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2008 DIGILAW 1062 (JHR)

Sk. Khurshid v. State of Bihar (now Jharkhand)

2008-09-03

AMARESHWAR SAHAY, R.K.MERATHIA

body2008
By Court.- The sale appellant Sk. Khurshid has challenged the impugned judgment dated 4.2.1997 passed by the 1st Additional Sessions Judge, Godda in Sessions Case No. 1/1996, whereby the appellant has been convicted for the offence under Section 364 IPC and has been sentenced to undergo for life. 2. The informant, Sk. Makku gave a Fard Beyan to the Officer-in-Charge of Meharama police station. alleging therein that he got his daughter Bibi Fekiya Khatoon married with the appellant Sk. Khurshid, whose first wife was alive. It is alleged that the informant went to his daughter's in-laws place in order to bring her because his daughter was pregnant and according to the custom prevalent the daughter should deliver first child at her parent's house. When the informant reached her daughter's in-laws place in Village Haripur he did not find her there. On being asked, his son-in-law (appellant) disclosed that his daughter was traceless. On further enquiry his son-in-law told that his daughter was in the hospital at Nathnagar, Bhagalpur. The informant went there but he could not find her there. On further interrogation, the appellant told him that she was in the hospital at Sahebganj. The informant went there also but there also he could not find her. It is further alleged that the informant came to know that two months ago the appellant had taken his wife Fekiya Khatoon for earning livelihood at Panipat. They boarded the train at Pirpanti Railway Station and when the train reached at Bhagalpur, the appellant got down from the train deserting his wife in the train itself. It is stated that his wife waited for the return of her husband but when he did not come back till the train reached Kiul Station then she also got down from the train at Kiul and came back to her sasural and narrated the story to the villagers. Then a Panchayati was held and in that Panchayati Sk. Khurshid, i.e. the appellant promised not to commit such mistake in future and also promised to keep her properly. In this view of the matter, the informant suspected that his son-in-law, i.e. the appellant must have kidnapped his wife for murder and murdered her. 3. On the basis of the said statement of the informant F.I.R. was registered and the police after completion of investigation submitted charge sheet under Section 364 IPC against the appellant. In this view of the matter, the informant suspected that his son-in-law, i.e. the appellant must have kidnapped his wife for murder and murdered her. 3. On the basis of the said statement of the informant F.I.R. was registered and the police after completion of investigation submitted charge sheet under Section 364 IPC against the appellant. Thereafter, cognizance was taken and then charges were framed against him for the aforesaid offences to which the appellant denied. 4. Admittedly, the daughter of the informant has not been traced out and she has not been recovered either dead or alive. 5. In course of trial, altogether nineteen prosecution witnesses were examined on behalf of the prosecution. The whole case is based on circumstantial evidence and there is no eye-witness to the occurrence. 6. The learned trial court on the basis of the evidence, adduced by the prosecution, held the appellant guilty for the offence under Section 364 IPC and sentenced him to undergo R.1. for life as already been stated herein above . 7. Mr. Ojha, learned Amicus Curiae appearing for the appellant submitted that the judgment of conviction and sentence passed by the trial court is absolutely bad in law since the circumstantial evidence relied on by the trial court do not point out to the guilt of the accused and the chain of circumstances are also not complete or reliable. From the evidence of the prosecution it cannot be inferred by any stretch of imagination that this appellant did kidnap his own wife for commission of her murder. 8. In order to test the submission of the learned Amicus Curiae for the appellant, we have minutely scrutinized the evidence of the prosecution witnesses. PW-1 Sk. Makku is the informant. He has stated that his daughter Fekiya Khatoon was being taken to a Doctor by this appellant to get her medically examined, since she was carrying the pregnancy of eight months. He alleged that the appellant took her on the pretext of medical examination but since then she was missing. PW-1 Sk. Makku is the informant. He has stated that his daughter Fekiya Khatoon was being taken to a Doctor by this appellant to get her medically examined, since she was carrying the pregnancy of eight months. He alleged that the appellant took her on the pretext of medical examination but since then she was missing. When the informant asked the appellant, i.e. his son-in-law, then firstly he replied that Fekiya was missing but when he was asked by the villagers then he stated that Fekiya was admitted in the hospital at Bhagalpur but she was also not found there by this witness when he went there and later on, PW-1 came to know that his daughter was killed by the appellant. 9. This witness has further stated that two months prior also the appellant and Fekiya Khatoon boarded a train for Panipat but the appellant got down in the midway at Bhagalpur Railway Station leaving Fekiya Khatoon alone in the train but Fekiya any how could return after 5-6 days to her house. Thereafter, there was a Panchayati in the village where the appellant promised to look after his wife properly. 10. PW-2 is the Sarpanch. He has stated about the aforesaid Panchayat in which the appellant promised to look after his wife properly. He further stated that when Fekiya Khatoon became pregnant, appellant took her away on the pretext for getting her medically examined but since thereafter, she did not return. 11. PW-3 Sk. Makbool and PW-4 have only corroborated the statement of PW-2 Sarpanch and stated that the appellant promised in the Panchayati to look after his wife properly. PW-5 is on the point of the marriage of the appellant with the victim lady and that the appellant had taken her away for the purpose of treatment. PW-6 is the forma! witness, who has proved some documents. 12. PW-7 has stated that the appellant Khurshid had two wives, one was living at village Kodarjana and other was living at village Kamargama. He further stated that the wife of Kamargama is traceless and it was the appellant who made her traceless. PW-8 is also on the same line to that of PW- 7 and he stated that the second wife of the appellant was living at Kodarjana and her husband took her away and she did not return thereafter. He further stated that the wife of Kamargama is traceless and it was the appellant who made her traceless. PW-8 is also on the same line to that of PW- 7 and he stated that the second wife of the appellant was living at Kodarjana and her husband took her away and she did not return thereafter. PW-9 is a formal witness wherein he stated that he put his LTI on a paper prepared by the Investigating Officer but what was that paper he did not know. 13. PWs. 10, 13, 14 and 17 have been declared hostile. PWs. 11, 12, 15, 16 and 18 have been tendered. PW-19 has not stated anything which could be said to be material or relevant for the purpose of this case. The Investigating Officer was not examined during the trial. 14. Section 364 of the Indian Penal Code speaks about kidnapping or abduction in order to murder. It envisages that whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. 15. On perusal of the aforesaid provision, it appears that the essential ingredients for proving the said offence is firstly, that there should be kidnapping or abduction of a person and secondly that the act must be done that such person may be murdered or so disposed of as to be put in danger of being murdered. 16. Kidnapping is defined under Section 359 of the Indian Penal Code whereas abduction is defined under Section 362 IPC, which read as under:- "359. Kidnapping.-Kidnapping is of two kinds: kidnapping from India and kidnapping from lawful guardianship. 362. Abduction- Whoever by force compels, or by any deceitful means induces any person to go from any place, is said to abduct that person. 1/17. Kidnapping as per the provision of Section 359 IPC is of two kinds. Firstly, kidnapping from India and secondly kidnapping from lawful guardianship. 362. Abduction- Whoever by force compels, or by any deceitful means induces any person to go from any place, is said to abduct that person. 1/17. Kidnapping as per the provision of Section 359 IPC is of two kinds. Firstly, kidnapping from India and secondly kidnapping from lawful guardianship. Kidnapping from India is defined under Section 360 IPC, which says that whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorized to consent on behalf of that person, is said to kidnap that person from India. Whereas, kidnapping from lawful guardianship is envisaged under Section 361 IPC. According to this provision, whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeling of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. 18. According to Section 362 IPC the essential ingredients of abduction are that a person compels or induces any person to go from any place and secondly that such compulsion is by force or such inducing is by deceitful means. 19. In the present case, the appellant is the husband whereas the victim Fekiya Khatoon was his wife. Even according to the prosecution on the date of alleged occurrence Fekiya Khatoon was carrying the pregnancy of eight months and according to the prosecution witnesses the appellant was seen taking his wife Fekiya Khatoon to doctor for treatment. There is no witness on behalf of the prosecution to state that in fact, the appellant induced or compelled his wife by any deceitful means for going to the doctor for treatment rather on the other hand it was very much natural that the appellant being the husband was taking his wife, who was in the advance stage of pregnancy, to a Doctor and, therefore, there was nothing unnatural. 20. Since the relationship between the appellant and the victim Fekiya Khatoon was of husband and wife and, therefore, it cannot be said by any stretch of imagination that the company of the victim lady Fekiya Khatoon with the appellant was in manner unlawful. It is not the case of the prosecution that Fekiya Khatoon was a minor. 20. Since the relationship between the appellant and the victim Fekiya Khatoon was of husband and wife and, therefore, it cannot be said by any stretch of imagination that the company of the victim lady Fekiya Khatoon with the appellant was in manner unlawful. It is not the case of the prosecution that Fekiya Khatoon was a minor. It is also not the case of the prosecution Fekiya Khatoon was kidnapped by the appellant from any other lawful guardianship or that she was abducted in any manner. Even if for the sake of argument, it is accepted that the victim Fekiya Khatoon was kidnapped or abducted by the appellant, there is no evidence at all to suggest that she has been killed by the appellant rather the evidence is that this appellant was taking his wife to the doctor as she was having eight months of pregnancy. From the evidence noticed above, it cannot be inferred or presumed that the appellant was taking his wife Fekiya Khatoon to the doctor for the purpose of killing her. 21. In order to convict the appellant, the trial court has relied on certain circumstantial evidence. Firstly, that the appellant was last seen with the victim Fekiya Khatoon, when she was seen in the company of the appellant being taken to the doctor which was witnessed by the witnesses on the way. Secondly, that when the father of the victim lady came and enquired about the where about of his daughter, the appellant did not give him correct information and tried to mislead him and lastly, that earlier also the appellant had deserted his wife when she was traveling with the appellant in the train and in the mid way without informing her, he left her alone in the train and got down at Bhagalpur railway station but the victim lady also got down at Kiul station and came back to her in-laws place and, thereafter, there was a Panchayati in the village in which the appellant promised to keep her properly and not commit to such mistake. 22. Admittedly, the victim lady has not yet been traced out as a dead or alive. There is no evidence also to the effect that the relationship between the appellant and the victim lady was strained rather the evidence is otherwise. 23. 22. Admittedly, the victim lady has not yet been traced out as a dead or alive. There is no evidence also to the effect that the relationship between the appellant and the victim lady was strained rather the evidence is otherwise. 23. In the examination under Section 313 Cr.P.C. the circumstances, which has been used against the appellant for finding him guilty to the effect that on earlier occasion also he deserted his wife in a train and there was panchayat in the village where he promised to keep her properly and not to commit such mistake in future, has not been put to appellant and, therefore, the appellant did not get a chance to explain any such circumstance. In this view of the matter, the said circumstantial evidence, which has not been put to the appellant while recording his statement under Section 313 Cr.P.C., cannot be used against the appellant for holding him guilty. In such a situation, remaining two circumstances that he was last seen taking his wife to the doctor and that the appellant did not give him correct information and tried to mislead him, cannot be said to be such incriminating circumstance from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. It is settled law .that suspicion how so ever may be strong cannot take place of legal proof. The principle of basing a conviction on the basis of circumstantial evidence has already been laid down by the Supreme Court in a number of decisions and the law is well settled now that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must have a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. 24. The Supreme Court has also sounded a note of caution that in a case depending upon circumstantial evidence there is always a conjecture and surmises may take the place of legal proof. In the language of the Supreme Court there is a long mental distance between "may be true" and "must be true" and the same divides conjecture from sure conclusion. 25. In the language of the Supreme Court there is a long mental distance between "may be true" and "must be true" and the same divides conjecture from sure conclusion. 25. In view of the discussions and findings above, we find that the conviction and sentence passed against the appellant to be unsustainable. We find that the appellant has wrongly been convicted for the offence under Section 364 IPC by the trial court. We therefore, hold that there was no clinching and reliable circumstantial evidence to connect the appellant with the offence alleged. 26. Accordingly, this appeal is allowed. The judgment of conviction and sentence passed by the trial court is hereby set aside. The appellant, who is in custody, is directed to be set at liberty forthwith if not wanted in any other case.