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2006 DIGILAW 1063 (JHR)

Shamim Ansari v. State Of Jharkhand

2006-08-14

DHANANJAY PRASAD SINGH

body2006
JUDGMENT D.P. Singh, J. 1. This appeal is directed against the judgment of conviction and order of sentence dated 6.7.2002 passed in Sessions Trial No. 625/97, whereby and whereunder the learned Additional District and Sessions Judge, Lohardaga held the appellant guilty under Section 363 IPC and convicted and sentenced him to undergo RI for three years and to pay a fine of Rs. 1000/- and in default of payment, to further undergo SI for one month. 2. The brief facts leading to this appeal are that the appellant, who was distinctly related with the victim, went to Chiri Madrsa on 2.5.95 and informed her that his father has met with an accident. He further offered to take her to her father lying in precarious condition. The victim thereafter went with him but she was not taken to her father rather to a distance place outside Ranchi. According to the victim, she was taken to Bhutan and left there. She further asserted that when she informed the local people how she has reached that place, she was taken care and her father was informed. After 4-5 days the complainant Ali Hassan arrived to that place and took back his daughter. The father of the victim approached the police, who did not take notice. Thereafter he lodged the complaint case on 28.6.95 before CJM Lohardaga vide Complaint Case No. 31/95. The complaint case was forwarded to Kuru P.S., on the basis of which Kuru P.S. Case No. 49/95 was registered. The police investigated the case and finally submitted chargesheet against the appellant under Section 363/366A IPC. The case was committed to the court of sessions where he was charged under Section 366A IPC on 4.5.2000. In the meantime the victim was examined by the Judicial Magistrate under Section 164 Cr.P.C. on 23.7.96. The trial court after examining witnesses found and held the appellant guilty for the offence under Section 363 IPC only and convicted and sentenced him as aforesaid. 3. This memo of appeal has been preferred on the ground that the learned trial court has misconceived the law and failed to appreciate the circumstance and fact of the case particularly that the appellant has not committed any offence like sexually exploiting the victim nor the girl was recovered from his possession. 3. This memo of appeal has been preferred on the ground that the learned trial court has misconceived the law and failed to appreciate the circumstance and fact of the case particularly that the appellant has not committed any offence like sexually exploiting the victim nor the girl was recovered from his possession. It is also asserted that when the girl herself was brought back by her father, but she alleged no overt act against the appellant in her statement under Section 164 Cr.P.C. It is also asserted that whole complaint case suffers from improbability and contradictions because police has not been informed from where she was brought back by her father. It is also submitted that nobody has asserted to have seen the appellant carrying or going with the victim on 20.5.95 rather she remained with the complainant during this period and false case has been instituted just to pressurize the appellant from whom the grandfather of the victim has taken loan. The learned Counsel for the appellant stressed before me that from the evidence available on records it appears that the complainant as PW 4 has admitted that his girl was brought by him from Chamrachi, Bhutan. It has been pointed out that this complainant, vide para 6, has admitted that the girl was brought back by him after a month of the incident. It is also pointed out that according to the complainant, he found his girl in the house of Najimuddin, while PW 3, vide para 3, has stated that PW 2, grandfather of the victim has sent them to Sahamat. Therefore, there are contradictions in the story of her recovery from Chamrachi, Bhutan, from the house of Najimuddin or Sahamat. 4. I have carefully considered the submissions made by the learned Counsel for the appellant along with evidence on record. It is admitted case that the girl was not recovered by the police from the possession of the appellant or from Chamrachi, Bhutan. PW 7, the victim has asserted in her statement, vide para 4 that her father came along with police to take her back. She has proved her statements under Section 164 Cr.P.C. as Ext. 3, which has been recorded in July, 96 more than 14 months after the occurrence. She has admitted in cross examination that she knew the appellant for last 8-10 years. She has proved her statements under Section 164 Cr.P.C. as Ext. 3, which has been recorded in July, 96 more than 14 months after the occurrence. She has admitted in cross examination that she knew the appellant for last 8-10 years. She has further given the details how she went with the appellant in a truck to Ranchi and from Ranchi to Bhutan by a bus and how she remained in the house of one Sahamat. According to this witness, she remained there" for 15-20 days after which her father came and she returned back. The victim has stated specifically that she was not subjected to any illegal confinement or exploited sexually. As against this, PW 1, a teacher in Madarsa, stated that she did not joined the class in the afternoon. PW 2 Shoukat, is grandfather of the victim. According to him, he searched the girl for 8 days after which he received a letter regarding the victim. According to him, he knew that the appellant has taken away the girl but he did not file any police case. PW 3 contradicted him by stating vide para 3 that after 1 months he could learn that appellant has taken away the girl. PWs 5 and 6 are formal witnesses. The I.O. in the case has not been examined. PW 8 is mother of the victim. PW 9 is another formal witness, who has proved the FIR. As against this DW 1 has stated that for nonpayment of money to the appellant, this case has been registered. 5. From perusal of evidence on record, it appears that there are material contradictions in the prosecution version. According to the complainant, case was lodged after more than 40 days that the appellant has taken away the victim to a distance place. According to the victim, it was Chamrachi, Bhutan but as per his own statement, she was brought back within 4-5 days of the incident. 6. There is contradictory statement regarding her recovery from the house of Sahamat or Najimuddin. The said Sahamat and Najimuddin have not been examined nor the informant has stated where Chamrachi, Bhutan is situated. The girl has stated different timing that she was brought back after 15-20 days whereas informant mentions after 4-5 days. The lodging of the complaint petition after 40 days also creates a reasonable doubt on the prosecution case. 7. The said Sahamat and Najimuddin have not been examined nor the informant has stated where Chamrachi, Bhutan is situated. The girl has stated different timing that she was brought back after 15-20 days whereas informant mentions after 4-5 days. The lodging of the complaint petition after 40 days also creates a reasonable doubt on the prosecution case. 7. Having regard to all the facts and circumstances I find and hold that the prosecution has not been able to prove the charges beyond all reasonable doubt against the appellant. 8. In the result I find and hold that the conviction of the appellant cannot be sustained. Accordingly, this appeal is found having merit in it and is allowed. The appellant, who is on bail, is discharged from the liability of bail bond.