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2001 DIGILAW 565 (PAT)

Md. Siraj v. State Of Bihar

2001-07-11

P.N.YADAV

body2001
Judgment P.N.Yadav, J. 1. This appeal is directed against the judgment and order dated 19th and 23rd June, 2000 passed by Sri Nageshwar Prasad, Ist Additional Sessions Judge, Araria in Sessions Trial No. 691 of 1998 whereby and whereunder he convicted the appellant under Sections 365 and 366 of the Indian Penal Code (hereinafter referred to as the Code) and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 5,000/- under Section 366 and to undergo rigorous imprisonment for five years and to pay a fine of Rs. 3,000/- under Section 365 of the Code and in default of payment of fine, he was to undergo simple imprisonment for four months, both the sentences having been ordered to run concurrently. 2. The prosecution case as unfolded in the FIR and the evidence of the prosecution witnesses lay within narrow compass. In the morning on 29th December, 1997, the victim Dukhni Devi (PW 4) was cooking bread. Just then Ramesh Risideo, who was also made accused in the case entered into her house, went to her, took a bread and ate 1/2 of the bread and gave the remaining half portion to PW 4. The victim was at that time alone in her house. Ramesh Risideo asked her to accompany him saying that he would marry her and he forcibly took her with him on pretence that they would visit a theatre at Forbesganj. No sooner had the victim (PW 4) and the aforesaid Ramesh Risideo arrived near a canal then the appellant with a cycle appeared there. The appellant took both Dukhni . Devi and Ramesh Risideo on his bicycle and set out and they went to Forbesganj. The victim was confined there in a house made of mud and straw. Ramesh Risideo left the victim and went away. While he was departing the victim lodged protest and she asked him to remain with her but her request went unheeded for by him. The appellant took the victim to his house. 3. PW 10, Md. Khuda Bux, a local Dafadar happened to see the appellant and the victim woman aged about 22 years entering into the house of the former and he got suspicious about them and hence he submitted a written report to the Officer Incharge of Kurskanta Police Station on the basis of which the formal FIR (Ext. 3. PW 10, Md. Khuda Bux, a local Dafadar happened to see the appellant and the victim woman aged about 22 years entering into the house of the former and he got suspicious about them and hence he submitted a written report to the Officer Incharge of Kurskanta Police Station on the basis of which the formal FIR (Ext. 5) was drawn up and the case was registered. Investigation was taken up by PW 12, Nand Kishore Singh. After completion of investigation, the charge-sheet was submitted under Sections 363, 365 and 366 read with Section 34 of the Code and finally the trial commenced after commitment. 4. In order to prove this case the prosecution examined PW 1, Sk. Kafil, PW 2, Sk. Sultan, PW 3, Gulabchand Yadav, PW 4, Dukhni Devi, victim, PW 5, Yogendra Goswami, PW 6, Vijay Kumar Goswami, PW 7 Ramesh Kumar Goswami, PW 8, Parmeshwari Risideo, PW 9 Yogesh Risideo, PW 10, Md. Khuda Bux, the informant, PW 11, Dr. P.K. Yadav and PW 12, Nand Kishore Singh, the Investigating Officer. 5. Learned Additional Sessions Judge taking the facts circumstances and evidence brought on record into account found and held the appellant guilty and he convicted and sentenced him under Sections365 and 366 of the Code as stated above vide the impugned judgment and order. 6. The appellant assailed the judgment and order passed against him on the ground that it was not based on law and facts and proper appreciation of materials available on records rather it was based on surmise and conjunctures. 7. Now the only point for determination is whether the impugned judgment and order of conviction and sentence recorded against the appellant can be upheld on the basis of the materials available on records. The victim Dukhni Devi (PW 4) is the most competent and natural witness in the case and as such her evidence assumes important significance. She supported the prosecution case in its entirety by stating on oath that at the relevant point of time on the fateful day she was preparing bread on her house and just then Ramesh Risideo went to her, took a bread from her and he gave half of the bread to her and he himself ate the remaining half. She supported the prosecution case in its entirety by stating on oath that at the relevant point of time on the fateful day she was preparing bread on her house and just then Ramesh Risideo went to her, took a bread from her and he gave half of the bread to her and he himself ate the remaining half. She added that she was alone in her house and Ramesh Risideo took her with him saying that he would marry her and he ultimately forcibly took her with him saying that they would visit theatre at Forbesganj and when they reached near the canal the appellant with a bicycle was found standing there. She further stated that all the three persons i.e. Ramesh Risideo and the appellant and she went to Forbesganj on one and the same bicycle referred to above and there she was kept in a kutcha thatched house and therefrom Ramesh Risideo went away despite protest and request made by her to him to remain with her but her all protest and request want unheaded for by Ramesh Risideo and he left the victim and the appellant together and he want away to his house or somewhere else. Thereafter, the appellant brought the victim to his house where PW 10 happened to see them and he got suspicious about the conduct of the appellant and victim and he set the law in motion by informing the police. It is in the evidence of PW 4 that she had no father or brother and her mother was deaf and dumb. She stated that whenever she raised alarm or tried to escape from the clutches of the appellant she was threatened to be killed. She did not take food and she kept weeping all along. Until police went there and recovered her as well as the appellant from the house of the latter. She as well as the appellant was taken to the police station wherefrom she was sent to her house with her maternal uncle and the appellant after compliance of necessary formalities was remanded to jail custody. PW 4 reiterated that the appellant along with Ramesh Risideo had abducted her. She identified the appellant in the Court saying that she was not acquainted with her since prior to the date of occurrence. 8. PW 4 reiterated that the appellant along with Ramesh Risideo had abducted her. She identified the appellant in the Court saying that she was not acquainted with her since prior to the date of occurrence. 8. Yogendra Goswami (PW 5) stated that after he got information regarding abduction of the victim Dukhani Devi he along with others set out in search of her and in course thereof he reached Kurskanta where he found the victim, who stated to him that she was taken out of her house by Ramesh Risideo and thereafter the appellant took her away and put her in his house. The victim also stated to him that Ramesh Risideo had told her that she had sold her to the appellant. PW 6 Vijay Kumar, 12 years old boy on being found to be competent to depose was also examined as a prosecution witness. He stated that at about 8-9 a.m. on the date of incident, while he was grazing his cattle he saw Ramesh Risideo taking away the victim Dukhani Devi and the appellant was standing with a bicycle near the canal. PW 6 went to the village and narrated the factum the victim being taken by the appellant and Ramesh Risideo to the villagers. The evidence of PW 7, Ramesh Kumar Goswami was identical to that of PW 6 Vijay Kumar Goswami. 9. Parmeshwari Risideo (PW 8) stated that in the morning on the fateful day he saw Ramesh Risideo entering into the house of the victim and at about 1 p.m. on the same day PWs 6 and 7 informed him that the victim Dukhani Devi was abducted and taken away by Ramesh Risideo and the appellant on a bicycle. PW 8 then went to the house of Ramesh Risideo but he was found absent from his house. It is in evidence that later on the victim was brought from Kurushkanta Police Station whereafter she narrated the sordid and woeful tale of her abduction and confinement in the house of the appellant to her neighbours. It is true that the victim PW 4 did not name the appellant and he described him as a Mohammadan but she identified the appellant in the Court as well. It is true that the victim PW 4 did not name the appellant and he described him as a Mohammadan but she identified the appellant in the Court as well. As the victim was taken away by the appellant and confined in his house and she had ample opportunity to remain with him and as such identification of the appellant by her cannot be viewed with suspicion. 10. Similarly, PW 9, Yogesh Risideo, who came to know about abduction of Dukhani Devi (PW 4) from PWs 6 and 7 were also narrated by the victim PW 4 as to how she was abducted and confined by the appellant and Ramesh Risideo and later on she was got released. 11. The aforesaid witnesses were cross-examined at length but nothing was elicited in their cross examination to demolish their veracity. Their evidence is consistent and corroborative and the same inspires confidence and the same must be accepted. 12. Dr. Pradeep Kumar Yadav (PW 11) examined the victim Dukhani Devi on 8.2.1998. On examination of her person and X-ray and radiological report the doctor opined that she was aged about 18 years though she stated her age to be 22 years and the Court also assessed her age at 22 years. PW 11 found her breast well developed. He proved his reports on X-ray as Exts 3 and 3/1. The evidence of the doctor in the instant case is not very material and relevant. 13. PWs 1, 2 and 3 were declared hostile. Their attention was drawn to their previous statements recorded under Section 161, Cr PC. PW 12, Nand Kishore Singh, the Investigating Officer contradicted their statements made in the Court. They appear to have turned hostile towards the truth. PW 12 inspected the place of occurrence. He arrested the appellant. He also proved endorsement (PW 4) on the written report of the informant and the formal FIR (Ext. 5). 14. As already stated above, the appellant did not set up any specific defence and he merely contended that he had falsely been implicated. The contention in view of abundance of evidence on records cannot be accepted. 15. He also proved endorsement (PW 4) on the written report of the informant and the formal FIR (Ext. 5). 14. As already stated above, the appellant did not set up any specific defence and he merely contended that he had falsely been implicated. The contention in view of abundance of evidence on records cannot be accepted. 15. The learned defence counsel contended that there was absolutely no material on records to establish the charge under Section 366 of the Code in asmuch as the victim nowhere stated that the appellant abducted her with intent that she might be compelled to marry a man against her will and consent or that she might be reduced to illicit intercourse. The contention seems to be pregnant with meaning and substance. It is true that the victim or any other witness did not speak about existence of ingredients of Section 366 of the Code and in that view of the matter, conviction and sentence under Section 366 of the Code cannot be upheld. However, there is sufficient material to establish the charge under Section 365 of the Code 16. In view of what has been stated and observed in the preceding paragraphs it is to be held that the prosecution proved the charge under Section 365 of the Code beyond the reasonable doubt. However, the charge under Section 366 of the Code cannot be said to have been established and as such conviction and sentence of the appellant under Section 366 of the Code cannot be sustained. 17. The appellant was awarded a sentence of rigorous imprisonment for five years and a fine of Rs. 3,000/-under Section 365 of the Code. The appellant has been languishing in jail custody for over three and a half years. In my opinion, the ends of justice shall be served if he is sentenced to undergo RI for four years under Section 365 of the Code. 18. The sentence of RI for five years imposed on the appellant under Section 365 of Code is therefore reduced to RI for four years and fine slapped on him stands set aside. 19. In the result, the appeal fails and the same is dismissed with the aforesaid modification in conviction and sentence.