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2012 DIGILAW 1209 (PAT)

MIRAJ KHALID v. STATE OF BIHAR

2012-08-30

SHEEMA ALI KHAN

body2012
JUDGMENT Sheema Ali Khan, J. Nobody appears on behalf of the appellant to press this appeal. Accordingly, Mr. Ranbir Singh, Advocate is appointed as Amicus Curiae to assist this Court in this appeal on behalf of the appellant. Mr. Sujit Kumar Singh, A.P.P. is representing the State. 2. The appellant has been found guilty for the offences punishable under Sections 363 and 366 of the Indian Penal Code and the 4th Additional Sessions Judge, Bhagalpur sentenced him to undergo rigorous imprisonment for three years for offences under Section 363 of the Indian Penal Code and rigorous imprisonment for five years for offences under Section 366 of the Indian Penal Code. Both the sentences were to run concurrently. 3. The fardbayan has been instituted by the victim girl Fauzia Parween in which she has stated that on 18.08.1998 while she was returning home, she was pulled into a van by the appellant near the Sudha Dairy. The appellant is said to have taken her to Ibrahimpur within the Sabour Police Station. She alleges that she tried to escape but he pulled her hand and she suffered injury on her hand. It is said that he took her to the Agricultural College and was misbehaving with her. Munna Yadav @ Deb Narain Yadav, Jairam Das and Deepak Kumar intervened and she was taken home on a tempo. She learnt the name of the appellant after he was caught by the aforesaid three persons. She came to the Police Station with her uncle (mama) Javed Akhtar to institute this case. 4. The defence case is that no such occurrence has taken place and that the three witnesses named in the First Information Report wanted to misbehave with the victim girl, when the appellant protested, he was caught by them and produced before the Police Station. It has also been suggested during the trial that the victim girl was in the habit of blackmailing young boys who belonged to rich families. In the statement under Section 311 of the Code of Criminal Procedure, a defence has been raised on behalf of the appellant that he was in love with Fauzia Parween. It is said Fauzia Parween was trying to blackmail him and when he refused to pay, he was involved in the case of kidnapping. 5. In the statement under Section 311 of the Code of Criminal Procedure, a defence has been raised on behalf of the appellant that he was in love with Fauzia Parween. It is said Fauzia Parween was trying to blackmail him and when he refused to pay, he was involved in the case of kidnapping. 5. Nine witnesses have been examined on behalf of the prosecution to prove the case as made out in the First Information Report. At the outset, I may state that the case which has been made out during the trial is quite different to the version as stated in the First Information Report. PW 1 Deb Narain Yadav @ Munna Yadav, one of the boys who had accompanied the victim girl and reached her to her home, has stated that he saw the couple in the garden of the Agricultural College situated at Bhagalpur. He could hear the girl protesting. On reaching the place of occurrence, he learnt from the victim girl that the appellant had forcibly kidnapped her. This witness along with PWs 2 and 3 boarded a tempo and were able to reach Fauzia Parween to her home at about 11:30 PM in the night. It is further stated in his examination-in-chief that the parents were very happy to see their daughter and requested PWs 1, 2 and 3 to reach the appellant to his home. It is further stated that while they were returning on the tempo, the appellant stopped the tempo to relieve himself and thereafter he tried to escape. In the mean time, the patrolling party reached the spot and they apprehended the appellant with the help of the police personnel. The boy was taken to the Police Station. The information was given to the family of Fauzia Parween, who came with her uncle and lodged the First Information Report. This witness was questioned about his criminal antecedents, which he denied. He also denied the suggestion that they were interested in outraging the modesty of Fauzia Parween and when the appellant protested, they have framed him in the present case. This witness also admits that a number of young couples visit the grounds of the Agricultural College and are found sitting and talking together in the garden. He denies that the parents had misbehaved either with the victim girl or the boy when they reached the house of the victim girl. This witness also admits that a number of young couples visit the grounds of the Agricultural College and are found sitting and talking together in the garden. He denies that the parents had misbehaved either with the victim girl or the boy when they reached the house of the victim girl. 6. PW 2 Jairam Das has also stated identical facts regarding the manner of recovery of the victim girl. In the cross-examination, he was tested as to whether he was involved in any other case, which he denied. However, at paragraph 9 of his deposition, he has stated that he had appeared before the Judicial Magistrate on 26.07.1999 to give evidence in a case. 7. PW 3 Deepak Kumar has also given a similar statement as PWs 1 and 2 regarding the manner of recovery and regarding apprehension of the appellant after the victim girl was taken to the parents’ home. He admits that the parents were very happy and asked these boys to reach the appellant to his home. These three witnesses have made identical statements regarding the manner of occurrence and the manner in which the victim girl was taken to her home and the reaction of the parents. They denied the suggestions that they are involved in criminal cases or they were trying to misbehave with Fauzia Parween and when the appellant protested, this case was instituted at their instance. 8. PW 4 Md. Ali has been introduced in this case and a story has been made out that the appellant had taken Fauzia Parween to the house of Md. Ali, because he wanted to meet the son of Md. Ali, who was his friend. Md. Ali has stated that when the appellant had come to his house, Miraj had disclosed that his sister is with him. Md. Ali sent for the victim girl. This witness denies that his son was a friend of the appellant. 9. PW 5 Md. Yunus is the tempo driver and he has supported the case of the prosecution to the extent that he has driven the victim girl home along with the appellant in his tempo on the request of PWs 1, 2 and 3. He denies that the victim girl or the appellant were assaulted or ill-treated by PWs 1, 2 and 3 during the journey. He denies that the victim girl or the appellant were assaulted or ill-treated by PWs 1, 2 and 3 during the journey. Apart from two aforesaid facts, there is nothing in his evidence which is very helpful to the appellant. 10. The informant Fauzia Parween has been examined as PW 6. She supports the case made out in the First Information Report and has also supported the version of the occurrence as stated by PWs 1, 2 and 3. According to her, she was taken on a tempo till the house of Md. Ali, where she met the daughters of Md. Ali and thereafter requested them to allow her to make a phone call. Apparently, she went to the neighbour’s house to make a phone call in order to contact her family members. However, the phone was disconnected by the appellant who reached at the spot. After that, she claims that she was dragged on foot through the fields to the Agricultural College and the appellant took her to the garden, behind a bush, and tried to misbehave with her. In the mean time, according to this witness, the three boys PWs 1, 2 and 3 saved her as they had heard her protesting when the appellant was trying to hold her. She also supports the case that she was taken home on a tempo and that her parents were very happy to see her and asked the three boys to reach the appellant to his house. She denies the suggestion that she is in the habit of blackmailing rich young boys after she becomes their friend. She claims to have passed her Wostania (matriculation) examination in the year 1995. She admits that that the house of Md. Ali was in a thickly populated area. She admits that she did not raise protest or disclose the fact that she has been forcibly kidnapped by the appellant to the daughters of Md. Ali or to Md. Ali. 11. PW. 7 Javed Akhtar @ Raja is the uncle (mama) of the victim girl. He supports the case as made out by the informant and also supports the manner in which the appellant was taken to the Police Station. A suggestion has been given that he is the collecting agent and he owes money to several persons, which he has denied. 7 Javed Akhtar @ Raja is the uncle (mama) of the victim girl. He supports the case as made out by the informant and also supports the manner in which the appellant was taken to the Police Station. A suggestion has been given that he is the collecting agent and he owes money to several persons, which he has denied. He has been examined with respect to the age of the victim girl. As per the prosecution version, Fauzia Parween is about 17 years of age. The school certificate has been produced and proved by this witness. He denies the fact that his niece was involved with the other boys. 12. PW 8 Bijay Krishna Kumar is the Radiologist, who has found on the basis of the fusion of the bones that the victim girl is less than 18 years of age. In the cross-examination, he has stated that there is partial fusion of the bones and as such she could be about 17½ years of age. 13. PW 9 Yogendra Prasad Singh is the Investigating Officer of this case. He has examined the witnesses under Section 161 of the Code of Criminal Procedure and proved the formal First Information Report. He has stated that he had not accompanied the victim girl to the hospital when she went for her medical check-up. He has examined the place of occurrence but could not examine the person who lived nearby the place of occurrence. PWs 1, 2 and 3 were examined at paragraphs 37, 38 and 39 of the case diary, and the family members were examined at paragraphs 14 and 15 of the case diary. 14. On the basis of the evidence aforesaid, it would appear that the case made out in the First Information Report has been improved and a new case has been introduced by stating that the victim girl was taken to the house of Md. Ali where the van was abandoned and the victim girl was thereafter taken on foot to the garden of the Agricultural College. This part of the prosecution version is not in the First Information Report. In the First Information Report, it is merely stated that she was kidnapped in a maruti van and taken to the Agricultural College, where she was saved by PWs 1, 2 and 3 who brought the victim girl to her home. This part of the prosecution version is not in the First Information Report. In the First Information Report, it is merely stated that she was kidnapped in a maruti van and taken to the Agricultural College, where she was saved by PWs 1, 2 and 3 who brought the victim girl to her home. The story built up by the prosecution during the trial of the case appeared to be prima facie unbelievable in view of the fact that it is the case of the informant that she was kidnapped in a maruti van. There is a missing link in the prosecution version as there was no occasion for the appellant to give up the car and take the victim girl to the Agricultural College on foot. The evidence of Md. Ali and the victim girl herself regarding this aspect is rather far-fetched. If the Court were to believe the version of Md. Ali and PW 6, the informant, then it does not stand to reason, that the victim girl should not raise a protest or inform Md. Ali or his daughter with whom she had the opportunity to talk and interact especially when she was taken by the daughters of Md. Ali to the toilet. The prosecution case becomes even more unbelievable in view of the fact that there was no occasion for the appellant to abandon the van and drag the victim girl on foot to the Agricultural College, through a thickly populated area. it is not the prosecution version, that the van had broken down and had to be abandoned on that count, rather no explanation has been given regarding this aspect of the matter. The appearance of PWs 1, 2 and 3 at the place of occurrence in the form of saviours, also appears to be a rather fantastic story. One cannot imagine that the appellant did not run away or try to save himself when the three boys came to the place of occurrence especially if he was in the wrong. The further version that all five of them went on a tempo to the house of Fauzia Parween, where she was happily received by her parents, with a request to PWs 1, 2 and 3 to return the boy i.e. the appellant back safely to his house, cannot be considered to be rational behaviour. The further version that all five of them went on a tempo to the house of Fauzia Parween, where she was happily received by her parents, with a request to PWs 1, 2 and 3 to return the boy i.e. the appellant back safely to his house, cannot be considered to be rational behaviour. If the parents were happy to see their daughter, they could have just let the boy go. There was no occasion for them to make a request to PWs 1, 2 and 3 to ensure the safe return of the appellant to his house. Thus, the case progresses thereafter, wherein it has been alleged that the appellant tried to escape and was caught while on his way to his house, is a rather imaginative addition to the prosecution version. Even if it is assumed that this part of the case is true, there was no occasion for the appellant to try and escape as according to the prosecution case, they were taking the appellant to his house. 15. I, therefore, find that not only is there an improvement and addition in the prosecution version, but the improvement and addition is unbelievable. The fact that the parents have not come in support of their daughter to give evidence before the Trial Court is also a factor which has created certain doubts in the mind of this Court regarding the actual occurrence, if at all, it had taken place in the manner as described in the Court. 16. Considering all the facts aforesaid, this Court finds that the prosecution has not been able to prove its case beyond reasonable doubts. This Court accordingly sets aside the judgment of conviction dated 26th August, 2000 passed in Sessions Trial No. 281 of 1999 and acquits the appellant for the charges levelled against him. The appellant is also discharged from the liabilities of the bail bonds furnished earlier in this case. 17. In the result, this appeal is allowed.