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2012 DIGILAW 1658 (PAT)

Hari Kishore Sah v. State of Bihar

2012-12-07

SHEEMA ALI KHAN

body2012
ORAL JUDGMENT S.A. Khan, J. Nobody appears on behalf of the appellant in Cr. Appeal (SJ) No. 140 of 2001. Mr. Ranbir Singh is appointed as Amicus Curiae in this case to assist this Court. 2. The two appellants have been found guilty under Sections 368 and 368A of the Indian Penal Code and have been punished to undergo imprisonment for seven years by the 8th Additional Sessions Judge, East Champaran, Motihari in Sessions Trial No. 389/99. 3. The appellant Hari Kishore Sah is the uncle of the appellant Shyam Babu Sah. The First Information Report has been instituted by Sardar Singh that his daughter Ravindar Kaur had gone to the shop to close it. In the meantime, he alleges that he heard the sound raised by her daughter and when he went to his shop he saw Shyam Babu, Chandrika Singh and Hari Kishore alongwith some other had caught hold of his daughter and forced to come out of the shop. It is alleged that Chandrika Singh made her sit on a bicycle and Hari Kishore is said to have told him that he wants to get his nephew married to the informant’s daughter. On a perusal of the First Information Report, it is apparent that it does not bear any date. The institution had taken place on 31.12.97 and has been received by the Chief Judicial Magistrate on 2.1.98. The girl in question was recovered by the Officer-in-charge (I.O.) in the evening of the same day on which she was supposedly kidnapped from the village on the border of Nepal. The victim girl was handed over to her parents and was produced before the Magistrate on 7.1.98 to be examined under section 164 of the Code of Criminal Procedure. It has been argued and it is quite apparent that the First Information Report does not bear the date of its institution by the informant. The girl was not retained by the Investigating Officer to be medically examined and to be produced before the Magistrate rather she was handed over to her father and the examination under Section 164 of the Code of Criminal Procedure took place after a delay of seven days. There is also a delay of 24 hours in producing the First Information Report before the Chief Judicial Magistrate. There is also a delay of 24 hours in producing the First Information Report before the Chief Judicial Magistrate. Therefore, there appears to be three circumstances which indicate that written report was actually made after the girl was recovered which would indicate that the prosecution has not come with the correct fact. 4. This aspect of the matter would be apparent on reading the evidence of the victim girl P.W. 5 as also her statement given under Section 164 of the Code of Criminal Procedure which had been read out to her in court and has been accepted by her to be correct. According to the evidence of the victim girl, five to six persons came to her shop, covered her face and eyes with ‘dupatta’, she alleges that she was forced to sit on a bicycle and taken to some unknown destination by a jeep. She claims to have identified Shyam Babu Sah and Hari Kishore Sah amongst the persons who had kidnapped her. According to her, she was recovered from the village Mahua by the Officer-in-chage of Kundua Chaini Police Station. She denies that the appellants alongwith other miscreants had abused her or had anyway physically mishandled her. During her evidence some letters were produced on behalf of the appellants and shown to P.W. 5 for the purpose of identifying her handwriting. She denies having written these letters. These letters are on record and it is said that these are the love-letters of P.W. 5 written to Shyam Babu Sah. 5. It is interesting and important to note that P.W. 5 has given a completely different version to the occurrence in her statement under Section 164 of the Code of Criminal Procedure thus giving a fatal blow to the involvement of these two appellants. She has stated that she was forcibly taken by some unknown persons from her shop. When she reached Mohalia village she was handed over to Chandrika Sinha (acquitted in this case) as there was some dispute between the miscreants regarding the jeep crossing the Nepal border. It is said that Chandrika Singh told the miscreants that he had already received the ransom amount. In the meantime, the Officer-in-charge came to the village Mahua and recovered her. It is said that Chandrika Singh told the miscreants that he had already received the ransom amount. In the meantime, the Officer-in-charge came to the village Mahua and recovered her. The only allegation made against the appellant Shyam Babu Sah and Hari Kishore Sah in the statement under Section 164 of the Code of Criminal Procedure is that she alleges that Shyam Babu wanted to marry her and he was responsible for getting her kidnapped. She also alleges that Shyam Babu’s uncle, appellant Hari Kishore Sah, used to threaten her that he would get her married to Shyam Babu after being released from jail. 6. Considering that there is a discrepancy in the evidence of the victim girl in Court and in her statement under Section 164 of the Code of Criminal Procedure, it would be apparent that the addition of the name of the appellants is for some other reason, perhaps to support the case of her father as made out in the First Information Report. It is important to note that at the time of recovery the two appellants were not apprehended by the Investigating Officer in question nor have they been said to be present near the place where the recovery was made. The appellants were apprehended on 2nd of February, 2012. Apart from the two lacunae pointed out by this Court regarding the manner in which the First Information Report has been instituted and the discrepancy in the evidence of the victim girl, it would appear from the statement of P.W. 4, the mother, that Nand Kishore Sah, father of appellant Shyam Babu Sah and the informant Sardar Singh were doing business together and it appears that there was some dispute between them. The evidence of the mother also discloses that the girl was recovered just 9 K.M. from her house. This fact alongwith the manner in which the Investigating Officer has conducted the case give rise to several doubts regarding the allegation of kidnapping against Shyam Babu Sah. It may be noted that Hari Kishore Sah has supposedly threatened the informant. Hari Kishore Sah is the brother of Nand Kishore Sah, the business partner of the informant and the uncle (Chacha) of Shyam Babu Sah. It may be noted that Hari Kishore Sah has supposedly threatened the informant. Hari Kishore Sah is the brother of Nand Kishore Sah, the business partner of the informant and the uncle (Chacha) of Shyam Babu Sah. This Court for the reasons discussed above comes to the conclusion that the prosecution has not come with clean hands and there are several lacunae in the evidence which does not support the allegation of kidnapping as far as these two appellants are concerned. 7. In the result, the appellants are acquitted giving them the benefit of doubt. These appeals are allowed. They are also discharged from the liabilities of their bail bonds furnished earlier in these cases.