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2007 DIGILAW 301 (JHR)

Ejajul Haque v. State of Jharkhand

2007-04-11

D.G.R.PATNAIK, R.R.PRASAD

body2007
Judgment R.R. Prasad, J.- The sole appellant Ejajul Haque was put on trial to face charge under sections 363, 377, 302 and 201 of the Indian Penal Code on the allegation that he after kidnapping a minor boy Saddam Hussain committed sodomy on him and then killed him and thereafter disposed of the body to screen himself from legal punishment. On being tried the trial court while acquitting the appellant for an offence under section 377 of the Indian Penal Code found him guilty for the offences under sections 363, 302 and 201 of the Indian Penal Code and hence sentenced him to undergo. rigorous Imprisonment for life under section 302 of the Indian Penal Code and further to undergo rigorous imprisonment for two years each for the offences under sections 363 and 201 of the Indian Penal Code. 2. The case of the prosecution is that on 18.9.1999 Saddam Hussain aged about 9 years (son of the informant) came at about 12 O'clock under a Tamarind tree to play with: When he did not return, he was searched, but could not be found and on the next day, i.e. 19.9.1999 information was given to the Hussainabad police station, upon which a Sanha was lodged. Further case is that on 21.9.1999 while the informant was searching his son alongwith other persons including the appellant, some of the children namely, Aftab (not examined), Shah Alam, P.w. 3 and Mumtaz (not examined) on seeing the appellant told' the informant that he is the person who had taken Saddam Hussain with him while he was playing with them under a Tamarind tree and then the appellant on being questioned by the informant and others confessed before them that on 18.9.1999 he took Sad dam Hussain on the pretext of fishing and then brought to a lonely place and then he as well as his friends Toukir @ Sonu Choubey and Mintu Singh strangulated him to death behind a bush and buried the dead body. Thereafter the informant Jainul Abedin (not examined) gave Fardbeyan on 21.9.1999 at 11 P.M. before the Office-in-charge, Hussainabad Police Station. On the basis of which a case was registered and the matter was taken up for investigation. Thereafter the informant Jainul Abedin (not examined) gave Fardbeyan on 21.9.1999 at 11 P.M. before the Office-in-charge, Hussainabad Police Station. On the basis of which a case was registered and the matter was taken up for investigation. In course of investigation dead body was taken out and subsequently, autopsy on the dead body seems to have been done by the Doctor, but unfortunately Doctor has not been examined, and as such post mortem examination report has not been brought on record. 3. After completion of investigation, police submitted charge-sheet against the appellant. Accordingly, cognizance of the offence was taken and in due course when the case was committed to the court of sessions, the charges were framed, to which the appellant pleaded not guilty and claimed to be tried. 4. In course of trial, the prosecution examined as many as 9 witnesses. Of them P.w. 1 Md. Islam, P.w. 2 Ramadhar Paswan and P.w. 8 Mahboob Alam have turned hostile. P.w. 3 Shah Alam and P.w. 4 Ishaque came forward to say that while they were playing alongwith Saddam Hussain, the appellant came and took Saddam Hussain with him towards river side on the pretext of giving fish to him. According to P.w. 5 Md. Alam, he saw the appellant taking the victim across the river. P.M. 7 Md. Ainul came forward to say that the appellant made extra-judicial confession before the villagers. P.w. 9 Sudhir Kumar Choudhary is on the point that dead body was taken out by the police. 5. The trial court having placed its reliance on the testimonies of P.Ws. 3, 4 and 5, did hold that the appellant took the victim alongwith him towards river side while he was playing and was lastly seen there in the company of the victim whose dead body was found buried and, accordingly, passed the order of conviction and sentence as aforesaid. 6. Learned counsel appearing for the appellant submitted that the trial court erred in placing reliance upon the testimonies of P.Ws. 6. Learned counsel appearing for the appellant submitted that the trial court erred in placing reliance upon the testimonies of P.Ws. 3 and 4 to come to the conclusion that the appellant took the victim with him on some false pretext as both the witnesses never made any such statement before the police under section 161 of the Code of Criminal Procedure and that the prosecution neither did examine the Doctor, who held Post Mortem Examination on the dead body of the deceased nor did adduce Post Mortem Examination in evidence and therefore, failed to prove that the case was as that of homicidal violence and that at best it can be a case of last seen, but in absence of any other link in the chain of circumstances, prosecution cannot be said to have proved its case beyond all reasonable doubt and, hence, impugned judgment of conviction ,and sentence is fit to be set aside. 7. Heard learned counsel appearing for the State. 8. Having heard learned counsel for the parties and on perusal of the records, I do find that the trial court while holding the appellant guilty for the charges did rely on the testimonies of PWs. 3 and 4 as according to them as deposed in the examination-in-chief the appellant took the deceased with him towards river side on the false pretext of giving fish but the trial court overlooked vital fact which creates doubt over the testimonies of these witnesses. Both the witnesses in their cross-examination have categorically stated that they were knowing the appellant fully well but they, when came across with the father of Saddam Hussain in course of search being made by him of his son did not tell him that appellant has taken the victim towards river. Had that fact been true, the natural conduct of the witnesses would have been to disclose that fact immediately when father of the victim in course of making search came across with these witnesses. It would be worth while to mention here that initially as the prosecution case was made out in the First Information Report, it was there that the appellant had made extra-judicial confession about his guilt before the villagers and in order to prove the said fact the prosecution did examine P.W. 7 Md. It would be worth while to mention here that initially as the prosecution case was made out in the First Information Report, it was there that the appellant had made extra-judicial confession about his guilt before the villagers and in order to prove the said fact the prosecution did examine P.W. 7 Md. Ainul but as this witness had not disclosed before the police in his statement made under section 161 of the Code of Criminal Procedure, the trial court rightly did not put any reliance. Now the point for consideration is that whether the evidence of the only material witness P.W. 5 Md. Alam is sufficient to hold the appellant guilty. According to him, he at about 11 A.M. firstly saw the appellant with victim under a Tamarind tree and after five minutes saw the appellant taking the victim across the river and the court below after placing implicit reliance on the testimony of this witness did hold that appellant was lastly seen in association with the victim but if one takes into consideration the time given by RW. 5 and the time mentioned in the First Information Report one can have certain doubt over the testimony of the witness that appellant took away the victim at about 11 RM. In this regard reference be made to testimony of P.W. 3, who has deposed that on the day of occurrence it was afternoon when they were playing near a Tamarind tree whereas the time when the victim is said to have left home is 12 O'clock. In this event it can hardly be said that the appellant was lastly seen in association with the victim before 12 O'clock. However ignoring the time given by the witnesses as it is not expected from the people of rustic background to give correct timing of any happening, if the version of the witness RW. 5 is taken to be true, can it be sufficient to hold the appellant guilty in absence of any other link or chain of circumstances, particularly in view of the testimony of P.w. 3 as given in paragraph 3 that there has been no enmity in between the family of the appellant and Saddam Hussain. 5 is taken to be true, can it be sufficient to hold the appellant guilty in absence of any other link or chain of circumstances, particularly in view of the testimony of P.w. 3 as given in paragraph 3 that there has been no enmity in between the family of the appellant and Saddam Hussain. It may be mentioned that in the First Information Report though it is there that the appellant was inimical to the informant but neither the informant has been examined nor First Information Report has been proved nor there has been any evidence contrary to what RW. 3 has stated in his evidence. Thus, in absence of any other circumstance, the appellant cannot be held guilty simply on the ground that the appellant was lastly seen in the company with the deceased and that too it is free from doubt. That apart, the prosecution in absence of evidence of Doctor, who held autopsy on the dead body and also in absence of Post Mortem Examination report cannot be said to have proved the case as that of homicidal violence. 9. In the result. I do find that the trial court was not justified in holding the appellant guilty for the charges levelled against him and hence, judgment of conviction and order of sentence is set aside. Hence, the appeal is allowed and the appellant is acquitted of the charges levelled against him. Consequently, he is ordered to be released forthwith, if not wanted in any case.