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2022 DIGILAW 1338 (JHR)

Md. Saheb v. State of Jharkhand

2022-12-02

NAVNEET KUMAR

body2022
JUDGMENT : 1. This appeal is directed against the judgment of conviction and order of sentence dated 22.01.2007 passed by learned Sessions Judge, Hazaribag in Sessions Trial No. 618 of 1999 in connection with Sadar P.S. Case No. 406 of 1998, corresponding to G.R. No. 1915 of 1998 & T.R. No. 1020 of 1999, Hazaribag, Jharkhand whereby and where under the learned trial court found guilty and convicted the accused appellant u/s 376/511 of IPC and he has been sentenced to undergo R.I. for 5 years and a fine of Rs. 25,000/- u/s 376/511 of IPC and in default of payment of fine, the appellant was directed to serve a separate sentence to undergo S.I. for 06 months, and the learned trial court further directed that if the fine amount realized, it shall be released in favour of the victim PW-2. 2. The prosecution story arose in the wake of written report of the informant P.W. 2 addressed to the Officer In-Charge, Sadar P.S. Hazaribag, on 25.09.1998. The informant P.W. 2 alleged that about 17 days ago she along with her sister Simmi P.W. 3 had gone to her neighbour’s house Saheb, (the appellant) to watch Television where her brother Khurshid was also watching Television. During the course of watching television her sister and her brother returned to her home. Meanwhile Md. Saheb started teasing her and he tried to catch hold her mouth and further he caught hold her chest and tried to do bad activities. Then she raised hulla upon which her mother Fatima Khatoon, sister Simmi Parvin and brother Md. Khurshid came there, then Md. Saheb fled away from the house. In this regard there was a panchayati in the muhalla in which wife of Md. Saheb abused her in writing and levelled allegations for giving poison against her. Further, the informant has mentioned that few days ago her father died and his dead body was found and for that reason information was given after some delay. 3. On the basis of the aforesaid written report of the informant Sadar P.S. Case No. 406 of 1998 was instituted u/s 376/511 of IPC. After investigation police submitted the charge sheet on 30.04.1999. Learned C.J.M., Hazaribag by order dated 13.05.1999 took cognizance against the accused u/s 376, 511 of IPC and on 04.12.1999 this case was committed to the court of sessions. After investigation police submitted the charge sheet on 30.04.1999. Learned C.J.M., Hazaribag by order dated 13.05.1999 took cognizance against the accused u/s 376, 511 of IPC and on 04.12.1999 this case was committed to the court of sessions. After commitment, charge against the accused was framed on 12.02.2004 u/s 376/511 IPC by Sessions Judge, Hazaribag. The contents of the charge was read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried. 4. The learned trial court after conducting the full-fledged trial, passed the impugned judgment of conviction and order of sentence, which is under challenge in this appeal. 5. Heard Mr. Rohan Mazumdar, the learned counsel for the appellant and Mr. Jitendra Pandey, the learned Addl. P.P. for the State. Arguments advanced on behalf of the appellant 6. Assailing the impugned judgment of conviction and order of sentence, the learned counsel appearing on behalf of the appellant submitted that the learned trial court did not apply the judicial mind in the appreciation of the evidences and discarded the admitted evidences available on record under which both the parties including the victim P.W. 2 and accused-appellant were cousin to each other and they were residing in the same house. It has further been pointed out that admittedly both were in inimical terms as the father of the informant was killed and the appellant was one of the accused and further there were several litigations between both of them as evident from the documentary evidences adduced on behalf of the appellant vide Ext. A, A/1, B and C. It has further been pointed out that the learned court below has failed to take into consideration that witnesses are highly interested witness and not a single independent witness has been examined. It has further been pointed out on behalf of the appellant that neither the I.O. in this case has been examined nor the doctor has been examined and further the case has been instituted after inordinate delay of 17 days and no cogent explanation has been given by the prosecution although it has been stated by the informant that panchayati held. But even after the panchayati the case was not instituted after a long period of time and further the reason for delay was given that the father of the victim was killed and the appellant was made an accused in that case and therefore it is evident that this case was instituted after thought which is also emanating from a number of contradictions in their statements and therefore, it is submitted on behalf of the appellant that the impugned judgment of conviction and order of sentence is bad in law and fit to be set aside. Arguments advanced on behalf of the State 7. On the other hand, the learned Addl.P.P. appearing for the State opposed the contentions raised on behalf of the appellant and stated that the learned trial court has rightly relied upon the evidences of the victim P.W. 2 supported by the deposition of the mother of the victim P.W. 1 Fatima Khatoon and P.W. 3 Simmi Parvin sister of the victim. Further the brother of the victim has also been examined as P.W. 4 who has also supported the case of the prosecution. Therefore, the learned trial court has rightly appreciated the testimonies of the witnesses examined on behalf of the prosecution including the P.W.1 the mother, P.W. 2 victim, PW-3 Simmi the sister and the brother P.W. 4 Khurshid and there is no legal point to interfere in the impugned judgment of conviction and order of sentence and therefore, this appeal is fit to be dismissed being devoid of merit. Appraisal and Findings 8. Having heard the parties, perused the record of this case including the Lower Court Records. 9. It is admitted case of the prosecution that both the parties are related to each other and accused-appellant is cousin brother of victim and they are living in the same house. It is admitted case of the prosecution that the victim along with her sister and brother had gone to watch television in the room of appellant who was also residing in the same house along with his family members including his wife and children. Further, it has been stated that both the parties have been in litigating terms and a number of cases were pending between them as evident form the Exts. Further, it has been stated that both the parties have been in litigating terms and a number of cases were pending between them as evident form the Exts. A, A/1, B and C which is admission of the witnesses examined on behalf of the prosecution including the mother of the victim P.W. 1 vide para 34 of her deposition and in this background this Court proceeds to appraise the witnesses examined on behalf of the prosecution who are as under: 1. P.W.1- Fatima Khatoon, mother of the victim, 2. P.W.2- informant & victim 3. P.W.3- Simmi Parvin, Sister of the victim 4. P.W. 4. Md. Khurshid, brother of the victim 5. P.W.5- Moti Ram- formal witness Apart from oral evidences prosecution has also adduced some documentary evidences which are- Ext.1- endorsement on written report; Ext.2- formal F.I.R. A few documentary evidences have also been adduced on behalf of the defence, which are- 1. Ext.-A- Certified copy of judgment dated 17.09.2005 passed in T.R. No. 206/2005 by J.M. 1st class Hazaribag; 2. Ext.-A/1- Certified copy of judgment dated 08.04.2005 passed in C. Case No. 477of 2001/T.R. No. 33 of 2005 by J.M. 1st class Hazaribag; 3. Ext.-B-Certified copy of police report dated 22.09.1998 in Case No. M 648/1998 4. Ext.-C-Certified copy of F.I.R. of Sadar P.S. Case No. 297/1998 10. P.W.1- Fatima Khatoon, mother of the victim, has admitted that both the families including the family of the informant and that of appellant were residing in the same house and the rooms were also situated adjacent to each other, it has also been admitted by this witness in para 25 where she stated that they had been frequently going to see T.V. in the room of the appellant. She further stated that the appellant was living in the same house along with his wife and the victim has solemnized second marriage after the divorce from her first husband. She has also admitted in para 33 of her deposition that her husband was killed and in that case the appellant was an accused. In para 2 she stated that the delay in instituting the FIR was that because panchayati was convened after the occurrence. She has also admitted in para 33 of her deposition that her husband was killed and in that case the appellant was an accused. In para 2 she stated that the delay in instituting the FIR was that because panchayati was convened after the occurrence. Further in paras 35, 36, 37 the defence has drawn the attention of this witness with respect to the earlier statements of this witness recorded by the I.O. during the course of the investigation but due to non-examination of the I.O. the veracity and truthfulness of this witness could not be ascertained inasmuch as the appellant has been debarred from his valuable right to bring the contradictions from the depositions of this witness P.W.1 and as such non-examination of the I.O. caused serious prejudiced to the defence of this appellant. 11. P.W.2- informant herself is the victim and she has also accepted in her cross examination vide para 5 that the appellant Saheb was her cousin brother and both were residing in the same house in a separate rooms. She accepted vide para 8 of her cross examination that her sister had instituted a case against the accused appellant & other persons and as such both the parties were on inimical terms. A major contradiction is found in the statement of this witness with respect to the delay in instituting the FIR. P.W. 1 the mother of the victim has stated that the delay is because the panchayati was convened whereas the victim witness P.W. 2 stated that after 4 or 5 days of the offence the pancahayti was convened but even then when the panchayati was over the case was not instituted rather the written report was submitted by the victim after 17 days of the occurrence and thus it speaks a volume against the charges levelled against the appellant and it creates a doubt about the veracity and truthfulness of the charges levelled against the appellants. In para 16 she has stated that her statement was recorded by the I.O. but due to non-examination of the I.O. serious prejudiced has caused to the defence of this appellant who has been debarred from his valuable right to bring forth the contradictions in the depositions of the victim, if any and thus the veracity of the deposition of this witness also becomes doubtful. 12. 12. P.W.3- Simmi Parvin, sister of the victim, in her cross examination also accepted that they had gone in the room of the appellant to see the T.V. and the appellant was her cousin and he was a married person having children also and the family of both (the appellant and informant) have been living in the same house. In para 7 and para 8 attention of this witness was also drawn by the defence about her earlier statements but due to the non-examination of the I.O. the appellant did not get the opportunity to bring forth any contradiction on record and therefore non-examination of the I.O. has caused serious prejudice to the defence of the appellant in this case. 13. P.W. 4. Md. Khurshid, brother of the victim, is not the eye witness of the occurrence and he stated that he was in another room at the time of the occurrence. He has also stated that for watching T.V. he used to go frequently in the room of the appellant and the families of both the parties were residing in the same house. This witness in para 9 stated that one Md. Iliyas has come to the place of occurrence but he has never been examined. His earlier statement was recorded by police as evident from the para 5 of the cross examination but due to non-examination of the I.O. the contradiction could not be brought on record which caused serious prejudiced to the defence of the appellant. 14. The I.O. in this case has not been examined and the clerk Moti Ram has been examined as P.W. 5 as a formal witness. This witness has stated that formal FIR, which is marked as Ext. 2, is in the writing of SI Arjun Rai, upon which signature of Rajbali Sharma the then officer-in-charge and the endorsement of the written statement has been marked as Ext. 1. In the cross examination this witness has accepted that nothing has been written before him neither the endorsement nor the formal FIR. 15. 2, is in the writing of SI Arjun Rai, upon which signature of Rajbali Sharma the then officer-in-charge and the endorsement of the written statement has been marked as Ext. 1. In the cross examination this witness has accepted that nothing has been written before him neither the endorsement nor the formal FIR. 15. This Court is unable to understand as to why no police personnel has been examined to prove the formal FIR and the written report submitted by the P.W. 2 and therefore neither the formal FIR nor the written report is legally admissible evidence in the eyes of law and the appellant has been debarred from his valuable right to cross examination the I.O. in such a case of major offence and thus surely it has caused serious prejudice to the defence of the appellants under the facts and circumstances of this case when admittedly both the parties are family members and residing in the same house. It is also admitted case of the prosecution that both (the appellant and informant) are on inimical terms and to prove this the defence has also brought some documents which have been marked as Exts. A, A/1, B and C. in order to establish, the previous enmity between the family members of the victim and the accused and therefore the evidence by way of the depositions of the highly interested witness P.W. 1, P.W. 2 and P.W. 3 are not reliable because of so many inconsistencies and doubts as discussed in the foregoing paragraphs. Further there is inordinate delay in institution of the FIR i.e. after 17 days of the occurrence, when the panchayati was over just after 4-5 days of the occurrence as evident from the deposition of the victim herself in para 12 and also in para 15 she stated that after 8-10 days of the panchayati the case was instituted. Further it is also found that the victim and appellant were living in the same house adjacent to each other and therefore the offence of attempt to commit rape by the accused appellant, where his family members and children are residing in the same house, are highly improbable. The learned trial court has failed to appreciate the depositions of P.Ws. 1, 2 and 3 in totality and in holistic manner. 16. The learned trial court has failed to appreciate the depositions of P.Ws. 1, 2 and 3 in totality and in holistic manner. 16. The investigating officer has not been examined in this case and it caused serious prejudiced to the defence of the appellant who has been debarred from their valuable right and to bring the contradictions during the cross examination. It is further found that all the witnesses and the appellant were living in the same house but there is no eye witness and they all reached to the place of occurrence after hearing the alarm alleged to have been made by the victim. 17. In this view of the matter it is found that the impugned judgment of conviction and order of sentence is not sustainable in the eyes of law and the appellant deserves to get benefit of doubt and his false implication due to enmity cannot be ruled out under the circumstances of this case as discussed above and evidences produced on behalf of the parties. 18. Therefore, the impugned judgment of conviction and order of sentence dated 22.01.2007 passed by learned Sessions Judge, Hazaribag in Sessions Trial No. 618 of 1999 in connection with Sadar P.S. Case No. 406 of 1998, corresponding to G.R. No. 1915 of 1998 & T.R. No. 1020 of 1999, Hazaribag, Jharkhand against the appellant is set aside. 19. Accordingly, the appeal is allowed. 20. The appellant is acquitted from the charges levelled against him. 21. Since the appellant is on bail, accordingly he is discharged from the liability of bail bonds. 22. Let a copy of this judgment be sent to the learned court below along with the Lower Court Records.