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2001 DIGILAW 648 (PAT)

Md. Rafique @ Md. Rafique Mian v. State Of Bihar

2001-07-27

B.N.P.SINGH, R.N.PRASAD

body2001
Judgment R.N.Prasad, J. 1. The sole appellant has preferred the appeal against the judgment and order dated 6.9.1994/ 7.9.1994 passed by 2nd Addl. Sessions Judge, Nalanda at Bihar Sharif in S.T. No. 516/18 of 1992/94, whereby the appellant has been convicted for the offence under Section 364 of the Indian Penal Code and sentenced to undergo imprisonment for life. He has further been convicted for the offence under Section 324 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years. The sentences were ordered to run concurrently. 2. One Arvind Kumar gave a written report on 15.4.1992 at about 10.35 p.m. to the Officer-in-Charge of Bihar Sharif Police Station stating therein that his nephew (Bhagina) namely, Babloo Kumar aged about 10 years was missing before 2 p.m. of 14.4.1992. He and his family members searched him but he could not be traced out. He learnt from a person that son-in-law of Ashraf Mian had come from Calcutta and he had kidnapped his nephew and took him by train. If Ashraf Mian is contacted the entire fact will come out and he will also produce the boy. If immediate action is not taken, his apprehension is that the boy would be killed. 3. On the basis of aforesaid written report formal First Information Report was drawn, investigation was taken up and on completion of investigation charge-sheet was submitted. The court on receipt of charge-sheet took cognizance and committed the case to the Court of Sessions for trial. The trial court convicted the appellant as indicated above. 4. The defence of the appellant was that he was innocent and was falsely implicated in this case. 5. The prosecution, in support of its case, examined 21 witnesses, out of whom PWs 1, 6 & 9 have been declared hostile. PWs 2, 3, 4, 5, 7, 8 & 10 have been tendered. PWs 11, 12, 13 & 14 are witnesses on the point of missing of the boy. PW 15 is the informant. He is also witness on the point of missing of the boy. PW 16 is the victim boy who was kidnapped. PW 17 had seen the victim boy at Bihar Sharif Railway Station with the appellant. PW 18 is grand-mother of the victim boy who was living at Bakhtiyarpur at the relevant time and the boy had gone to her house. PW 19 is the Investigating Officer. PW 16 is the victim boy who was kidnapped. PW 17 had seen the victim boy at Bihar Sharif Railway Station with the appellant. PW 18 is grand-mother of the victim boy who was living at Bakhtiyarpur at the relevant time and the boy had gone to her house. PW 19 is the Investigating Officer. PW 20 is Doctor who examined the injury on the person of the victim boy, PW 21 has proved the report and protest petition. 6. The defence has also examined one witness i.e. DW 1 to say that the victim boy was student of Maxwell School. 7. PW 15 is the informant. He is not eye-witness to the occurrence. His evidence is mainly on the point of missing of the victim boy. In the written report it has been stated that the victim boy was missing prior to 2 p.m. of 14.4.1992. In evidence the witness stated that in the morning the victim boy, PW 16, had gone towards Devisthan to ease and wash his mouth but till 2 p.m. he did not return. However, no male member was at the house and when he came to know about missing of the boy he and family members started searching the boy but he could not be traced out on 14.4.1992. On 15.4.1992 he and his sister, PW 12, had gone to Bhaktiyarpur to search the victim boy but he was not there. They returned on the same day from Bhakhtiyarpur and again started searching. Sunil Singh, PW 17, and Kalu Mian, PW 8, disclosed that on 14.4.1992 at about 5 p.m. they had seen Babloo, PW 16, with Rafique Mian, son-in-law of Ashraf Mian at Bihar Sharif Railway, Station. He had gone to inform the police but the police did not record the information and as such he had gone to the Superintendent of Police and at his intervention the Police of Bihar Sharif Police Station accepted his written report. The victim boy came to Devisthan along with his grand-mother, PW 18. The police was there from before and the police took the boy in custody. He took the boy to the Police station and also to the Court. His statement was recorded in the Court. The boy was also sent for examination by the Doctor as there was injury on the left heel and finger. The police was there from before and the police took the boy in custody. He took the boy to the Police station and also to the Court. His statement was recorded in the Court. The boy was also sent for examination by the Doctor as there was injury on the left heel and finger. In cross-examination the witness stated that he had filed protest petition. He admitted that in the written report he did not say that he learnt from Sunil Singh that the victim boy was seen with the appellant. Sunil Singh had disclosed the fact at 5 p.m. on 15.4.1992 at Amber Chowk. His brother Dilip Kumar was also there. On 14.4.1992 he did not give any information to the police. He has given details of place of occurrence and stated that house of Ashraf is at a distance of 10 to 15 feet. However, there are three/four houses in between his house and the house of Ashraf. Ashraf Mian, father-in-law of the appellant was on visiting terms. There had been incident of marpit between Ashraf Mian and his family members 10 years ago. The said case was compromised. Babloo was reading in Little Flower School, He denied that he was reading in Maxwell School, The attention of the witness was drawn with respect to the statement before the police on flimsy grounds which are not necessary to be mentioned as the same would not affect the prosecution case. The witness testified in cross-examination that the victim boy had come to the Police Station in presence of the police. 8. PW 11 is the maternal grandfather of the victim boy. His evidence is that on 14.4.1992 Babloo had gone towards Devisthan to ease but he did not return. He started searching him with effect from 3 p.m. but he could not be traced out. Next day PWs 15 & 12 had gone to Bakhtiyarpur to search the boy but the boy was not found there. However, PW 15, the informant, had disclosed that Kalu Mian, PW 8, disclosed that he had seen the victim boy with the appellant at Bihar Sharif Railway Station. PW 12 is mother of the victim boy. Next day PWs 15 & 12 had gone to Bakhtiyarpur to search the boy but the boy was not found there. However, PW 15, the informant, had disclosed that Kalu Mian, PW 8, disclosed that he had seen the victim boy with the appellant at Bihar Sharif Railway Station. PW 12 is mother of the victim boy. Her evidence is that in the morning at 6-7 a.m. her son Babloo had gone towards Devisthan to play but he did not return and thus she and her family members started searching but he could not be found. Next day she and her brother, PW 15, had gone to Bakhtiyarpur to search the boy but he could not be found there. She returned same day to Bihar Sharif Kalu Mian had disclosed to PW 15 that he had seen the victim boy with the appellant at Bihar Sharif Railway Station. PW 13 is the maternal grand-mother of the victim boy. Her evidence is that the boy had gone to play at about 6 a.m. but he did not return. He was searched but could not be found. PWs 15 & 12 had gone to Bhaktiyarpur but the boy was not there. Arvind Kumar had disclosed that one person informed that the appellant had kidnapped him and he had seen Babloo and the appellant at Bihar Sharif Railway Station. PW 14 is brother of the informant. His evidence is that at about 6-7 a.m. on the relevant day Babloo had gone to play near the temple and thereafter he did not return. The entire family had searched him but he could not be traced out. PWs 12 & 15 had gone to Bakhtiyarpur but the victim boy was not found there. Arvind on return from Bakhtiyarpur had disclosed that Kalu Mian had told him that he had seen the victim boy and the appellant at the Railway Station on 14.4.1992 at 5 p.m. The witnesses were cross-examined at length, however, they stood the test of cross-examination on the point that the victim boy had gone towards temple in the morning and he did not return. Therefore, evidence of the aforesaid witnesses is consistent on the point of missing of the boy. 9. PW 16 is the victim boy. He was aged about 10 years. Therefore, evidence of the aforesaid witnesses is consistent on the point of missing of the boy. 9. PW 16 is the victim boy. He was aged about 10 years. Before recording his evidence the Court had tested the understanding of the victim boy and found that he was able to understand. His evidence is that on the date of occurrence i.e. 14.4.1992 he had gone towards Devisthan to ease and wash his mouth. While he was washing his mouth, son-in-law of Ashraf came and asked him to accompany htm to eat sweets. He refused. Thereafter, he caught his hand and slapped him. He tried to raise alarm but the appellant put handkerchief on his face and he became senseless. He regained his sense at Bihar Sharif Railway Station. He was boarded on the train at Bihar Sharif. His hands were tied. When he tried to raise alarm the appellant used to assault. When the passengers tried to interfere the appellant told them that he was his son. However, he was taken to Patna by the train. There his hands were untied and he was taken in the bush. He used to assault when he tried to raise alarm. In the night he kept him in the bush. His hands were tied there. In the morning the appellant brought a hot iron rod and put it on the heel and toe causing injury. The appellant was threatening to kill him. In the morning he saw that the appellant was sleeping and he untied the rassi (rope) with his teeth and fled away from there. He reached Railway Station. There one old man helped him. He with the help of the old man boarded the train. The old man took him to Bhakhtiyarpur and from Bakhtiyarpur Railway station he went to his grand-mother, Pw 18. He disclosed about the incident to his grand-mother. The grand-mother also diselosed that his mother, PW 12, and his Mama, PW 15, had come to search him. Thereafter, the grand-mother took him to Bihar Sharif. When he reached near Devisthan the police took him in possession. The police took him to the Police Station and recorded his statement and thereafter he was taken to the Court where also his statement was recorded. He was again brought to the Police Station and from there he was sent to the Hospital for examination. When he reached near Devisthan the police took him in possession. The police took him to the Police Station and recorded his statement and thereafter he was taken to the Court where also his statement was recorded. He was again brought to the Police Station and from there he was sent to the Hospital for examination. He identified the appellant in the dock. In cross-examination the witness stated that there are 3-4 houses in between the house of his Mama, PW 15, and Ashraf Mian, father-in-law of the appellant. He was reading in Little Flower School. He denied that he was reading in maxwell School. The boy, in fact, reiterated his evidence in chief in cross-examination. The witness was cross-examined at length but nothing cogent could be elicited to doubt his evidence. The witness was examined by the Doctor, PW 20 and the injury report has been brought on record and marked as Ext. 5. The Doctor has found second degree bum injury on the left heel. He opined that such injury is possible by hot iron rod, however, stated that injury was simple in nature. The injury report supports the evidence of PW 16 who has categorically stated that his heel was burnt with hot iron rod by the appellant. 10. The evidence of PW 17 is very relevant. His evidence is that on the date of occurrence he had gone to Bihar Sharif Railway Station as his brother-in-law was going by the train. He had seen the victim boy and the appellant at Railway Station. The appellant was catching hold of the hand of the boy. He had disclosed the said fact to PWs 14 & 15 on 15.4.1992 at Amber Chowk. The witness in cross-examination has stated that his statement was also recorded by the police, Arvind Kumar and Dilip Kumar were known from before. The appellant was also known to him because father-in-law of the appellant, namely, Ashraf had meat shop and he had seen the appellant at the shop several times. Thus, the evidence of the witness also supports the case of the prosecution with respect to kidnapping of the victim boy as he had seen the victim boy and the ppellant at Bihar Sharif Railway Station and the victim boy himself stated that he was taken by the appellant by train from Bihar Sharif Railway Station. 11. PW 19 is the Investigating Officer. 11. PW 19 is the Investigating Officer. His evidence is also relevant, his evidence is that he received written report of the informant at the Police Station and on the basis of which he drew First Information Report. He recorded further statement of the informant on 16.4.1992. He proceeded for the place of occurrence. He inspected the place of occurrence and has given vivid picture of the place of occurrence i.e. Devisthan etc. He also recorded the statement of witnesses. While he was at the place of occurrence people started saying that the victim boy was coming. He called him and he recorded his statement. The statement of the boy was also recorded under Section 164 of the Code of Criminal Procedure on the same day i.e. 16.4.1992. He received injury report from Bihar Sharif Hospital on 30.4.1992 and on completion of investigation charge-sheet was submitted. The witness, however, in cross-examination stated with regard to omission of some facts but those facts are not very material and as such it is not necessary to reiterate those statements. The omission as pointed out was not on the point of missing of the boy or kidnapping of the boy by the appellant. 12. From the discussion of evidence as indicated above it is evident that evidence of PWs 11 to 14 are with respect to missing of the boy and their evidence is consistent on the point. The informant, PW 15, is also not eye-witness to the kidnapping. His evidence is also on the point of missing of the boy. Therefore, the fact that Babloo was missing from the morning of 14.4.1992 has been established by consistant evidence. PW 16 is Babloo. His evidence has also been discussed. We do not find any absurdity/irregularity in his evidence to disbelieve it, rather it appears to be natural and convicting. It would not be out of place to mention here that as soon as he came to the place of occurrence the police recorded his statement and his statement was recorded under Section 164 of the Code of Criminal Procedure on the same day. There is no inconsistancy on the material point either in the evidence or the statement under Section 164 of the Code of Criminal Procedure. There is no inconsistancy on the material point either in the evidence or the statement under Section 164 of the Code of Criminal Procedure. The evidence of the victim boy is also corroborated from the evidence of Sunil Singh who had seen the victim boy along with the appellant at Bihar Sharif Railway station. The evidence of the victim boy that the appellant had burnt his heel is also found to be correct as the Doctor has submitted injury report which shows that he found 2nd degree burn injury on heel. Thus, we find that prosecution has succeeded in establishing its case against the appellant beyond all reasonable doubts. 13. Learned counsel for the appellant, however, pointed out that no case under Section 364 of the Indian Penal Code is made out as there is nothing on the record to show that intention of kidnapping was to murder. Submission of learned counsel for the appellant, in our view, has no substance as the victim boy himself stated that he was kept in the bush in the night and the appellant had burnt his heel with hot iron rod and he was threatening to kill him. Therefore, it is evident that intention to kill is born out from the evidence of the victim boy itself. Moreover, no suggestion was given to the witness by the defence that kidnapping was done for other purposes. Therefore, we are satisfied that the evidence brought on the record clearly indicates that kidnapping was done with intention to kill the boy. 14. Learned counsel for the appellant, however, pointed out that since the boy has been recovered within 2 or 3 days the punishment awarded is severe. The appellant has been convicted under Section 364 of the Indian Penal Code and sentenced to imprisonment for life. In fact the boy had succeeded in slipping from the custody of the appellant within two days and he gave his statement before the police and except the injury, which was found simple, nothing was found on the person of the injured. Thus, on consideration as discussed above we affirm the conviction of the appellant under Section 364 of the Code of Criminal Procedure. 15. It has been informed by the learned counsel for the appellant that the appellant is in jail with effect from 7.9.1994 the date on which judgment was delivered. Thus, on consideration as discussed above we affirm the conviction of the appellant under Section 364 of the Code of Criminal Procedure. 15. It has been informed by the learned counsel for the appellant that the appellant is in jail with effect from 7.9.1994 the date on which judgment was delivered. In the circumstances we are of the view that justice would be met if the sentence of the appellant is reduced to the period already undergone. Accordingly, sentence of the appellant is reduced to the period already undergone and he is directed to be released forthwith if not required in any other case. The appeal is thus dismissed with the modification in the sentence as indicated above. Appeal dismissed with modification.