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Sahabuddin Khan vs The State Of Bihar on 7 November, 2019

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
Patna High Court CR. APP (SJ) No.689 of 2016 dt.07-11-2019
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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
Patna High Court CR. APP (SJ) No.689 of 2016 dt.07-11-2019
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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
Patna High Court CR. APP (SJ) No.689 of 2016 dt.07-11-2019
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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
Patna High Court CR. APP (SJ) No.689 of 2016 dt.07-11-2019
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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
Patna High Court CR. APP (SJ) No.689 of 2016 dt.07-11-2019
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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
Patna High Court CR. APP (SJ) No.689 of 2016 dt.07-11-2019
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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.
Patna High Court CR. APP (SJ) No.689 of 2016 dt.07-11-2019
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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
Patna High Court CR. APP (SJ) No.689 of 2016 dt.07-11-2019
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inflicted by the learned lower court.

(Aditya Kumar Trivedi, J)
perwez
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 14/11/2019
Transmission Date 14/11/2019

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