IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.689 of 2016
Arising Out of PS. Case No.-44 Year-2008 Thana- MUFFASIL District- Aurangabad
Sahabuddin Khan Son of Ali Hassan Khan Resident of Village- Chapari,
Police Station- Fatehpur, District- Gaya.
… … Appellant/s
Versus
The State Of Bihar … … Respondent/s
Appearance :
For the Appellant/s : Md. Jubair Ansari, Adv.
Mr.Syed Asgher Najmi, Adv.
For the Respondent/s : Mr. Bipin Kumar, APP
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
07-11-2019 Appellant, Sahabuddin Khan has been found
guilty for an offence punishable under Section 366 IPC and
sentenced to undergo RI for five years as well as to pay fine
appertaining to Rs. 10,000/-, in default thereof, to undergo RI
for six months additionally, under Section 376 IPC and
sentenced to undergo RI for eight years as well as to pay fine of
Rs. 10,000/-, in default thereof, to undergo RI for six months
additionally, with a further direction to run the sentences
concurrently vide judgment of conviction dated 26.07.2016 and
order of sentence dated 03.08.2016 passed by Additional
Sessions Judge-II, Aurangabad in Sessions Trial No.
352/2008/328/2015 arising out of Aurangabad(M) PS Case No.
44/2008.
2. For an occurrence, allegedly, committed on
26.02.2008, informant, Brishpati Singh (since deceased) filed a
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written report on 12.03.2008 disclosing therein that his
daughter, victim (name withheld,PW-5) who has been married
on 20.04.2006 with Srikant Kumar Singh son of Ram Lakhan
Singh of Village-Dadhpi, Aurangabad and, thereafter his
daughter had gone to her Sasural. After some time, she returned
back from her Sasural and as per ritual, her Rukhsati was fixed
on 13.03.2008. In his absence on 26.02.2008, his co-villager,
Niraj Sah, Sanjiv Sao, and Sahabuddin Khan of Village-Chapri
conspired and then, they succeeded in alluring his daughter
followed with her disappearance on a scooter along with them.
They also succeeded in taking away ornaments which she was
wearing at that very moment appertaining to Rs. 45,000/-. He
made hectic search and during course thereof, he came to know
about the aforesaid incident. It has also been disclosed that in
order to save his prestige as well as that of the victim, the delay
has been caused in lodging the case.
3. The aforesaid written report led to
registration of Aurangabad (M) PS Case No. 44/2008, followed
with an investigation during course of which, as is evident, the
victim was recovered, her statement under Section 164 CrPC
was recorded and then, charge-sheet has been submitted against
all the three accused, namely, Niraj Sah, Sanjiv Sao, and
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Sahabuddin Khan who, accordingly, faced trial. It is further
evident from the record that at the stage of argument,
Sahabuddin escaped and so, after bifurcating trial, Niraj and
Sanjiv were acquitted vide judgment dated 23.03.2011.
Subsequently thereof, the appellant surrendered on
14.01.2016/15.03.2016, the trial recommenced and concluded
against him in a manner, subject matter of instant appeal.
4. Defence case as is evident from the mode of
cross-examination as well as statement recorded under Section
313 CrPC is that of complete denial of occurrence so alleged.
However, nothing has been adduced on behalf of defence.
5. Altogether nine PWs have been examined on
behalf of prosecution in order to substantiate its case who are
PW-1, Haribansh Singh, PW-2, Ram Bilash Singh, PW-3, Vinod
Singh, PW-4, Premsheela Kuer, PW-5, victim, PW-6, Ravi
Singh, PW-7, Dr. Mani Kumari, PW-8, Dr. Neelam Chaudhary
and PW-9, Sona Ram Mahto. Side by side has also exhibited
Ext-1, signature of victim over statement under Section 164
CrPC, Ext-2 Series, Medical Reports, Ext-3, Formal FIR. As
stated above, nothing has been adduced on behalf of defence.
6. Learned counsel for the appellant has
submitted that whatever allegation has been attributed at the end
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of prosecution, all are palpably false, because of the fact that
victim who was a major and a consenting party, joined hands
with the accused person voluntarily, enjoyed company having
no grievance but, after having been apprehended and then
emotionally blackmailed by her parents became hostile and
deposed against the appellants which, in the facts and
circumstances of the case, is found properly exposed,
whereupon the prosecution version is found effaceable.
7. Substantiating such plea, it has been
submitted that it was unfortunate for the appellant that the
conducting learned counsel failed to draw attention of the victim
towards her previous statement recorded under Section 164
CrPC wherein she had admitted her intimacy with the appellant
while staying at Rourkela but, as the statement is available on
the record, on account thereof, could be looked into and, after
having parallel scrutiny with the deposition of PW-5 appears to
be sufficient to annul the finding so recorded by the learned
lower court. Furthermore, it has also been submitted that for the
negligence of conducting counsel or incompetency thereof,
should not be considered as hurdle in inferring so, irrespective
of non cross-examination of victim on that score while parting
natural justice. In order to highlight the issue, conduct of the
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victim has been magnified by way of stating at the end of
learned counsel for the appellant that remaining with the
appellant for such a long period without any protest is indicative
of the fact that the victim was a consenting party and so, the
judgment of conviction and order of sentence recorded by the
learned lower court happens to be fit for setting aside.
8. On the other hand, learned APP has submitted
that engagement of learned counsel whether he was competent
enough or not, was at the end of appellant himself and so, he
will have to share the burden. Statement under Section 164 is
not a substantive piece of evidence rather it happens to be for
the purpose of corroboration or contradiction. Once, defence
failed to contradict, then in that event, the court cannot infer
adverse on the basis of such statement. Then it has been
submitted that from the evidence on the record much less that of
PW-5, the victim, it is apparent that she had given minute to
minute details as to how she was made captive during the
intervening period and was ravished repeatedly against her will
putting her in a hapless condition by way of tying her hands as
well as legs. Consequent thereupon, the judgment of conviction
and order of sentence recorded by the learned lower court is fit
to be confirmed.
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9. From the record, it is evident that PWs-1, 3, 6
have not supported the case of the prosecution in toto and so,
they were declared hostile. PW-2 was partly hostile to the
prosecution relating to accused, Niraj and Sanjive (since
acquitted) but, he has deposed against the appellant, Sahabuddin
claiming himself to be an eyewitness while carrying the victim
over a scooter. PW-4 is mother who was not present at the time
of occurrence. She came after having been informed regarding
the incident while staying at Rourkela and so, her evidence
happens to be that of hearsay category. Informant, Brishpati
Singh has not been examined as he died. PWs-7 and 8 are
doctors who have examined the victim and estimated her age to
be in between 17-19 years. As she was married, so other
findings confined to the factum of rape is not at all found
properly opined save and except that on the date of examination
i.e. on 13.05.2008, she was carrying pregnancy of about 9
weeks 4 days. The date of occurrence is 26.02.2008 and so, the
pregnancy happens to be on account of sexual indulgence
during intervening period. PW-9 is the I.O.. So in the aforesaid
facts and circumstances of the case, it is evidence of the victim
which has got primacy.
10. It is needless to say that the evidence of the
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victim of rape is to be accepted in ordinary course of nature as
well as did not require corroboration unless and until, her
evidence is found unactuated, unadepted. Unadorned conduct
could be perceived from her evidence as well as from
surrounding circumstances. soaked with some other
circumstances and, which could be traced out only therefrom.
11. PW-5, during course of her evidence has
stated that the occurrence is about 8-9 months ago. At that very
time, she was at her house lying at Village-Babhandi. It was 12
Noon. She was alone at that very time. There was a knock at the
door of her house. She opened the door and saw Sahabuddin
who, all of a sudden, pounced upon her and tied her mouth, eyes
with the cloth and then, lifted her. He took her to his village-
Chapri where she was physically assaulted. He kept her for two
days and during intervening period, her hands, legs were tied
and then, she was raped. Then thereafter, she was taken to
Haldia, Kolkata. At Haldia also, her hands and legs were kept
tied in usual course. She was regularly raped by him. He had not
indulged himself with talking with her nor he allowed, nay any
opportunity was available. One day, she anyhow, got an
opportunity whereupon, she informed her mother over mobile.
Sahabuddin came and then crushed the mobile. Sahabuddin,
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apart from raping her constantly, advanced demand of Rs. 10
Lacs for her release. Sahabuddin snatched away all the
ornaments and after selling the same, possessed the sale
proceed. No other person was along with Sahabuddin. As
disclosed by her, her mother came at Haldia along with police
personnel whereupon,she was rescued. Then thereafter, she was
medically examined. She was examined under Section 164
CrPC and exhibited her signature (exhibited). Her statement was
also recorded by the police. Her attention has been drawn
towards her statement relating to accused Niraj and Sanjiv by
the prosecution. Identified the accused, Sahabuddin in the dock
while declined to identify Niraj and Sanjiv (since acquitted).
During cross-examination at para-16, she has stated that on the
date of occurrence, she was at her house. She occasionally
visited her village. At para-17, she has stated that her marriage
was solemnized about 2 ½ years prior to the occurrence. She
was residing at Orissa where her father was running a grocery
shop. She has two brothers and two sisters. All were residing at
Orissa. At para-18, she has stated that she was residing at the
village, 2-4 days prior to the occurrence. She was alone with her
father. As she was not residing at her Village frequently, on
account thereof, she was not knowing the villagers. In para-19,
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she has stated that when the accused had lifted her, she
attempted to shout but, as her mouth was gagged, her voice
could not come out from her mouth. She was taken away over a
vehicle but she is unable to disclose the type of vehicle. She was
directly taken to the house by the accused. In para-20, she has
stated that she was not intimate with Sahabuddin even at Orissa.
In para-21, she has stated that she is unable to say in whose
house, Sahabuddin used to stay at his village. In para-22, she
has stated that she is unable to say whether any certificate
relating to her marriage with Sahabuddin was ever prepared. In
para-23, she has stated that she had seen the house of
Sahabuddin for the first time after her kidnapping. At para-24,
she has stated that she begotten a daughter about a year ago who
died subsequently. She has further stated that, for the present,
she is residing at Rourkela. At para-25, she has stated that she is
unable to disclose the date, time on which date, police had
recorded her statement. Then has stated that she had not made
statement before the police. Then she has stated that she had
made statement before the court once prior to the present
statement. She has further stated that whatever been stated by
her at an earlier occasion, the same has been reiterated at the
present moment. Then she denied the suggestion that no such
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kind of occurrence has taken place. Accused has falsely been
implicated in this case.
12. PW-4 is the mother. She, during course of
her examination-in-chief has deposed that the victim (name
withheld) is her daughter. The occurrence is of about nine
months ago. At that very time, the victim was residing at her
Village-Babhandi. Sahabuddin kidnapped her. At that very time,
she was not present at her house. She was at Rourkela. No other
person was involved during course of aforesaid occurrence. She
came to know that Sahabuddin used to keep her daughter
confined in a room, did not provide food and kept in Bengal,
sold away her ornaments, raped her. None other was along with
Sahabuddin. Her statement was not recorded by the police and
then thereafter, she was declared hostile relating to Niraj and
Sanjiv and paragraphs-4, 5, 6, happens to be the previous
statement of this witness which has been confronted to her.
Para-7, 8, 9 and 10 is the cross-examination having on behalf of
Niraj and Sanjiv while no cross-examination has been at the end
of Sahabuddin.
13. PW-9 is the I.O. During his examination-in-
chief has stated that on 12.03.2008, he was ASI posted at
Aurangabad Mufassil Police Station. On that day, he was
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entrusted with the investigation of Aurangabad (M) PS Case No.
44/2008 which was based upon written report submitted by
Brishpati Singh (Then exhibited relevant documents). He
proceeded with investigation and during course thereof, he
recorded further statement of the informant. He inspected the
place of occurrence which happens to be the house of the
informant lying at village-Babhandi. Then has detailed the
same. Shown the boundary as North-Road, South-land of
Ramnandan Singh, East-land of Jagarnath Singh, West-house of
Ramnandan Singh. Then recorded statement of witnesses,
Premshila, Binod Singh, Haribansh Singh, Rambilas Singh and
Ravi Kumar. During course of investigation, he was informed
that the victim has been kept at Mednipur. For recovery of the
victim, he took permission from DIG, gone to Mednipur where
he apprehended the victim as well as the kidnapper, Sahabuddin.
Then thereafter, he carried both of them to police station after
taking permission from the CJM, Mednipur. Then the victim
was medically examined, produced before the Magistrate for her
statement under Section 164 CrPC and then, as per wish of the
victim, she was handed over to her parents, received supervision
note. Arrested co-accused, Niraj Sah. From record, it transpires
that Sanjiv had already surrendered before the court. Then after
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completing investigation, submitted charge-sheet. During cross-
examination at the end of Sahabuddin at para-3, he has stated
that further statement of the informant was recorded at the
police station. He had not mentioned time with regard to
inspection of the place of occurrence, examination of the
witnesses. He has further stated that he had not inquired from
the persons of the locality with regard to character of the victim.
Victim was married but, he had not recorded statement of her
husband, father-in-law, mother-in-law. He has further stated that
he had not mentioned in the case diary that at the time of
conduction of raid, mother of the victim was along with them.
The place wherefrom, the victim as well as accused was
recovered is the house of Sasuralwala of brother of accused. He
had not found anybody at that very moment. He had not
recorded statement of anybody. He was joined by the local
police (Pachpura Police Station). There was no protest. First of
all, the accused as well as victim were taken to Pachpura Police
Station on 07.05.2008 at about 1.30 PM. He had not seized any
mobile nor he inquired about the mobile from the victim. He
had not inquired whether the victim used to talk over mobile
with anybody or not. He had not inquired about the scooter as
there was no disclosure with regard to its registration number.
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He had not inquired from the accused regarding the scooter. At
para-14, he has stated that on an information having received by
him based upon statement of witness, he had gone to West
Bengal. The victim has talked with her mother which her mother
had disclosed to him whereupon, he got positive information
regarding presence of victim at Haldia. First of all, he had
approached Pachpura Police Station. Mother of victim was
along with them and then thereafter, victim as well as accused
were apprehended. At that very time, he had not recorded
statement of the victim. At para-15, he has stated that he had not
recorded statement of victim rather, he had produced the victim
before the Magistrate for statement recorded under Section 164
CrPC. The victim was brought to Aurangabad on 11.05.2008.
He had not investigated whether there was love and affection
amongst the victim and Sahabuddin. Then there happens to be
cross-examination at the end of Niraj and Sanjiv under para-7
and 8.
14. From the statement recorded under Section
313 of the CrPC, the appellant/accused has not claimed that the
victim was major and she voluntarily, joined his company and
enjoyed the same, marriage was solemnized in between them. It
is needless to say that save and except under Special Marriage
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Act, marriage of a Muslim with a lady belonging to other
religion is null and void in the eye of law. Apart from this, had
there been positive assertion at the end of the appellant that
victim being major, to each other, were well acquainted, having
been affectionate towards each other, joined hands voluntarily,
accompanied voluntarily, married as per SectionSpecial Marriage Act,
duly suggested and substantiated, would have composite
repercussion against the allegation having so levelled at the end
of prosecution. In likewise manner, had there been cross-
examination, at the end of the appellant or any other kind of
exposure that from her house, the victim accompanied him to
Haldia through train or bus, that means to say, presence of both
of them at different places having every opportunity available
before the victim to resist, asked for help not only from police
official rather an individual in order to suggest that had she been
kidnapped, then in that event, passing through different places
was not at all possible. In likewise manner, even during course
of cross-examination to victim, even ignoring the fact that she
was not at all confronted with some relevant parts which she
stated during course of statement under Section 164 CrPC, she
should have been cross-examined that at the places, where she
was residing along with Sahabuddin (appellant), she had full
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opportunity of access to outside without any restriction and in
likewise manner, there should have been cross-examination that
the house which was being occupied by them were also
occupied by so many other persons and she had frequent talks
with them. In likewise manner, the I.O. should have been also
cross-examined on that very score, at least when he
apprehended the accused and the victim, they were having
uninterrupted physical movement. When the evidence has come
up that victim had talked with her mother and then her mobile
was crushed by the appellant, her mother had accompanied the
police to Haldia, then in that circumstance, PW-4 would have
been cross-examined on that very score. So, in order to
controvert the allegation of PW-5, victim that she was confined
at the place, Haldia having her hands and legs duly tied and was
frequently subjected to rape in such condition, would have been
challenged by way of proper cross-examination which could
have also revealed that she was a consenting party, whereupon,
no offence could have been made out but, the non-cross-
examination at the end of the appellant has completely changed
the scenario whereupon, the allegation whatsoever at the end of
victim remained intact.
15. In Gian Chand others v. State of Haryana
Patna High Court CR. APP (SJ) No.689 of 2016 dt.07-11-2019
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reported in 2013(4) PLJR 7 (SC) it has been held:-
11. The effect of not cross-examining a witness
on a particular fact/circumstance has been dealt with
and explained by this Court in Laxmibai (Dead)
Thr. SectionL.Rs. Anr. v. Bhagwanthuva (Dead) Thr.
L.Rs. Ors., AIR 2013 SC 1204 observing as
under:
“31. Furthermore, there cannot be any
dispute with respect to the settled legal proposition,
that if a party wishes to raise any doubt as regards
the correctness of the statement of a witness, the
said witness must be given an opportunity to
explain his statement by drawing his attention to that
part of it, which has been objected to by the other
party, as being untrue. Without this, it is not
possible to impeach his credibility. Such a law has
been advanced in view of the statutory provisions
enshrined in Section 138 of the Evidence Act, 1872,
which enable the opposite party to cross-examine a
witness as regards information tendered in evidence
by him during his initial examination in chief, and the
scope of this provision stands enlarged by Section 146
of the Evidence Act, which permits a witness to be
questioned, inter-alia, in order to test his veracity.
Thereafter, the unchallenged part of his evidence is
to be relied upon, for the reason that it is
impossible for the witness to explain or elaborate
upon any doubts as regards the same, in the absence
of questions put to him with respect to the
circumstances which indicate that the version of
events provided by him, is not fit to be believed, and
the witness himself, is unworthy of credit. Thus, if a
party intends to impeach a witness, he must
provide adequate opportunity to the witness in the
witness box, to give a full and proper explanation.
The same is essential to ensure fair play and fairness
in dealing with witnesses.”
16. As a result of which, instant appeal sans
merit and is accordingly, dismissed. Appellant is under custody
wherein, he will remain till saturation of the sentence so
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(Aditya Kumar Trivedi, J)
perwez
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 14/11/2019
Transmission Date 14/11/2019
