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2014 DIGILAW 1196 (PAT)

Sirajuddin v. State of Bihar

2014-12-05

GOPAL PRASAD

body2014
GOPAL PRASAD, J.:–Nobody appears on behalf of the appellant. Smt. Uma Kumari, Advocate is appointed as amicus curiae to assist this Court. 2. Heard learned Amicus Curiae, Smt. Uma Kumari appearing on behalf of the appellants and learned counsel for the State. 3. The appellants have been convicted under Sections 365 and 342 of the Indian Penal Code and sentenced to undergo rigorous imprisonment of four years for the offence committed under Section 365 of the Indian Penal Code and six months for the offence committed under Section 342 of the Indian Penal Code. However, it has been ordered that both the sentences shall run concurrently. 4. The prosecution case as alleged by the informant Nasim Uddin is that on 22.06.1990 at about 5:00 P.M. while he was in his attache shop 4-5 persons came, surrounded, caught hold of him and commanded to kill him. He identified out of them Saraj Uddin, Md. Irfan and Kallu @ Kalim Uddin along with two unknown, who kidnapped him and kept in a room. On 23.06.1990 he learnt that accused persons were planning to take him (the victim) to a far off place where (he) the victim will be killed. Thereafter raid was conducted at 12:30 P.M. by armed forces and they recovered the victim. It is further alleged that Saraj Uddin, Irfan and Kallu @ Kalim Uddin in collusion with each other have kidnapped the informant/victim with intention to kill. 5. The fardbeyan was recorded on 23.06.1990 at 12:45 hours by the A.S.I. of Nawada Police Station. On the fardbeyan the First Information Report was lodged on 23.06.1990 at about 4:00 P.M. The police after investigation, submitted charge-sheet, cognizance taken, case was committed to the Court of Sessions and after framing of the charge for the offence under Sections 364/34 and 342 of the Indian Penal Code, trial proceeded. During trial, eight witnesses were examined, apart from other documentary evidence. However, out of the eight witnesses, two witnesses i.e. P. Ws. 5 and 8 were declared hostile. 6. During trial, eight witnesses were examined, apart from other documentary evidence. However, out of the eight witnesses, two witnesses i.e. P. Ws. 5 and 8 were declared hostile. 6. The trial court took into consideration the evidence of the witnesses and the fact that one of the kidnapper/abductor was a relative of the victim and the abduction was made from busy market, but the same was not protested by any person of the locality and no vehicle has been used, the trial court held that the charge under Section 364 of the Indian Penal Code does not stand establish beyond doubt but convicted the appellants under Sections 365 and 342 of the Indian Penal Code and sentenced as mentioned above. 7. Learned amicus curiae Smt. Uma Kumari submits that the victim is said to have recovered from the house of Arosa Khatoon. She further submits that Wasir Uddin elder brother of the informant Nasim Uddin was married with Nasira Khatoon daughter of Arosa Khatoon. Nasira Khatoon is the Sali of accused appellant no. 1 Saraj Uddin. She was maltreated and was driven out from the house by her husband Wasir Uddin. A case of maintenance was filed by Nasira Khatoon against her husband. The case was decided in her favour. A revision against this decision was pending for disposal. Informant Nasim Uddin and his family members to wreak vengeance concocted and manufactured a false case in collusion with the police against accused Saraj Uddin who was helping Nasira Khatoon. There was no abduction and recovery of Nasim Uddin from the house of Arosa Khatoon situated at Mirda Toli Mogala Khar and hence, the prosecution has not been able to prove the charges beyond reasonable doubts. 8. Learned counsel for the State, however, supported the prosecution case. 9. However, taking into consideration the respective submissions of the parties, the question for consideration is whether the prosecution has been able to prove the charges. 10. Initially the charge was framed under Sections 364/34 and 342 of the Indian Penal Code. However, the prosecution case is that Saraj Uddin, Kallu @ Kaliumuddin, Md. Irfan and two other unknown persons caught hold the informant and confined him in a room on 22.06.1990 at 5:00 P.M. and on the next day on 23.06.1990 at 12:30 P.M. he was recovered by armed forces. 11. However, the prosecution case is that Saraj Uddin, Kallu @ Kaliumuddin, Md. Irfan and two other unknown persons caught hold the informant and confined him in a room on 22.06.1990 at 5:00 P.M. and on the next day on 23.06.1990 at 12:30 P.M. he was recovered by armed forces. 11. However, from the evidence of the prosecution witnesses, it is apparent that P.W. 1 Nasir Uddin and one Wasir Uddin are the full-brother and Nasira Khatoon is the wife of Wasir Uddin and Asora Khatoon is the mother of Nasira Khatoon whereas Saraj Uddin is the Sadhu of Wasir Uddin and hence, both the prosecution party and the accused are co-related of the same family and there is suggestion that there is maintenance case between Wasir Uddin and his wife Nasira Khatoon which has been denied appears to be the case of the defence. However, the occurrence alleged to have been taken place in the evening at about 7:00 to 7:30 P.M. in the market from the attaché shop of the victim/informant and though it is stated that the kidnapping was made but at that time there was no Hulla in the market and both the accused and the prosecution party walk over from the place of occurrence from where the kidnapping alleged but no Hulla or any disturbance in the market nor the people of the market having been aware of the kidnapping. Though it is stated that it has come in evidence that the matter was reported to the police but no First Information Report was drawn and it is stated that a Sanha entry was made but the Sanha entry has not been produced or brought in evidence in court as what was the information gathered to enter a Sanha entry rather than lodging a full First Information Report. P.W. 1 itself stated in his evidence that at the place of occurrence no Hulla Gulla was done, though he has stated that after the occurrence he made Hulla but none collected there. The police station is only at a distance of 500 yards and he reported the matter to Nawada Police on 22.06.1990 just after the occurrence. P.W. 1 itself stated in his evidence that at the place of occurrence no Hulla Gulla was done, though he has stated that after the occurrence he made Hulla but none collected there. The police station is only at a distance of 500 yards and he reported the matter to Nawada Police on 22.06.1990 just after the occurrence. He has further stated that Daroga recorded the fardbeyan and he put his L.T.I. but the First Information Report was not registered nor has been produced and strange enough the First Information Report proved is recorded on the next day of the alleged occurrence i.e. 23.06.1990. 12. P.W. 2 has also stated to the same effect and the fardbeyan was recorded after the recovery. The First Information Report has been recorded on 23.06.1990 at 4:00 P.M. However, it is quite contrary to the statement of P. Ws. 1 and 2 and there is no reasoning for lodging the fardbeyan contrary to the evidence of P. Ws. 1 and 2. 13. The victim and the appellant no. 1 Saraj Uddin are of the same family as Saraj Uddin is the Sadhu of Wasir Uddin who is the brother of Nasim Uddin the victim/informant and both the parties are connected with each other, further the manner of the occurrence as well as the evidence, further the recovery of Nasim Uddin the informant from the house of Arosa Khatoon the mother-in-law of his brother and further the manner of kidnapping creates a serious doubt on the prosecution case. Moreover, P. Ws. 3, 4 and 5 are not material witnesses and P.W. 5 has been declared hostile. 14. P. Ws. 6 and 7 are the Police Officers and P.W. 8 has again been declared hostile. 15. Hence, taking into consideration the only material witnesses who are P. Ws. 1 and 2 and from their evidence, it is apparent that the allegation made is that both parties are of the same family and there is family feud and the manner of occurrence also indicate that no occurrence of kidnapping was made as both the accused and witness said to have proceeded from the shop without any Hulla and though the victim Nasim Uddin has been recovered from the house of Arosa Khatoon who is non else than the mother-in-law of the brother of the victim and the appellant no. 1 is the Sadhu of the brother of the victim. 16. Hence, having regard to the facts and circumstances of the case, the prosecution has not been able to establish the charges beyond reasonable doubts. The trial court misdirected itself while convicting and sentencing the appellants under Sections 365 and 342 of the Indian Penal Code. However, the prosecution itself appears to be frivolous and the manner of occurrence does not inspire confidence for committing an offence and hence, the judgment of conviction and order of sentence are set aside. 17. Accordingly, the appeal is allowed. All the appellants are on bail, hence, they are directed to be discharged from the liabilities of their respective bail bonds. 18. Smt. Uma Kumari, amicus curiae appearing on behalf of the appellants, shall be supplied the first and last page of the judgment and she shall be entitled for the fee of one hearing payable by Patna High Court Legal Aid Services Committee. ?