Patna High Court
The State Of Bihar vs Rakesh Kumar @ Dablu on 13 February, 2013
Author: Mandhata Singh
Bench: Mandhata Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Govt. Appeal (SJ) No.2 of 2007
====
Against the judgment and order dated 10.10.2006 passed by Sri
Sunil Kumar Panwar, 1st Additional Sessions Judge, Sitamarhi in
S.Tr. No.351 of 2004/112 of 2004 arising out of Dumra P. S. Case
No. 39/2004 G.R.No.451/2004.
===================================================
The State Of Bihar
.... .... Appellant
Versus
Rakesh Kumar @ Dablu
.... .... Respondent
with
Criminal Revision No. 1062 of 2006
===================================================
Vijay Kumar Sinha
.... .... Petitioner
Versus
1. State Of Bihar
2. Rakesh Kumar @ Dablu
.... .... Opposite parties
===================================================
Appearance:
(In G. APP. (SJ) No. 2 of 2007)
For the Appellant : Mr. Parmeshwar Mehta, A.P.P.
For the Respondent: Mr. Rajiv Roy and Mr. S.P.Singh
(In CR. REV. No. 1062 of 2006)
For the Petitioner : Mr. Dinesh Jha
For the State : Mr. Binod Bihari Singh, A.P.P.
===================================================
CORAM: HONOURABLE MR. JUSTICE MANDHATA SINGH
ORAL JUDGMENT
Date: 13-02-2013
Prosecution case initiated on written application of father of the
victim Vijay Kumar Sinha P.W.5, in brief, is that his daughter Reshu
Patna High Court G. APP. (SJ) No.2 of 2007 with Cr.Revision 1062 of 2006 dt.13-02-2013 2
Priya alias Neha Kumari, aged about 15 years, was giving
matriculation examination in second sitting in the year 2004. When
the examination was over she found disappeared (missing) suddenly.
This much of the fact was informed to the Police Station on
24.3.2004. She was searched (traced) and informant could know that she was kidnapped by this accused Rakesh Kumar @ Dablu along with his parents, brother and friends. Suspicion rather fear appeared to informant that his daughter might be murdered or sold or induced to marriage. It is further said that earlier also his daughter was kidnapped by Rakesh Kumar on 27.1.2004 for which Bajpatti P. S. Case No. 11/2004 under section 366A of the Indian Penal Code was registered in which his daughter was recovered from possession of accused persons but some other statement was given by the victim daughter as she had gone to Mama's house and the act of kidnapping is repeated now.
2. Trial commenced with framing of charge. Witnesses examined, statement of accused respondent under section 313 of Code of Criminal Procedure was recorded by the court. Defence was given opportunity to adduce evidence and parties were heard but the trial ended in acquittal of accused respondent for the offence under section 366A of the Indian Penal Code.
3. In all ten witnesses are examined in the case on behalf of Patna High Court G. APP. (SJ) No.2 of 2007 with Cr.Revision 1062 of 2006 dt.13-02-2013 3 prosecution and they are P.W.1 Bindeshwar Mishra, P.W.2 Amod Kumar, P.W.3 Subodh Kumar, P.W.4 Mokim Baitha, P.W.5 Vijay Kumar Sinha, P.W.6 Reshu Priya alias Neha Kumari victim of the case, P.W.7 Dr Sangeeta Jha who has examined the victim Reshu Priya alias Neha Kumari, P.W.8 Renu Sinha mother of the victim, P.W.9 Ram Pukar Kushwaha and P.W.10 Paras Nath Singh, Sub- divisional Judicial Magistrate, Sitamarhi Sadar who had recorded the statement of victim under section 164 of Code of Criminal Procedure.
4. Of rest of the witnesses, P.W.9 is a formal witness to state submission of charge sheet, P.W.7 is doctor and rest are material witnesses but of them only P.W.4 and P.W.6 victim herself are to state the incident as an eye witness. Of both these witnesses, P.W.4 is claiming to watch the victim along with accused person in a Car at bye-pass towards Bus stand. His intimacy to the family of the informant has appeared in paragraph 4 of cross-examination. At paragraph 10 he states about the same to Subodh Babu and Binod Babu but that is not mentioned anywhere or in the F.I.R. or earlier statement given by the informant. Closeness of a witness may be taken as being interested but for that only caution is cast on the Court to believe or disbelieve this witness that has been taken into consideration by the trial court itself in doubting his statement.
5. Now victim remains to state the story of kidnapping. Patna High Court G. APP. (SJ) No.2 of 2007 with Cr.Revision 1062 of 2006 dt.13-02-2013 4 After going through the judgment and observation it is apparent that the same is much elaborate on the controversial points raised by the parties.
6. Crucial points of the case are place of occurrence from where the victim was kidnapped, she remained in custody for months to different places, circumstance in which she remained in custody and her recovery. On the first point that she was taken away by the accused respondent from premises of the school where she had appeared for giving examination of matriculation in second sitting, I.O. is not examined who could be a witness to state the place of occurrence. Apparently place of occurrence if is not established then accused prejudices may not be applicable in this case as I.O. was found dead while his examination was required in the case.
7. In the case whole case diary is exhibited, certainly cannot be done but if that is admitted on the point of place of occurrence due to death of I.O. then also place of occurrence is not established as in the case diary, same is given the room where victim was sitting in examination.
8. Part of the prosecution case is either deposed by the victim or by her father that in the examination room (hall) victim received a chit written by this accused respondent requesting her to meet after examination is over. After examination what she did is that Patna High Court G. APP. (SJ) No.2 of 2007 with Cr.Revision 1062 of 2006 dt.13-02-2013 5 she met her parents who were there at the examination centre waiting her, told them that she was coming just to meet the urinal (bathroom) but did not come back rather disappeared. This much is not mentioned in the case diary. So, absence of this evidence cast doubt at initial stage of disappearance.
9. Now last point is recovery of girl. She is recovered from Vatika Sansthan is admitted to the parties, discussed by the trial court. I do not want to repeat the same. Her statement is that she was brought there by accused respondent after returning from Bombay, elaborately she is stating that she was handed over to a Mohamaddan boy who remained in her watch. One day he misbehaved, she alarmed, people came and he fled. There may be some reality in this much of the statement but another aspect of the case that no force was ever used by that Mohammedan boy, she had every opportunity/ occasion to make it known to all others but she did not do so, rather worked for Vatika Sansthan. It easily can be said that an explanation was given on her behalf after her recovery.
10. Circumstance is speaking that nothing adverse was existing for her disclosure if she was kidnapped. More relevant is that this accused respondent was in custody in the instant case. From beginning till the end her act does not justify to show that force was ever used that is not necessary in kidnapping of a girl who is minor Patna High Court G. APP. (SJ) No.2 of 2007 with Cr.Revision 1062 of 2006 dt.13-02-2013 6 but when a created explanation is given away from the reality that is not admissible which has been taken into consideration by the trial court including several facts and non-existing of ingredients for constituting offences under section 366A of the Indian Penal Code. Thus, I find no mistake committed by the trial court in its judgment.
11. In the discussed facts and circumstances of the case, Govt. Appeal as well as Cr. Revision is dismissed.
(Mandhata Singh, J) A.I./N.A.F.R.