======================================================= Sajjan Khan @ Afaque Haider, Son of Lehsan Mian @ Lehsanul Haque, Resident v. with
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA the judgment and order dated Against in S.Tr. No. 190 of 19.03.1999 passed 1997/54 of 1998 by the 2nd Additional Sessions Judge, Aurangabad. Criminal Appeal (SJ) No. 92 of 1999 ======================================================= Sajjan Khan @ Afaque Haider, Son of Lehsan Mian @ Lehsanul Haque, Resident of Village-Ward No. 4, Purani Sahar, Daudnagar, P.S.-Daudnagar, District-Aurangabad. .... .... Appellant/s The State of Bihar. Versus with .... .... Respondent/s Criminal Appeal (SJ) No. 106 of 1999 ======================================================= Sanjay Khan @ Ragiv Hummanyu, Son of Lehsan Mian @ Lehsanul Haque, Resident of Village-Ward No. 4, Purani Shahar, Daudnagar, P.S.-Daudnagar, District-Aurangabad. The State of Bihar. Versus .... .... Appellant/s .... .... Respondent/s ======================================================= Appearance : (In CR. APP (SJ) No. 92 of 1999) For the Appellant/s : Mr. Satendra Kumar Singh, Adv. Mr. Rajesh Kumar Singh, Adv. For the Respondent/s : Dr. Indiwar Kuamri, APP. (In CR. APP (SJ) No. 106 of 1999) For the Appellant/s : Mr. Satendra Kumar Singh, Adv. Mr. Rajesh Kumar Singh, Adv. For the Respondent/s : Mr. S. Dayal, APP. ======================================================= CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH ORAL JUDGMENT Date: 09-12-2013 Anjana Prakash, J. 1. The Appellants have been convicted under Section 376(2)(c) IPC and sentenced to RI for ten years as also a fine of Rs. 5,000/- and in default of which further imprisonment of one year. No separate sentence
Legal Reasoning
Patna High Court CR. APP (SJ) No.92 of 1999 dt.09-12-2013 2 under Section 366(A) has been passed by the 2nd Additional Sessions Judge, Aurangabad in S.Tr. No. 190 of 1997/54 of 1998 by judgment and order dated 19.03.1999. 2. On 19.05.1996, Uma Shankar Prasad gave a written report to the Officer In-charge, Daudnagar P.S. Aurangabad stating therein that on 16.05.1996 at about 6 A.M. Appellant, Sanjay Khan and his elder brother, Sajjan Khan had come to their house and had kidnapped his minor daughter by alluring her to marry him. When after a lot of search she could not be recovered the said written statement was given on 19.05.1996. 3. During trial the prosecution examined eight witnesses out of whom P.W. 1, Ramayan Chaurasia is the brother of the victim who stated that on the night of 15.05.1996 he was sleeping along with his three sisters. The next morning one of the sisters got up and not finding the victim woke up the other sisters. Everyone looked for her but she could not be found in the house. Later on the same day Appellant, Sanjay Khan came to their house even before time. He used to run a school in their house. They informed Appellant, Sanjay Khan at which he also started to look for her. About 4-5 days back this witness had asked Appellant, Sanjay Khan for five rupees at which he had rebuked him and then there Patna High Court CR. APP (SJ) No.92 of 1999 dt.09-12-2013 3 was an altercation between them. He further stated that Appellant, Sanjay Khan had threatened him that he would run away with both his sisters and get married and he would not be able to do anything. He further alleged to have been threatened that his brother would shoot him dead. It was thereafter that his sister had been kidnapped by Appellant, Sanjay Khan. In his cross- examination he conceded that he had been examined during investigation 2-3 days after the occurrence. His attention was drawn to the earlier statement about him having said that on the night of 15.05.1996 he was sleeping with the victim and other sisters and on her disappearance her sister had looked for her and that the allegation of earlier motive had not been disclosed in his statement recorded under Section 161 Cr.P.C. He describes the topography of his house from which it appears that it was situated in a densely populated locality and there were many persons living close by. In his cross-examination he also admitted that Appellant, Sanjay Khan was a teacher in the school which was run in his house in which his father was also in the Managing Committee. He admitted that on not finding his sister no inquiry had been made from the neighbours or his agnates. He also stated that a staircase from inside the house led to the terrace and none of the doors Patna High Court CR. APP (SJ) No.92 of 1999 dt.09-12-2013 4 were found open in the morning. 4. P.W. 2, Babita Kumari is another sister of the victim. She stated that on the night of 15.05.1996 they all had slept together but in the morning the victim was not found. She stated that Appellant, Sanjay Khan was running the school in her house where the victim used to study in Class-V. On the morning of 16.05.1996 Appellant, Sanjay Khan had come to her house and on being told that the victim was missing he had attempted to look for her and had gone to the terrace as well. He found sandals of the victim. After a while when he returned from the search he asked her as to whether the victim had left any letter. She then went up and found a letter but she did not tell him about it. Appellant, Sanjay Khan then once again left along with his brother. The next day he came late to the school and when her brother followed him he stated that he had gone to his maternal uncle’s house and did not reply anything. On the same day seeing standing them at the door he laughed at them and said that the victim had fallen prey to somebody and she would not be found. In her cross- examination she stated that on the morning of 16.05.1996 when the victim was found missing the brother and sisters came down and found that the door open as usual and their mother sleeping there. The main Patna High Court CR. APP (SJ) No.92 of 1999 dt.09-12-2013 5 gate was closed from inside. She opened the main gate and looked for the victim but did not find anything suspicious. Her attention was drawn to her earlier statements recorded under Section 161 Cr.P.C. but they were of very minor nature. 5. P.W. 3 is the victim herself. She stated that on the night of 15/16.05.1996 at about 2 A.M. while she was sleeping with her elder sister and her elder brother she suddenly woke up and found that Appellant, Sanjay Khan had put a handkerchief on her nose on account of which she became unconscious. She was lifted over the wall and taken to his house. When he knocked at his door his mother opened the same and asked him as to who he had brought with him. She was then taken inside the house despite the protest of the mother. He stated that he would marry the victim and confined her in a room where he and Co-Appellant repeatedly sexually assaulted her. In her cross-examination she described the location of her house and admitted that there were hundred houses between that of the Appellant and hers including that of her uncles Daudnagar Police Station also fell in between. 6. She clarified in her cross-examination that she was lifted by the two Appellants and taken to their house. She wanted to scream but she could not do so Patna High Court CR. APP (SJ) No.92 of 1999 dt.09-12-2013 6 because her mouth had been forcefully closed. She stated that one accused stood on her terrace while the other was standing on the ground and he threw her to the accused standing below. She stated that she had given her statement to the Magistrate recorded under Section 164 Cr.P.C. Her attention was drawn to certain aspects of earlier statement which she denied. 7. P.W. 4, Uma Shankar Prasad, the informant gave a different version than which he had given in the First Information Report. He did not allege that Appellants came to his house at 6 A.M. and kidnapped his daughter. Instead he narrated how the Appellant, Sanjay had come the next morning at 6 A.M. and started making an inquiry as to where the victim was sleeping and whether she had left any letter. In his cross- examination he stated that on 15.05.1996 while the victim was sleeping along with the rest of the children she went missing. He further narrated the suspicious conduct of the Appellant and that on 19.05.1996 his daughter was recovered from the house of the Appellants but stated that he did not know as to how she had reached there. In his cross-examination a number of questions were put on him to ascertain the age of the victim suggesting that in fact the girl was a major. He also described the topography of his house and that the Patna High Court CR. APP (SJ) No.92 of 1999 dt.09-12-2013 7 terrace was about 10-12 feet in height. Letter which had been recovered from the bed of the victim was given to the Investigating Officer.
Legal Reasoning
8. P.W. 5, Dr. Smt. Lalsa Sinha examined the victim on 19.05.1996 she opined that she was aged about 14-15 years. She did not find any mark of sexual intercourse on the victim. 9. P.W. 6, Mr. John Basan Minz is the Investigating Officer who stated that he had instituted the First Information Report on the written statement of the informant and initiated the investigation. Thereafter, on the basis of suspicion raided the house of the Appellants and recovered the victim. Both the Appellants were arrested along with the victim. He admitted that between the period of recovery and production before the Court for recording her statement under Section 164 Cr.P.C. the victim had been kept with her parents. He also did not record the statement of the accused persons. He also stated that the Appellant, Sanjay Khan was running a School in the house of the Informant and he did not record the statement of any neighbours. 10. P.W. 7, Abhay Kumar, Judicial Magistrate who merely states about recording of the statement of the alleged victim. His attention was drawn to the statement of victim and he admitted that the victim had Patna High Court CR. APP (SJ) No.92 of 1999 dt.09-12-2013 8 not stated that she had been recovered from the house of the Appellant on 19.05.1996 at about 8 A.M. or the manner in which she had been lifted by Appellant, Sanjay Khan after having been made unconscious by putting a handkerchief on her nose. 11. P.W. 8, Md. Irshad Khan is a seizure-list witness but admits that seizure was not in his presence. 12. Defence has examined one witness, Ram Pravesh Sharma on the point that the Appellant used to study at some other place. 13. On going through documentary and oral evidence I find the following notable points. In the First Information Report the Informant states that his daughter had been kidnapped by both the Appellants on 16.05.1996 at 6 A.M. after alluring her. So there was a definite allegation against the two Appellants. However, there is no explanation by the Informant as to why despite having known that the Appellants had kidnapped his daughter no attempt was made to recover her immediately and she was recovered three days later on 19.05.1996. Moreover in his statement during Trial he changed his version to having only suspected the Appellant, Sanjay on account of his suspicious behaviour. By doing so he probably thus to explain his own inaction of not looking for his daughter in the house Patna High Court CR. APP (SJ) No.92 of 1999 dt.09-12-2013 9 of the Appellant. Further, he has no explanation for instituting the case after three days. This leads one to before that it was probably a case of consent. 14. P.W. 1, Ramayan Chaurasiya merely states that his sister had gone missing on the morning of 16.05.1996. He does not say anything about recovery from the house of the Appellants. 15. P.W. 2, Babita Kumari also has given no evidence on the aforesaid counts. 16. P.W. 3, Alka Kumari in her statement recorded under Section 164 Cr.P.C. has named only the Appellant, Sanjay Khan. P.W. 4 as having kidnapped her. The letter of the victim proved as Ext. 1 appears to be one of suicide note which further creates a doubt on the veracity of the Prosecution Case. 17. Further, the manner in which the victim is said to have been lifted by the two Appellants and taken to their house at 6 A.M. in the morning in a summer month in a busy locality is completely unbelievable. 18. The Doctor has also not found any sign of sexual intercourse and opined the age of the victim between 14-15 years. Giving a margin of two years the age of victim could be between 17-18 years. 19. In view of the aforesaid discussion, this Court is inclined to hold that in circumstances of the Patna High Court CR. APP (SJ) No.92 of 1999 dt.09-12-2013 10 case, the prosecution has failed to prove its case beyond all reasonable doubt. 20. Hence giving benefit of doubt to the Appellants, the Appeal is allowed and the order of conviction and sentence passed against the Appellants on 19.03.1999 by the 2nd Additional Sessions Judge, Aurangabad in S.Tr. No. 190 of 1997/54 of 1998 is set aside. The Appellants are discharged of the liability of their bail bonds. Patna High Court, Patna Dated, the 9th December, 2013 NAFR/Vikash/- (Anjana Prakash, J.)