Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 1186 (PAT)

Jahiruddin @ Md. Jahiruddin v. State of Bihar

2012-08-27

SHEEMA ALI KHAN

body2012
JUDGMENT S.A. Khan, J. This appeal is directed against the judgment of conviction and order of sentence dated 16.12.1999, passed in Sessions Trial No. 419/97 by the Additional Sessions Judge, Kishanganj convicting the sole appellant to undergo R.I. for 7 years under Section 376 of the Indian Penal Code and to pay a fine of Rs. 2,000/-. 2. The First Information Report was instituted by Habai Noor Nishan, Daughter of Mohiuddin on 15.3.1997 in which it is said that 15 days prior to lodging of the First Information Report, she had gone to the house of the appellant to grind wheat. It is alleged that the appellant caught hold of her and raped her. She raised an alarm, whereupon, the mother of the appellant and the appellant told her not to attract attention to the incident as she would get them both married. It is further said that two days prior to the lodging of the First Information Report when she went to the field to ease herself, the appellant caught hold of her and again raped her. She reveals that she disclosed this fact to her mother and the villagers namely Sirajul, Md. Fazloo, Md. Kash, Zabadul Haque and Jamizuddin. A Panchayat took place which was not attended by the appellant and as such she has instituted this case. 3. Learned Amicus Curiae for the appellant submits that the allegations are unbelievable, the case has been lodged after a delay of 15 days and that the story of Panchayat is concocted. 4. Altogether 15 witnesses have been examined in this case. P.W. 15 is the witness who has proved the formal First Information Report, whereas, P.Ws. 7 to 14 are hearsay witnesses who have not been able to disclose as to how and from whom they learnt about the incident. These witnesses are not mentioned in the First Information Report and, therefore, their evidence cannot be relied upon for proving the prosecution case. 5. The doctor has examined the lady and has recorded that no signs of rape could be detected. It is mentioned that the radiological examination shows that the girl was about 19 years of age, whereas, dental examination disclosed that she was about 30 years of age. In this background the Court should now examine the evidence of so called witnesses to this occurrence. 6. P.W. 1 is the father of the girl. It is mentioned that the radiological examination shows that the girl was about 19 years of age, whereas, dental examination disclosed that she was about 30 years of age. In this background the Court should now examine the evidence of so called witnesses to this occurrence. 6. P.W. 1 is the father of the girl. He has stated in his chief that he learnt about the occurrence from his daughter. He has supported the case that there was a Panchayat which was not attended by the appellant. At paragraph 10 he says that Jahiruddin had transferred 1 Bigha of land in favour of his daughter. He denies the suggestion that the case has been instituted because Rs. 7,000/- was to be paid to the appellant and in order to avoid payment of the dues this false case has been instituted. 7. From the tenor of the evidence, it would appear that P.W. 1 has slightly changed the manner of occurrence as mentioned by his daughter in the First Information Report. He has introduced a case that the daughter was asked to go to the house of Jahiruddin by the father of the appellant Tamijuddin. It is also admitted by P.W. 1 that there was some transaction with respect to transfer of land between the parties for which certain amount of money was due to Jahiruddin, the appellant. It is, therefore, submitted that no such occurrence took place and that the case was instituted in order to avoid payment. 8. P.W. 2, Maqbool Hussain has not been mentioned in the First Information Report by the informant as one of the persons to whom she had disclosed the occurrence. He admits that he was not examined by the Investigating Officer under Section 161 of the Code of Criminal Procedure. His evidence, therefore, has to be rejected out right by this Court. 9. P.W. 3 is the mother of the victim girl. She supports the prosecution version and tries to explain the delay in lodging of the First Information Report by saying that there was a Panchayat between the parties which had led to delay in lodging of the case. This witness at paragraph 7 of her evidence has stated that the appellant had transferred (sold) 1 Bigha of land in favour of her daughter. Apparently this witness knows nothing regarding the occurrence. This witness at paragraph 7 of her evidence has stated that the appellant had transferred (sold) 1 Bigha of land in favour of her daughter. Apparently this witness knows nothing regarding the occurrence. In-fact she has not been examined as a witness in the First Information Report although she was an important witness to substantiate the case of rape. 10. P.W. 4, Md. Ismail is a witness to the Panchayat that was held regarding the said occurrence. His evidence discloses at paragraph 2 that Jahir is his brother-in-law. Attention of the witness has been drawn to the statement given before the Investigating Officer in which he has not stated that a Panchayat was held after the occurrence. Surprisingly he says ^^Lor% dksbZ iapk;rh ugha gqbZ FkhA** thereby dislodging the case of the prosecution that the Mukhiya and the Sarpanch had intervened in the matter and held a Panchayat regarding the occurrence. According to this witness he has stated that ^^tgh:n~nhu us flQZ gokuw ds lkFk ‘kknh dh gS vU; dksbZ ‘kknh ugha dh gSA** The Court finds that Md. Ismail is not mentioned by the informant as one of the witnesses to whom he has disclosed anything regarding the occurrence. His evidence is contrary to the evidence of other witnesses who have stated that a Panchayat was held whereas this witness has denied that any Panchayat was held regarding the occurrence. The evidence of this witness does not inspire confidence of this Court. 11. P.W. 5 is the informant of this case. She supports the case in the chief. According to her Alimuddin, Habibur Rahman, Kaisar and Serajul were present during the Panchayat, which failed, because the appellant did not present himself before the Panchayat. It may be noted at this juncture itself that none of these persons have been examined as witnesses, during the trial, to prove the fact that a Panchayat was held. The Panches and the Mukhiya who had supposedly intervened in the matter has also not been examined. This witness has tried to explain the evidence given by her father by stating that the land was transferred in her favour in lieu of „Din-Mehar. She has also stated that she was got married to Jahiruddin and lived with him for one month after her marriage. On the basis of the aforesaid evidence the Trial Court has convicted the appellant. 12. She has also stated that she was got married to Jahiruddin and lived with him for one month after her marriage. On the basis of the aforesaid evidence the Trial Court has convicted the appellant. 12. This Court while discussing the evidence of each of the witnesses has pointed out the various lacunas in their evidence. It is summarized that P.W. 1 has tried to change the manner of the occurrence and has disclosed that there was some transaction by which Jahiruddin had transferred 1 Bigha of land in favour of the informant. A suggestion has been given to P.W. 1 that the case has been instituted because of non-payment of consideration money. This evidence of the father has been explained by the victim girl by saying that the land was transferred as part of the alimony (Din-Mehar) in favour of the girl. The uncle of the informant who has been examined as P.W. 7 has stated that both of them are married. Besides the contradictions aforesaid, it is obvious that the witnesses named in the First Information Report were not examined, the factum of holding a Panchayat has not been proved as the Panches and the Mukhiya have not come forward to support this part of the case. In-fact it would appear that no Panchayat was held as would be apparent from the evidence of P.W. 4. The delay in lodging of the First Information Report is another fact which indicates that the informant has not come forward with clean hands and that the case has been instituted for some other purposes. The relationship between Jahiruddin and the informant leaves great doubt in the mind of this Court as according to the informant she was married to him and lived with him for one month after her marriage, whereas Md. Ismail has stated that Jahiruddin is married to the informant and has grown up children. Such contradictions regarding the relationship between the parties and the cause of filing this case coupled with the delay in lodging the First Information Report leads this Court to conclude that the prosecution has not been able to prove this case beyond reasonable doubt. 13. In the result, the judgment of conviction and order of sentence dated 16.12.1999, passed in Sessions Trial No. 419/97 by the Additional Sessions Judge, Kishanganj is set aside. The appellant is acquitted of the charges levelled against him. 13. In the result, the judgment of conviction and order of sentence dated 16.12.1999, passed in Sessions Trial No. 419/97 by the Additional Sessions Judge, Kishanganj is set aside. The appellant is acquitted of the charges levelled against him. He is also discharged from the liability of his bail bond furnished earlier in this case. 14. This appeal is allowed. Appeal allowed.