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2003 DIGILAW 1420 (JHR)

Alam Ansari v. State of Bihar

2003-12-24

VISHNUDEO NARAYAN

body2003
Judgment Vishnudeo Narayan, J.-This appeal 3.t the instance of the appellant is directed against the impugned judgment and order dated 13.7.1998 passed in Sessions Trial No. 11 of 1998 by Shri P.N. Yadav, Sessions Judge, Dhanbad whereby and whereunder the appellant was found guilty or the offence punishable under Section 366/34 of the Indian Penal Code and he was convicted and sentenced to undergo rigorous imprisonment for five years. 2. The prosecution case has arisen on the basis of the written report (Ext. 2) of P.W.7 Chandi Charan Mishra, the brother of the Tarpana Mishra, the alleged victim in his case lodged before the O/C. Hairharpur (Gomoh) P.S. on 26.8.1997 at 22.00 hours Nhich was forwarded to the O/C. Topchanchi Police Station and a formal first information report was drawn on the basis of the said written report on 26.8.1997 at 23.00 hours regarding the occurrence which is said to lave taken place in the night between 24th and 25th of August, 1997 at about 12.00/ 12.30 hours at village-Khairio, P.S. Topchanchi (Hairharpur), District-Dhanbad and the written report and formal first information report were received on 28.8.1997 n the Court empowered to take cognizance. 3. The prosecution case, in brief, is hat P.W. 5 Tarpana Mishra went for the nature's call at about 12.00/12.30 hours in he night between 24th and 25th of August, 1997 outside her house informing him and his wife and he came out in the verandah of the house where he sat and five minutes thereafter he heard the cry of his sister. Tarpana Mishra and he ran to the place from where her cry was coming. It is alleged that when he reached there he saw three or four persons under mask taking her forcibly catching her and he protested to them and one of them abused him and asked him to stop failing which he shall be gunned. The prosecution case further is that he caught one of them and he has scuffle with him and the mask of the said man was removed and the said man was identified as Alam Ansari, the appellant, and he asked him as to what he is doing with his sister and the informant called his brother and the moment his brother came out of his house, the appellant pushed him and fled away and in the meantime rest of the. persons aforesaid fled away forcibly taking Tarpana Mishra with them. It is also alleged that the said mask was made of shirt of the appellant. 4. In course of investigation P.W. 5 Tarpana Mishra aforesaid was recovered by the I.O. five hundred yards east of village Ghorathi on 27.8.1997 while she was going by the road to the said village and thereafter her statement under Section 164 Cr. P.C. was recorded on 30.8.1997 in which she has disclosed that she is 30 years old and she was apprehended by the police at 16.00 hours on 25.8.1997 on the road and in the evening on that very day she was brought to the house of her brother, the informant. 5. 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 he has been falsely implicated in this case due to enmity by the informant to save himself from the case regarding an earlier occurrence in which the informant has assaulted him. 6. The prosecution has, in all, examined nine witnesses to substantiate its case. P.W. 7 Chandi Charan Mishra is the informant of this case and brother of P.W. 5 Tarpana Mishra, the alleged victim in this case and P.W. 6 Pratima Devi is his wife. P.w. 5 Tarpana Mishra, P.W. 1 Sanjay Kumar Pandey, P.W. 2 Jagarnath Kumhar, P.W. 3 Vinod Kumhar, P.W. 4 Shakti Pad Mishra and P.w. 8 Nepal Kumhar have turned hostile and they do not at all support the prosecution case P.w. 9 S.1. Sanch Man Tamang is the I.O. of this case. P.W. 5, the victim, in course of investigation was examined by Dr. (Mrs.) A. Verma on the requisition dated 30.8.1997 of the I.O. but the said doctor has not been examined in this case for the prosecution but the medical reports per her pen are Exts. 5 and 5/1 in this case. Ext. 4 is the seizure list in respect of black coloured Kawasaki Bajaj motorcycle without any number plate said to have been recovered from the house of the appellant situate in village Khairio. Ext.1 is the statement under Section 164 Cr.P.C. of P.W. 5 Tarpana Mishra, the victim of the alleged abduction. No oral and documentary evidence has been adduced on behalf of the defence. 7. Ext.1 is the statement under Section 164 Cr.P.C. of P.W. 5 Tarpana Mishra, the victim of the alleged abduction. No oral and documentary evidence has been adduced on behalf of the defence. 7. The learned court below relied upon the testimony of P.W. 7, the informant read with the testimony of P.W. 6 coupled with the recovery of the black coloured Kawasaki Bajaj motorcycle without number plate from the house of the appellant and also placed reliance upon the statement of P.W. 5 recorded under Section 164 Cr. P.C. and came to the finding of the guilt of the appellant and convicted and sentenced him as stated above. 8. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that there is no iota of legal evidence on the record to substantiate the prosecution case that this appellant has abducted Tarpana Mishra, the sister of the informant and the learned court below did not properly scan and scrutinize the evidence on the record and has erroneously erred in coming to the finding of the guilt of the appellant. It has also been submitted that P.W. 5 Tarpana Mishra, the alleged victim, in her evidence on oath has deposed in the most clear and unequivocal terms that the appellant has not abducted her and the learned court below has wrongly relied upon her statement under Section 164 Cr.P.C. which is not a substantive piece of evidence• and the Judicial Magistrate, who has recorded the said statement, has not taken oath in this case. It has further been contended that P.W. 7 the informant is alleged to be the only ocular witness of the alleged occurrence and his evidence is unworthy of credit and due to enmity he has falsely set up a false case of abduction of his sister implicating the appellant. It has also been submitted that on the day of the alleged occurrence there had been a quarrel between the appellant and P.W. 7, the informant, who has assaulted him and this appellant has filed a criminal case against him regarding the said occurrence and due to wreek vengeance and to save himself from the said criminal case, the informant has falsely implicated him in this got up case. It has also been contended that there is no whisper in the written report of the informant that he along with three unknown persons had abducted his sister taking her away on the motorcycle and as a result of afterthought in his evidence on oath he has introduced the story that P.W. 5 Tarpana Mishra has been taken away by him along with others on a motorcycle. Lastly, it has been contended that the written report has been lodged by the Hariharpur outpost of Topchanchi Police Station on 26.8.1997 on 22.00 hours when the occurrence is alleged to have taken place in the night between 24th and 25th of August, 1997 and no explanation of this inordinate delay is forthcoming on the record by the prosecution and the written report is a result of afterthought, deliberation and consultation of the informant with his other family members. In support of this contention reliance has been placed upon the ratio of the cases of Thulia Kali VS. The State of Tamil Nadu ( AIR 1973 SC 501 ), Ishwar Singh and others VS. State of Uttar Pradesh ( AIR 1976 SC 2423 ), Meharaj Singh VS. State of U.P. [ (1994) 5 SCC 188 ] and Jang Singh & Ors. VS. State of Rajasthan [ (2001) 9 SCC 704 ]. 9. The learned Additional Public Prosecutor has submitted that P.W. 7, the il1formant in his evidence on oath has supported the prosecution case and at the time of abduction of his widow sister Tarpana Mishra he had gone to the place of occurrence on her alarms where he had scuffle with one of the three persons who were under mask abducting P.W. 5 Tarpana Mishra and in course of that scuffle the said person was unmasked and the informant has identified him as Alam Ansari, the appellant of this case and two days thereafter the said Tarpana Mishra was recovered by the I.O. from a distant place and the learned court below has rightly relied upon the testimony of the informant in finding the appellant guilty for• abducting the sister of the informant. It has further been submitted that P.W. 5 Tarpana Mishra has turned hostile and she does not support the prosecution case as she has been gained over by the appellant whereas in her statement under Section 164 Cr.P.C. she has stated about her abduction by the appellant along with one other person when she has gone for nature's call outside her house and viewed thus, there is no illegality in the impugned judgment requiring an interference therein. 10. It is pertinent to mention here at 1he very outset that for constituting an offence under Section 366 of the Indian Penal Code, kidnapping or adduction of a woman must be with intent that she may be compelled to marry any person against her will or in order that she may be forced or seduced to illicit intercourse. In this case P.W. 5 Tarpana Mishra is said to be the alleged victim in this case. Her age has not been disclosed in the written report (Ext. 2) of the informant. Ext. 5, the report of the doctor, who has not taken oath in this case, shows that she is aged above twenty years and in her statement under Section 164 Cr.P.C. (Ext. 1) she has disclosed her age as thirty five years. She has been examined in this case as P.W. 5 in which she has disclosed her age as thirty years and she is widow living with her informant brother in village Khairio. From the evidence aforesaid it appears that P.W. 5 Tarpana Mishra, the alleged victim in this case was a major woman on the date of the alleged occurrence. Admittedly P.W. 7, the informant was running a Ration shop in his village and the appellant is his co-villager who used to take eatables from his shop on credit and there had been a quarrel between the informant and the appellant on that very day prior to the alleged occurrence of abduction for realization of the due amount in which the appellant was assaulted by the informant and the appellant has filed a criminal case against the informant. From the admitted facts aforesaid, it appears that there was enmity between the informant on the one hand and the appellant on the other hand which was existing and alive when the alleged occurrence of abduction is said to have taken place. From the admitted facts aforesaid, it appears that there was enmity between the informant on the one hand and the appellant on the other hand which was existing and alive when the alleged occurrence of abduction is said to have taken place. As such the evidence on the record has to be examined with due care •and caution in view of the admitted enmity. The alleged occurrence of abduction is said to have taken place in the night between 24th and 25th of August, 1997 when according to the prosecution case P.W. 5 Tarpana Mishra is said to have gone two hundred metre away from the house of the informant for nature's call informing the informant and his wife, P.W. 6 and on her alarms the informant is said to have gone the place of occurrence where he caught an unknown person under mask and in course of that scuffle he has identified the said person as the appellant. P.W. 7 in para-13 of his evidence, has deposed that there was no means of identification at the place of occurrence and there no existence of any light there and there are fifteen houses in between his house and the alleged place of occurrence but no shop there. In para-6 of his evidence he has deposed that his wife P.W. 6 did not come to the place of occurrence and there is bush and shrubs only in between his house and the alleged place of occurrence. P.W. 6 in para-5 of his evidence has deposed that the night of the occurrence was a dark night and she as well as her informant-husband did not attempt to apprehend any of the person including the appellant. P.W. 7, the informant, therefore, excludes the presence of his wife at the place of occurrence during the commission of the alleged occurrence. P.W. 7 has deposed that when he reached at the place of occurrence on alarms he found three or four persons dragging Tarpana Mishra from the place of occurrence where she had gone to ease herself and the appellant quarrelled with him and there had been a scuffle between them and he had removed his mask and identified him. He has also deposed that the appellant pushed him as a result of which he fell down and he had taken away Tarpana Mishra on his motorcycle. He has also deposed that the appellant pushed him as a result of which he fell down and he had taken away Tarpana Mishra on his motorcycle. In para-5 of his cross-examination he has deposed that the said motorcycle has no plate bearing its registration number but in the same breath he has deposed that he has not seen the number plate of the said motorcycle and he has stated in respect thereof only because of the fact that the appellant had a motorcycle without any number plate. A motorcycle without its registration number has been recovered by the police in course of investigation as per the seizure list (Ext. 4) from the house of the appellant in village-Khairio on 23.8.1997 at 20.00 hours in presence of P.W. 3 Binod Kumhar. It is pertinent to mention at this stage that the occurrence has taken place in the night between 24th and 25th of August, 1997 and the said motorcycle has been recovered from the house of the appellant in the night of 23.8.1997 at 20.00 hours i.e. one day earlier of the alleged occurrence. Therefore, the said motorcycle does not appear to have any nexus with the occurrence in question on which P.W. 5 Tarpana Mishra is said to have taken away by the appellant along with one other person. Furthermore, there is no whisper in the averments made in the written report (Ext. 2) regarding the fact that the appellant along with three or four persons has taken away P.W. 5 Tarpana Mishra on the said motorcycle. It, therefore, appears that the informant has deliberately introduced of taking away of P.W. 5 Tarpana Mishra by the appellant along with his companion on the motorcycle to give a colour of seriousness to this case as a result of afterthought, deliberation and consultation. P.W. 7 has also deposed that the appellant has covered his face by his shirt and the said shirt is with him which had come in possession of the informant in course of the occurrence, but surprising enough neither the said shirt was handed over to P.W. 9, the I.O. nor it has been brought before the court in course of trial. The shirt aforesaid is a valuable piece of evidence to directly implicate the appellant in the occurrence in question and no explanation is forthcoming on the record as to why the said shirt has been withheld by the informant and as such an adverse inference has to be drawn against the authenticity of the prosecution case. P.W. 7, the informant and his wife P.W. 6 have deposed that two days after the occurrence P.W. 5 Tarpana Mishra was handed over to them by the I.O. P.W. 9, the I.O. has deposed that he got confidential information on 27.8.1997 regarding P.W. 5 Tarpana Mishra having been seen on Ghorathi road and she was recovered by him on the said road 500 yards east of village-Ghorathi when she was proceeding towards that village on foot. P.W. 7 has also deposed that his brother on his alarms has also come out from his house. P.W. 4 Shakti Pad Mishra, the cousin of the informant does not support the evidence of the informant in respect thereof and he has turned hostile. P.W. 6 Pratima Devi, the wife of the informant in her examination-in-chief has corroborated the evidence as deposed by the informant, but according to the evidence of P.W. 7, the informant, she has not come to the place of occurrence. Therefore, her evidence regarding the manner of the alleged occurrence lack credence. In a case of kidnapping/abduction, the victim is the most competent and natural witness of the occurrence and the testimony of the said victim has its relevance. The said Tarpana Mishra has taken oath in this case as P.W. 5. She has deposed that the appellant has not abducted her along with one other person nor she has been kept confined in an unknown place. Therefore, her evidence completely demolishes the warp and woof of the prosecution case as averred in Ext. 2, the written report of the informant as well as, as deposed by P.W. 7, the informant. It will admit of no doubt that her statement under Section 164 Cr.P.C. was earlier recorded by a Judicial Magistrate in this case, but the said Judicial Magistrate has not taken oath in this case in support of the prosecution. The learned court below re-lied upon the statement recorded under Section 164 Cr.P.C. of P.w. 5 Tarpana Mishra for coming to the finding of the guilt of the appellant. The learned court below re-lied upon the statement recorded under Section 164 Cr.P.C. of P.w. 5 Tarpana Mishra for coming to the finding of the guilt of the appellant. The learned court below has committed a patent error in respect thereof. It has been observed by the Apex Court in the case of State of Delhi VS. Sri ram Lohia ( AIR 1960 SC 490 ) that the statements recorded under Section 164 of the Code are not substantive evidence in a case and cannot be made use of except to corroborate or contradict the witness. An admission by a witness that a statement of his was recorded under Section 164 of the Code and that what he had stated there was true could not make the entire statement admissible; much less could any part of it be used as substantive evidence in the case. In the case of Ram Kishan Singh VS. Harjit Kaur ( AIR 1972 SC 468 ) the Apex Court has observed that a statement under Section 164, Criminal Procedure Code is not a substantive evidence, it can be used only to corroborate the statement of the witness or to contradict him. In the case of State of Delhi (supra) it has also been observed by the Apex Court that a Judge commits an error of law in using the statement of a witness under section 164 Cr.P.C. as substantive evidence in coming to the conclusion that he had been won over. P.Ws. 1, 2, 3, 4 and 8 also do not support the prosecution case regarding the abduction of P.W. 5 Tarpana Mishra even though they are the• hearsay witnesses. Therefore, the solitary testimony of P.W. 7, the informant in the facts and circumstances of this case uncorroborated in material particulars by any other evidence of natural, competent and reliable witness and equally contradicted by P.W. 5 Tarpana Mishra is unworthy of credit and is fit to be brushed aside. It, therefore, appears that there is no legal evidence at all on the record to substantiate the prosecution case and furthermore, the false implication of the appellant due to existence of enmity, which is active and alive, cannot be ruled out in the facts and circumstances of this case. 11 The occurrence is said to have taken place in the night between 24th and 25th of August, 1997. The written report (Ext. 11 The occurrence is said to have taken place in the night between 24th and 25th of August, 1997. The written report (Ext. 2) of the informant was lodged before Hariharpur Police Station, an outpost of Topchanchi Police Station on 26.8.1997 at 22.00 hours. The distance of Hariharpur outpost is only ten kilometres south from village-Khairio. No explanation is forthcoming on the record as to why the informant has lodged the said written report regarding the occurrence in question on 26.8.1997 at 22.00 hours. There is no whisper in the evidence of P.W. 7 that after the occurrence he was making any hectic search of P.W. 5 Tarpana Mishra. In the case of Thulia kali (supra) it has been observed by the Apex Court that first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment, which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained. Here in this case, when the occurrence is not reported for more than 46.00 hours after the occurrence even though the police station was only ten kilometres away from the place of occurrence, it is unsafe in the facts and circumstances of this case to base conviction upon the uncorroborated solitary testimony of the informant which is replete with inherent improbabilities and material contradictions. The formal first information report and the written report have been received on 28.8.1997 in the Court empowered to take cognizance when the formal first information report was drawn at 23.00 hours on 26.8.1997. The formal first information report and the written report have been received on 28.8.1997 in the Court empowered to take cognizance when the formal first information report was drawn at 23.00 hours on 26.8.1997. No explanation is also forthcoming on the record in respect thereof. In the case of Ishwar Singh (supra) it has been observed by the Apex Court that the extraordinary delay in sending the F.I.R. is a circumstance which provides a legitimate basis for suspecting that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishment and set up a distorted version of the occurrence. In the case of Meharaj Singh (supra) it has been observed by the Apex Court which runs thus : "F.I.R. in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the F.I.R. is to obtain the earliest information regarding the names of the actual culprits and the parts played by them, the weapons, if any, used as also the names of the eye witnesses, if any, and delay in lodging the F.I.R. often results in embellishment which is a creature of an after thought and on account of delay, the F.I.R. not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. It has further been submitted that if the F.I.R. is received late in the court it can give rise to an inference that the F.I.R. was not lodged at the time it has alleged to have been recorded and the facts and circumstances are indicated of the fact that the F.I.R. came to be recorded later on after due deliberations and consultations and it was anti-timed unless, of course, the prosecution Can offer a satisfactory explanation for the delay in dispatching or receipt of the F.I.R. by the local Magistrate. The external check equally important is the sending of the copy of the F.I.R. along with the dead body and its reference in the inquest report. The external check equally important is the sending of the copy of the F.I.R. along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 Cr.P.C. is aimed at serving a statutory function, to lend credence to the prosecution case the details of the F.I.R. and the gist of statements recorded during inquest proceeding get reflected in the report. The absence of those details in indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the F.I.R. came to be recorded later on after due deliberations and consultations and was then anti-timed to give it the colour of a promptly lodged F.I.R. in the case of Jang Singh and another (supra) it has been observed by the Apex Court that tile delay of three days in 0rwarding the first information report to the Magistrate in absence of any explanation given in respect thereof is fatal. Here in this case no explanation is forthcoming on the record regarding the abnormal delay in holding the written report about the occurrence in question as well as the receipt of the formal first information report and the written report to the Magistrate empowered o take cognizance and in such a situation here is very possibility of embellishment which is creature of afterthought, consultation and deliberation of P.W. 7, the informant in falsely implicating the appellant and deliberately taking away of P.W. 5 by the appellant with his•• companion on a motorcycle which has been introduced in 'his evidence before the trial court. The approach of the learned court below in para-18 of the impugned judgment in respect thereof' is palpably incorrect and the same is based on conjectures and surmises without any legal evidence on the record in support thereof. The inordinate delay in lodging the written report regarding the occurrence renders the prosecution case suspicious which casts a cloud of suspicion to the very credibility of the texture of the prosecution case. And last but not the least, there is no legal evidence on the record that P.W. 5. The inordinate delay in lodging the written report regarding the occurrence renders the prosecution case suspicious which casts a cloud of suspicion to the very credibility of the texture of the prosecution case. And last but not the least, there is no legal evidence on the record that P.W. 5. Tarpana Mishra was abducted with intent that she may be compelled to marry any person against her will or' in order that she may be forced or seduced to illicit intercourse and thus, the ingredients of Section 366 of the Indian Penal Code is not proved at all in this case. The learned court below has been swayed more by conjectures and surmises than the legal evidence on the record and has erred in coming to the finding of the guilt of the appellant. Viewed thus, the impugned judgment cannot be sustained. 12. There is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment of the learned court below is set aside. The appellant is found not guilty and he is, accordingly, acquitted and discharged from the liabilities of his bail bond.