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Judgment
Heard learned counsel for the petitioner.
Both the opposite party no.1 and 2 herein stood acquitted of the charges under Section 366,366A, 342 and 323 of the I.P.C; further opposite
party no.1 stood acquitted of the charge under Section 376 of the I.P.C while opposite party no.2 stood acquitted for the charge under Section
354 of the I.P.C by the impugned judgment dated 26.7.2006 passed in Sessions Trial No. 455 of 2002 / Sessions Trial No. 463 of 2002 by the
learned Court of Additional Sessions Judge-II, Dhanbad. Informant being aggrieved has preferred the present revision petition.
The prosecution case in brief is as under:-
Informant is the father of the victim who instituted Jorapokhar P.S. Case No. 333 of 2001 against accused Mr. Kaish @ Kamal Ahmad (
opposite party no.1) but after investigation charge-sheet was submitted against both accused ( opposite party no.1 and 2). After the cognizance
was taken, case was committed to the Court of Sessions for trial. It is alleged by the Informant that on 8.11.2001 his daughter Bulbul aged 18
years, minor boarded in a Trekker for B.S.S. Mahila College, Dhanbad to fill up her examination form at about 9 A.M. The accused Md. Kaish
and Sonu @ Asraf and one co- accused were already in the Trekker in which there was no other passenger except the Driver. When the Trekker
started moving, Asraf @ Sonu put handkerchief on Bulbul''s nose, which made her unconscious. She was kidnapped for marriage with Md. Kaish
or illicit sexual relation. After regaining her consciousness she found herself in a dark room where all three accused persons were also present. She
was threatened by the accused about reporting the incidence lest they would kill her father and brother. She was made to sign on several plain
papers under threat. Opposite Party no.1, Md. Kaish committed rape upon her while opposite party no.2, Sonu @ Asraf tried to outrage her
modesty.
After the charges were framed under the aforesaid sections, accusation was read out to the accused who pleaded not guilty and also stated that
Bulbul was major at the time of occurrence being 19 years. She had gone to Delhi with the accused persons on her free will and consent and
married Md. Kaish according to Mohammedan Law. Thereafter she returned to the house of Md. Kaish along with the accused persons.
During course of trial 8 prosecution witnesses were examined who are as follows:
P.W.1Hasnen Azmi
P.W.2 Tishar Ahmed
P.W.3 Saleha Khatoon
P.W.4 Koneme Rejri
P.W.5 Bulbul
P.W.6 Said Nisar Ahmad Sabri
P.W.7 Dr. Subrata Ghosh
P.W.8 Kamla Kant Mishra
Number of documentary evidences have also been adduced which are:-
Ext.1-Written Report
Ext.2- Medical report of Bulbul
Ext.3- Formal F.I.R
Ext.4- Statement of victim Bulbul u/s 164 Cr.P.C.
Defence has also examined two witnesses who are as follows:-
D.W.1 Kazi Abdul Wahid Khan who performed nikahnama of Bulbul and Md. Kaish
D.W.2 Md. Jainul Khan is the relative of accused Md. Kaish Number of documentary evidences have also been adduced by the
defense which are as follows:-
1.Ext-A- writing of birthday sticker
2.Ext B- B/6- letters written by Bulbul to Kaish
3.Ext.C- Marksheet of Bulbul of Bihar Secondary Examination Board, Patna
4.Ext.D- Signature of Bulbul on marriage affidavit dated 13.11.2001.
5.Ext.E- Signature of Bulbul on Nikah Nama (Muslim Marriage Certificate)
6.Ext.F- certified copy of Nikahnama, signature of Bulbul
7.Ext.G- picture of Bulbul
8.Ext.I- muslim marriage certificate
Ext.H- declaration of victim
Ext.H/1-Entry register of muslim marriage of Kazi Abdul Wahid Khan.
Ext.J- Marksheet of Bihar Secondary Examination Board of Bulbul
Ext.K- Entry in Nikahnama register
Ext.L- certified copy of G.R. No. 151 of 2003
Ext.M- certified copy of charge-sheet of G.R. No. 151 of 2003
Ext.N- certified copy of F.I.R of G.R. Case No. 1478 of 2003
Ext.O- certified copy of charge-sheet of G.R. Case No. 1478/03
Ext.P- certified copy of Jorapokhar P.S. Case No. 124 of 2003
Ext.P- marriage affidavit
Ext-X and X/1- marriage affidavit of Md. Kaish
While the prosecution sought conviction of the accused persons under the aforesaid offence, defence sought to demolish the case of the
prosecution on the plea that not only the victim girl Bulbul was major, aged 19 years at the time of occurrence but several exhibits including the
letters written by girl clearly showed that she had been in love affair prior to the occurrence with Md. Kaish. The documentary evidence of her
marriage with Md. Kaish at Delhi and counter signature of the Sub Divisional Magistrate, Paharganj, Delhi on the certificate of the marriage was
also relied upon to show that the victim girl was a consenting party who performed Nikah on her own free will and consent. According to the
defence no evidence was there in respect of the charge under Section 354 of the I.P.C.
The learned Trial Court has discussed the case of the prosecution and the defence in detail. P.W. 1 to 5 had supported the prosecution case in
their respective deposition. P.W.5, victim girl supported the prosecution case stated through her statement given under Section 164 Cr.P.C (Ext.
4). Ext.2 Medical report, statement of P.W.8, Investigating Officer at Para 10 and Ext.C, which is mark sheet of the girl issued by the Bihar
Secondary Examination Board, Patna clearly established that she was 19 years of age at the time of occurrence. Ext. C was an unimpeachable
piece of document. The Radiologist report also described the age of the girl in Ext. 2 as 19 years . The learned Trial Court was therefore
convinced that the girl was not minor. Ext. A which is a birthday sticker on which the victim girl had signed as Mrs. Kaish and Ext. B to B/6 letters
written by her and received by the accused Mr. Kaish in jail after the occurrence, showed existence of love affairs between the two. Though the
victim girl had travelled from Dhanbad to Delhi but there was no objection or hulla raised by her during course of travel, if she was abducted. In
her statement in Para 37 and 38 of her deposition also she had stated that at the time when she was present in the house of Md. Kaish, her mother,
brother Suraj and sister Chanda were also present. She apparently had not made any hulla or objection when she was in the house of Kaish.
House of the victim girl and Md. Kaish was in front of each other separated by 2/3 houses. Learned Trial Court found that except the victim,
P.W.5 all other witnesses are hear say witnesses who heard the occurrence from her mouth only. Ext. H and H/1 are the declaration of the victim
and entry register of Muslim marriage of Kazi Abdul Wahid Khan in which she had stated that she was going to be married on her free will and
without any pressure or allurance. Ext. I the Muslim marriage certificate had a counter signature of Sri Surendra Kumar, S.D.M. Paharganj, New
Delhi. According to the case of defence also both of them had after Nikah gone before the S.D.M. Paharganj who also asked them and from the
witness D.W.1 whether she had married Md. Kaish out of her free will and consent. There were signature and thumb impression of Bulbul in Ext. I
and H/1. Learned Trial Court did not have any reason to disbelieve the statement of D.W.1 in this regard. In fact the Medical Officer, P.W.7
during his examination had also stated that the victim had narrated to him that she was married and the marriage was performed in the marriage
bureau. Learned Trial Court found that at all the places during her Nikah before Kazi Abdul Wahid Khan or before the S.D.M Paharganj or
before the Notary Public, she had never objected or raised any hulla. This led to the clear inference that she had gone with the accused out of her
free will and consent.
In the wake of such clear evidence on record, both on the point of majority and presence of free will and consent of the victim girl in going along
with the accused Kaish and entering into marriage with him, the learned Trial Court came to a firm opinion that the entire prosecution story was
doubtful upon which the accused persons could not be convicted of any of the charges levelled against them. It also observed that Formal F.I.R
dated 10.11.2001 was sent to the Court of learned Chief Judicial Magistrate, Dhanbad only on 16.11.2001 without any explanation for the delay.
We have considered the material evidence on record and also perused the impugned judgment. We have also heard learned counsel for the
petitioner at length. Upon analysis of the entire material evidence on record, we do not find any illegality or perversity in appreciation of evidence
by the learned Trial Court in the impugned judgment to interfere in the finding of acquittal in favour of the accused persons or remand the case for
retrial to the learned Trial Court.
The revision petition being devoid of any merit is accordingly dismissed.