Parma Mahto v. The State Of Bihar

Patna High Court CR. APP (SJ) No.262 of 1997 dt.29-01-2013 about 09:00 P.M. his co-villager, Parma Mahto came at his home and on pretext of giving message he took his minor daughter, namely, Usha Devi and after the aforesaid occurrence his wife went to the house of Parma Mahto and enquired from the wife of Parma Mahto but she did not give any satisfactory answer. In the next morning, she sent message to him and having got the message he came at his home and thereafter, his wife narrated the entire story to him. He further stated that he did not give any information to police and he, too, went to the house of Parma Mahto and enquired from Bhikar Mahto but Bhikar Mahto, too, did not give any satisfactory reply. He further stated that on 03.11.1989 one Ramji Pal of his village informed him that Parma Mahto took the victim, Usha Devi as well as him to Mughal Sarai Station on the point of dagger but, anyhow, he escaped from the clutches of Parma Mahto and came to his village.

#4. On the basis of aforesaid Ferdbeyan, Nokha (Baghaila) P.S. Case No. 185 of 1989 under Sections 363, 365, 366 A of the Indian Penal Code was registered and accordingly, formal first information report was drawn for the above stated offences against the appellant. The matter was investigated by the Investigating Officer and after completion of investigation, Investigating Officer submitted charge sheet for the offences punishable under Sections 363, 365 and 366 A of the Indian Penal Code against the appellant. The cognizance Patna High Court CR. APP (SJ) No.262 of 1997 dt.29-01-2013 of the offences was taken and the case was committed to the court of Sessions, in usual way.

#5. The appellant was charged for the offences punishable under Sections 363 and 366 A of the Indian Penal Code but he denied the charges and claimed to be tried.

#6. As many as seven prosecution witnesses were examined and prosecution also got exhibited Ferdbeyan as Exhibit-1, endorsement on Ferdbeyan as Exhibit-1/1 and ½, formal first information report as Exhibit-2, Jimmanama as Exhibit-3 and signature of Dashrath Sharma on Jimmanama as Exhibit3/1. The statement of appellant was recorded under Section 313 of the Cr.P.C. in which he reiterated his innocence.

#7. No evidence was adduced on behalf of the appellant in support of his defence but from perusal of the statement of the appellant recorded under Section 313 of the Cr.P.C., it would appear that defence of the appellant was total denial of the prosecution story.

#8. The learned trial court having relied upon the testimony of P.W.3, P.W.5 as well as Exhibit-3 convicted and sentenced the appellant in the manner as stated above.

#9. Learned counsel appearing for the appellant assailed the impugned judgment of conviction and sentence order arguing that victim Usha Devi was examined by the trial court as P.W.7 but she Patna High Court CR. APP (SJ) No.262 of 1997 dt.29-01-2013 did not support the prosecution story rather, specifically, admitted at para-3 of her cross examination that on account of some differences with her parents she left her home and went to the house of her maternal uncle situated at Mohalla-Choukhandi of Sasaram. Learned counsel for the appellant further submitted that P.W.6, Investigating Officer of the case, admitted at para 5 of his examination in chief that he recovered P.W.7, the victim, from the house of her maternal uncle situated at Mohalla-Choukhandi of Sasaram. So, the testimony of P.W.7 is corroborated by P.W.6. Learned counsel for the appellant further submitted that the learned trial court has based his judgment on surmises and conjectures and, therefore, the impugned judgment of conviction and sentence order cannot sustain in the eye of law.

#10. On the other hand, learned Additional Public Prosecutor appearing for the State supported the impugned judgment of conviction and sentence order arguing that P.W.3 and P.W.5 have categorically supported the prosecution case and the prosecution has succeeded to prove its case beyond all shadow of reasonable doubts.

#11. As I have already stated that prosecution examined, altogether, seven witnesses. Out of the aforesaid seven witnesses, P.W.1, P.W.4 and P.W.5 came to know about the alleged occurrence from P.W.3 because it is admitted case of the prosecution that at the time of alleged occurrence only P.W.3 and victim, P.W.7 were present Patna High Court CR. APP (SJ) No.262 of 1997 dt.29-01-2013 at their home and P.W.1, P.W.4 and P.W.5 had not seen the appellant taking away the P.W.7, the victim.

#12. P.W.3 supported the prosecution case and stated that on the alleged date of occurrence she along with P.W.7 was at her home and in the meantime, appellant came there and took away her daughter, P.W.7 along with him but at para 6 of her cross examination, she frankly admitted that she had not seen the appellant and when appellant came at her home, she was in her room. She further admitted that when P.W.7 did not return for half an hour, she started searching her. So, the aforesaid statement of P.W.7 reveals that she had not seen the appellant taking away the victim, P.W.7 on the alleged date of occurrence. Furthermore, she has admitted in her examination in chief that she had identified the appellant by his voice and, therefore, the aforesaid admission also suggests this fact that P.W.3 had not seen the appellant taking away her daughter on the alleged date of occurrence.

#13. P.W.7 is victim of the case but she stated that she had not made any statement before the police and on the alleged date of occurrence she had left her home due to some differences with her parents. She further stated that she came to the house of her maternal uncle from where she was taken away by her father. So, the aforesaid statement of P.W.7 completely demolished the prosecution case and, Patna High Court CR. APP (SJ) No.262 of 1997 dt.29-01-2013 in my view, the learned trial court committed an error in convicting and sentencing the appellant on the basis of testimony of P.W.3 and P.W.5.

#14. On the basis of aforesaid discussions, this criminal appeal is allowed and accordingly, impugned judgment of conviction dated 29.08.1997 and sentence order dated 02.09.1997 are hereby, set aside. The appellant is on bail. He is discharged from the liabilities of his bail bonds. SHAHZAD/A.F.R.