Patna High Court
Dinesh Dharker vs State Of Bihar on 28 August, 2012
Author: Ashwani Kumar Singh
Bench: Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.292 of 1997
===========================================================
Dinesh Dharker, Son of Kailu Dharkar, resident of village-Hridya Nagar, P.S.
Banmankhi, District-Purnea.
.... .... Appellant
Versus
State Of Bihar
.... .... Respondent
===========================================================
Appearance :
For the Appellant : Mr. Hare Krishna Kumar &
Mr. Sidhendra Narayan Singh, Advocates.
For the Respondent : Mr. S.N.Prasad, A.P.P.
===========================================================
CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date: 28-08-2012 The present appeal is directed against the judgment and order dated 29.09.1997, passed in Sessions Trial No.849 of 1994 by the learned Ist Additional Sessions Judge, Purnea convicting the appellant under Section 363 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for three years.
2. The prosecution case is based upon the written report dated 09.10.1993 of P.W.1 Thakur Prasad Sah submitted to the officer-in-charge of Banmankhi police station. It has been stated by P.W.1 in the written report that on 08.10.1993 at about 7 p.m., his daughter Nilam Kumari left her house informing her mother that she was going to attend the call of nature. She did not return thereafter. The informant and his wife made a search for her. In the meantime, a co-villager Chhedi Rishideo told him that he had seen his daughter Patna High Court CR. APP (SJ) No.292 of 1997 dt.28-08-2012 2 with two boys about half an hour ago going towards Dharkartola, Banmankhi.
3. On 09.10.1993, in the morning, he went to Dharkartola and there he was informed that Dinesh Dharkar and Pultha Sahani were absent from their house since last night. Later on, the informant learnt that a relation of the appellant used to reside at village Baghmara in K.Nagar police station. On receipt of such information, the informant along with his villagers, namely, Anandi Yadav, Bhola Mahto, Sudish Yadav and Ramkishun Yadav proceeded to village- Baghmara and there they met Buchai Dharkar, the uncle of the appellant. There the informant came to know that two boys and a girl went towards Garheya along with a lady. When the informant reached near Koshi Colony he found his daughter Nilam Kumari sitting along with the appellant, co-accused Pultha Sahni and the wife of Buchai Dharkar under a tree. Having seen the informant and others the aforesaid three persons fled away leaving the daughter of the informant alone there. The informant, thereafter, came to the police station along with his daughter. On query, the victim told that she had been kidnapped by the appellant and Pultha Sahni for the purposes of marriage.
4. On the basis of the said written report, the officer-in- charge of Banmankhi police station registered Banmankhi P.S.Case Patna High Court CR. APP (SJ) No.292 of 1997 dt.28-08-2012 3 No.227 of 1993 dated 09.10.1993 under Section 366A of the Indian Penal Code against the appellant Dinesh Dharker, co-accused Pultha Sahni and the wife of Buchai Dharker and took up the investigation.
5. On completion of investigation, the police submitted chargesheet under Section 366A of the Indian Penal Code. The appellant along with Pultha Sahni and Kalia Devi(wife of Buchai Dharker), were charged for the offence punishable under Section 366A of the Indian Penal Code. The appellant and others did not plead guilty to the charge and claimed to be tried. It is to be noted here that the appellant and co-accused Pultha Sahni were convicted on conclusion of trial under Section 363 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years each. However, the other accused, namely, Kalia Devi was acquitted of the charge.
6. In course of trial, the prosecution has examined, in all, six witnesses. Out of them P.W.2 Sudish Yadav and P.W.4 Bhola Prasad Mahto have expressed complete ignorance about the occurrence. They have been declared hostile by the prosecution. P.W.3 Ramkishun Yadav and P.W.5 Anandi Yadav have been tendered for cross-examination without being examined by the prosecution. P.W.1 Thakur Prasad Sah is the informant of the case and P.W.6 Nilam Kumari is the victim girl. Thus, the fate of the case Patna High Court CR. APP (SJ) No.292 of 1997 dt.28-08-2012 4 depends on the deposition of the informant and his daughter.
7. P.W.1 Thakur Prasad Sah has reiterated the statement made by him in the written report on the basis of which FIR was instituted in his examination in chief. He has proved his signature on the written report which has been marked as Ext-1. He states that P.W.3 Ramkishun Yadav and P.W.4 Bhola Mahto were all along with him when he was searching for his missing daughter. They had also put their signature on the written report submitted to the police. He proved their signature which have been marked as Ext-2 and 2/1 respectively. He states that at the relevant time his daughter was aged about 15 years and the police had sent her for medical examination. In cross-examination he states that he did not know the name of the appellant and Pultha Sahni from before. However, P.W.3 Ram Kishun Yadav had disclosed him their name. He states that when he enquired from his daughter she told that she was taken away by the accused persons by use of force. He admits that she did not disclose as to whether or not she knew the appellant and Pultha Sahni from before. He further admits that when his daughter went out to defecate he was not present in the house. He was attending Satsang in the house of one Jagdeo, where apart from him, 6-7 other persons were also present. His wife came there and told him that their daughter was missing since last one hour. Thereafter, he went together with Jagdeo Patna High Court CR. APP (SJ) No.292 of 1997 dt.28-08-2012 5 Yadav, Anandi Yadav, Asharfi Yadav, Baso Rishideo and others in search of his daughter. He admits in cross-examination that it was P.W.3 Ramkishun Yadav, who disclosed him that the appellant and Pultha Sahni were not present in their house and it was co-villager Chhedi Rishideo who told him that two boys along with a girl were seen going towards Dharkertola. He states that on the next day at about 10-11 a.m. he went to Baghmara and when his daughter was recovered nearly 20-25 people had assembled there. However, on being questioned, he told that he did not know the name of any one who had assembled at the place where his daughter was recovered. In further cross-examination, he admits that enquiry was made from the victim in presence of the persons who had assembled at the time of her recovery. The Police Inspector had also enquired there from his daughter and his daughter had narrated about the entire incident to him. The signature of his daughter was also taken by the police officer on her statement. When his attention was drawn towards his previous statement, he states that whatever he had narrated before the police he has disclosed in the court.
8. P.W.2 Nilam Kumari states in her examination-in-chief that the occurrence took place on 08.10.1993 at about 6-7 p.m. She had went out from her house to defecate. The appellant and Pultha Sahni came there and on the point of dagger, took her on a rickshaw Patna High Court CR. APP (SJ) No.292 of 1997 dt.28-08-2012 6 towards station. She was pushed in the centre and appellant and co- accused Pultha Sahni were covering her from both sides on the rickshaw. She was then taken to Murliganj station. From Murliganj station she was taken to the house of the sister of the appellant where she was kept in the night. Next morning, she was taken to Baghmara, from there she was taken to Koshi Colony and was kept in the house of aunt of the appellant. The appellant wanted to marry her. She was then taken from Koshi Colony to Baria Balua but in the meantime, her father came and then the appellant fled away. Her father took her to Banmankhi police station. Her statement was recorded by the police and before the Magistrate.
9. In cross-examination, she admits that she knew the appellant and Pultha Sahni from before. When the accused persons forced her to seat on rickshaw on the point of dagger she was at a distance of 50 yards from her house. She states that she had disclosed to the police and the Magistrate that she was taken by the accused by force on the point of dagger. She states that she was taken to Banmankhi bus stand. She was then taken by train to Murliganj. She was taken to the house of the appellant's sister at Murliganj by rickshaw. She was then taken to Purnea by train. There were several passengers in the train. She reached Purnea at about 2 p.m. In Baghmara, near Koshi colony, her father met her, whereafter, the Patna High Court CR. APP (SJ) No.292 of 1997 dt.28-08-2012 7 accused persons fled away. She denied the suggestion that she had made a false statement. On the basis of the evidence available on record, the trial court held that the prosecution could not establish the charge under Section 366A of the Indian Penal Code but convicted the appellant and one another under Section 363 of the Indian Penal Code.
10. I have heard Mr. Hare Krishna Kumar, learned counsel for the appellant and Mr. Satya Narain Prasad, learned Additional Public Prosecutor on behalf of the State. The offence of kidnapping punishable under Section 363 of the Indian Penal Code has been defined under Section 359 of the Indian Penal Code which reads as follows:-
"Kidnapping.--Kidnapping is of two kinds:
kidnapping from [India], and kidnapping from lawful guardianship."
11. Apparently the present case is not a case of kidnapping from India. Section 361 of the Indian Penal code deals with the offence of kidnapping from lawful guardianship which reads as follows:-.
"361. Kidnapping from lawful guardianship.-- Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."
Patna High Court CR. APP (SJ) No.292 of 1997 dt.28-08-2012 8
12. A punishment under Section 363 of the Indian Penal Code for kidnapping could have been given in the present case, only if, it is proved that the victim was minor on the date of occurrence.
13. Admittedly, the victim was sent for her medical examination after her recovery. The prosecution has not examined, the doctor who had medically examined her. The prosecution has also not produced any paper relating to her medical examination in course of trial. Thus, I find that the prosecution has failed to establish the minority of the victim by reliable evidence. To the contrary, the prosecution has deliberately withheld the medical report in support of age. There is no explanation for non-examination of the doctor who examined the victim.
14. I further find that the victim had left for her parental home and was visiting from one place to another by public conveyance. She did not resist at any point of time. She states that she was taken on rickshaw by force on the point of dagger from her village home by the appellant and co-accused Pultha Sahni. She was then taken to bus stand at Banmankhi and from there she was taken to railway station. She boarded a train at Murliganj station. She disembarked from the train at Baghmara. She then went on rickshaw to the house of the appellant's sister. She was then taken to the house Patna High Court CR. APP (SJ) No.292 of 1997 dt.28-08-2012 9 of the appellant's aunt and when her recovery was made she was sitting together with the appellant and others. Apparently, the manner in which the victim has narrated her movement, it is clear that she was moving from one place to another, out of her own sweet will.
15. I find that the FIR was instituted by the informant after the recovery of the victim. When the FIR was instituted the victim went together with the informant to the police station. The victim states that the police officer recorded her statement and took her signature. If that be true, as a matter of fact, that would have been the first information report. Since the investigating officer has not been examined, it is shrouded in mystery as to what happened to the statement of the victim recorded by the police at the police station. Had the investigating officer been examined in course of trial he would have thrown some light on this aspect. Under such circumstance, the non-examination of the investigating officer has certainly prejudiced the defence.
16. I further find from the evidence that the victim states that she was taken on rickshaw by force by the appellant and co- accused Pultha Sahni but Chhedi Rishideo, a co-villager, who, as per the informant, disclosed him that he had seen a girl and two boys going towards Dharkertola, has not disclosed that he had seen them going on rickshaw. Chhedi Rishideo was an important witness. He has Patna High Court CR. APP (SJ) No.292 of 1997 dt.28-08-2012 10 not been examined by the prosecution. I further find that the informant learnt about missing of his daughter from his wife. He states in his deposition that his wife disclosed him about missing of his daughter while he was attending Satsang in the house of one Jagdeo. The wife of the informant has also not been examined by the prosecution.
17. The informant states that he went together with Anandi Yadav(P.W.5), Bhola Mahto(P.W.4), Sudish Yadav(P.W.2) and Ramkishun Yadav(P.W.3) in order to search his daughter. Out of them P.W.2 Sudish Yadav and P.W.4 Bhola Mahto have been declared hostile and P.W.3 Ramkishun Yadav and P.W.5 Anandi Yadav have been tendered.
18. Learned counsel for the appellant submits that the trial court wrongly permitted the prosecution to tender Ramkishun Yadav(P.W.3) and Anandi Yadav(P.W.5). Both P.W.3 and P.W.5, according to the prosecution case itself, were witnesses to the recovery of the victim. The victim has stated that she had made statement before the persons who had assembled at the place of occurrence regarding the incident of occurrence. Under such circumstance, it has been submitted that their evidence was, of a material nature which was necessary for unfolding of the true prosecution story. The effect of their being tendered only for cross- Patna High Court CR. APP (SJ) No.292 of 1997 dt.28-08-2012 11 examination amounts to the failure of the prosecution to examine them at the trial. He submits that their non-examination seriously affects the credibility of the prosecution case and detracts materially from its reliability. I find force in his submission. The trial court could not have allowed them to be tendered for cross-examination without examining them under examination-in-chief. P.W.3 Ramkishun Yadav and P.W.5 Anandi Yadav were not only witnesses on the point of recovery rather they were witnesses to the written statement made by the informant too.
19. I further find that as per prosecution case, the victim was examined by a Judicial Magistrate under Section 164 of the Code of Criminal Procedure. Neither the Magistrate who recorded the statement of the victim after her recovery under Section 164 of the Code of Criminal Procedure has been examined by the prosecution in course of trial nor the statement recorded under Section 164 of the Code of Criminal Procedure has been brought on record.
20. Thus, apparently the material witnesses have been withheld by the prosecution. The investigating officer has not been examined. The doctor who examined the victim has also not been examined. The medical report with respect to examination of the victim has not been brought on record. The statement of the victim recorded under Section 164 of the Code of Criminal Procedure has Patna High Court CR. APP (SJ) No.292 of 1997 dt.28-08-2012 12 also not been proved by the prosecution in course of trial. The Magistrate who recorded the statement of the victim was not examined. Under the circumstances, it would be unsafe, to uphold the conviction of the appellant recoded by the trial court.
21. For the reasons assigned, hereinabove, in my view, the prosecution has failed to prove its case beyond all reasonable doubt.
22. In the result, the appeal is allowed. The impugned judgement and order dated 29.09.1997 passed by the learned Ist Additional Sessions Judge, Purnea in Sessions Trial No.849 of 1994 is set aside. The appellant, who is already on bail, is discharged from the liabilities of his bail bonds.
(Ashwani Kumar Singh, J) Patna High Court, Dated, the 28th day of August, 2012, Brajesh Kumar/AFR