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2012 DIGILAW 1162 (PAT)

MD. USMAN v. STATE OF BIHAR

2012-08-23

SHEEMA ALI KHAN

body2012
JUDGMENT Sheema Ali Khan, J. This appeal has been preferred by the sole appellant, namely, Md. Usman, against the judgment of conviction dated 6th January, 2000 and the order of sentence dated 7th January, 2000 passed in Sessions Trial No. 461 of 1996 whereby the 2nd Additional Sessions Judge, Darbhanga has found and held the appellant guilty for the offences punishable under Sections 366, 367, 370 and 498 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years for offences under Section 366 and 370 of the Indian Penal Code and also an imprisonment for one year under Section 498 of the Indian Penal Code. All the sentences were to run concurrently. The appellant as a result of the order of sentence aforesaid has remained in custody for 3 years 8 months and 25 days and was only released on bail when this appeal was filed. 2. The informant, Md. Zakir Hussain gave his fardbayan on 20.05.1996 for an occurrence which took place on 11.05.1996. In his fardbayan, he has stated that his wife Bibi Zainab Khatoon had disappeared from the house in the early hours of the morning. He had tried to locate her but could not find her. Eventually, he gave a Sanha on 15.05.1996 regarding her disappearance. On 20.05.1996, one Md. Usman who was also not present in the village appeared. The informant and some of his co-villagers questioned Md. Usman about his absence from the village and learnt from him that he was responsible for kidnapping Bibi Zainab Khatoon. The informant claims that Md. Usman used to visit his house and meet his wife in his absence and he is the person who is responsible for the entire occurrence. It has also been stated in the First Information Report that Md. Usman, the appellant, disclosed that he had taken Bibi Zainab Khatoon to Muzaffarnagar and sold her for Rs. 3300/- to one Suke Singh. He also produced the Tawiz and the ear rings worn by Bibi Zainab Khatoon as the proof of the fact that his wife had been kidnapped. Md. Usman was produced before the Police Station and was taken into custody. 3. 3300/- to one Suke Singh. He also produced the Tawiz and the ear rings worn by Bibi Zainab Khatoon as the proof of the fact that his wife had been kidnapped. Md. Usman was produced before the Police Station and was taken into custody. 3. It has also transpired that after the First Information Report was instituted, the victim lady was recovered from village Goyal, which is in the district of Muzaffarnagar (U.P.) and produced in the Sahpur Police Station from where she was brought to her village home. It appears that she was released by the Police Authorities at Muzaffarnagar and they had also forwarded certain documents regarding her release etc. to the local Police Station. These documents have not been produced by the prosecution, although they would have been very important for the purposes of showing that the lady was recovered from village Goyal. The statement of Bibi Zainab Khatoon was recorded under Section 164 of the Code of Criminal Procedure. The Magistrate who recorded the statement of the victim lady under Section 164 of the Code of Criminal Procedure was examined as PW 7. 4. Altogether eight witnesses have been examined in this case on behalf of the prosecution. For the purposes of deciding the veracity of the prosecution version, the evidence of PW 5, the informant, PW 8, the victim lady, PW 6, the Investigating Officer and PW 1 who supposedly brought the victim lady to her village home are relevant. PW 2 Md. Zakir Hussain, PW 3 Md. Sobrati and PW 4 Abdul Kadir are witnesses on the point of the so-called confession of Md. Usman before the informant disclosing the manner in which the victim lady was kidnapped. 5. PW 5 Md. Zakir Hussain is the informant of this case. He has stated in his examination-in-chief that Md. Usman was missing from the village since 1.05.1996, the date from which his wife had disappeared from their house. He supports the prosecution version, inasmuch, as he has stated that he along with some villagers confronted Usman regarding the disappearance of his wife and only when Usman was pressurized, he had confessed to the kidnapping of the victim lady. It has been submitted on behalf of the appellant that Md. He supports the prosecution version, inasmuch, as he has stated that he along with some villagers confronted Usman regarding the disappearance of his wife and only when Usman was pressurized, he had confessed to the kidnapping of the victim lady. It has been submitted on behalf of the appellant that Md. Zakir Hussain had tried to introduce a new case by stating that Usman had disappeared from the village from the date on which his wife had disappeared from the village. It is pointed out that the disappearance of the wife of the informant and the appellant was only highlighted when they caught hold of Md. Usman on 20.05.1996 and after he orally confessed before them regarding the manner of kidnapping. 6. PW 8 Bibi Zainab Khatoon, the victim lady, stated in paragraph 4 of her deposition that after she was kidnapped by Md. Usman, she was kept locked in the house of Md. Usman for four days. According to her, she has been raped by Md. Usman. She has further stated that the wife of Md. Usman used to take her to ease herself and that she was always kept under threat. She further disclosed that Usman thereafter took her to the railway station from where he took her to Darbhanga. At Darbhanga, she changed train and came to Patna. From Patna, she was taken to Muzaffarnagar. According to her, she was kept in a village at Muzaffarnagar and later sold to one Suke Singh. According to her case, Suke Singh had a sexual relationship with her. While describing the place of occurrence i.e. her house she states that she lives there along with three other brothers-in-law and their family. They all share common aangan. Regarding the manner she was kidnapped, her case is that her husband woke up at about 4 AM and went out of the house after locking it from outside. It is alleged by her that Md. Usman came through the main door after opening the door (kundi) and forcibly took her away from the house by showing a dagger. She further goes on to state that she had stayed for four days in the house of Md. Usman. Md. Usman lives with his wife, father, mother and brothers. At paragraph 29, she has stated that Hafeez and Usman are on litigating terms and that her husband follows the dictates of Md. Hafeez. She further goes on to state that she had stayed for four days in the house of Md. Usman. Md. Usman lives with his wife, father, mother and brothers. At paragraph 29, she has stated that Hafeez and Usman are on litigating terms and that her husband follows the dictates of Md. Hafeez. Referring to the statement made by PW 8, Counsel for the appellant points out that there are certain contradictions in the evidence of PW 8 and the evidence of the informant PW 5 who is the husband of PW 8. It is submitted that the story that Md. Usman kept her in his house for four days after he had kidnapped her, is the story which had come for the first time before the Trial Court. Her statement under Section 164 of the Code of Criminal Procedure does not disclose this aspect of the matter. The Trial Court has thus disbelieved this aspect of the prosecution version. It is pointed out that PW 8 has specifically stated that she was recovered by one Md. Hafeez and one Muzzamuddin from village Goyal. These two witnesses have not been examined to prove the manner in which the victim lady was recovered. Her evidence is in direct contradiction with the evidence of her husband who has stated that he was sleeping in the verandah and when he got up, he found his wife was missing whereas according to PW 8, she claims that her husband had left the house at about 4 AM and she was thereafter kidnapped by Md. Usman. The fact and the reason for the said involvement is, according to the Counsel for the appellant, the fight between Hafeez and Usman in which the husband supports Hafeez and it is submitted that it is only on the dictates on Hafeez that this appellant has been dragged into this case. 7. The next witness PW 1 is Md. Haroon Rashid. He has been examined to show that Bibi Zainab Khatoon was recovered from village Goyal at Muzaffarnagar. According to this witness, he has signed on the bond at the Sahpur Police Station for the purpose of taking the custody of Bibi Zainab Khatoon. This bond has not been produced by the prosecution. Haroon Rashid. He has been examined to show that Bibi Zainab Khatoon was recovered from village Goyal at Muzaffarnagar. According to this witness, he has signed on the bond at the Sahpur Police Station for the purpose of taking the custody of Bibi Zainab Khatoon. This bond has not been produced by the prosecution. Further, it is submitted that PW 8 claims that Hafeez and Muzzamuddin were the persons who had recovered her from the house of Suke Singh and therefore, it is submitted that the statement of Md. Harron Rashid is completely false and not supported by PW 8. 8. The Investigating Officer of this case Mangal Giri has been examined as PW 6. According to the Investigating Officer, he had not visited the village of Suke Singh and he claims that the investigation against Suke Singh is still pending to his knowledge. He admits that it was essential for him to visit the village for further investigation of this case. 9. The evidence of PW 2 Md. Zakir Hussain, PW 3 Md. Sobrati and PW 4 Abdul Kadir are not relevant in this case as they have been examined on the limited point regarding the confession made by the appellant Md. Usman. 10. After considering the evidence, the fact which cme to light is that the victim lady was married for five years and was an adult person, and she is capable of understanding the consequences of her actions. It cannot be believed that she would travel by train from Lohna, the nearest railway station to her native village to Darbhanga, Patna and Muzaffarnagar without raising any sort of protest. Darbhanga, Patna and Muzaffarnagar railway stations are crowded and it could have been very easy for the victim lady to protest or raise hue and cry. The excuse given by the victim lady that she was at all times threatened by dagger, cannot be believed as there were several opportunities not only on the railway stations but in the train to take shelter of the passengers and/or the railway authorities if the person so desires. Even if it is presumed that the victim lady was coerced or persuaded by the appellant to leave her matrimonial home, it cannot be believed that she would travel for 2-3 days and not raise any alarm. 11. Even if it is presumed that the victim lady was coerced or persuaded by the appellant to leave her matrimonial home, it cannot be believed that she would travel for 2-3 days and not raise any alarm. 11. The next lacuna in the case is that the persons who actually recovered the victim lady from village Goyal in the district of Muzaffarnagar (U.P.) have not been examined by the prosecution. Even if it is believed that PW 1 Md. Haroon Rashid was the man who had gone to Muzaffarnagar and then to village Goyal, and recovered the victim lady, the documents such as the bond and the order of the Chief Judicial Magistrate allowing the release of the victim lady in favour of Haroon Rashid ought to have been produced by the prosecution. Surprisingly, the Investigating Officer has stated that these facts have been recorded in the case diary, yet he has not produced the relevant documents which would have confirmed the recovery from Muzaffarnagar or throw light regarding the manner in which the victim lady was kept at village Goyal. Although, she supports her statement that she was kidnapped which was recorded under Section 164 of the Code of Criminal Procedure, she has tried to improve the prosecution version by giving a completely different version and introducing a new case in which she alleges that she was retained for about four days in the house of Md. Usman. In the statement recorded under Section 164 of the Code of Criminal Procedure, she stated that she was kept for about one month with Suke Singh after which his husband and other came and took her to the Police Station from where she was produced before the Magistrate and thereafter she was released. The statement under Section 164 of the Code of Criminal Procedure completely destroys the prosecution version that Haroon Rashid was the man who had recovered the victim lady from the custody of Suke Singh. In the statement under Section 164 of the Code of Criminal Procedure, the victim lady claims that her husband along with others came to the village and he was responsible for the recovery. There are certain other contradictions which have been pointed out by the Counsel for the appellant, which have been discussed in the evidence of the witnesses, which also creates doubt regarding the manner of the occurrence. 12. There are certain other contradictions which have been pointed out by the Counsel for the appellant, which have been discussed in the evidence of the witnesses, which also creates doubt regarding the manner of the occurrence. 12. On the basis of the facts discussed above and the lacunae pointed out in this case regarding the manner of occurrence and recovery of the victim lady from village Goyal, it would appear that Bibi Zainab Khatoon was missing from her house, what the prosecution has failed to show is that she was forcibly kidnapped from her house and has not produced her statement as recorded by the Chief Judicial Magistrate, Muzaffarnagar and before the Sahpur Police Station, which would throw light regarding the manner of kidnapping. This Court, therefore, comes to the conclusion that the prosecution has not been able to prove its case beyond reasonable doubt. Accordingly the judgment of conviction dated 6th January, 2000 and the order of sentence dated 7th January, 2000 passed by the 2nd Additional Sessions Judge, Darbhanga in Sessions Trial No. 461 of 1996 is set aside and the above named appellant is acquitted of the charges levelled against him. The appellant is also discharged from the liabilities of the bail bonds furnished earlier in this case. 13. In the result, this appeal is allowed. Appeal allowed.