Mehru vs State of Haryana

M.M. Punchhi, J.

Mehru, the appellant, was convicted under section 363, Indian Penal Code, by the Additional Sessions Judge Kurukshetra primarily on the testimony of Smt. Shamsheeda P.W.1, the kidnapped girl, aged about 12 years. Added thereto was the corroborative testimony of her brother Ibnu P.W.4, a child of 9 years, the only eyewitness to the crime, who after its commission reported the matter to his mother Smt. Mehbooba P.W.2. The ambit within which this appeal revolves is whether Shamsheeda is a reliable witness so as to sustain the conviction of the appellant.

The broad facts are that Shamsheeda, the daughter of Smt. Mehbhooba P.W. 2 and Behrun Ali P.W. 3.at the relevant time on 13.12.1980 were residents of Ladwaa town in Haryana. At one point of time, Ram Piari, an acquitted coaccused, was living in another portion of the same house but on the date of the occurrence was living elsewhere on 13.12.1980, Sham sheeda P.W.8. and Ibnu P.W.4 had gone out towards the side of the Grain Market to answer the call of nature and when they were coming back allegedly,the appellant along with Bundu and Shakil forcibly lifted her and took her away on a tractor before hand which Ibnu PW.4 was given slaps and made to run away. Ibnu in turn narrated the facts to his mother Mehbooba P.W.2, who in return told these facts to Behrun Ali P.W.3. The matter was neither reported on 13.12.1980 moron 14.12.1980 but ultimately was reported on 15.12.1980 on the statement of Mehbooba Sub Inspector Ram Krishan P.W.9 on 16.4.1981, while investigating the case, received secret information on the basis of which he arrested Ram Piari, acquitted coaccused. She, on interrogation, made a disclosure statement as a result of which Shamsheeda P.w.8 was recovered in a tomb near Mustafabad.At the time her of recovery, Nasru, another acquitted coaccused was found in the tomb. Nasru was arrested, as an accused. Later, Mehru, the appellant,was arrested, but when, is not clear from the statement of Ram Krishan P.W.9.

Shamsheeda P.W.8 was produced before a Magistrate four days later on 20.4.1981 for the purpose of recording her statement, Exhibit P.B., under section 164 of the code of Criminal Procedure. In her statement, there was no mention of Bundu and Shakil to be the persons who had kidnapped her. This belied the story as put in the first information report. Substitutability, she said that it was Ram Piari, acquitted coaccused, one Shamshira and Mehru appellant, who on meeting her, had told her that since her parents used to beat her and she was kept hungry, she might as well accompany them and her life would be happy. She was then stately taken to a tubewell and then to Mustafabad where she was kept for four months by the three aforesaid persons. It is on this statement of hers the prosecution was directed against the appellant and his acquitted coaccused Ram Piari and Nasru. Otherwise, but for statement, there was neither any allegation nor any other evidence since 13.12.1980 that Ram Piari and Nasru were involved in the crime.

At the trial, Exhibit P.B. was proved by Shri P.K. Goyal, Judicial Magistrate Ist Class (P.W.1) who had recorded it.

Mehbooba P.W.2 in the first information report, exhibit P.C. had laid foundation against the appellant Mehru by alleging that Mehru, Bundu and Shakil were interested in getting the marriage of her daughter Shamsheeda performed with Nuru''s son who resided at village Sambli but she had declined that offer. She had further stated therein that after the occurrence Ibnu P.W. had come home weeping and narrated to her that Shamsheeda had been abducted by Mehru, Bundu and Shakil. She struck to her statement in the first information report regarding the complicity of the kidnapers but mellowed down the insinuation by introducing that she denied the suggestion that she had married off Shamsheeda with one Mini son of Nuru of Sambli and had taken money for it and that she had refused to send her daughter, and in order to avoid the pressure of Panchayat had involved Mehru in the crime since he was instrumental in the marriage. Ibnu P.W.4 on the other hand, stated that Mehru and two other coaccused whom he did not know had taken away his sister in a trolley driven by tractor. Yet he said that all the three accused standing in the dock (whcih meant Mehru, Nasru and RAm Piari) were the three accused. Behrun Ali P.W.3, the father of Shamsheeda, revealed in crossexamination that Mehru appellant had engaged his daughter Shamsheeda earlier as a servant on monthly wages of Es. 25/ and he had pressurised him to send his daughter to her husband''s house in village Sambli.

So far as Shamsheeda p.w. 8 IS Concerned. She appeared in the witnessbox by the time when she stood married to one Kurkhan. She accused Nasru, Ram Piari and Mehru to have forcibly lifted her and to have taken her on a tractor to Mustafabad tubewell and then to a tomb at Mustafabad where she was kept for four months till the police recovered her. She was positive that she had told Ibnu, her brother, the name of three accused asking him to inform their mother with regard to her kidnaping by the three accused. However her having been taken thus forcibly was not mentioned in her statement, Exhibit P.B., and she was suitably confronted. She did admit that she served as a maid servant at the house of Mehru and since Mehru did not pay wages to her, a dispute had been raised by her parents for the purpose. The denied having ever married the son of Noor Mohammad of village Sambli.

As against his, the appellant Mehru took up the plea that Shamsheeda had been married for money to a Mohammed of village Shambli and having gone to her husband''s house once was not sent again. Further since he projected that the girl be sent to her husbands''s house, the girl was concealed by her parents and false case was foisted on him. At this stage, it woudl be useful to add that his coaccused Nasru was of seventy years of age; the appellant himself of fifty years of age and Ram Piari to be thirty years of age. It was nobody''s case that the girl was sexually abused. With regard to her marriage as set up by the defence evidence was led. Khurshid Ahmad D. W.1 the Iran of Jama Masjid, Karnal, allegedly performed the marriage so Shamsheeda with Yamin; Yusuf Ali D.W.2 in whose presence it took place & Ramajanan D.W.4 who deposed to about the marriage. The said defence evidence was rejected by the learned trial Judge finding fault with the entries in the Nikah register. No useful purpose woudl be served in reappraising that evidence to establish the defence plea. At best it could have met and that too with some difficulty, the question as to who was the guardsmen the minor, for concededly Shamsheeda was minor on the date of the alleged marriage. As mentioned at the outset, the sole question is whether the should be believed as also the other prosecution witnesses.

Mehru appellant was obviously no stranger to either Shamsheeds or her parents, for admittedly she was put in employment with Mehru. It was one of the many pitiable cases in which minor children are put in other people''s homes as servants. Thus, Mehru was not strange to Shamsheeda and it could safely be said that he was aware of her poor plight. And in this situation he being aware of the suggested marriage of Shamsheeda with a boy of Sambli cannot be said as a person indifferent to her. It is a different matter that the defence evidence is otherwise not of much value and is at best reflective of a claim of two contending parties over the personal status of Shamsheeda.

As is plain, if Shamsheeda is to be believed, the evidence against all the three accused was common that all of them forcibly lifted Shamsheeda, put her in a tractor, driving it away to a tubewell, and then to Mustafabad and again to the tomb. Yet the learned trial Judge, for good reasons recorded has acquitted Narsu and Ram Piari accused. Significantly, those two accused were identified as the accused by Itnu P.W.4 in the witnessbox Thought he had in the first instance disclaimed as of not knowing the two coaccused accompanying Mehru appellant, yet Mehbooba in the fist ii formation report had named those two accused to be Bindu and Shakil. And the motive given therein was about the proposed match of Shamsheeda with the son of Nuru. All these details reveal containable tossiring of the minds or the prosecution witnesses as to who should be taken s responsible for the abduction kidnaping. The learned trial Judge disbelieved the prosecution case with regard tot he forcible lifting of the trial on a tractor and lightly so. The learned trial Judges also observed that it was not proves on the record as for what purpose the abduction/kidnaping was done and that too rightly. Sequel on such state of evidence the learned trial Judge should have further gone on to hold that it had become doubtful on those findings to convict the appellant for offence under section 363. Indian Penal Code, all the more when the names of the accused stood changed, as also when the girl was recovered on 16.4.1980 and the statement was recorded on 204 1980, having ample time regard to the names of Nasru and Ram Piari, she could equally be tutored with regard to Mehru the appellant. In any case, all was not straight with the regard to Mehru the appellant. In any case, all was not straight with the prosecution and it must suffer for its weaknesses. Something remains surreptitious and the Court remains in the dark. In this situations, it becomes difficult to sustain the conviction appellant merely because his name figures in the first information report, Exhibit P.c., and then his name again appears in t he statement of Shamsheeda, Exhibit P.B. for doubt entertained,the appellant is entitled to his acquittal.

For the foregoing reason this appeal succeeds. The charges against the appellant fails and he is hereby acquitted.