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2002 DIGILAW 637 (JHR)

Md. Zakir Ansari @ Chottu v. State of Bihar

2002-06-12

VISHNUDEO NARAYAN

body2002
Judgment Vishnudeo Narayan, J.- This appeal has been directed by the sole appellant named above against the judgment and order dated 02.02.96 passed by Shri Ram Nath Ram Mahto, 4th Additional Sessions Judge, Dhanbad in Sessions Trial No. 288/ 88 whereby the appellant was found guilty for the offence punishable under Section 366A of the Indian Penal Code and he was convicted and sentenced to undergo R.I for 10 years. However, two other co-accused persons, namely, Md. Salim and Mahesh Mandai have been acquitted. 2. The prosecution case has arisen on the basis of the fardbeyan of P.W 2 Baidyanath Manjhi, the informant, recorded by R.K. Yadav, O.C. Tisra Police Station on 15.12.1985 at 14.30 hours at the house of the informant in village Lodna Mallah Patti, P.S. Tisra District Dhanbad regarding an occurrence which is said to have taken place at 20.30 hours on 12.12.85 at Lodna Mallah Patti aforesaid. 3. The prosecution case, in brief, is that Bimla Kumari the daughter of P.W 2, the informant, had gone for nature's call in the company of her younger sister Bilma Kumari towards Lodna fire area. P.W 3 Bilma Kumari aged about 12 years came to her house and told the informant that the appellant along with two other acquitted accused persons aforesaid has kidnapped Simla Kumari at the point of dagger and they have taken her away on a car after closing her mouth with clothes forcibly. On getting this information he requested four or five persons of the locality to chase the appellant and others and also provided them a car for going to Dhanbad side and, thereafter, the informant also started making search of Simla Kumari in the nearby places but all in vain. It is further alleged that the informant did not lodge any information with the police earlier in view of the fact that Tilak ceremony for the marriage of Simla Kumari aged about 14 years was to be performed on 13.12.85. It is further alleged that the informant did not lodge any information with the police earlier in view of the fact that Tilak ceremony for the marriage of Simla Kumari aged about 14 years was to be performed on 13.12.85. The prosecution case further is that on 13.12.85 at about 5.00 P.M. the aforesaid persons came to the house of the informant in the company of Simla Kumari and they told informant that they learnt at Dhanbad bus stand that the appellant along with other acquitted accused persons have proceeded towards Nawadah by a bus and, thereafter, they also went to Nawadah where they have recovered Simla Kumari from the accused who have fled away from there. 4. The appellant has pleaded not guilty to the charge levelled against him and he claims himself to be innocent and to have committed no offence and that no occurrence in the manner as alleged has ever taken place. 5. The prosecution has examined seven witnesses to substantiate the charge levelled against the appellant. P.W. 2 Saidyanath Mali is the informant and father of the victim girl Simla Kumari P.W. 4 is her mother and both these witnesses are not the eye witnesses of the occurrence in question rather they have learnt about the occurrence from P.W. 3 Silma Kumari who had accompanied Simla Kumari, the alleged victim girl, for nature's all. P.W. 5 Shyam Sundar Prasad and P.W. 6 Sanwari Kewat are the neighbours of the informant who had followed the appellants and others at the request of the informant for making search and recovery of the victim girl but PW 6 have turned hostile. PW 1 have also turned hostile and does not at all support the prosecution case. PW 7 is the medical witness and the medical report furnished by her is Ext. 2 in this case. It is pertinent to mention here that the alleged victim girl Simla Kumari and the Investigating Officer have not taken oath in this case to support the prosecution case and no explanation is forthcoming on the record regarding their non-examination in this case. However as per evidence, on the record the learned court below found only the appellant guilty for the offence under Section 366A I.P.C. and convicted and sentenced him as stated above. 6. However as per evidence, on the record the learned court below found only the appellant guilty for the offence under Section 366A I.P.C. and convicted and sentenced him as stated above. 6. Now the only point for determination in this case is as to whether there is any illegality or irregularity in the impugned judgment requiring an interference therein. 7. It has been submitted by the learned counsel for the appellant that the learned court below has seriously erred in law as well as in fact in finding the appellant guilty under Section 366A of the I.P.C. and the appellant has been seriously prejudiced due to non-examination of Simla Kumari, the alleged victim girl as well as the I.O. of the case and no explanation for their non-examination is forthcoming on the record by the prosecution and the appellant has been debarred of the opportunity of eliciting facts in their cross examination showing his innocence. It has also been submitted that the age of the alleged victim girl as assessed by P.W 7, the medical witness within 15 to 16 years is variable by two years either side and the alleged victim girl is a major girl. It has also been submitted that Kalu Mian, the owner of the taxi/car stated to have been hired by P.W 5 for going to Nawadah besides one Mishraji who has given Rs. 800/- for purchase of petrol for the said car have also not taken oath in this case for the reasons best known to the prosecution which has equally caused prejudice to the appellant. It has also been submitted by the learned counsel that P.w. 5 has deposed that he has returned from Nawadah in the company of the victim girl on 13.12.85 at about 5.00 P.M. and he had handed over the said Simla Kumari to the Tisra Police Station but it is surprising as to why no F.I.R. was recorded at the police station on that day which casts a cloud of suspicion to the very credibility of this prosecution case. Referring the evidence of P.w. 5 that he has made over the attache recovered at Nawadah from the accused persons and handed over the same to the Tisra Police Station it has been further submitted that the said attache has not been brought on the record and seizure list has not been prepared and reduced into writing and brought on the record and this aspect of the matter equally casts a cloud of suspicion to the very credibility of the prosecution case. It has been contended that the statements of P.w. 3, the only alleged ocular witness of the occurrence has been recorded by the I.O. after 20 days of the alleged occurrence and this aspect of the matter clearly suggests that the appellant has been falsely implicated in this case. Learned counsel for the appellant has placed reliance upon the case of Ganesh Bhawan Patel and another vs. State of Maharashtra (A.I.R. 1979 SC 135) and Jaya Mala VS. Home Secretary, Government of Jammu and Kashmir and others (A.I.R. 1982 S.C. 1297) in support of his contention. 8. Lastly it has been submitted that the sentence awarded to the appellant is very severe in nature whereas in the facts and circumstances of this case the alleged victim girl was never been misbehaved physically or sexually. 9. The learned A.P.P. has submitted that Simla Kumari, the victim girl of this case, was a minor aged about 14 years on the date of the occurrence and she has been forcibly kidnapped by the appellant and she has not taken the witness box in view of the fact that soon after the occurrence her marriage was solemnized and she is now living in her matrimonial home leading happy and conjugal life and in this view of the matter the non-examination of the victim girl is not a lacuna of the prosecution case. It has also been submitted that the Investigating Officer had no specific role during the course of investigation in this case and in this view of the matter the non-examination of the I.O. has not at all caused any prejudice to the appellant. 10. It is pertinent to mention at the very outset that as per prosecution case, the alleged occurrence is said to have taken place at 8.30 P.M. on 12.12.1985 and informant was reported regarding the alleged occurrence soon thereafter by pw. 10. It is pertinent to mention at the very outset that as per prosecution case, the alleged occurrence is said to have taken place at 8.30 P.M. on 12.12.1985 and informant was reported regarding the alleged occurrence soon thereafter by pw. 3 Silma Devi, the younger sister of Simla Kumari, the alleged victim girl but the case was lodged before the Tisra Police on 15.12.1985 at 14.30 hours when RK Yadav O/G Tisra Police came to the house of the informant where the fardbeyan of the informant was recorded. Prior to that as per evidence of pw. 5 Shyam Sundar Prasad appearing in para 5 of his testimony, the said Simla Kumari was brought to the Tisra Police Station by him on 13.12.1985 and the victim girl was handed over to the PS. and the parent of the victim girl was also informed in respect thereof. pw. 5 has further deposed in para 10 of his evidence that the appellant has fled away from Nawadah bus stand leaving Simla Kumari and his attache there. pw. 5 has further deposed that he has brought the said attache to the Tisra PS. and handed it over the same there on 13.12.1985. It appears queer enough as to why no case was instituted at the Tisra Police Station on 13.12.1985 regarding the occurrence in question and also no seizure list of the attache in question was prepared. It further appears that the victim girl was handed over to the informant at the police station and similarly the attache of the appellant was also handed over to the father of the appellant. The non institution of the case as well as non-preparation of the seizure list of the attache in question on 13.12.1985 at the Tisra Police station cast a cloud of suspicion to the very creditability of the entire warp and woof of the prosecution story. No explanation is also forthcoming on the record as to why instead of instituting a case on 13.12.1985 on the basis of the statement of the victim girl at the Police Station itself the O.C. had recorded the fardbeyan on 15.12.1985 at 14:30 hours of the informant at his residence for instituting the case against the appellant and others. No explanation is also forthcoming on the record as to why instead of instituting a case on 13.12.1985 on the basis of the statement of the victim girl at the Police Station itself the O.C. had recorded the fardbeyan on 15.12.1985 at 14:30 hours of the informant at his residence for instituting the case against the appellant and others. This unexplained abnormal delay clearly indicates that this case has been instituted against the appellant as a result of after thought, for which the reason is apparent as deposed by P.w. 3 Bilma Devi in para 3 of her evidence that the appellant came to her house on the third day of the occurrence i.e. on 14.12.1985 with a dagger and asked' P.w. 3 to handover her elder sister, i.e. the alleged victim girl, to him failing which it will have dire consequences. It is also relevant to mention here that P.W. 3 Bilma Devi is the only ocular witness of the occurrence and it appears from Annexure-1 of the memo of appeal that her statement was recorded by the I.O. on 3.1.1986 i.e. after 18 days from the date of institution of the case when admittedly P.W. 3 was present in her house throughout. A pertinent question arises as to why she was not examined by the I.O. on 15.12.1985 at the house of the informant. The logical inference would be that she is not an eye witness to the occurrence in question or she was prevailed upon and asked to de pose as an eye witness falsely and in this view of the matter her statement was recorded by the I.O. after a gap of 20 days after the institution of the case. The I.O. had not taken oath in this case for the reasons best known to the prosecution. In view of the fact stated above the non-examination of the I.O. in this case is a fatal lacuna of the prosecution case which has caused serious prejudice to the appellant as he has been debarred from eliciting facts in the cross-examination of the 1.0. showing his innocence. P.w. 2 the informant has deposed that P.w. 3 Bilma Devi has told about the occurrence to him in presence of several persons including Shyam Sundar Prasad, Banwari and Mustafa. The said Mustafa is not coming forward to corroborate the prosecution case as he has not taken oath in this case. showing his innocence. P.w. 2 the informant has deposed that P.w. 3 Bilma Devi has told about the occurrence to him in presence of several persons including Shyam Sundar Prasad, Banwari and Mustafa. The said Mustafa is not coming forward to corroborate the prosecution case as he has not taken oath in this case. P.w. 2, the informant, has deposed in para 9 of his evidence that he has not stated about the occurrence to anybody except Shyam Sundar Prasad and Banwari. Banwari has taken oath as P.w. 6 but he has turned hostile and did not at all support the prosecution case and denied to have accompanied P.w. 5 Shyam Sundar Prasad in making search and recovery of the alleged victim girl. P.w. 5 Shyam Sundar in his evidence on oath has deposed that he had hired the taxi/car of Kailu for making search of the victim girl and one Mishraji had provided Rs. 800/- for petrol to the said car. These two witnesses are very important witnesses but they are also not forthcoming to support the prosecution. And to crown all, Bimla Kumari, the alleged abducted girl, has also not taken oath in this case to substantiate the prosecution case that she has been kidnapped or abducted by the appellant and others in the manner as alleged in the fardbeyan. The most important witness in an abduction case is generally the abducted woman herself and when she is not forthcoming and the other witnesses are not of very reliable type, the evidence on the record has to be carefully scrutinized and examined. The evidence of RW. 3 Bilma Devi cannot be said worthy of credit in the facts and circumstances of the case as her statement by the I.O. has been recorded after a very very long delay of 20 days. The delay of few hours simplicitor in recording the statement of eye witness may by itself not amount to a serious infirmity in the prosecution case but it may assume such a character if there are concomitant circumstance to suggest that the I.O. was deliberately taking time with a view to decide about the shape to be given to the case and the eye witnesses to be introduced. Thus under the facts and circumstances of the case the delay of about 20 days in recording the statement of PW. Thus under the facts and circumstances of the case the delay of about 20 days in recording the statement of PW. 3, a material witness, casts a cloud of suspicion to the very credibility of the prosecution case and the possibility of the false implication of the appellant in this case cannot be total1y ruled out. The alleged recovery of the victim girl at Nawadah Bus Stand as deposed by P.W. 5 and handing her over to Tisra Police on the following date of the alleged occurrence along with the attache of the appellant also are not substantiated at all in this case in the absence of any chit of paper in respect thereof coupled with the non-examination of the I.O. in this case. Therefore, the testimony of P.w. 3 and RW. 5 is fit to be brushed aside in this case. Therefore, the prosecution case suffers with inherent improbabilities which speak volumes against the authenticity of the prosecution case. The learned court below has erred patently and gravely in the facts and circumstances of this case in finding the appellant guilty for the offence under Section 366A. I.P.C. The learned court below has also did not properly consider and weigh the evidence on the records and has erred in coming to the finding of the guilt of the appellant. 11. There is merit in the appeal and it succeeds. The appeal is hereby allowed. The impugned judgment regarding the conviction of the appellant is hereby set aside. The appellant is also not found guilty of the charge levelled against him and he is accordingly acquitted and also discharged from the liability of the bail bond.