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2012 DIGILAW 1603 (PAT)

Ilyas @ Baghwa v. State of Bihar

2012-11-30

SHEEMA ALI KHAN

body2012
JUDGMENT (ORAL) Smt. Sheema Ali Khan, J.- The two appellants have been found guilty under Sections 313/120-B of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for ten years by the 1st Additional Sessions Judge, Madhubani in Sessions Trial No. 119 of 1995/218 of 1996. 2. The prosecution case as made out by the victim of this case who given her fardbeyan on 07.07.1994 is that she was a divorcee, living with her mother. It is said that her husband had divorced her after three years of the marriage on the ground that her mother had not given her enough dowry. After her divorce, she was living with her mother and claims that Ilyas, appellant No. 1 began to visit her and forced her to have physical relationship with him after which the affair continued for several months. The informant realized that she was pregnant and disclosed this fact to her mother. She alleges that she was feeling unwell and at that time. Ilyas and Sadre Alam visited her and gave her some medicines. She claims that she took the pills and thereafter felt pain. which, resulted in her losing the baby. Thereafter, the villagers were told and a panchayati took place on 04.07.1994 at the doorstep of Noor Hasan. In the panchayat, it was decided that Ilyas should marry the informant, however he disappeared from the panchayat and refused to marry the informant. 3. On the basis of the said information, the trial commenced in which the informant and the mother were examined to prove the prosecution case. PW 3. Nasruddin, who is not mentioned in the First Information Report as one of the witness to the panchayat. has also come forward to claim that panchayat was held and it was decided that appellant No. 1 should marry the informant. 4. Counsel for the appellants submits that even if it is presumed that the informant was having an affair with the appellant No. 1, and that she had become pregnant because of the said relationship, it cannot be assumed that the appellants has forced the informant to take certain medicines to terminate the pregnancy. Moreover, the doctor has found that the pregnancy would be between 4-7 months and therefore, it cannot be ruled out that the abortion was not induced by medicines rather the lady aborted because of some other reason. Moreover, the doctor has found that the pregnancy would be between 4-7 months and therefore, it cannot be ruled out that the abortion was not induced by medicines rather the lady aborted because of some other reason. Apart from which, it has been argued that there are vital contradictions between the evidence of the informant Afsana Khatoon and her mother, namely. Laila Khatoon. 5. The informant Afsana Khatoon has been examined as PW 1. According to her case, she had informed her mother regarding the physical relationship and her pregnancy. She claims that her mother was present when she was pressurized to take certain medicines. which is contrary to the case made out in the First Information Report, where she has stated specifically that nobody was present in the house when Ilyas and Sadre Alam gave her the pills to swallow. Regarding the panchayat held. Afsana Khatoon claims that the panches had directed the appellant No. 1 to marry her or to pay her a certain amount of money. She claims that she was given a sum of Rs. 6.000/- by Ilyas. There is a suggestion that Sahid and Ezaz have enmity with the appellants and there are cases pending between them which has led to the filing of this case, which is completely false. 6. On reading the evidence of PW 1, it is apparent that the informant has tried to improve her case by introducing her mother as a witness at the time when the pills were handed over by Ilyas and Sadre Alam. It may be noted that the informant has not made out a case that she was in anyway pressurized to take the pills or that she was forcibly administered the medicines. In Court, she has tried to make out a case that she was forced to take the medicines by the appellants. Therefore, this Court concludes that PW 1 has introduced new facts in evidence, which were not part of the First Information Report. 7. Laila Khatoon, the mother of the informant, was examined as PW 2. According to her evidence, she was present at the time when the appellants handed over two pills to the informant. She has stated that the informant was forced to swallow the medicines by the appellants, which is not the case as made out in the First Information Report. Laila Khatoon, the mother of the informant, was examined as PW 2. According to her evidence, she was present at the time when the appellants handed over two pills to the informant. She has stated that the informant was forced to swallow the medicines by the appellants, which is not the case as made out in the First Information Report. She admits that appellant No. 1 was married at the time he entered into the relationship with the informant. She also submits that she was well aware that ilyas was on visiting terms and had a relationship with her daughter. She had told the villagers that ilyas had raped her daughter and had also told them regarding the pregnancy of her daughter within 10 days of her getting pregnant. She has made out a case that her son was not present when the First Information Report was instituted. 8. The evidence of PW 2 contradicts the evidence of PW 1 and is contrary to the case made out in the First Information Report. The fact that she is trying to improve her case by introducing new facts leads to the conclusion that she is not truthful witness and is obviously lying for some ulterior motive. It cannot be believed that she had told the villagers regarding the alleged rape of her daughter and still allowed her daughter to remain in the relationship for 4-7 months. It is also far fetched to accept that she had informed the villagers of her daughter's pregnancy within ten days of her being pregnant. All these facts go to show that there is some sought of emblishment in the prosecution version. 9. The doctor was examined as PW 4. She has stated that the informant was pregnant and it appears that she had aborted. She has not stated as to whether the abortion was induced or natural. According to the statement, the girl had not given her any details regarding the manner in which she had been aborted or whether she has any problem during the abortion. In the cross-examination, the doctor has stated that the pregnancy could be anywhere between 4-7 months. This aspect is supported by PW 2 who has stated that they buried the baby after the abortion, which would indicate that the baby was partially formed; leading to the conclusion that it is quite possible that the pregnancy was advanced. In the cross-examination, the doctor has stated that the pregnancy could be anywhere between 4-7 months. This aspect is supported by PW 2 who has stated that they buried the baby after the abortion, which would indicate that the baby was partially formed; leading to the conclusion that it is quite possible that the pregnancy was advanced. It is not possible to abort by administering pills, rather medical intervention is required even if the pregnancy is 4-months old. This aspect is important and the doctor ought to have given a detail report regarding this aspect of the matter. 10. From the discussions above and on perusing the evidence of PWs 1 and 2, it would appear that both of them are trying to make out a case that the informant was forced to enter into the relationship and was pressurized for aborting the child, which is not the case made out in the First Information Report. 11. Apart from this aspect, it cannot be stated that Afsana Khatoon could have been persuaded to enter into the physical relationship considering that she was married for about three years and it is expected that she would know the consequences of such relationship and protect herself. especially in view of the fact that she was well aware that Ilyas was a married man. Taking into account the fact that the prosecution has not been able to prove that the abortion, if at all was induced and the contradictions of the two major witnesses in this case, this Court gives the benefit of doubt to the appellant No. 1. Ilyas. As far as appellant No.2, Sadre Alam is concerned, who virtually has no role to play and it is apparent that the informant had tried to rope him in this case as there is nothing to indicate that he was interested in the alleged affair of Ilyas and the informant Afsana Khatoon. 12. Accordingly, the appellants are acquitted of the charges levelled against them for the reasons mentioned aforesaid. The appellants are also discharged from the liabilities of the bail bonds furnished earlier in this case. 13. In the result, this appeal is allowed. Appeal allowed.