IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.1925 of 2017
Arising Out of PS. Case No.-234 Year-2012 Thana- BARHARA KOTHI District- Purnia
Md. Rizwan @ Fakir, son of Md. Hafiz Sah, Resident of Village- Murballa,
P.S. -B. Kothi, (Barahara), District Purnea.
… … Appellant/s
Versus
The State Of Bihar
… … Respondent/s
Appearance :
For the Appellant/s : Mr. Ajay Kumar Thakur, Adv.
Mr. Malay Chaudhary, Adv.
Ms. Swati Sinha, Adv.
For the Respondent/s : Mr. Syed Ashfaque Ahmad, APP
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date : 05-07-2019
1. Appellant, Md. Rizwan @ Fakir, vide
judgment of conviction dated 19.04.2017 and order of sentence
dated 24.04.2017 passed by the FTC-Ist, Purnea in connection
with Sessions Trial No.304 of 2013 / 24 of 2017, has been
found guilty for an offence punishable under Section 363 of the
IPC and sentenced to undergo R.I. for 7 years as well as to pay
fine appertaining to Rs.20,000/-, under Section 366 of the IPC
and sentenced to undergo R.I. for ten years as well as to pay
fine appertaining to Rs.20,000/-, under Section 376 IPC and
sentenced to undergo R.I. for ten years as well as to pay fine
appertaining to Rs.20,000/-, in default of payment of fine, to
undergo S.I. for one year, additionally with a further direction to
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run the sentences concurrently, with a further direction to the
effect that the period having undergone during course of trial
would be subject to set off in accordance with Section 428 of
the Cr.P.C.
2. Anil Mandal, PW.8 filed written report on
16.12.2012 disclosing therein that victim (name withheld)
happens to be his wife from whom he has got two sons, the
elder one Rahul Kumar aged about 14-15 years and younger
Ravi Kumar aged about 10-12 years, a daughter, Priti Kumari,
aged about 5 years. It has also been disclosed that Md. Rizwan
@ Fakir is a Mason and also works in his village. He used to
visit his house in his absence and during course thereof, he
actively engaged himself in alluring his wife. His wife had gone
to her Maika for appearing in B.A. Part-I examination. After
examination when he had gone to bring his wife, his father-in-
law D.N. Rai and brother-in-law Praful Rai have said that after
pooja she will be sent. Then thereafter, as his wife had not come
so on 25.11.2012 he again gone to his Sasural for Bidai where
his mother-in-law has disclosed that just after pooja she had sent
his wife. They have accompanied her to Barhara. During course
of search he came to know that Md. Rizwan had enticed away
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his wife from Barhara along with his one son and daughter to
Delhi.
3. On the basis of the aforesaid written report
Barhara P.S. Case No.234/2012 was registered followed with an
investigation as well as submission of charge sheet facilitating
the trial meeting with the ultimate result, subject matter of
instant appeal.
4. Defence case as is evident from mode of cross-
examination as well as statement recorded under Section 313 of
the Cr.P.C. is that of complete denial. In an alternative, it has
also been pleaded that the victim, a major was a consenting
party who, after changing her religion converted to Islam and
then married with the accused. So, no offence has been
committed at the end of the accused. However, nothing has been
adduced in defence.
5. Altogether ten PWs have been examined on
behalf of prosecution who are PW.1-Deo Narayan Rai, PW.2-
Sudhir Mandal, PW.3-Jai Mala Devi, PW.4-Rahul Kumar,
PW.5-Ravi Kumar, PW.6-Dr. Snigdha Priyadarshini, PW.7-
Victim (name withheld), PW.8-Anil Mandal (informant), PW.9-
Preeti Kumari, PW.10-Vijay Kumar (I.O). Side by side has also
exhibited medical report Ext.-1, endorsement of Deputy
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Superintendent, Sadar Hospital, Purnea over Ext.1 and Ext.1/1,
Signature of victim over statement under Section 164 Cr.P.C.
Ext.2, Signature of informant over written report-Ext.2/1,
endorsement over written report-Ext.3, formal FIR-Ext.4. As
stated above, nothing has been adduced on behalf of defence.
6. Heard learned counsel for the appellant,
learned APP. Also gone through the evidence on record.
7. First of all, the credibility of medical evidence
is being seen. It is needless to say that from the written report
itself, the age of eldest children has been shown to be in
between 14-15 years. Fortunately all the children have deposed
in this case as PW.4, Rahul Kumar who has been examined
06.01.2014 and on that date he has shown his age as 15 years,
PW.5, Ravi Kumar who has been examined on 24.06.2014 and
his age has also been disclosed as 15 years, Preeti Kumari who
has been examined on 16.05.2016 on which date she has
disclosed her age as 10 years. The occurrence is of the year
2012 and so, PW.4 ought to have been aged about 12 years and
in likewise manner status of PW.5 as well as PW.8 would be.
Against that, the age of the victim has been estimated by the
Medical Board as in between 18-19 years. Her examination was
conducted on 05.01.2013 which ought not to be and so, the
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aforesaid finding is sufficient to indicate in what manner the
medical report has been issued. Moreover, the victim who was
examined on 19.11.2015 as PW.7 has shown her age to be 34
years, that means to be say on the alleged date of examination
she was very much in between 31-32 years. The aforesaid
discussion happens to be relevant in order to appreciate the
conduct of the victim inconsonance with the occurrence so
alleged.
8. From the evidence, it is abundantly clear that
PW.7 while was taken away by the appellant as alleged was not
alone rather she was along with her second son Ravi Kumar
(PW.5) and Preeti Kumar (PW.9) who remained with her till her
presence before the police after having been released/escape
from the clutch of the appellant Md. Rizwan @ Fakir.
Furthermore, the another son PW.4 (eldest one) has been
examined to connect the chain by having the victim along with
two children brought to Barhara from where, the occurrence of
kidnapping has been alleged while PW.8 is the husband. PW.1
and PW.3 are the father and mother of the victim. PW.2 is the
co-villager of the informant PW.8 and PW.10 is the I.O.
9. From examination-in-chief of PW.10 the I.O.
(Paragraph-3), it is evident that he had arrested the appellant
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from a road at village-Gadhi on 26.12.2012. In likewise manner,
from para-4 of his deposition, it is evident that on getting
confidential information he had recovered the victim on
27.12.2012 near the office of the Superintendent of Police and
then her statement was recorded under Section 164 Cr.P.C. on
28.12.2012 and then, she was medically examined. That means
to say firstly accused was arrested and then, the victim was
traced out on confidential information near the office of the S.P
on the following day. In the aforesaid background first of all,
the evidence of the victim PW.7 is to be seen.
10. PW.7 has deposed that the occurrence is about
three years ago she was returning from her Maika along with
her son Ravi Kumar and Preeti and was in a way to her Sasural.
While she was awaiting for tempo at Barhara bus stand, Rizwan
along with two unknown persons came and forcibly took her
away along with her both children over Tata Magic and brought
her to Purnea ‘loot’ mohalla where he took a house on rent and
kept her along with both children. He kept her for two months.
She has further stated that he used to rape everyday. After
getting an opportunity she came to court. Then she met with S.P.
who informed Barhara police station. Officer-in-charge of
Barhara police station came, arrested Rizwan. Identified the
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accused in dock. Exhibited her signature over 164 SectionCr.P.C
statement. She got medically examined. During cross-
examination at para-6, she has stated stated that at the time of
marriage she was aged about 18 years. Marriage was
solemnized in the year 1992. Then has disclosed the year of
birth of all the children. In para-9 she has stated that when she
was forced to sit in magic vehicle, at that very time her son aged
about 12 years and daughter Preeti aged about 9 years were
along with her. So many vehicles were parked there. Large
numbers of persons were there but she had not raised alarm.
Then has said that out of fear she had not raised alarm. Children
also not raised alarm. She has further stated that so many
passengers were inside the magic vehicle but, she had not asked
for help from any of the passenger. She has further stated that
neither her mouth nor hands, legs were tied. At para-10 she has
further stated that she crossed about 50 K.M. therefrom to
Purnea loot mohalla. At para-12 she has stated that Dhamdaha,
Meerganj, Madhubani, K.Hat police station fell in between but,
she had not raised alarm, even seeing the police, public. In para-
13 she has further stated that during course of staying at Purnea
Loot mohalla, she had occasion to talk with the family members
of the landlord. She has further stated that she used to cook the
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food. The accused after consuming food used to go to work.
Then she denied suggestion that she has converted to Islam on
her own. She denied that she after conversion, married with the
accused. At para-14 she has stated that on account of fear she
could not inform anybody regarding the occurrence. In para-15
she has stated that Rizwan was arrested in her presence. Police
took her as well as Rizwan jointly to police station.
11. PW.9, a daughter, during her examination-in-
chief has stated that Rizwan had released after three years
while, during cross-examination at para-4 she has stated that
their mouths were gagged, again corrected that they have raised
alarm but no voice came out as mouth was gagged. She has
further stated that Rizwan was driving vehicle, no other was
present along with him, no passenger was present. While he was
driving vehicle, even then they had not raised alarm. At para-5
she had stated that she is unable to say where she stayed at
Purnea for three years.
12. PW.4 is the son who was also along with the
victim and PW.9. He has stated that the same fact during
examination-in-chief and further added that they were kept in a
room by the Rizwan who was also residing in the same room
along with them. Rizwan did not allow them to come outside
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the room as, used to threatened that in case of coming out from
the room, they will be murdered. They remained there for about
a month and then thereafter, her mother telephonically
informed the police. Police came, inquired. During cross-
examination, at para-7 has stated that, PHC lies 10 feet away
from the Barhara bus stand. Block is also there. At para-9 he has
stated that the area remains so over crowed place. In para-11 he
has stated that he is unable to disclose the place where Rizwan
had kept at Purnea. They were kept in a dark room. They were
not allowed to meet anybody. Getting a chance, they all came
out after breaking the door. They came to Barhara P.S. on
tempo. At para-13 he has stated that at Barhara police station,
statement of his mother was recorded.
13. PW.1, PW.2, PW.3, PW.4 are the witness
whose evidence is based upon disclosure having made by the
victim. As, none of them are an eye witness to occurrence, so
they stood within the category of hearsay.
14. PW.8, informant, as is evident since initial
stage that means to say the written report having at his end, was
not an eye witness to occurrence. If his conduct is taken
together with the PW.1, PW.2, PW.3, PW.4, it is apparent that he
could not be an eye witness to occurrence but, when his
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evidence is being properly scrutinized, it is evident that though
during course of examination-in-chief he shown his status to be
not an eye witness to occurrence and further, the allegation
whatsoever been at his end to be based upon information
convened by his wife, the victim. However, when cross-
examination has been gone through, at para-3 he has claimed to
be an eye witness to occurrence by stating that he had seen
accused Rizwan taking away his wife on a tempo. Then he
stated that he had taken away from his house at 8:00 PM in
night over a tempo. Again corrected that he himself had not
seen as, at that very time he was working at Barhara Bazar
under Ghanshayam Sao. Again corrected that he had not seen.
He came to know that he (accused) had taken away over tempo.
At para-4 he has stated that two children have also been
kidnapped. He has denied the suggestion that his wife had gone
on her own. In para-5 he has further stated that at the time of
kidnapping neither his wife nor his children had raised alarm. In
para-6 he has stated that just after occurrence he had instituted
the case. Two months thereafter, victim was traced out. At para-
11 he has admitted that his wife had gone on an allurement
having at the end of the accused. When he inquired from his
wife why not she resisted, she answered, that as the accused had
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taken her away on allurement so she had not protested but, later
on she protested but, he (accused) had not paid heed. Then there
happens to be cross-examination where he admitted that he used
to work under the Rizwan since before and on account thereof,
they were on visiting term.
15. After having minute observation of the
evidence having adduced on behalf of prosecution, it is
abundantly clear that the theme of kidnapping is found
suspicious one from the conduct of the prosecution witnesses
itself and in likewise manner, the story of the rape as, had there
been such kind of affair, right from Barhara, the victim as well
as her two children should not have remained idle. Furthermore,
there also happens to be inconsistency amongst the victim, her
son and daughter over manner of transportation. On the other
hand, there happens to be specific averments at the end of the
victim that she had frequent talk with the landlord and his
family members. That means to say, free access was already
available. There happens to be an admission that she used to
cook food and after taking meal, accused used to go to outside
for menial work. There happens to be no disclosure at the end of
the victim that during the intervening period/during absence of
the accused she had taken any kind of positive step to get out.
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Moreover, presence of victim has been after arrest of the
appellant/accused by the police, away from Purnea Loot Tola.
All the events, as admitted suggest different kind of
picturization than as projected.
16. Accordingly, the judgment of conviction and
sentence recorded by the learned lower court is set aside.
Appeal is allowed. Appellant is under custody, hence is directed
to be released forthwith, if not wanted in any other case.
(Aditya Kumar Trivedi, J.)
Prakash Narayan
AFR/NAFR AFR
CAV DATE NA
Uploading Date 08.07.2019
Transmission Date 08.07.2019