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2018 DIGILAW 487 (JHR)

Kamruddin Sheikh v. State of Jharkhand

2018-02-26

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT : Heard learned counsel for the informant appellant and learned counsel for the State. 2. The informant appellant is aggrieved by the impugned Judgment of acquittal dated 20th of April, 2016, passed by the learned 2nd Additional Sessions Judge-cum-FTC (Rape Cases), Deoghar, in S.T. No. 109 of 2009, whereby the accused respondent Nos. 2 and 3, who were facing the trial for the offence under Sections 364 / 34 of the Indian Penal Code, have been acquitted after trial. 3. This acquittal appeal was filed in the year 2016 itself, but no application seeking leave to appeal against the Judgment of acquittal has been filed in the case as yet. 4. The prosecution case, as disclosed in the impugned Judgment, is that the informant appellant had lodged the police case at Madhupur Police Station on 14.09.2008 at 7.30 in the morning, alleging that on 26.08.2008 in the night, both his sons Salamat and Md. Anwar were sleeping in a room. At about 2.30 A.M. in the night, Salamat woke up and found that Md. Anwar was not there and he raised the alarm upon which, the informant and his wife entered the room, whereupon Salamat informed them that someone had entered into the room by tearing the thatched roof and thereafter they had kidnapped Md. Anwar. The informant stated that in the light of lantern, he had identified the accused respondent Nos. 2 and 3 taking away his son Anwar forcibly with them. In the F.I.R. it was stated that there was land dispute between the parties. Alleging that due to the land dispute both the accused persons had kidnapped his son and had taken him to an unknown place, the F.I.R. was lodged, on the basis of which police case was instituted for the offence under Sections 364 / 34 of the Indian Penal Code, and investigation was taken up. After investigation, it appears, that the charge-sheet was submitted in the case. 5. Both the accused persons were ultimately put to trial, and in course of trial, charge was framed against them for the offence under Sections 364 / 34 of the Indian Penal Code, which they denied and claimed to be tried. In course of trial, ten witnesses were examined on behalf of the prosecution, including the victim and the I.O. 6. Both the accused persons were ultimately put to trial, and in course of trial, charge was framed against them for the offence under Sections 364 / 34 of the Indian Penal Code, which they denied and claimed to be tried. In course of trial, ten witnesses were examined on behalf of the prosecution, including the victim and the I.O. 6. The impugned Judgment shows that the victim boy was examined as PW-9 and he has stated that he was forcibly taken away by both the accused persons in the night and thereafter, he was taken to Madhupur, and from Madhupur to Asansol by train. He was kept away of his house for about 20 to 21 days and thereafter he was left by the accused persons near Deoghar Court, from where his father rescued him. The evidence of this witness also shows that there was land dispute between the parties. 7. The impugned Judgment further shows that the I.O. of the case was examined as PW-10, and from the description of the place of occurrence given by the I.O., it was found that there was no damage in the thatched roof of the house. 8. The Court below, upon discussing the evidence on record, found that no such incident of kidnapping had taken place with the victim Md. Anwar, and has acquitted the accused persons from the charge. 9. Learned counsel for the informant appellant has submitted that impugned Judgment of acquittal passed by the Trial Court below cannot be sustained in the eyes of law, in as much as, the occurrence has been supported even by the victim of the case, as well as the other family members of the victim, who were examined in the Court below. Learned counsel accordingly, submitted that the impugned Judgment cannot be sustained in the eyes of law. 10. Having heard learned counsel for the appellant, we find that the evidence of the victim in the case and the evidence of the I.O., clearly demolish the prosecution case. The victim has only stated that he was forcibly taken away in the night and the accused persons had taken him to Madhupur, and from Madhupur he was taken to Asansol and he was kept away from the house for about 20 to 21 days and he was brought near Deoghar Court, where he was left by the accused persons. The victim has only stated that he was forcibly taken away in the night and the accused persons had taken him to Madhupur, and from Madhupur he was taken to Asansol and he was kept away from the house for about 20 to 21 days and he was brought near Deoghar Court, where he was left by the accused persons. On the basis of this evidence, it is required to be seen whether the offence under Section 364 of the Indian Penal Code is made out against the accused respondents. 11. Section 364 of the Indian Penal Code reads as follows :- “364. Kidnapping or abducting in order to murder – Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.” 12. Thus, a plain reading of this provision shows that for making out the offence under this section, the kidnapping or abduction of the person must be for committing his murder, or for disposing him of in such a manner, so as to put him in the danger of being murdered. In the present case, we find that the evidence of the victim himself shows that he was brought by the accused persons themselves near the Deoghar Court and left there. Thus, it is apparent that there was nothing to show that the victim was taken away either to murder him, or to put him in the danger of being murdered. Had it been so, there was no occasion for the accused persons to voluntarily bring the victim near the Deoghar Court and to leave him there. As such, the offence under Section 364 of the Indian Penal Code cannot be said to be made out against the accused persons. 13. This apart, the enmity between both the parties is admitted and the false implication of the accused respondents cannot be ruled out. Admittedly, the occurrence had taken place in the night of 26.08.2008, and the informant came to know about the occurrence in the same night, but the police case was lodged on 14.09.2008, after an inordinate delay, for which there was no explanation. Admittedly, the occurrence had taken place in the night of 26.08.2008, and the informant came to know about the occurrence in the same night, but the police case was lodged on 14.09.2008, after an inordinate delay, for which there was no explanation. This apart, nothing wrong was found at the place of occurrence by the I.O., who had visited there, and there was no damage in the thatched roof of the informant appellant, as deposed by the I.O. 14. We are of the considered view that the Court below has rightly acquitted the accused respondents as the prosecution had failed to prove the charge against them. We do not find any illegality in the impugned Judgment of acquittal passed by the Trial Court below, worth interference by this Court. Even otherwise, there is no application seeking leave to appeal against the Judgment of acquittal, even though this appeal was filed in the year 2016 itself. 15. There is no merit in this acquittal appeal and the same is accordingly, dismissed in limine.