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2013 DIGILAW 450 (PAT)

Kari Mian v. State of Bihar

2013-04-03

HEMANT KUMAR SRIVASTAVA

body2013
HEMANT KUMAR SRIVASTAVA, J.:–All the above stated criminal appeals have been preferred against the judgment of conviction dated 31.5.2000 and sentence order dated 6.6.2000 passed by learned Addl. Sessions Judge I, Madhepura in Sessions trial no. 325/1998 by which and whereunder he convicted all the appellants for the offence punishable under section 366 part II of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for seven years and also convicted appellant in Cr. Appeal no.241/2000, namely, Kari Mian for the offence punishable under section 376 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for ten years. However, his both the sentences were ordered to run concurrently. 2. In brief, the prosecution case, is that P.W. 5, Biswanath Yadav gave his fardbeyan to officer-in-charge of Bihariganj police station on 23.6.1998 to this effect that on 17.6.1998 when he returned to his home at about 9 p.m. from Bihariganj market, his Sarhaj Maya Khatoon (P.W.4) informed him that on the same day at about 7 p.m. his daughter, namely, Reena Kumari was called by appellant Urmila Khatoon and thereafter Reena Kumari went to court- yard of the appellant Urmila Khatoon. P.W.4 also followed her and when she reached in court- yard of Urmila Khatoon, she found Urmila Khatoon, Nunu Singh, Gandhi Jha, Permila Khatoon, Md Munna, Baby Khatoon, Md Jabed and Md Kari Mian present in the court- yard of Urmila Khatoon. P.W.4 further stated that when she reached there Urmila Khatoon asked her to go back and assured her that Reena Kumari would return very soon. P.W.4 returned to her home but when after some time, she called Reena Kumari, no one replied and then she went in court- yard of Urmila Khatoon and no body was there and house was found lock. She started searching Reena Kumari but could no succeed to trace her out. P.W.5, after knowing the aforesaid fact, came at his house and he, too, made hectic search of his daughter but could not trace her out and after that he went to the concerned police station and gave his statement. 3. She started searching Reena Kumari but could no succeed to trace her out. P.W.5, after knowing the aforesaid fact, came at his house and he, too, made hectic search of his daughter but could not trace her out and after that he went to the concerned police station and gave his statement. 3. On the basis of the statement of P.W 5, Bihariganj P.S. case no.115/1998 for the offence under section 366/34 of the Indian Penal Code was registered and formal FIR was drawn up against the appellants and three others, namely, Md Munna, Baby Khatoon as well as one Parmila Khatoon. 4. P.W.8, namely, Kamre Alam, the then ASI Bihariganj police station, took the charge of investigation and he inspected the place of occurrence and recorded the statement of witnesses and in course of investigation recovered victim girl (P.W.6) from the house of Kari Mian of village Sarauni. He sent victim girl (P.W.6) for medical examination and obtained medical report of P.W.6. This witness after completion of investigation submitted charge sheet against the appellants and three others. The cognizance of the offence was taken and the case of the appellants and one Parmila Khatoon was committed to the court of sessions. 5. The appellants and co-accused Parmila Khatoon were jointly charged for the offence punishable under section 366/34 of the IPC whereas appellant Kari Mian was separately charged for the offence punishable under section 376 of the IPC. All the appellants denied the charges and claimed to be tried. 6. During the pendency of trial, Parmila Khatoon died and accordingly, proceeding against her was dropped by the learned trial court. 7. In course of trial, prosecution examined, altogether, nine witnesses and besides it, got exhibited documentary evidence including medical report, seizure list as well as statement of P.W.6 recorded under section 164 of the Cr.P.C. 8. The statements of the appellants were recorded under section 313 of the Cr.P.C in which they reiterated their innocence and stated that they were falsely implicated on account of enmity. 9. Appellant Kari Mian, specifically, stated that in the year 1981, he was arrested by the police on the allegation of cutting wood of Forest department and due to which an altercation had taken place between him and the police that is why, police implicated him in the present case. 10. 9. Appellant Kari Mian, specifically, stated that in the year 1981, he was arrested by the police on the allegation of cutting wood of Forest department and due to which an altercation had taken place between him and the police that is why, police implicated him in the present case. 10. No oral evidence was adduced in support of their defence but some documentary evidence got exhibited by the appellants in their defence. 11. Learned counsel appearing for the appellant in Cr. Appeal no.241/2000 submitted that the learned trial court convicted the appellant only on the basis of surmises and conjectures and, as a matter of fact, entire finding of the learned trial court is erroneous. Continuing his submission, he submitted that in course of trial P.W.6 (victim) could not succeed to identify appellant in Cr. Appeal no.241/2000 and she, specifically, stated that this appellant had not participated in the alleged crime but in spite of that the learned trial court convicted the appellant in Cr. Appeal no.241/2000 only on the ground that P.W.6 had been recovered from the house of one Kari Mian of village Sarauni. Learned counsel for the appellant in Cr. Appeal no.241/2000 submitted that there were several persons having nomenclature of Kari in village Sarauni and, as a matter of fact, P.W.6 was not recovered in presence of the appellant in Cr. Appeal no.241/2000 and, therefore, there is nothing on the record to connect the aforesaid appellant in the alleged crime. 12. Learned counsel for the appellants in Cr. Appeal no.252/2000 as well as Cr. Appeal no.123/2001 seconded the submissions of learned counsel for the appellant in Cr. Appeal no.241/2000 but added that except this material that when appellant in Cr. Appeal no.252/2000 took the victim to his home, the rest appellants were also present with him, there was nothing against the appellants to connect them with alleged crime. He further submitted that the learned trial court convicted the appellants only on the basis of suspicion. 13. On the other hand, learned Addl. Public Prosecutor appearing for the State, supported the impugned judgment of conviction and sentence order arguing that in course of trial, victim girl supported the prosecution story and, specifically, stated that the appellant in Cr. He further submitted that the learned trial court convicted the appellants only on the basis of suspicion. 13. On the other hand, learned Addl. Public Prosecutor appearing for the State, supported the impugned judgment of conviction and sentence order arguing that in course of trial, victim girl supported the prosecution story and, specifically, stated that the appellant in Cr. Appeal no.241/2000 took her to his village and committed rape on her in a field and after that she was confined in the house of the appellant in Cr. Appeal no.241/2000 from where she was recovered by the police later on. 14. As I have already stated that, altogether, nine prosecution witnesses were examined on behalf of the prosecution. Out of them, P.W. 1 and P.W.2 have been declared hostile though both the aforesaid witnesses admitted their signatures on seizure list as exhibit 1 and exhibit 1/1 respectively. The attention of the aforesaid prosecution witnesses was drawn by the prosecution towards their previous statements but they denied to have made statement before police and also denied that P.W.6 was recovered from the house of Kari in their presence. 15. P.W.3, Gaffar Khan is brother-in-law of P.W.5. Although this witness stated that on 17.6.1998, the appellant Urmila Khatoon came at his house and took P.W.6 along with her and after that P.W.6 did not return to her home. This witness further stated that P.W.4 narrated the entire incident to him. Admittedly, this witness is not an eye witness of alleged occurrence and he came to know about alleged occurrence from P.W.4 who happens to be wife of this witness. He further admitted at para 7 of his cross-examination that distance between Bihariganj and Sarauni village is about 10 K.M. and he further admitted that he does not know any person of the Sarauni village. This witness expressed his inability to disclose this fact as to whether any criminal case was fought between the appellant Nunu Singh and him or not. 16. P.W.4, Maya Khatoon supported the prosecution story and stated that victim was taken away by the appellant Urmila Khatoon. She further stated that she followed the appellant Urmila Khatoon and P.W.6 and reached in the court- yard of Urmila Khatoon where she found the appellants Parmila, Baby, Munna, Kari and Nunu Singh. 16. P.W.4, Maya Khatoon supported the prosecution story and stated that victim was taken away by the appellant Urmila Khatoon. She further stated that she followed the appellant Urmila Khatoon and P.W.6 and reached in the court- yard of Urmila Khatoon where she found the appellants Parmila, Baby, Munna, Kari and Nunu Singh. She further stated that the appellant Urmila Khatoon asked her to go to her home and she would send P.W.6 later on and after that she came to her home. She further stated that she narrated the aforesaid fact to her husband (P.W.3). She further stated that after some time when she called Reena Kumari, she found no reply and after that she came to know that Reena Kumari was taken away by the aforesaid persons. She further stated that she narrated the entire incident to father of Reena Kumari when he returned from market and after that her father searched Reena Kumari but could not succeed to trace her out. This witness failed to identify the appellant in Cr. Appeal no.241/2000 whereas she identified rest appellants. 17. P.W.5, Biswanath Yadav is the informant of this case and he stated almost similar thing and accepted that he came to know about alleged crime from P.W.4. 18. P.W.6 is the victim of this case. She stated that she was taken away by the appellant Urmila Khatoon in her court- yard and when she reached there, she found that Nunu Singh, Baby Khatoon, Md Munna, Kari Mian were present in the court-yard of Urmila Khatoon. She further stated that appellant Jabed came later on and after some time Jabed left the court- yard. She further stated that she as well as other appellants brought her on pitch road. She further stated that appellant Kari Mian forced her to seat on bicycle. When she made protest, appellant Kari Mian took out three nut three and forcibly got seated her on the bicycle. She also stated that Kari Mian took her to village Sarauni and committed rape on her in a field. She also stated that she was confined in a room for seven days and after that she was recovered by the police. She further stated that she was medically examined and her statement was recorded by the court. She also identified almost all the appellants except appellant Kari Mian. At this juncture, this witness was declared hostile. She also stated that she was confined in a room for seven days and after that she was recovered by the police. She further stated that she was medically examined and her statement was recorded by the court. She also identified almost all the appellants except appellant Kari Mian. At this juncture, this witness was declared hostile. On being cross-examined by the defence, this witness stated that the person who committed rape on her was of fair complexion whereas person who was standing in the court at the time of recording her statement was of dark complexion. 19. P.W.7 is the doctor who had examined P.W.6. She did not find any sign of rape on the person of P.W.6. 20. P.W.8 is the Investigating officer who submitted charge sheet after completion of investigation and similarly, P.W.9 is Judicial Magistrate who recorded the statement of P.W.6 under section 164 of the Cr.P.C. 21. On perusal of evidence of the aforesaid prosecution witnesses, it is apparent that on the point of fact of taking away the victim, there are only two witnesses i.e. P.W.4 and victim herself and so far as factum of rape is concerned, there is only one witness i.e. victim of this case. Perusal of the impugned judgment, it appears that the learned trial court found appellant Kari Mian guilty only on the ground that P.W.6 (victim) was recovered from the house of one Kari Mian of Sarauni village. 22. Admittedly, P.W.6 refused to identify appellant Kari Mian in course of trial and she stated that the person who committed rape on her was of fair complexion whereas appellant Kari Mian was of dark complexion. So, it is apparent from the aforesaid materials that P.W.6 could not identify appellant Kari Mian and almost there is similar position in respect of P.W.4 who also could not identify the appellant Kari Mian at the time of trial. Therefore, mere recovery of P.W.6 from the house of Kari Mian of village Sarauni does not support this fact that appellant Kari Mian committed rape on P.W.6. Therefore, I am of the opinion that conviction of appellant Kari Mian under section 376 of the IPC can not sustain in the eye of law. 23. Therefore, mere recovery of P.W.6 from the house of Kari Mian of village Sarauni does not support this fact that appellant Kari Mian committed rape on P.W.6. Therefore, I am of the opinion that conviction of appellant Kari Mian under section 376 of the IPC can not sustain in the eye of law. 23. As I have already stated that P.W4 and P.W.6 could not succeed to identify appellant Kari Mian in course of trial and except the aforesaid two prosecution witnesses, admittedly, none of the prosecution witness had seen the appellant Kari Mian at the time of occurrence and therefore, in the aforesaid circumstance the prosecution could not succeed to prove its case beyond all shadow of reasonable doubts in respect of appellant Kari Mian and appellant Kari Mian could not have been convicted under section 366 Part II of the IPC merely because victim girl was recovered from the house of one Kari Mian of village Sarauni. 24. So far as rest appellants are concerned, it is only stated by P.W.4 and P.W.6 that the appellant Urmila Khatoon called P.W.6 and took her to her court- yard from where all the appellants along with P.W.6 came on a pitch road and after that Kari Mian took P.W.6 by bicycle. So, even if the aforesaid fact assumed to be true, then also, it was accused Kari Mian who committed the aforesaid occurrence but as I have already stated that the prosecution could not succeed to prove this fact that it was the appellant in Cr. Appeal no.241/2000 who took the victim from the place of occurrence. Furthermore, mere presence of the appellants along with Kari Mian does not suggest this fact that the appellants had connived in committing the alleged crime. Apart from this, P.W.6 has stated before the P.W.8 that on the alleged date of occurrence, she along with the appellants except accused Kari Mian in Cr. Appeal no.241/2000 had gone to market from where she was kidnapped and, therefore, it is apparent that she changed her statement in course of trial and aforesaid improvements create doubt about the prosecution story. 25. Admittedly, fardbeyan of P.W.5 was recorded on 23.6.1998 and alleged occurrence took place on 17.6.1998. Furthermore, the formal FIR was prepared on 24.6.1998 and formal FIR as well as fardbeyan were put up before the Chief Judicial Magistrate on 25.6.1998. 25. Admittedly, fardbeyan of P.W.5 was recorded on 23.6.1998 and alleged occurrence took place on 17.6.1998. Furthermore, the formal FIR was prepared on 24.6.1998 and formal FIR as well as fardbeyan were put up before the Chief Judicial Magistrate on 25.6.1998. P.W.5 tried to explain the aforesaid delay saying that he was engaged in searching his daughter but the aforesaid explanation does not appear to be plausible and it appears that after recovery of P.W.6, present case was lodged by P.W.5. 26. On the basis of the aforesaid discussions, I am of the opinion that the prosecution could not succeed to prove its case beyond all shadow of reasonable doubts and, therefore, the impugned judgment of conviction and sentence order can not sustain in the eye of law. Thus, the impugned judgment of conviction and sentence order is, hereby, set aside. All the appellants are on bail. They are discharged from the liabilities of their bail bonds. 27. In the result, these appeals are allowed.