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2011 DIGILAW 24 (PAT)

Kuru Swarnkar @ Sudhir Kumar v. State of Bihar

2011-01-04

MANDHATA SINGH

body2011
JUDGMENT Mandhata Singh, J.-Heard learned counsel for the appellant and learned counsel for the amicus curiae. 2. This appeal is filed against the Judgment and order dated 13.05.1998 passed by the IIIrd Additional Sessions Judge, Nawadah in connection with Govindpur P.S. Case No. 01 of 1989 whereby and whereunder appellant has been convicted for the offence under Section 366 of the I.P.C. and sentenced to undergo Rigorous Imprisonment for 3 years. 3. Written application of one Baso Sao, PW 5 is made basis for the first information report which is to the effect that on 2.1.1989 at about 1.00 pm. his (informants) eldest daughter, Munni Kumari was kidnapped by the appellant, Karu Swarnkar, Age of the victim is said 14 years that of the accused-appellant is said 22 years that is followed by a further allegation that a Hasuli of gold was taken by his daughter with her. 4. After submission of the charge-sheet, trial commenced and ended in conviction of the appellant under Section 366 of the I.P.C. 5. In all 7 witnesses are examined in the case and they are PW 1 Sitaram Sao, PW 2 Munni Devi, victim of the case, PW 3 Jagdish Prasad, PW 4, Kamla Devi, mother of the victim, PW 5 Baso Sao, father of the victim, PW 6 Rajendra Prasad Singh and PW 7, Mukul Lal both formal witnesses. Relevant documents are Ext.3, Medical report of the victim girl, Ext.4 formal F.I.R. and Ext.5 forwarding of the Officer-incharge. 6. To get these documents exhibited, PW 6 and PW 7 are there to state its execution but in any case exhibit-3 may not be taken into consideration accepting its evidentiary value in absence of examination of the Doctor even for age. 7. PW 1 states to know nothing about the incident, has been turned hostile, cross-examined by the prosecution but of no avail, as nothing has appeared in cross-examination of the prosecution also. PW 3, PW 4 and PW 5 are the witnesses to state the kidnapping and if she (victim) was minor or she was major. 8. Appellant is convicted under Section 366 of the I.P.C. goes to show that trial Court is of the view that victim was major one otherwise also Ext. PW 3, PW 4 and PW 5 are the witnesses to state the kidnapping and if she (victim) was minor or she was major. 8. Appellant is convicted under Section 366 of the I.P.C. goes to show that trial Court is of the view that victim was major one otherwise also Ext. 3 is there to state the age of the victim in between 16 to 17 years but without examination of Doctor that is not to be accepted as evidence. F.I.R. is to the effect that victim was 14 years at the time of occurrence but victim is examined in the case as PW 2 stating her age 22 years in the year 1998, while occurrence is of the year 1989-1989. Court has assessed her age as 29 years, relating the same back to the year 1989, age of the victim comes to 20 years. This much is relevant in the case, as victim is examined and making some statement about the incident which will be discussed later. 9. PW 3, PW 4 and PW 5 are clear on the point that victim girl was abducted by the appellant but none of them is eye witness to the occurrence. PW 3 is specific on the point that while he was coming from bath heard about abduction of the victim girl. PW 4 is mother of the victim. She also came to know later about disappearance of her daughter with this appellant. Same is the position with PW 5. At the relevant time he was at his grocery shop and later came to know about the incident. 10. Now, victim of the case that is PW 2 remains to discuss if succeeds to make out a case for abduction or kidnapping. Her statement made in Chief of her examination is to the effect that on 2.1.1989, the date of occurrence, she was in her house. Her mother had gone to take bath and father was at shop. She went to hand pipe to fetch water which was existing outside the house. This accused-appellant met her, asked her to come to Patna. When it was reported by her that no money was with her he (accused- appellant) asked her to take jewellary of her mother, complying thereon she accompanied him with Hasuli of her mother weighing 3- 4 Anna. This accused-appellant met her, asked her to come to Patna. When it was reported by her that no money was with her he (accused- appellant) asked her to take jewellary of her mother, complying thereon she accompanied him with Hasuli of her mother weighing 3- 4 Anna. He further asked her that he would be waiting at Nawada Bus Stand crossing the bridge. This witness went there on trekker. She was taken to Patna City and kept to appellants sister. Her ornament was taken. He asked to marry but same was refused by the witness. A threatening was given then the proposal of marriage was agreed thereupon her father and uncle reached there. 11. By referring, the above statement of the victim girl, it is submitted on behalf of the learned counsel for the appellant/ amicus curiae that no case of kidnapping is made out. I also agree with the learned counsel that witnesses namely, PW 3 to PW 5 have appeared only to state the kidnapping/abduction but not as eye witness and the sole witness to state the kidnapping or abduction is not making out of any case for abduction or kidnapping. 12. This much of the aspect has not been taken into consideration by the Trial Judge. So, the conclusion for conviction reached by it not liable to sustain. 13. Accordingly, the appeal is allowed and the order and judgment passed by the Addl. Sessions Judge-III, Nawadah in connection with S. Tr. No. 100 of 1996/175 of 1989 is set aside and the appellant is acquitted of the charge for the offence under Section 366 of the I.P.C., he is further discharged from the liabilities of the bail bonds. 14. Let a copy of the first page and last page of this judgment be handed over to the learned amicus curiae. 15. A copy of this Judgment along with lower Court records be sent to the trial Court immediately. Appeal allowed.