Patna High Court
Firoz Alam @ Md.Firoz Alam vs State Of Bihar on 2 May, 2024
Author: Sunil Kumar Panwar
Bench: Sunil Kumar Panwar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.8 of 2006
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FIROZ ALAM @ MD.FIROZ ALAM, Son of Md. Jalil, Resident of Village -
Nimala Goan, Police Station- Pothia, District- Kishanganj.
... ... Appellant/s
Versus
State Of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Vipul Sinha, Amicus Curiae
For the Respondent/s : Mr. A.M.P. Mehta, APP
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CORAM: HONOURABLE MR. JUSTICE SUNIL KUMAR PANWAR
CAV JUDGMENT
Date : 02-05-2024
Heard Mr. Vipul Sinha, learned Amicus curiae on
behalf of the appellant and A.M.P. Mehta, learned APP
appearing for the state.
2. This appeal has been preferred by the appellant
being aggrieved and dissatisfied with the judgment of
conviction dt. 21.11.2005 and order of sentence dt. 23.11.2005
passed by learned Additional District & Sessions Judge, F.T.C.
No.-III, Kishanganj, in Sessions Trial Nos. 278/2003 and
88/2003, whereby and whereunder the appellant/convict was
convicted u/s 363/366/376 of the Indian Penal Code. He was
sentenced to undergo rigorous imprisonment for five years for
the charge u/s 363 of the Indian Penal Code. Further sentenced
to under go rigorous imprisonment for seven years with a fine of
Patna High Court CR. APP (SJ) No.8 of 2006 dt.02-05-2024
2/11
Rs. 3,000/- for the charge u/s 366 of the I.P.C. and in default of
fine, he sentenced to under go simple imprisonment for three
months. Further, he was sentenced to under go rigorous
imprisonment for ten years with fine of Rs. 5000/- for charge u/s
376 of the I.P.C. and in default of fine, he further sentenced to
under go rigorous imprisonment for five months. All the
sentences were directed to run concurrently.
3. The case of prosecution, in brief, is that on
10.12.2002
Anwarul Haque, Bahnoi of the informant, informed
the informant by telephonic message, who was moulvi in Delhi
that on 9.12.2002 at about 7 PM, the accused-Md. Firoz Alam
had kidnapped his sister (victim) aged about 14 years with
intention to marry her by giving allurement. On getting the said
information, the informant moved from Delhi to his village on
14.12.2002. The informant tried hard to find his sister but failed.
He came to know from the villagers that the accused-appellant
had already married twice, had a bad reputation in the society,
against whom his first wife had also filed a case of assault.
4. On the basis of written report of the informant,
an FIR was registered on 19.12.2002 as Pothia P.S. Case No.
166 of 2002 for the offence under Section 363/366 of the Indian
Penal Code. After completion of investigation, investigating
Patna High Court CR. APP (SJ) No.8 of 2006 dt.02-05-2024
officer submitted charge-sheet against the appellant/convict
under Sections 376, 363, 366 of the I.P.C. On the basis of
charge-sheet and materials available on record, cognizance for
the offence has been taken. The charge for the offence u/s 376,
363, 366 of the I.P.C. was framed against appellant and the case
was committed to the court of Sessions for its disposal.
5. The defense of the appellant/convict totally
denied from the charge leveled against him and pleaded for his
innocence.
6. The point to be considered in this appeal before
this Court is whether the prosecution has been able to prove the
charge leveled against the appellant/accused beyond the shadow
of reasonable doubt or not.
7. In order to bring home the guilt to the accused,
altogether twelve witnesses had been examined on behalf of the
prosecution, out of whom, P.W.-5, Dr. R.P. Singh, P.W.-8 Dr.
Avinash Kumar Singh and P.W.-10 Dr. Kanchan Dalmiya are
formal witnesses, who have examined the victim and submitted
medical reports, marked as Ext.1, 2 & 3. P.W.-12 S.K. Mishra,
Judicial Magistrate has recorded the statement of victim under
Section 164 of the Cr.P.C., marked as Ext.-6. The informant of
this case has not been examined as witness.
Patna High Court CR. APP (SJ) No.8 of 2006 dt.02-05-2024
8. P.W.-1 Anwarul Hque, the bahnoi of the
informant, deposed in his evidence that he gave telephonic
message about the said occurrence to the informant. He further
deposed that the appellant Md. Firoz Alam had abducted his
sister-in-law (sali) with intention to marry her forcibly after
giving allurement.
9. P.W.-2 Md. Afaque, P.W.-3 Sanahullah, P.W.-4
Md. Abbas and P.w.7 Mukhtar Alam have not supported the
case and have been declared hostile.
10. P.W.6 Medaman, mother of the victim girl
deposed in her examination-in-chief that on the date of
occurrence, accused Md. Firoz Alam came at her house and
said about a telephonic message from her son Anwar Qureshi
(informant). On the said information, she went to the house of
Azizur Rahman to talk her son but when she returned, she did
not find her daughter. She suspected that the appellant abducted
her daughter. She further deposed in cross-examination that her
daughter was recovered after twelve days of occurrence from
house of appellant Md. Firoz Alam.
11. P.W.-9 Kashimra Khatoon, is the victim of the
case who deposed in her examination-in-chief that on the
alleged date of incident, when she was sleeping in her house,
Patna High Court CR. APP (SJ) No.8 of 2006 dt.02-05-2024
the appellant-Firoz Alam entered and forcibly stuffed a cloth in
her mouth, so that she couldn't shout. The appellant took the
victim to Zainul's house and then at the same night to the house
of a person named Babul in Mangurjan police station, where he
kept her for two days and two nights and forcibly committed
rape with the victim. Thereafter, the appellant took her to house
of one Samshul in village Dora, where he kept the victim for
four days and rape her everyday. Lastly, the accused Firoz Alam
took the victim to his house where also committed rape with her
and forced her to marry but the victim always denied. The
victim further deposed that her brother Anwar Qureshi came to
the house of accused Firoz Alam along with police, where she
was recovered.
12. P.W.-5 Dr. R.P. Singh, P.W.-8 Dr. Avinash
Kumar Singh deposed that they have examined the victim girl
and found her age about 17 years. P.W.-10 Dr. Kanchan
Dalmiya has admitted that she examined the victim and gave
her opinion that it might be the case of rape.
13. P.W.-11, Bhagat Lal Mandal, is the I.O. of the
case who conducted the investigation. He deposed in his
evidence that during course of investigation, he searched the
house of the accused and recovered the victim girl, thereafter he
Patna High Court CR. APP (SJ) No.8 of 2006 dt.02-05-2024
recorded her statement in which she corroborated the said
incident. The I.O. further deposed that he took the victim girl to
Medical Hospital, Kishangaj for medical examination
thereafter, on 23.12.2002, he produced the victim before court
for recording her statement u/s 164 of the Cr.P.C.
14. Mr. Vipul Sinha, learned counsel is appointed
as Amicus Curiae for assisting the Court in this appeal who
submitted that the impugned judgment of conviction and order
of sentence passed by the trial court is bad in law. Informant of
this case has also not been examined who is important witness.
It is also submitted that the doctors P.W.-5 and P.W.-8 examined
the victim girl and found her age about 17 years who is at the
verge of attaining the age of majority. Doctors have not firmly
ascertained but have opined that rape might be committed. He
further submitted that the persons namely, Zainul, Babul and
Shamsul in whose houses, the victim girl was kept after
kidnapping, have not been examined by the prosecution.
Further, learned counsel submitted that the house of Zainul is in
the village of victim and appellant and the distance between
house of Zainul and Babul is about 2.5 Km but while the
appellant was taking to the victim, she did not raise any hulla.
The victim did not make any protest on the way while the
Patna High Court CR. APP (SJ) No.8 of 2006 dt.02-05-2024
appellant was taking her and no one saw them, whereas the
distance between Babul's house and Shamshul's house is about
8 km. It is further submitted that one witness namely, Md. Idris
has been examined as D.W.-1 who deposed that the informant
wanted to marry the victim with the accused informal way
without any ceremony to save the expenses. The accused was
also ready for the marriage but he wanted the ceremony to be
performed in the formal way according to custom and rites. The
P.Ws have made highly contradicted evidence. Moreover, the
occurrence took place on 9.12.2002 but the FIR was lodged in
delay on 19.12.2002.
15. In contra, learned APP appearing for the state
has opposed and submitted that the judgment of conviction and
order of sentence passed by the trial court is based on consistent
and cogent evidence which were produced during the trial
against the appellant. It is well established that the doctors
corroborated the prosecution case regarding rape committed by
the appellant. There is no major contradictions or discrepancies
in the evidence of witnesses.
16. After scrutinizing the evidence adduced by the
prosecution witnesses which are available on on record, the
P.W.-9 who is victim and prime witness of the case deposed in
Patna High Court CR. APP (SJ) No.8 of 2006 dt.02-05-2024
her evidence that at the time of occurrence, she was sleeping. In
the meantime, the accused Firoz Alam entered her house and
forcibly put the cloth in mouth so that she did not make hulla.
Thereafter, the appellant took the victim to Zainul's house and
then on the same night to the house of one Babul in Mangurjan
police station, where he kept her for two days and two nights
and forcibly committed rape with the victim. Thereafter, the
appellant took her to house of one Samshul in village Dora
(West Bengal), where he kept the victim for four days and
regularly committed rape with her. Again, the accused Firoz
Alam took the victim to his house where also committed rape
with her and forced her to marry but she always denied. The
brother of the informant Anwar Qureshi came to the house of
accused Firoz Alam along with police, where the victim was
recovered. The doctors as P.W.-5, 8 & 10 corroborated the
prosecution case by way of medical evidence and deposed that
there might be a possibility of rape with the victim (P.W.-9) and
her age was about 17 years. I.O. also deposed that he made
inspection of the place of occurrence and recorded the evidence
during investigation. He deposed that all witnesses stated about
the prosecution case. In this case, the prosecution has failed to
examine the informant Md. Anwar Qureshi but non-
Patna High Court CR. APP (SJ) No.8 of 2006 dt.02-05-2024
examination of the informant is not fatal to the prosecution as
the victim P.W.-9 supported the case and gave evidence in
respect of rape with her by the appellant.
16. On behalf of the Defence, D.W.1 Md. Idrish
examined who deposed that at the time of occurrence the victim
(PW-9) had gone to the house of accused on which accused
Firoz Alam told that he will not marry with her rather he will
perform marriage according to custom and rites thereafter he
informed to the bahnoi of the informant. On which, a hot
discussion was taken place between Md. Anwarul and accused.
This witness further deposed that Md. Anwarul became angry
and informed to his brother-in-law Anwar Qureshi by
telephone. On the said information, informant Anwar Qureshi
came at his home from Delhi and filed the this case. P.W.9, the
victim girl has admitted before I.O. (PW-11) as well as before
learned magistrate (PW-12) in her statement u/s 161 and 164 of
the Cr.P.C. respectively. that she did not want to marry with
accused Firoj Alam rather she wanted to live with her brother as
the appellant had already solemnized two marriages. In such a
situation, looking at the case, it appears improbable that the
victim Kashmira Khatoon (PW-9) had gone to house of
accused to perform marriage with him.
Patna High Court CR. APP (SJ) No.8 of 2006 dt.02-05-2024
17. Thus, in view of the facts and circumstances of
the case as well as the evidence as discussed above, I found no
force in the contention of defence that the victim girl
voluntarily eloped with the accused Firoz Alam and before her
recovery, stayed in the respective house of Zainul, Babul and
also in the house of the accused Firoz Alam. In this case, the
facts regarding commission of rape and the victim was a minor
at the time of the occurrence are well established by way of the
medical report as Ext. 1,2 & 3 as well as the evidence of the
victim. I am of the view that the judgment of conviction is fit
and proper and the same is based on cogent and consistent
evidence. There is no need of interference in it.
18. So far as order of sentence awarded by the trial
court is concerned, the same required some modification. In this
case, the appellant had faced ordeal of trial since beginning of
this case. The appeal relates to year of 2006. As per official
report, the appellant remained in judicial custody approximately
five years.
19. Hence, I found and hold the conviction to the
appellant u/s 363, 366 & 376 of the Indian Penal Code is proper
but keeping in mind over all views of the matter, sentence
awarded to the appellant is reduced to rigorous imprisonment
Patna High Court CR. APP (SJ) No.8 of 2006 dt.02-05-2024
for the period already undergone by the appellant as under trial
prisoner as well as a convict in connection with this case.
20. Accordingly, the instant appeal is hereby
dismissed with aforesaid modification in order of sentence.
21. Mr. Vipul Sinha, learned Amicus Curiae was
appointed to represent the appellants/accused. I put on record
the words of appreciation for able assistance rendered by him in
arriving this Court at the proper conclusion in deciding the
instant appeal. The Patna High Court, Legal Services
Committee is, hereby, directed to pay Rs. 7,000/- (rupees seven
thousand only) to Mr. Vipul Sinha.
(Sunil Kumar Panwar, J)
Amandeep/-
AFR/NAFR NAFR
CAV DATE 29.04.2024
Uploading Date 02.05.2024
Transmission Date 02.05.2024
