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2013 DIGILAW 284 (PAT)

Mohammad Haroon v. State of Bihar

2013-03-01

RAJENDRA KUMAR MISHRA

body2013
JUDGMENT (ORAL) Rajendra Kumar Mishra; J. Heard the parties. 2. The petitioner has preferred this Criminal Revision against the Judgment and Order dated 22.3.2002 passed in Sessions Trial No. 218 of 1990/100 of 2001 by the Court of the 3rd Additional Sessions Judge, Sitamarhi, whereby the learned 3rd Additional Sessions Judge. Sitamarhi, acquitted the opposite party Nos. 2 to 4 of the charges under Sections 302/34 and 201 of the Indian Penal Code. 3. On the basis of the fardbeyan of the informant, Md. Haroon (PW 6)/petitioner, as recorded on 25.10.1985 at about 2.00 a.m. near the river of village-Betaha, P.S. Bela, District-Sitamarhi, by the S.I., C.K. Jha (PW 9), Bela P.S. Case No. 53 of 1985 was instituted on 25.10.1985 under Sections 302 and 201/34 of the Indian Penal Code against the opposite party Nos. 2 to 4 and one Md. Jabir Hussain. The informant, Md. Haroon (PW 6)/petitioner gave his fardbeyan to the effect that his daughter, Sabiha Khatoon, aged about 14-15 years, returned in the evening to house from Madarsa and after taking breakfast went near the river to take the bangle (Kara), which she had left there. At about 6.30 p.m. his villager, Yaqub Sah (PW 1), came to his door and told that his daughter was being carried by the accused. Abdul Samad, Motiful Rahman, Md. Jabir and Md. Islam in the direction of the south of the village. Thereafter, he along with Md. Sabir Hussain (PW5), Md. Reyaz, Badrul Hasan (PW 3), Kuddus and others moved to see his daughter. When they reached in the south of the village near the brick-kiln, then saw that Md. Samad, Motiful, Jabir and Islam were coming from the river side and on seeing them they changed their way and moved very speedily towards east direction. He along with others reached near the river in search of his daughter and when they reached near the field of Jalil, then he found the dead body of his daughter, Sabiha Khatoon, in the river, which was carried from the river at the bank of river. There was scratch injury on her neck and ear. On seeing the dead body of his daughter, he became nervous and his several villagers also reached there. There was scratch injury on her neck and ear. On seeing the dead body of his daughter, he became nervous and his several villagers also reached there. At that time, Jainuddin (PW 2) told that when he had gone to attend the call of nature near the river in the evening, he heard the sound of gagging of somebody. He has further alleged that the cause of murder of his daughter appears to be the land dispute in between him and Abdul Samad. He has further alleged that he is Principal in the Government Primary Urdu School. Matauna, where Abdul Samad is a teacher and his salary was stopped and due to his absence the bill of the month of his salary is of also lesser amount. The suspension of Abdul Samad is also under consideration due to his involvement in the rape case. So, Abdul Samad under conspiracy with his men has committed the murder of his daughter and threw her dead body in the river. 4. The police on investigation of the case submitted the charge-sheet against the accused persons including the opposite party Nos. 2 to 4, and thereafter, the case was committed- to the Court of Sessions for trial. In course of trial, the prosecution examined altogether 13 witnesses and also got exhibited some documents. On the other hand, the defence has not examined any witness but got exhibited some documents regarding the enmity with the, informant and other witnesses. 5. On trial, the learned 3rd Additional Sessions Judge, Sitamarhi, through the impugned Judgment and Order, acquitted the accused-opposite party Nos. 2 to 4 of the charges under Sections 302/34 and 201 of the Indian Penal Code. 6. Learned counsel appearing on behalf of the petitioner submits that although there is no eye-witness to the occurrence but the evidence of PW 1, Yaqub Sah, PW 2. Jainuddin Sah, PW 3, Badrul Hasan, PW 5, Md. Sabir Hussain and PW 6. Md. Haroon, who is the informant of the case, shows the circumstances about the involvement of the accused-opposite party Nos. 2 to 4 in committing the murder and concealing the dead body of the deceased, Sabiha Khatoon, the daughter of the informant (PW 6). The learned trial Court illegally disbelieved the evidence of the aforesaid witnesses and acquitted the accused-opposite party Nos. 2 to 4 giving them the benefit of doubt. 7. PW 6, Md. 2 to 4 in committing the murder and concealing the dead body of the deceased, Sabiha Khatoon, the daughter of the informant (PW 6). The learned trial Court illegally disbelieved the evidence of the aforesaid witnesses and acquitted the accused-opposite party Nos. 2 to 4 giving them the benefit of doubt. 7. PW 6, Md. Haroon, who is the informant of the case has stated in his evidence that on 24.10.1985 his daughter, Sabiha Khatoon, returned from Madarsa and on taking breakfast went near the river to take bangle, which she had left near the river. At about 6.30 p.m. his villager, Yaqub Sah, came and told that he saw Sabiha Khatoon being carried by Samad Master, Motiful, Islam and Jabir towards the south of the village. Thereafter, he along with Reyaz, Kuddus, Sabir and Badrul Hasan moved in search of his daughter. When they reached near the brick-kiln of Deo Narayan in the south of the village then saw that Samad, Motiful, Md. Islam and Jabir were coming from the side of river and on seeing them they changed their way and moved in the east direction speedily. In course of search, he found the dead body of his daughter, Sabiha Khatoon, at the bank of river and her dead body was brought from the river and he saw the scratch on her neck and the injury on her ear. On hullah, Abdul Kaiyum, the Mukhia of his village, and other villagers also rushed there, Jainuddin (PW 2) also informed him that when he had gone to attend the call of nature, he heard the, sound of gagging of someone. This witness has further stated in his cross-examination that a dispute was going on in between Samad and his brother, Badrul Hasan, before the occurrence. This witness has further stated that being the Headmaster of the school he had stopped the salary of the month of September. 1985. of Md. Samad Master giving information to the higher authorities and the salary of the month of August, 1985, of Md. Samad Master, was deposited in the Treasury. Due to that reason, Md. Samad Master was annoyed with him. This witness has further stated that at that time Md. Hasim (PW 10), the chaukidar of village, was also there but he had not told him anything. Samad Master, was deposited in the Treasury. Due to that reason, Md. Samad Master was annoyed with him. This witness has further stated that at that time Md. Hasim (PW 10), the chaukidar of village, was also there but he had not told him anything. PW 1, Yaqub Sah, has stated in his evidence that on the date of occurrence, he had gone to Parihar Market at about 2.00 p.m. and in course of returning from the market to the village at about 6.00 p.m. when he reached near the village he saw that Sabiha Khatoon was being carried by Samad Master, Islam, Motiful and Jabir towards the river in the south of the village. Thereafter, he went to his house and from there he went to the house of Kaiyum Tailor to hand over the purchased articles. Thereafter, he went to the house of Haroon Master and gave information about carrying of his daughter by Samad Master, Islam, Motiful and Jabir. This witness has further stated in his cross-examination that the accused, Samad Master, had lodged a case under Section 107 of the Code of Criminal Procedure against him. This witness has further stated in his cross-examination that after knowing about the murder of Sabiha Khatoon, Chaukidar of his village, Md. Hasim (PW 10), had met him but he had not disclosed him about the incident of carrying Sabiha Khatoon by the accused. PW 2, Jainuddin Sah has stated in his evidence that on the date of occurrence when he had gone in the evening near the village to attend the call of nature, he heard the sound of gagging near the river and also saw Master Samad standing near the river. When he came to his house then came to know that the daughter of Haroon Master is traceless. He has further stated that when he had gone to attend the call of nature at that time the sun had set. PW 3. Badrul Hasan and PW 5, Md. Sabir Hussain, have stated in their evidence that on the date of occurrence at about 6.30 p.m., they were at the house of Md. Haroon (PW 6), where Yaqub Sah, came and told about carrying Sabiha by Master Samad, Islam, Motiful and Jabir towards river. Thereafter, they proceeded in search of Sabiha and found the dead body of Sabiha at the bank of river in a lonely place. 8. Haroon (PW 6), where Yaqub Sah, came and told about carrying Sabiha by Master Samad, Islam, Motiful and Jabir towards river. Thereafter, they proceeded in search of Sabiha and found the dead body of Sabiha at the bank of river in a lonely place. 8. While PW 2, Jainuddin Sah, has stated in his evidence about hearing the gagging of someone near the river at the time when he had gone to attend the call of nature and also of standing the accused, Master Samad, but PW 6, Md. Haroon, the informant of the case, has only stated in his evidence that PW 2, Jainuddin Sah, had informed him about hearing the gagging near the river. PW 1, Yaqub Sah, has stated about seeing and carrying Sabiha by the accused, Master Samad, and other accused towards river in the village but he has himself stated that thereafter he went to his house and then went to the house of Kaiyum Tailor to hand over the purchased articles and thereafter he went to the house of the informant. Md. Haroon (PW 6), and narrated about the incident. His conduct is also unnatural as on seeing the incident he did not inform the informant immediately. Moreover, Md. Hasim (PW 10), who is a Chaukidar and the resident of the village of the informant, has stated in his evidence that on the alleged date of occurrence at about 8.00 p.m. when he returned to his house then came to know about the dead body and went there and saw the dead body of Sabiha, the daughter of the informant. Md. Haroon (PW 6), where the informant. Md. Haroon (PW 6), Mukhiya of the village and other villagers were present but none has stated about the name of the accused. Thereafter, he proceeded for the police station and reached there at about 12.00 p.m. in the night and gave the information to Darogaji. Darogaji made entry about the information in the diary and proceeded for the place of occurrence with him, Chandra Kant Jha (PW 9), who is the I.O. of the case; has supported the evidence of Md. Hasim (PW 10) stating that at about 00.15 in the night, chaukidar; Md. Hasim (PW 10). Darogaji made entry about the information in the diary and proceeded for the place of occurrence with him, Chandra Kant Jha (PW 9), who is the I.O. of the case; has supported the evidence of Md. Hasim (PW 10) stating that at about 00.15 in the night, chaukidar; Md. Hasim (PW 10). came at the police station and informed about lying the dead body of the daughter of Master Haroon (PW 6) and after making entry in the diary he along with other police officials reached to the place of occurrence at about 2.00 a.m. 9. The learned trial Court in his judgment has discussed the evidence of the prosecution witness in detail and disbelieved the same taking into consideration the discrepancies in the evidence of the prosecution witnesses and other lacuna specially in the circumstances that there is admitted enmity in between the accused-opposite party Nos. 2 to 4 and the informant. As such, I do not find any illegality in the impugned Judgment and Order for interference with the same in revisional jurisdiction. 10. Accordingly, this Criminal Revision stands dismissed. 11. Let copy of the first and last page of this Judgment be handed over to Mr. Dashrath Mehta, learned counsel, who appeared as amicus curiae on behalf of the opposite party Nos. 2 to 4, in this case by the office. Revision dismissed.