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2006 DIGILAW 1270 (JHR)

Md. Rashid Khan v. State of Jharkhand

2006-10-31

AMARESHWAR SAHAY, DHANANJAY PRASAD SINGH

body2006
JUDGMENT 1. Sole appellant Md. Rashid Khan stands convicted for the offence under Sections 376 and 302 of the Indian Penal Code and sentenced to serve rigorous imprisonment for life on both counts, by the Vth Additional Sessions Judge, Dhanbad in Sessions Trial No. 350 of 1991. 2. Brief facts leading to this appeal are that Kamarjahan, aged 12 years, daughter of informant Abbas Khan (PW 8) went for tending her goats along with the appellant and one Bishnu in the afternoon of 12.3.1991 and did not return. According to the informant, she used to tend the goats in nearby woods regularly. As per this witness, in the afternoon of 12.3.1991, appellant and Bishnu came to his house and asked Kamarjahan to accompany them for tending goats. Further stated that Kamarjahan was not willing, but the appellants insisted and she left along with her goats in company of the Appellant. Thereafter, the informant went to see his wife admitted in hospital and came to learn in the evening that Kamarjahan has not returned. The informant along with his elder daughter started searching and tried to find her in nearby bushes but failed to locate Kamarjahan. Ultimately, her dead body was found hanging on the branch of a tree in Parotand forest with her duppatta. 3. The matter was reported to Putki Police, which arrived at the place of occurrence and recorded the statement of the informant, resulting in Putki Police Station Case No. 38 of 1991 under Section 302/376 of the Indian Penal Code. It was registered against unknown. During investigation, the police found that the appellant was involved in this crime. Accordingly, charge-sheet was submitted against him. The trial of the appellant was committed to the Court of Sessions and the appellant was charged on both counts. The appellant has pleaded not guilty and claimed false prosecution. However, the learned trial Court found and held the appellant guilty for both offences and sentenced him as stated above. 4. The present appeal has been preferred on the grounds that the prosecution story suffers from material contradictions. It is also asserted that there is no positive evidence on record that the deceased had accompanied the appellant in the afternoon of 12.3.1991. According to this memo of appeal, the earlier version of the occurrence has been suppressed. 4. The present appeal has been preferred on the grounds that the prosecution story suffers from material contradictions. It is also asserted that there is no positive evidence on record that the deceased had accompanied the appellant in the afternoon of 12.3.1991. According to this memo of appeal, the earlier version of the occurrence has been suppressed. Learned Counsel for the appellant further submitted that in the fardbeyan, no averment was made against him nor any evidence is available that he was seen lastly going with the deceased. It has further been asserted that the circumstances used against him do not satisfy the test laid down by the Apex Court to come to conclusion that only the appellant might have committed the offence. There-lore, the appellant against whom consistent evidence is not available deserves to be acquitted. 5. Learned A.P.P. for the State opposed these contentions on the grounds that as per the witnesses, appellant had gone to the house of the informant and taken the deceased with him after which she has been found dead. 6. We have anxiously considered the points raised by the counsel for the appellant in this case. The facts available on record shows that Kamarjahan, a child 12 years aged, left her house along with appellant in the afternoon of 12.3.1991 and next day her dead body was found hanging on a tree in forest. The medical evidence (Ext. 4) brought on record by PW 11, Dr. Rai Sudhir Prasad mentions that the girl was subjected to sexual violence-before her death vide paras-5 and 6, hymen ruptured with fresh tears. It goes to show that she was subjected to rape and then she was throttled to death. 7. Now the main question remains that who may have committed this offence. According to the prosecution case, the victim has gone to tend her goats as usual in the afternoon of 12.3.1991. PW 8 in his fardbeyan has stated that in the evening, the appellant along with Bishnu brought the goats of Kamarjahan to the house. PW 4 Ashman Khatoon, PW 5 Noorjahan and PW 6 Sahjahan, all sisters of the deceased have specifically stated in their statements that on the fateful day, Kamarjahan was asked by the appellant to accompany him for tending the goats. PW 4 Ashman Khatoon, PW 5 Noorjahan and PW 6 Sahjahan, all sisters of the deceased have specifically stated in their statements that on the fateful day, Kamarjahan was asked by the appellant to accompany him for tending the goats. PW 4 further stated that the appellant specifically mentioned that she will be left after .3.00 p.m. According to her version, when she did not return till 5.30 p.m., she inquired from the appellant regarding the whereabouts of Kamarjahan. According to her version, when the appellant was confronted with the whereabouts of the deceased, he said that she has already returned either to her house or went to visit her ailing mother (PW 3) in the hospital. She has been confronted with the contradictions by the defence, which she stood vide para-3. Similarly, PW 5 stated that the appellant along with Bishnu has taken the deceased to forest for tending goats. She asserted vide para-4 that she has seen the girl going with the appellant PW 6 has supported PW 4 and PW 5 on this point. 8. PW 7 has been tendered where PW 2 has been declared hostile. PW 3 is the mother of the victim, who is hearsay witness. PW 9 Ram Dayal Singh has formally proved the fardbeyan and first information report as Ext. 1 and 2 respectively and submitted charge sheet. PW 10 is the Investigating Officer, who has prepared the inquest report, recorded the statement of the informant and finally handed over the investigation to Ram Dayal Singh. Some minor contradictions have been brought on record during cross-examination at this witness. PW 8. the informant, has supported his earlier version and further stated that the appellant came to his house in the afternoon of 12.3.1991 and asked the deceased to accompany them for tending goats. According to him, when the appellant was inquired about the deceased, he said that the girl was left behind by him in the forest. He further asserted that the goats were brought by this appellant and left at his house. He specifically mentioned in para-2 that when he inquired in the morning of the next day from the appellant, he took him near the tree where the dead body was hanging. He has been cross-examined at length. He has denied that he got any enmity with the appellant. He specifically mentioned in para-2 that when he inquired in the morning of the next day from the appellant, he took him near the tree where the dead body was hanging. He has been cross-examined at length. He has denied that he got any enmity with the appellant. However, the defence could not bring on record any material contradictions to show that on 12.3.1991, the appellant has not accompanied the deceased for tending goats as alleged by the prosecution witnesses. 9. All these facts have been considered by the learned trial Court vide paras-26 and 27 of the impugned judgment. The prosecution version does not allege that anyone has seen the appellant committing the offence, but clearly goes to prove that in the afternoon of 12.3.1991, Kamarjahan has left her house along with her goats for forest along with the appellant. It has also been found that the goat has returned in the evening and left by the appellant at the house of the informant. It has also come on record that when PW 4 and PW 5 tried to get information regarding the deceased, the appellant has given different versions. The dead body of the child was found hanging and postmortem report confirms that she was subjected to rape before being throttled to death. Therefore, the circumstantial evidence available on record definitely indicates and point out against the guilt of this appellant. The learned Counsel for the appellant strenuously argued that during the gap when Kamarjahan went with the appellant and her dead body was found about 18.00 hours elapsed. According to the learned Counsel, during this period many things may have happened. We have also given our anxious consideration to this aspect. The evidence on record goes to show that at about 2.00 p.m. on 12.3.1991, Kamarjahan has left her house with the appellant. It is also found that she did not return in the evening and when appellant was inquired about her, he gave different versions to PW 4, PW 5 and PW 6. In view of the above mentioned circumstantial evidence, the involvement of the appellant is established. 10. Having considered all these facts and circumstances of the case, we are of the considered view that the learned trial Court has rightly found and held the appellant guilty for the offences under Section 376/302 of the Indian Penal Code. In view of the above mentioned circumstantial evidence, the involvement of the appellant is established. 10. Having considered all these facts and circumstances of the case, we are of the considered view that the learned trial Court has rightly found and held the appellant guilty for the offences under Section 376/302 of the Indian Penal Code. Accordingly, we find and hold that the present appeal is without merit. 11. In the result, the conviction of the appellant along with sentence passed by the learned trial Court against him is hereby affirmed and the appeal is dismissed. The bail bond of appellant Md. Rashid Khan is hereby cancelled and he is directed to surrender forthwith before the Court below for serving out the sentence. The learned Court below is also directed to take all coercive steps in accordance with law for the apprehension of appellant to serve out the sentence. Appeal dismissed.