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2009 DIGILAW 1324 (JHR)

Md. Sohrab v. State of Jharkhand

2009-10-06

PRADEEP KUMAR

body2009
ORDER : Pradeep Kumar, J. This appeal is directed against the judgment of conviction dated 21.1.2002 and order of sentence dated 22,1.2002 passed by Sri Surya Narayan Mahto, 2nd Additional Sessions Judge, Dhanbad in Sessions Trial No. 300 of 2000, corresponding to G.R. Case No. 1983 of 2000, Jagta P.S. Case No. 43/2000 by which judgment he found the appellant No. 1, Md. Sohrab guilty under Sections 376/32/306/34 of the Indian Penal Code and' he also found the appellant No. 2, Md. Rauff @ Abdul Rauff guilty under Sections 342/306/34 of the Indian Penal Code. The appellant No. l, Md. Sohrab has been sentenced to rigorous imprisonment for 10 years for offence u/s 376 of the Indian Penal Code and 5 years for the offence u/s 306 of the Indian Penal Code and the appellant No. 2, Md. Rauff @ Abdul Rauff has been sentenced to rigorous imprisonment for 5 years u/s 306 of the Indian Penal Code. Both the sentences/shall run concurrently. 2. It is submitted by the learned Counsel for the appellants that F.I.R. was lodged against the appellant-accused No. 1. Md. Sohrab on the basis of the statement given by the deceased for committing rope upon her as also against the appellant-accused No. 2, Md. Rauff @ Abdul Rauff for instigating the prosecutrix to commit suicide, but subsequently the other four accused, namely, Md. Amzad, Md. Alam, Md. Ayub and Md. Kalim were discharged, but appellant No. 2, Md. Rauff @ Abdul Rauff was tried for the offence under Sections 306 and 34 of the Indian Penal Code since there is no evidence against him that he alone instigated the prosecutrix to commit suicide and as such his case is similar to those of co-accused, who were discharged and in absence of any specific evidence against him his conviction is bad in law and fit to be set aside. 3. On the other hand, learned Counsel for the State opposed the prayer and submitted that there is direct allegation of instigation against the appellant-accused No. 2, Md. Pauff @ Abdul Rauff and as such he does not deserve any sympathy. 4. After hearing both the parties and going through the record, I find that the prosecution case was started on the basis of dying declaration recorded by P.W.ll, Gopal Jee, Judicial Magistrate 1st Class, Dhanbad at Patliputra Medical College Hospital, Dhanbad on 30.6.2000 at about 1.45 hrs. Pauff @ Abdul Rauff and as such he does not deserve any sympathy. 4. After hearing both the parties and going through the record, I find that the prosecution case was started on the basis of dying declaration recorded by P.W.ll, Gopal Jee, Judicial Magistrate 1st Class, Dhanbad at Patliputra Medical College Hospital, Dhanbad on 30.6.2000 at about 1.45 hrs. where the injured victim in a precarious burnt condition. She stated that on 26.6.2000 at about 2.00 a.m. in the night the appellant-accused No. 1, Md. Sohrab son of Md. Rauff @ Abdul Rauff entered into her house by force after scaling the wall with a pistol in his hand and lifted her from her house and took her to Sijua Railway Line where he committed rape upon her and thereafter he ran away. She further stated that she came to Madnadih Sadar with much difficulty and went to the sadar of Madniadih, who brought her to the sadar of her Panchyat, Md. Ayub Thikedar. He kept her confined his house for whole day and assured her that he will decide the case in the Panchyat in the morning, but instead of calling the Panchyat her mother was called by them and she was advised to go back to her house and not to file any case against his son and at that time the appellant-accused No. 2, Md. Rauff @ Abdul Rauff was also present but she refused to do so and then the panches threatened her that if she will report the matter to the police then her two sisters might meet the same fate like her and her house would be burnt. Thereafter, she went to her house and poured kerosene oil on her body and put machis on he body at 7.00 p.m. in the evening and in the burnt condition she was brought to the hospital by her neighbours to the hospital where she was under treatment. 5. On the basis of said F.I.R police registered a case against two appellants and three other co-accused under Sections 376/342/306/34 of the Indian Penal Code and after investigation the police submitted charge sheet against the appellants. 6. Since the case was exclusively triable by a Court of Sessions and the same was committed to the Court of Sessions and finally the case was tried by 2nd Additional Sessions Judge, Dhanbad, who found the appellants guilty as aforesaid. 6. Since the case was exclusively triable by a Court of Sessions and the same was committed to the Court of Sessions and finally the case was tried by 2nd Additional Sessions Judge, Dhanbad, who found the appellants guilty as aforesaid. 7. A petition was filed u/s 227 Cr. P.C. for discharge of co-accused, Md. Amjad, Md. Alam, Md. Ayub and Md. Kalimuddin and they were discharged by 2nd Additional Sessions Judge and only two appellants were tried. 8. It appears that although during trial 19 prosecution witnesses were examined, but the prosecution was supported only by P.W. 11, Gopaljee, Judicial Magistrate and P.W. 16, Mukutdhari Mahto and the two doctors i.e. P.W. 17, Dr. Laxmi pandey and P.W. 18, Dr. R.N. Verma. 9. On the basis of dying declaration, which was duly proved by the Judicial Magistrate (P.W. 11) and medical evidence the court found the appellants guilty and convicted them there under. 10. From perusal of the dying declaration, which is as Ext. 11 find that the statement was recorded by the P.W. 11 at the Hospital in the night. P.W. 11, in his cross-examination, he has stated that on the request of the Sub-Divisional Magistrate he went to the Hospital and recorded her statement in presence of sister nurse of the Hospital, who identified the victim and the dying declaration was recorded by the Judicial Magistrate, it was read over to the victim. She signed the same in her conscious state. In her dying declaration she has made there was direct allegation against the main accused-appellant No. 1, Md. Sohrab, who committed rape upon her and subsequently his father accused-appellant No. 2, Md. Rauff @ Abdul Rauff was sadar of the panchyat instead of calling panchyat he kept her confined in his house and on the next day her mother " as called by them and she was advised to go back to her house. It is surprising that his father Md. Rauff @ Abdul Rauff and others were discharged by 2nd Additional Sessions Judge by his order dated 16.12.2000, but since that order was not challenged by the prosecution as he cannot do anything, but the main instigator was Ayub Thikedar and whose son Md. Sohrab kidnapped the lady from her house and thereafter committed rape upon her. When the matter was brought before sadar of her Panchyat, Md. Sohrab kidnapped the lady from her house and thereafter committed rape upon her. When the matter was brought before sadar of her Panchyat, Md. Ayub Thikedar he compelled her to go back her. otherwise her family will be destroyed and as such he was the real instigator. As far as the accused-appellant No. 2, Md. Rauff @ Abdul Rauff is concerned he was only named accused along with the other co-accused, Md. Arnjad, Md. Alam, Md. Ayub and Md. Kalimuddin, who were discharged by the 2nd Additional Sessions Judge. 11. In my opinion, there is no direct allegation or instigation against the appellant No. 2, Md. Rauff @ Abdul Rauff. The main culprit Ayub Thikedar who instigated the victim lady for committing suicide. In that view of the matter, the appellant No. 2, Md. Rauff @ Abdul Rauff is given benefit of doubt and "finding of conviction under Sections 306/34 of the Indian Penal Code against him is set aside. However, the main accused, Md. Sohrab has rightly been found guilty under Sections 376/342/306/34 of the Indian Penal Code and sentenced accordingly. 12. The appellant No. 2, Md. Rauff @ Abdul Rauff who is on bail, he is released from the bondage of his bail bond and the appellant No. 1, Md. Sohrab, who is also on bail, his bail bond is cancelled. The trial court is directed to issue warrant of arrest against appellant No. l, Md. Sohrab, so that he me y serve out the sentence. 13. Accordingly, the appeal is allowed in part.