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2016 DIGILAW 3939 (ALL)

MUNEEM AHMAD v. STATE OF U. P.

2016-12-07

SHAILENDRA KUMAR AGRAWAL

body2016
JUDGMENT : Hon'ble Shailendra Kumar Agrawal, J. Counsel for appellant and learned A.G.A. are present. Heard the arguments at length. 1. This criminal appeal has been filed against the judgment and order dated 22.10.1981 passed by 3rd Addl. Sessions Judge, Bijnor in S.T. No. 394/1980 State Vs. Muneem Ahmad etc. under Section 363, 366 I.P.C. PS- Kiratpur District- Bijnor by which the appellant Muneem Ahmad and Kallu were convicted under Section 363 I.P.C. and sentenced to 3 years of rigorous imprisonment and also to pay fine of Rs. 500/- each and in default to undergo 6 months of rigorous imprisonment and were acquitted under Section 366 I.P.C. 2. In brief, the prosecution case is that on 25.8.1979 it was a festival of Id. And in the morning of that day, the complainant Abidul Rahman son of Kutubddin Sheikh resident of Mohallah Radgan town PS- Kiratpur had gone to Idgah to offer his prayer of Id to almighty God. In his absence the accused appellant Muneem Ahmad and Kallu along with their real brother Wahid and father Shabbir Ahmad told Sanjila that her brother Abidul Rahman has become injured and had gone to hospital, he is calling you. Then his sister went with these accused persons and his mother Shrimati Hafizan went in Mohallah to make arrangement of money and when the complainant returned to his house after praying from Idgah, his mother told about the whole affair. Then they all made search of Kumari Sanjila here and there. Two persons namely Shakrulla and Abidul Salam resident of Mohalla Radgan told them that they had seen the Sanjila going with all the four accused at about 9:30 a.m. towards the bus stand. On that day and on the next day, the complainant Abidul Rahman made a thorough search of his sister Kumari Sanjila but he could not find her anywhere, then he made over a written report of this occurrence in thana Kiratpur on 26.8.1979 at 3:30 p.m. 3. On the basis of this written report Ext. Ka-1, the F.I.R. under Section 363, 366 I.P.C. was registered in thana Kiratpur as Ext. Ka-2 against the all four accused persons. G.D. was prepared as Ext. Ka-3. Shri Satpal Singh S.I. made investigation in the matter and visited the place of occurrence on 28.8.1979 and prepared a site-plan which is Ext. On the basis of this written report Ext. Ka-1, the F.I.R. under Section 363, 366 I.P.C. was registered in thana Kiratpur as Ext. Ka-2 against the all four accused persons. G.D. was prepared as Ext. Ka-3. Shri Satpal Singh S.I. made investigation in the matter and visited the place of occurrence on 28.8.1979 and prepared a site-plan which is Ext. Ka-4 and submitted the consolidated charge-sheet against all the four accused on 8.9.1979 which is Ext. Ka-5. 4. Charges were framed on 2.2.1981 against these two appellants under Section 363, 366 I.P.C. Both the accused appellant pleaded not guilty and claimed to be tried. 5. It is noteworthy that the charges against Wahid Ahmad and Shabbir Ahmad, the co-accused, were framed on 4.10.1982 in a separate trial of S.T. No. 229/1982. 6. These two appellants were convicted on 22.10.1981 while two co-accused Wahid and Shabbir were acquitted on 7.4.1983. 7. In this trial the prosecution examined four witnesses Shakrulla as P.W.-1, Abidul Salam P.W.-2, Smt. Hafizan as P.W.-3 and Abidul Rahman as P.W.-4. The counsel for accused admitted the genuineness of the prosecution papers of F.I.R., copy of G.D., site-plan and charge-sheet which are Ext. Ka-2 to Ext. Ka-5. Hence, the head Moharrir who prepared the Chick F.I.R. and G.D. and the investigation officer who made investigation were not examined. 8. The P.W.-1 Shakrulla and P.W.-2 Abidul Rahman are said to be the eye witnesses of the fact. They had seen Kumari Sanjila going along with all accused on 25.8.1979 at about 9:30 a.m. going towards the bus-stand. 9. But now P.W.-1 has stated in his examination in-chief that he had not seen the Sanjila going with these two appellants. P.W.-2 Abidul Salam has stated in his examination in-chief that he knows these two appellants and also knows Kutubddin and his daughter Sanjila. He was going to pray for almighty. It was an occasion of Id but he did not see the accused taking the Sanjila. Both these witnesses have been declared hostile. In his cross-examination P.W.-1 admitted this fact that he had seen Sanjila at that time when she was at the age of 13-14 years old. P.W.-2 was also declared hostile. Nothing could be extracted from their cross-examination regarding the occurrence or they have seen the accused persons taking the Sanjila with them. 10. Both these witnesses have been declared hostile. In his cross-examination P.W.-1 admitted this fact that he had seen Sanjila at that time when she was at the age of 13-14 years old. P.W.-2 was also declared hostile. Nothing could be extracted from their cross-examination regarding the occurrence or they have seen the accused persons taking the Sanjila with them. 10. Now, there is the sole witness Hafizan P.W.-3 who is the mother of kidnapped girl Kumari Sanjila. She has fully supported the prosecution version. She has stated that about two year and two months ago it was the day of Id and the men of her house had gone to Idgah to offer prayers to almighty God. Accused persons Muneem Ahmad, Kallu, Wahid Ahmad and Shabbir Ahmad came to his house and said that his son Abidul Rahman is injured and he wanted Sanjila. She sent her daughter along with them and she said that she is coming after arranging the money. She went in the Mohallah to collect the money and when she came back, his son Abidul Rahman met her. She said that you were injured. Then he told that he had gone for Id. Then she told her son that four boys of Mohallah came and have taken away Sanjila by saying that you have been injured. Then they searched the Sanjila but could not trace out and at that time her daughter Sanjila was of the age of 14 years. Either these people have killed her or have sold her. The version of P.W.-3 finds support from the statement of P.W.-4 who stated that about two years two months ago, it was a day of Id, he had gone for prayer of almighty God and when he came back, then his mother asked that he was hospitalised due to injuries, how has he come here. Her mother and wife told that these four accused came to the House and they told that you are hospitalised and you have called Sanjila. On this version mother send Sanjila with them. Then they searched the Sanjila. Her mother and wife told that these four accused came to the House and they told that you are hospitalised and you have called Sanjila. On this version mother send Sanjila with them. Then they searched the Sanjila. He met with Shakrulla P.W.-1 and Abidul Salam P.W.-2 and they told them that they have seen her sister going with co-accused but now these two witnesses have colluded with the accused persons because these two witnesses had told him that they had seen his sister Sanjila going with the two accused persons at 2:30 p.m. On that day he searched his sister and also searched on the next day when he could not search out his sister, then he lodged this F.I.R. 11. Now it has been argued on behalf of these appellants that there is delay in lodging F.I.R. as this incident is of dated 25.8.1979 at 8:30 a.m. to 9:30 a.m. But F.I.R. was lodged on 26.8.1979 at 15:30 p.m. the next day and no explanation has been given. It shows that after due consultation and due to enmity, the F.I.R. was lodged against them. 12. I do not agree with the argument of the learned counsel for the appellant. The learned trial Court has observed that the present case related to the kidnapping of a young unmarried minor girl and so there was a question of prestige and reputation of the family of the victim because every person wants to keep the prestige and position in society and wants to conceal all such incidents otherwise no boy will be prepared to marry with such a girl. Therefore, this is a very natural statement of the P.W.-4 and P.W.-3 that they first searched the Sanjila and could not find her all that day and even on the next day, then he made over the written report Ext. Ka-1. Any reasonable and common man will do the same in those circumstances and hence it cannot be said that F.I.R. is delayed. 13. As regards the age of Sanjila is concerned, P.W.-1 stated the age of Sanjila as 13-14 years old. P.W.-3, the mother of Sanjila is also telling the age of Sanjila as 14 years old. Ka-1. Any reasonable and common man will do the same in those circumstances and hence it cannot be said that F.I.R. is delayed. 13. As regards the age of Sanjila is concerned, P.W.-1 stated the age of Sanjila as 13-14 years old. P.W.-3, the mother of Sanjila is also telling the age of Sanjila as 14 years old. Even in the cross-examination again she is stating the age of Sanjila as 14 years and she is also stating that because she was not so young, therefore she sent her daughter with accused persons. This is very natural statement because accused persons are relative of P.W.-1. Thus it is clear that Sanjila was a minor girl. The accused persons are admitting in their statement recorded under Section 313 that it is told that Sanjila was missing since one day before the Id. This suggestion was also given to P.W.-3 that Sanjila was missing since one day before Id. P.W.-3 has denied this suggestion. The suggestion has also been given to P.W.-3 in the para No.-9 that because accused persons used to come her house and her daughter Sanjila fell in love with them and therefore she herself fled away with them. P.W.-3 denied this suggestion. But by giving this suggestion accused persons themselves are admitting the fact of missing and kidnapping of the girl in question and it is admitted fact that still today the girl has not been traced out. Matter of cross-examination is not a mere empty formality, but one is required to put its own case in cross-examination otherwise a revision of the witness has to be taken as unchallenged (Sirmal Vs. Annapurna Devi, AIR 1963 SC 1906 ). The matter has been considered in a number of decisions that it is the duty to put ones own version to opponent in cross-examination otherwise deposition of a witness cannot be discredited. It was held in Maroti Bansi Teli Vs. Radhabai, AIR 145 Nag 60:- 14. "The usual practice at the bar is to accept matters which are not challenged either in the pleadings or in cross-examination as finally established once a person enters the box and swears to it. If the rule were otherwise, parties would be obliged to cucumber the record with a mass of material which in the result might prove wholly unnecessary. "The usual practice at the bar is to accept matters which are not challenged either in the pleadings or in cross-examination as finally established once a person enters the box and swears to it. If the rule were otherwise, parties would be obliged to cucumber the record with a mass of material which in the result might prove wholly unnecessary. The practice, therefore, is when it is intended to challenge-point which is not specifically challenged in the pleadings to cross-examine to it formally the first time it is raised in a witness deposition. The other side is then placed upon its guard and is given notice that it must establish the point as fully as it can. When that is not done it means that the point is not challenged and can be accepted." 15. In Chunni Lal Dwarka Nath Vs. Hartford Fire Insurance Co. Ltd., AIR 1958 Punj 440 it has been held as under: 16. "It is well established rule of evidence that a party should put to each of his opponent's witnesses so much of his case as concerns that particular witness. If no such questions are put, the Courts presume that the witness's account has been accepted. If is it intended to suggest that a witness was not speaking the truth upon a particular point, his attention must first be directed to the fact by cross-examination so that he may have an opportunity of giving an explanation." 17. Though the suggestion made in the cross-examination is not evidence but certainly the same may be called into aid only to lend assurance to the prosecution case, particularly when other evidence establishes the guilt of the accused. The suggestion made to the prosecutrix in the cross-examination by the defence about her presence on the terrace could be used to lend assurance to the prosecution case that she was subjected to rape by the accused on the terrace (Rajesh Namdeo Vs. State of Maharashtra, 2002 (4)Mah LJ 267 [Bom]. 18. The question put in the cross-examination to a great extent probabilise the prosecution version. Though questions put in cross-examination are not always determinative in finding an accused guilty, they are certainly relevant. (Jesu Asir Singh Vs. State, (2007) 12 SCC 19 (24) : AIR 2007 SC 3015 ). 19. State of Maharashtra, 2002 (4)Mah LJ 267 [Bom]. 18. The question put in the cross-examination to a great extent probabilise the prosecution version. Though questions put in cross-examination are not always determinative in finding an accused guilty, they are certainly relevant. (Jesu Asir Singh Vs. State, (2007) 12 SCC 19 (24) : AIR 2007 SC 3015 ). 19. Thus there is no ground to acquit the accused as the suggestion given by the P.W.-3 is in itself sufficient to prove the guilt of these appellants. It has been said that P.W.-3 is highly interested person being the mother of Kumari Sanjila. So she should not be relied upon. This argument has no force because she is eye witness of the occurrence and also a great sufferer as her young daughter had been kidnapped and still not traceable so far and no reason has been put forward that the applicants have been falsely implicated. Hence, the solitary statement of P.W.-3 is sufficient to warrant conviction of the appellant. The statement has been given by the P.W.-3 Hafizan that as her daughter is still not traceable and either she has been murdered or she has been sold by the accused persons, I agree with the view taken by the learned trial Court that statement of Hafizan appears to be correct as the appellants themselves admit that one day before Id Kumari Sanjila had disappeared from her house. The question arises how they came to know about this fact. In this regard no defence evidence has been given and this is not the version of prosecution that Kumari Sanjila was disappeared one day before Id. Specific case is that these appellants together with other two co-accused kidnapped Kumari Sanjila from her house. I fully agree with the conclusion drawn by the trial Court that there is no evidence on the record that Kumari Sanjila was raped by any of the accused or appellants or she was kidnapped with the intention that any of the accused will marry with the girl because this fact could not be proved in absence of Sanjila as she is not traceable. Hence, offence under Section 366, is not proved but the offence under Section-363 I.P.C. is proved and it is proved beyond doubt that these appellants had kidnapped Sanjila, the minor child from the lawful guardianship of child on 25.8.1989 from her house in the morning. 20. Hence, offence under Section 366, is not proved but the offence under Section-363 I.P.C. is proved and it is proved beyond doubt that these appellants had kidnapped Sanjila, the minor child from the lawful guardianship of child on 25.8.1989 from her house in the morning. 20. Enmity between both parties has not been proved. No defence evidence has been given in this regard. Though P.W.-4 has admitted in cross-examination in para 8 that he had lodged a F.I.R. on 1.11.1968 but he did not file any private complaint after submitting final report. The suggestion has been given to him that on this enmity he had given the tahrir against the accused persons. That incident was of dated 1.11.1968 and this incident is dated 25.8.1979. There was no incident between the parties during this period of 11 years and now after 11 years this complainant will lodge the false F.I.R. regarding kidnapping of her sister is not believable and such question does not arises. Burden lies upon accused persons to prove the fact of enmity in which they have failed as enmity is a double edged weapon. 21. It has been argued on behalf of the appellant that co-accused Wahid and Shabbir has been acquitted in the same case, and their fate cannot be different. I fully agree with the argument of the learned counsel for the appellant but this judgment was passed on 22.10.1981 by learned 3rd additional Sessions Judge Bijnor while two accused namely Wahid and Shabbir were acquitted on 7th April 1983 in S.T. No. 229/1982 by fourth additional Session Judge Bijnor. 22. It was the bounded duty of 4th Additional Sessions Judge, Bijnor not to overlook the findings given in the judgment dated 22.10.1981. However, it is also correct that fourth additional Sessions Judge Bijnor was not duty bound to pass the judgment in the same way as this judgment in question has been passed by 3rd additional Sessions Judge Bijnor but at least he must have taken note of those findings. This court now has to analyse the evidence produced in S.T. No. 394/1980 and to appreciate the findings given in judgment and this court should not appreciate the oral evidence recorded during the proceedings of S.T. No. 229/1982 State Vs. Wahid Ahmad etc. 23. The evidence of P.W.-3 Hafizan cannot be brushed aside on any point. This court now has to analyse the evidence produced in S.T. No. 394/1980 and to appreciate the findings given in judgment and this court should not appreciate the oral evidence recorded during the proceedings of S.T. No. 229/1982 State Vs. Wahid Ahmad etc. 23. The evidence of P.W.-3 Hafizan cannot be brushed aside on any point. These appellants have reached her house and by deceiving her that Abidul Rahman wanted to meet his sister Sanjila and believing on their version, P.W.-3 sent her daughter with them and Sanjila is still not traceable what more evidence requires. Learned trial Court has discussed this evidence properly. It has been argued that Fahmida the wife of Abidul Rahman was also present in the house when these appellants are said to go to the house. Why she has not been examined. I agree with the finding of learned trial Court that there was no need of examining this witness because P.W.-3 and P.W.-4 are witness of same fact. 24. Learned counsel for the applicant drew my attention regarding some contradictions in depositions of witnesses but those have no force. He has also drawn the attention towards the relations between the parties which has no merit regarding the incident. It has been argued that P.W.-3 admitted in her cross-examination that Bahar Ali is her real brother and his house is situated 40-50 steps away from her house. Why she did not go to house of her brother for arranging the money, why she had gone to arrange the money from other neighbourers. This fact has no force, as all this depends upon the internal relations of the persons. It has been argued on behalf of the appellants that Sanjila was already married with the Naseer resident of Saharanpur and Kazi was the Ameen and Furkhan was the witness of that marriage. It has no force as why Naseer, Ameen or Furkhan were not examined as defence witnesses to prove those facts. This burden lies upon the accused appellants to prove this fact and not upon the prosecution. Though P.W.-3 and P.W.-4 both have denied these suggestions regarding those facts. No evidence has been given by the defence that when and where this marriage took place. In these circumstances, the prosecution has proved its case beyond doubt. This burden lies upon the accused appellants to prove this fact and not upon the prosecution. Though P.W.-3 and P.W.-4 both have denied these suggestions regarding those facts. No evidence has been given by the defence that when and where this marriage took place. In these circumstances, the prosecution has proved its case beyond doubt. The appeal has no force and is liable to be dismissed and the judgment and order passed by the learned trial Court is to be confirmed. It has also been argued that today this appellant Kallu is above the age of 60. This court must take the note of age and benefit of probation of first offender Act may be given to him because this appellant has no antecedents and the case is very old. 25. Appellant No.1 Muneem Ahmad had died and his appeal has been abated vide order dated 10.07.2007. 26. As Sanjila is still not traceable, appellant is not telling anything regarding whereabouts of Sanjila. Hence, the conviction order passed by the learned Lower Court is not unjustified. And I do not find any ground to intervene in it. Judgment and order of the learned trial Court regarding conviction is liable to be confirmed. Learned A.G.A. opposed to grant the benefit of Probation of Offenders Act 1958. Because there is direct evidence against the appellant and Sanjila is not still traceable. I agree with the argument of learned A.G.A. But as matter is of dated 25.8.1979 and this is the year December 2016. More than 37 years have elapsed. The sentence given by the learned trial Court may be modified to some extent and it may be reduced from 3 years to 2 years rigorous imprisonment and with a fine of Rs. 500/- each and in default to undergo 6 months' rigorous imprisonment. 27. The judgment regarding conviction is confirmed. The appeal is partly allowed regarding sentence and the sentence to the appellant is reduced from 3 years to 2 years' rigorous imprisonment and a fine or Rs. 500/- each and in default to undergo 6 months of rigorous imprisonment. The appellant is directed to surrender before the court concerned immediately for compliance of the order of this court. He is permitted to deposit fine imposed within a month from today. He is on bail, his bond is cancelled and his sureties are discharged. 500/- each and in default to undergo 6 months of rigorous imprisonment. The appellant is directed to surrender before the court concerned immediately for compliance of the order of this court. He is permitted to deposit fine imposed within a month from today. He is on bail, his bond is cancelled and his sureties are discharged. He is directed to make compliance of Section 437A Cr.P.C. within one month from the date of this order by appearing before the Court concerned and execute personal bond and one surety to the satisfaction of the Court concerned. 28. Let a copy of this order be sent to the lower court for intimation and compliance.