Jharkhand High Court
Noor Alam Momin vs State Of Bihar on 13 January, 2004
Equivalent citations: 2005CRILJ3065, 2005 CRI. L. J. 3065, 2005 AIR - JHAR. H. C. R. 1263, (2004) 1 JLJR 548, (2004) 1 EASTCRIC 443
Author: Hari Shankar Prasad
Bench: Hari Shankar Prasad
JUDGMENT Hari Shankar Prasad, J.
1. This appeal is directed against the judgment of conviction and order of sentence dated 31-5-97 passed in Sessions Case No. 513/92 whereby and whereunder the learned Sessions Judge, Sahibganj held the appellant, guilty under Sections 366, 376 and 343 IPC and convicted and sentenced him to undergo RI for 10 years under Section 366 IPC and to pay a fine of Rs. 2000/- and in default of payment to undergo RI for six months and further sentenced to undergo RI for 10 years under Section 376 IPC and to pay a fine of Rs. 2500/- and in default of payment to undergo RI for six months and further sentenced to undergo RI for two years under Section 343 IPC but sentences were directed to run concurrently.
2. Prosecution case in brief is that Milan Kumar Saha gave his written report to the Officer Incharge of Littipara Police Station on 2-6-1992 stating, inter alia, therein that his daughter was found missing from 24-5-1992 and from 24-5-1992 to 2-6-1992 he was searching for his daughter and ultimately he came to know that appellant Noor Alam Momin has kidnapped his daughter. The informant went to the house of Noor Alam but he was not found there. He searched his daughter in the houses of the relatives of the appellant but he was unable to find out. On 2-6-92 at 6 a.m. he came to know that appellant had locked his daughter in his house, then he along with his brother-in-law Charla Benjamin his wife Shakuntala Devi and his brother-in-law Victor Lal went to the house of the appellant and found his daughter locked from outside in a room of his house. His daughter Minu Kumari was crying inside the room to meet him but the appellant did not allow him and his relatives to see her and appellant became ready to assault him and then he rushed to Littipara Police Station upon which Officer Incharge of Littipara police station came to the house of the appellant and recovered his daughter Minu Kumari from the house of the appellant in presence of witness Raghubir Sahu and Charla Benjamin and signatures of the witnesses were obtained (Exts. 1 and 1/1). After recovery, the prosecutrix was sent to Pakur sub-divisional Hospital for her medical check up and on 4-4-92 Dr. Rashmi Jaiswal examined her and issued certificate (Ext.) I.O. recorded the statement of prosecutrix and submitted charge-sheet in the Court of ACJM, Pakur. After perusal of charge-sheet the learned ACJM took cognizance and committed the case to the Court of session. The learned Sesssions Judge after recording evidence of the witnesses both oral and documentary, held the appellant guilty and convicted and sentenced him as aforesaid.
3. Prosecution has examined 15 witnesses. PW 7 is Minu Kumari and she is the most important witness. She has deposed that on the alleged date of occurrence at about 3-4 a.m. she had gone to answer the call of nature where this appellant caught her by exhibiting Chhura and forcibly took her to his house and she was kept in the house for one day and appellant committed rape on her and thereafter on the next day she was taken to Pakur, where two lawyers met her and forcibly obtained her signature on some papers typed in English and she appeared before the Registrar and from there she was taken to a photographer's shop, where her photographs with the appellant was photographed and from there she was taken to the house of the appellant's father at Farakka, where rape was committed on her. She further deposed that she forcibly wrote some letters in the name of appellant and thereafter she was brought to Taljhari and at Taljhari she was kept in a room locked from the outside. Although, she was weeping at that time but by exhibiting Chhura appellant, threatened her for commission of her murder and thereafter she was much terrified and unable to speak anything to anybody, but when her father and others came then she wanted to see them but she was forced not to come out and after arrival of police she was rescued from the house of the appellant. In course of her deposition she had admitted that photographs were taken in the shop at Pakur and further that some lawyers obtained her signature on papers typed in English and she was forced to write some letters in the name of appellant.
4. PW 1 is aunty of the prosecutrix and she had supported the prosecution case. PW 2 has also supported the prosecution case. PW 3 is a witness to the recovery of the girl from the house of appellant Noor Alam and a paper was prepared and he put his signature. PW 4 is Putul Kumar Saha, he has been declared hostile. PW 5 is the informant of the case and he has supported the prosecution case and has stated the same thing which he had written in the FIR.
5. PW 6 has been tendered. PW 8 is Sakuntala Devi she is the mother of PW-7 (prosecutrix) and she has fully supported the prosecution case. PW 9 has been tendered and PW 10 is Victor Lal, he is a hearsay witness. PW 11 is a formal witness who has proved the formal FIR. PW 13 is part I.O. of the case, who took charge of the investigation of the case on 14-6-1992 and after taking over charge he submitted charge-sheet. PW 14 is Punyanand Singh who is I.O. of the case. He has come to say that he recovered the girl from the house of appellant and arrested him and prepared seizure list.
6. PW 15 is a doctor, who examined the victim girl. She says that the age of the girl was in between 18-19 years and she says that it is difficult to say about the reason of sexual assault. She did not find spermatozoa and hymen was found old ruptured.
7. On the other hand, two witnesses have been examined on behalf of the defence. DW 1 is nephew of the informant. He says that there was a strong friendship between PW 7, victim girl and the appellant and she had gone to the residence of appellant out of her own sweet will and they had entered into court marriage. He stated that Milan Kumar Saha had asked the appellant to follow the Christian religion and appellant told that he would follow his own religion and victim girl would follow her own religion. Since the appellant did not abide by the condition of PW4 then a case was lodged against him.
8. DW 2 is Subol Sah. He has also stated the same thing as DW 1 has stated.
9. On perusal of materials on record, it appears that, at about 3-4 a.m. in the night she had gone to answer the call of nature and from there at the point of Chhura appellant took her to his house situated at a distance of half km from the house of prosecutrix. She was kept in his house for one day and from there she was taken to some other place by a jeep. She went to Pakur where some lawyers came and obtained her signatures on papers typed in English and she was then taken to a photographer's shop at Pakur and photograph of both of them was taken. She has also admitted that she wrote letters to the appellant but she says that she was pressurized to write those letters. From the contents of the letters said to have been written by PW-7, it floes not appear that those letters have been written under pressure because language is such which appears to have been written after a lot of thought and through these letters a girl has expressed her feelings to her lover. Further she was taken to different places but she did not raise any alarm that she has been forcefully kidnapped and being taken to different places. Although she had opportunity to raise alarm even before the Advocates who had come to take her signature but she could not raise any alarm. It is not a case that her signatures were obtained by someone but by lawyers who were in the Court compound and she has admitted that she was taken to Court and wherefrom she went with the appellant with her own desire but due to some misunderstanding which developed later on, this case has been lodged. It is now clear from the facts that she had gone out of her free will and since she is aged more than 18 years as found by the doctor, no case as aforesaid under those sections is made out.
10. In that view of the matter, I find and hold that this appeal is fit to be allowed.
11. In the result, this appeal is allowed and judgment of conviction and order of sentence is hereby set aside. The appellant is acquitted of the charges levelled against him. The appellant is on bail, he is discharged from the liability of bail bond.