi Devi had promised to produce the girl who
has allegedly been taken away by Mohan Rai, son
of Anandi Devi. The girl returned after about 8
or 9 months of the occurrence.
Eight(8) witnesses have been examined
on behalf of the informant whereas three(3)
witnesses have been examined on behalf of the
defence. The Court below has convicted Mohan
Rai on the evidence of the girl and her mother
and had believed the prosecution version.
3
Further the case of the prosecution
that some boys of the village had caught hold of
Mohan Rai and got him to confess with regard to
the whereabouts of Dharmshila Devi. It is said
that the informant’s husband and Mohan Rai along
with some villagers went with Mohan Rai to
Sasaram to look for Dharmshila Devi. After
reaching Sasaram, it is alleged that Mohan Rai
managed to escape from them on the pretext of
fetching water.
P.W. 1 Jai Prakash Rai has given evidence only on the point that he went to
Sasaram with Mohan Rai, P.W. 2 has been declared
hostile. P.Ws. 3 and 4 have been tendered for
cross examination. The only relevant evidence
in this case is of P.Ws. 5 and 7. P.W. 6, the
husband of the informant and his evidence is
mainly based on what he has learnt from his
wife, the informant.
P.W. 5 Urmila Devi, the informant has
supported the case made out in the First
Information Report. In the cross examination
she has not been able to explain as to why her
daughter went to attend the call of nature with
Anandi Devi when she herself was present in the
4
house as according to the informant she was
sleeping in her house along with her daughter
Dharmshila Devi. Secondly, when the Court asked
her how she came to know that her daughter had
gone to Panipat she said that she had come to
know all these facts from her daughter. In fact
the evidence in her cross examination is so weak
with respect to the manner of occurrence and the
explanation, rather virtually no explanation has
come forth to explain the delay in filing the
case for 2½ years, although she was aware that
her daughter had been kidnapped.
Similarly, P.W. 7 the victim girl has
tried to make out a case that she was forcibly
taken and that Anandi Devi handed her over to
Mohan Rai at 3 a.m. after she left her house.
This witness is not at all able to explain as to
how she left from Sasaram and went to Panipat on
a truck. The first inconsistency in her
statement comes forth when she states that Mohan
Rai had taken her on a bus to Sasaram, she
admits that there were several passengers
travelling on the bus and she has not raised hue
and cry or protested or informed the passenger,
driver or khalasi regarding the fact that she
5
was being forcefully taken on the bus. The
initial story of kidnapping becomes doubtful in
view of this fact. It is not her case that she
was in an unconscious condition and was thus
unable to protest or make noise while she was
taken to the bus stand at 6 a.m. in the morning
to leave for Sasaram. Another inconsistency of
the prosecution version is that P.W. 7 does not
give an explanation as to what transpired
between 3 a.m. (time when she was kidnapped) and
6 a.m. (time when she boarded the bus to leave
for Sasaram). It is stranger still that none of
the villagers have seen Mohan Rai along with
Dharamshila Devi anywhere in the village. This
story put forth by Dharmshila Devi appears to be
doubtful and improbable.
The second part of the prosecution case
put forth by Dharmshila Devi is that she was
sold to one Krishna the owner of a truck who
took her to Panipat. It is said that she
travelled for three days on a truck with
Krishna. According to the informant apart from
Krishna there was no Khalasi or any other person
travelling on the truck with them which in
itself does not seem to be probable. After
6
reaching Panipat, P.W. 7 builds a story that she
lived with Krishna for several months. After
some time Krishna permitted her to move freely
and she came to know from some of the neighbours
the name of the trains on which she could travel
back home. The missing link in this part of the
story is that she does not explain as to how she
went to the station at Panipat and by which
train she travelled to Delhi. She claims that
she travelled from Panipat to Delhi and from
Delhi to Buxar without ticket, which also does
not seem probable. The entire narration of the
occurrence appears to be absolutely impossible
to believe and it is further difficult to
believe that Krishna did not try to find out her
whereabouts after he found her missing his home.
All these inconsistencies and gaps, in the
narration of the prosecution case create several
doubts regarding the authenticity of the
prosecution version. After reaching Buxar and
then to her village home strangely enough she
was not produced to be medically examined. In
fact her statement was not recorded under
Section 164 Cr.P.C. by the police. Therefore,
the entire case and story built up by the
7
informant and her daughter P.W. 7 seems to be
improbable and unbelievable. Further there can
be hardly any explanation for not lodging the
First Information Report/Sanha in the police
station even when the informant knew very well
that her daughter was kidnapped by Mohan Rai,
the appellant.
According to her Fardbeyan the
informant had gone to the house of Anandi Devi
when she found her daughter missing and the
informant from the very beginning suspected that
Mohan Rai was responsible for the alleged
kidnapping. Therefore, the second occasion to
file a report arose when the informant’s husband
along with villagers proceeded with Mohan Rai to
look for Dharmshila Devi and failed to locate
her. This leads this Court to the conclusion
that the conduct of the informant in not giving
information to the police is not natural and
logical.
In the circumstances therefore, it is
very difficult to believe that the appellant was
responsible for kidnapping the girl and the
story of her being kidnapped by Mohan Rai
appears to be thoughtfully prepared by an expert
8
mind.
The question then would be that there
has to be a good reason for the informant to
implicate the appellant in a case. The reason
comes from the suggestions given to the
witnesses P.Ws. 5, 6 and 7 suggesting that there
is ill will and dispute between them because of
some land in the village although no case has
been filed by the appellant or the informant for
the said land. Nevertheless, it does appear
that there is a dispute between two which gave
rise to the filing of the present First
Information Report.
Having regard to all the facts
discussed aforesaid, I find that I cannot hold
the appellant guilty of an offence under Section
366A of the Indian Penal Code. The impugned
judgment is set aside and the appellant is
directed to be released forthwith if not
required in any other case.
The appeal is allowed.
Patna High Court, (Sheema Ali Khan, J.)
April, 10th, 2009
A.F.R./Sanjay