Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 916 (JHR)

Alam Khan v. State Of Jharkhand

2018-04-24

ANIL KUMAR CHOUDHARY

body2018
JUDGMENT Anil Kumar Choudhary, J. - Heard the parties. 2. These appeals have been preferred by the appellants against Judgment of conviction dated 7.1.2006 and order of sentence dated 18.1.2006 passed by learned Additional Sessions Judge (F.T.C. No. 1) Gumla in S.T. No. 199 of 2005 whereby and whereunder, the Court below has held the appellants guilty of the offence punishable under section 363 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for four years each. 3. The prosecution case as unfolded in the Fardbeyan of the informant is that on 3.5.2005, the informant found his daughter Bhagwati Kumari aged about 12 years, missing from his house. Bhagwati Kumari was Searched out but she could not be traced anywhere. Since the ac-cused-appellants had come to the village of the informant and talking about taking the girls to Delhi, the informant in search of his daughter went to Chainpur bus stand at about 4.00 a.m. on 4.5.2005 alongwith Mahendra Kawar of his Village and started checking the buses. At about 7.15 a.m. the Pathak bus was coming from Dumri and on checking the bus, the informant found his daughter Bhagwati Kumari alongwith other girls namely Basanti Kumari, aged about 13 years, Foxi Kumari, aged about 16 years and Yashoda Kumari, aged about 12 years, travelling in the same bus alongwith the accused-appellants Raju Singh, Alam Khan and other persons. It is alleged that the minor girls were being taken to Ranchi for ultimately being taken to Delhi. The informant brought down his daughter Bhagwati Kumari and Basanti Kumari from the bus and also pulled down the accused appellant Raju Singh and claimed that the accused-appellants were taking the minor girls by enticing them for involving them in immoral trafficking and to make them bonded laborers. The informant reported the matter to the police and on the basis of the Fardbeyan of the informant, Dumri P.S. Case No. 14 of 2005 corresponding to G.R. No. 275 of 2005 was registered and the police took up the investigation of the case. After completion of the investigation, the police submitted charge-sheet against the accused-appellants. 4. Upon commitment of the case to the Court of Sessions charges for the offences punishable under sections 363, 371 and 372, I.P.C. were framed against the accused-appellants. Upon the appellants pleading not guilty they were put to trial. 5. After completion of the investigation, the police submitted charge-sheet against the accused-appellants. 4. Upon commitment of the case to the Court of Sessions charges for the offences punishable under sections 363, 371 and 372, I.P.C. were framed against the accused-appellants. Upon the appellants pleading not guilty they were put to trial. 5. In support of its case, the prosecution examined altogether nine witnesses, while one witness has been examined as Court witness, Except P.W. 1 and P.W. 5, rests of the witnesses were declared hostile when they did not support the case of the prosecution. Though P.W. 5 has not been declared hostile, still the prosecution was permitted to put leading questions to her examination-in-chief as if she has been declared hostile. 6. P.W. 1 - Bhagwati Kumari, is the daughter of the informant of the case. She has stated that five months prior to her deposing in the Court, she alongydth Basanti Kumari, Foxi Kumari and Yashoda Kumari as well as Sajho Devi and Pawan Sai, Raju Singh Alam and others going to Delhi bv bus to earn their livelihood. On the way, father of P.W. 1 brought down P.W. 1 and Basanti Kumari from the bus and took them to their house. P.W. 1 further stated that she and Basanti were going to Delhi to earn their livelihood on their own will as there was poverty in their house, hence they were going to Delhi for getting employment. Raju Singh and Sajho Devi etc. assured P.W. 1 to get the employment of them. She further stated that she does not recognize the appellant Raju Singh though Raju Singh was present in the Court at the time of examination of P.W. 1 Looking at him, P.W. 1 has stated that she does not recognize Raju Singh. P.W. 1 further stated that earlier her statement was recorded by the Magistrate. Her signature recorded under section 164, Cr. P.C, 1973 has been marked as Exhibit 1. In her cross-examination , she has stated that before going to Delhi, she had asked her mother. P.W. 1 further stated that compromise has been effected to in the Court of Chief Judicial Magistrate Apart from P.W. 1, Basanti also signed on the said paper of compromise. 7. P.C, 1973 has been marked as Exhibit 1. In her cross-examination , she has stated that before going to Delhi, she had asked her mother. P.W. 1 further stated that compromise has been effected to in the Court of Chief Judicial Magistrate Apart from P.W. 1, Basanti also signed on the said paper of compromise. 7. P.W. 2- Dasarth Chik Baraik before being declared hostile has stated that he found her daughter P.W. 1 and Basanti in Pathak bus and he had information that Raju Singh was taking away the girls by enticing them. On the basis of the suspicion, he apprehended Raju Singh and together with Raju Singh, Basanti Kumari and P.W. 1, P.W. 2 went to Chainpur police station. He identified his signature and that of Mahendra Kawar (P.W. 6) over the fardbeyan and the signatures have been marked as 2, 2/1 respectively. In the cross-examination, he has stated that he filed the compromise petition in the Court of Chief Judicial Magistrate. On confrontation, P.W. 2 admitted his signature and the signatures of Bhagwati and Basanti over the compromise petition, which have been marked as Exhibit A. A/1 and A/2 respectively. P.W. 2 further stated that he did not give any statement to the police and he signed his statement without reading the same. 8. P.W. 3 - Foxi Kumari has stated that no occurrence took place with her and no one ever enticed her. 9. P.W. 4 - Yashoda Kumari has stated that no one was taking her to '' Delhi and she was not examined by the police. 10. P.W. 5 - Basanti Kumari has stated that on 4.5.2005, no one was taking her anywhere. Nobody ever enticed her. She identified her signature on the statement recorded under section 164, Cr. P.C., 1973 which has been marked as Exhibit 3. In her cross-examination she has stated that she went with the permission of her mother and on being called by the police, she gave her statement before the Magistrate. 11. P.W. 6 - Mahendra Kawar has stated that he does not know that Basanti, Foxi and others were ever taken to Delhi. In his cross-examination, he has stated that statement of P.W. 2 was not recorded in his presence. He does not know the contents of his fardbeyan. 12. 11. P.W. 6 - Mahendra Kawar has stated that he does not know that Basanti, Foxi and others were ever taken to Delhi. In his cross-examination, he has stated that statement of P.W. 2 was not recorded in his presence. He does not know the contents of his fardbeyan. 12. P.W. 7 - Bandhu Chik Baraik was straightway posed leading question by the prosecution in his examination-in-chief "being asked whether 7-8 months prior to his deposing in the Court Raju Singh and Alam Khan were attempting to take minor girls to Delhi. P.W. 7 answered that he does not know. When he was asked whether he was examined by the Police, he replied in negative. 13. P.W. 8 - Teja Chik Baraik, has stated that he does not know that anybody was ever ''taking girls of the village to Delhi by enticing them. He further, stated that police did not record his statement. 14. P.W. 9 - Narendra Baiga has stated that his wife Sajho Devi was taking the girls to Delhi with their consent. 15. C.W. (Court Witness) No. 1 Krishna Kumar has stated that on 6.5.2005 he was posted as Chief Judicial Magistrate , Gumla and on that date, he recorded the statement of Basanti Kumari, Bhagwati Kumari under section 164, Cr. P.C., 1973 and on being proved by him, the said statement has been marked as Exhibits 4 and 5 respectively. 16. After closure of the evidence of prosecution the statement of the accused-appellants was recorded by the learned Court below under section 313, Cr. P.C., 1973 wherein they denied the circumstance appearing in evidence against them and pleaded innocence. 17. Learned Court below considering the evidence on record, talcing the aid of section 172(2), Cr. P.C., 1973 went through the case diary for tallying the statement of the witnesses examined on oath and observed that no material contradiction has been elicited by defence, on the point of taking away of the victims and further went on to observe that the seitled principle of law in this connection is that in absence evidence of Investigating Officer of the case, the contents of the case diary of used by the Court to aid it in trial and observed in paragraph 17 of the impugned judgment that he went through the contents of the statements recorded under section 161, Cr. P.C., 1973 and from the same, it was obvious that for kidnapping of minors consent of victim absolutely is immaterial. Further learned Court below relied upon the contents of the statement recorded under section 164. Cr. P.C. and observed that the same appears to be trustworthy and inspires confidence and went on to observe that the contents of j LR. without examination of the Investigating Officer of the case, is also a corroborative piece of evidence. Learned Court below also observed that when he saw the defence case, he found that the accused has failed to show any motive for false implication either on the part of the victims or their family members and by these observations, acquitted the appellants of the charges punishable under sections 371 and 372, I.P.C. but convicted and sentenced them for the offences punishable under section 363, I.P.C. as already indicated above. 18. Mr. Anil Kumar, learned Senior Counsel appearing for the accused-appellant Raju Singh and Mr. Mohit Prakash, learned Counsel appearing for the accused-appellant Alam Khan @ Md. Alam Khan submitted that learned Court below lacked preliminary and rudimentary knowledge of law and further submitted that learned Court below forgot the basic and fundamental principle of criminal trial that the accused before being convicted for any offence must be identified by the witnesses that he is the person who has committed the offence and as P.W. 1 has categorically stated in Court, she did not recognize or identify the accused-appellants Raju Singh and Alam Khan though both of them were present in the Court at the time of her examination in the Court, the learned Court below ought not have convicted the appellants. Learned Counsels further submitted that learned Court below failed to take note of the fact that F.I.R. or the statement recorded under section 164, Cr. P.C., 1973 was not substantive evidence. They further submitted that learned Trial Court committed grave error by permitting the prosecution to put leading questions to PW5, even though he was not declared hostile. Learned Counsels further submitted that learned Court below failed to take note of the fact that F.I.R. or the statement recorded under section 164, Cr. P.C., 1973 was not substantive evidence. They further submitted that learned Trial Court committed grave error by permitting the prosecution to put leading questions to PW5, even though he was not declared hostile. It was further submitted that none of the witnesses has stated about any of the essential ingredients of the offence punishable under section 363 of the I.P.C. to the effect that the accused committed offence of enticing the person kidnapped and kidnapping was without the consent of the victim or someone legally authorized to give the consent, on the other hand the PW1 has categorically ''stated that she obtained consent of her mother prior to going to Delhi. It is submitted that this is a fit case where the evidence in the record is inadequate to convict the appellants for the offence punishable under section 363, I.P.C. hence, the accused-appellants be acquitted of the charges. It is further submitted by the learned Counsels that the defence has been prejudiced as Investigating Officer has not been examined in this case. It is lastly submitted that though seven out of the nine witnesses have been declared hostile and the there is absolutely evidence regarding the place of occurrence, learned Court below erroneously came to the conclusion that nonexamination of the investigating officer has not prejudiced the defence. 19. Mr. R.P. Singh and Mr. Nehru Mahto, the learned Addl. PPs submitted that the evidence in the record undisputedly show that the alleged victims are minor but fairly submits that the learned Court below ought not to have relied upon the statements recorded under section 161, Cr. P.C., 1973 to use them as evidence for coming to the conclusion that the prosecution has succeeded in establishing the charge. Learned Addl. PPs further fairly submitted that the identification of the accused in the Court by the witness is essential for his conviction which is lacking in this case. But he submits that as in the statement under section 164, Cr. P.C., 1973 the victims have supported the case of the prosecution, hence he submits that learned Court below has rightly convicted and sentenced the appellants on the basis of the same, hence these two appeals being without any merit be dismissed. 20. But he submits that as in the statement under section 164, Cr. P.C., 1973 the victims have supported the case of the prosecution, hence he submits that learned Court below has rightly convicted and sentenced the appellants on the basis of the same, hence these two appeals being without any merit be dismissed. 20. Having heard learned Counsels for the parties and on perusal of the record, I find that neither of the accused-appellants has been identified in Court by any of the witnesses. So far as the applicability of section 172 of the Code of Criminal is concerned, it is a settled principle of law that the Court''s power to consider the case diary is not unfettered. In light of the inhibitions contained in section 172(2), it is not open for the Court to place reliance on the case diary as a piece of evidence directly or indirectly, Therefore, placing reliance upon the evidence of prosecution witnesses by verifying their statements recorded under section 161(3), Cr. P.C., 1973 from the case diary is not proper. Using statements of the prosecution witnesses recorded under section 161(3), Cr. P.C., 1973 particularly for contradicting is impermissible in law. The Hon''ble Supreme Court in case of Md. Ankoos vs. Public Prosecutor, High Court of Andhra Pradesh 2009 (84) AIC 255 (SC)=2009 (67) ACC 909=2009 AIR SCW 7132 , in this respect held in paragraphs 24 and 25 as under: "24. A Criminal Court can use the case diary in the aid of any inquiry of trial but not as an evidence. This position is made clear by section 172(2) of the Code. Section 172(3) places restrictions upon the use of case dairy by providing that accused has no right to call for the case diary but if is used by the police officer who made the entries for refreshing his memory or if the Court uses it for the purpose of contradicting such police officer, it will be so done in the manner provided in section 161 of the Code and section 145 of the Evidence Act. Courts power to consider the case diary is not unfettered. In light of the inhibitions contained in section 172(2), it is not open to the Court to place reliance on the case diary as a piece of evidence directly or indirectly. Courts power to consider the case diary is not unfettered. In light of the inhibitions contained in section 172(2), it is not open to the Court to place reliance on the case diary as a piece of evidence directly or indirectly. This Court had an occasion to consider section 172 of the Code vis-a-vis section 145 of the Evidence Act and section 162 of the Code of the case of Mahabir Singh vs. State of Haryana (2001) AIR SCW 2757= (2001) 7 SCC 148 (Para 14)., and it was stated as follows" "14. A reading of the said sub-sections makes the position clear that the discretion given to the Court to use such diaries is only for aiding the Court to decide on a point. It is made abundantly clear in subsection 2) itself that the Court is forbidden from using the entries of such diaries as evidence. What cannot be used as evidence against the accused canpot be used in any other manner against him. If the Court uses the entries in a case diary for contradicting a police officer it should be done only in the manner provided in section 145 of the Evidence Act i.e. by giving the author of the statement an opportunity to explain the contradiction, after his attention is called to that part of the statement which is intended to be so used for contradiction. In other words, the power conferred on the Court for perusal for the diary under section 172 of the Code is not intended for explaining a contradiction which the defence has winched to the fore through the channel permitted by law. The interdict contained in section 162 of the Code, debars the Court from using the power under section 172 of the Code for the purpose of explaining the contradiction." 25. The High Court, however, did not keep the aforesaid legal position in mind and erred in placing upon the evidence of P.W. 2 to P.W. 4 by verifying their statements recorded under section 161(3) of the Code from the case diary. It is here that the High Court fell into grave error in using the statements of P.W. 2 to P.W. 4 recorded under section 161(3) of the Code; particularly for contradicting P.W. 20 without affording any opportunity to him to explain the position. It is here that the High Court fell into grave error in using the statements of P.W. 2 to P.W. 4 recorded under section 161(3) of the Code; particularly for contradicting P.W. 20 without affording any opportunity to him to explain the position. The course adopted by the High Court is impermissible in law as section 172 of the Code is not meant to be used for the purpose it has been used by the High Court i.e. to overcome the contradictions pointed out by the defence. Ought we know what would have been the view of the High Court with regard to the evidence of P.W. 2 to P.W. 4, had it not considered the statements of these witnesses under section 161(3) of the Code. As a matter of fact, High Court heavily relied upon the deposition of P.W. 2 to P.W. 4 in upsetting the judgment of acquittal passed by the Trial Court........." (Emphasis supplied) 21. It is a settled principle of law that statement recorded under section 161, Cr. P.C., 1973 is not evidence and as such undue importance cannot be given to such statements. The Hon''ble Supreme Court in the case of Ramswaroop vs. State of Rajasthan 2004 (16) AIC 35 (SC) : AIR 2004 SC 2943 . in this respect reiterated the principles of law as under the paragraphs 23 and 24 as under: "23. We have also noticed that the High Court has attached undue . importance to the statements made in the course of investigation and recorded under section 161 of the Code of Criminal Procedure, 1973. It is well settled that a statement recorded under section 161 of the Code of Criminal Procedure, 1973 cannot be treated as evidence in the criminal trial but may be used for the limited purpose of impeaching the credibility of a witness. We find that in paragraph 6 of the judgment, the High Court while dealing with the evidence of P.W. 7 has clearly treated the statement of P.W. 7 recorded in the course of investigation as substantive evidence in this case. The High Court observed:- "He is consistent in his statement under section 161, Cr. We find that in paragraph 6 of the judgment, the High Court while dealing with the evidence of P.W. 7 has clearly treated the statement of P.W. 7 recorded in the course of investigation as substantive evidence in this case. The High Court observed:- "He is consistent in his statement under section 161, Cr. P.C., 1973 that while he alongwith Kishore (P.W. 10) were sitting in front of the house of Kishore, which is just near the Shiv Temple, Ramswaroop and his sons Ram Kalyan and Hiralal armed with lathies came and gave beating to Bhanwar Lal and specifically head injury is attributed to Ramswaroop. In the statement in Court, he only attributed injuries to Hiralal and Ram Kalyan. Even he is consistent on the fact that while Madan Lal and his mother came and tried to save Bhanwar Lal from these persons, they were caught hold by Dakhan and Ram Kanya and Dakhan and Ram Kanya have given beating to Madan Lal and his mother." 24. In our view the High Court ought to have considered his deposition rather than his statement recorded under section 161 of the Code of Criminal Procedure, 1973. The inconsistency between the two versions is obvious from the fact that the prosecution had to declare the witness hostile. The approach of the High Court, therefore, is clearly erroneous, (Emphasis supplied) 22. As rightly submitted by the learned Counsels for the appellants that the accused-appellants were not identified by any of the witnesses of the prosecution to suggest that the accused-appellants are in fact the named persons in the fardbeyan who have committed the offence. No doubt, the identification of the accused persons facing the trial, by the witnesses to establish that he/they are the persons who have committed the offence is a basic requirement to bring home the charge against the accused person in a trial in any Criminal Court. The evidence put forth by the prosecution falls for short of establishing the ingredients of the offence punishable under section 363 of the Indian Penal Code. After considering the evidence in the record and in view of these settled principle of law. I have no hesitation in holding that this is a fit case where the appellants be acquitted by giving them the benefit of doubt and learned Court below erred by convicting them on the basis of the evidence available in the record. After considering the evidence in the record and in view of these settled principle of law. I have no hesitation in holding that this is a fit case where the appellants be acquitted by giving them the benefit of doubt and learned Court below erred by convicting them on the basis of the evidence available in the record. 23. Accordingly, the impugned judgment of conviction dated 7.1.2006 and order of sentence dated 18.1.2006 passed by learned Additional Sessions Judge (F.T.C. No. 1) Gumla in S.T. No. 199 of 2005 is set aside and the appellants, Raju Singh and Alam Khan @ Md. Alam are acquitted of the charges punishable under section 363 as well. The appellants Raju Singh and Alam Khan @ Md. Alam are on bail an in view of their acquittal; they are discharged from the liability of furnishing bail bond. 24. Let the original Lower Court Records be sent back to the Court concerned forthwith, alongwith a copy this judgment. 25. In the result, both the appeals are allowed.