Patna High Court
Sk. Firoz vs State Of Bihar on 10 April, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.157 of 2008
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Sk. Firoz, son of Sk. Harun, resident of village Jawakatiya, P.S. Majhauliya,
District- West Champaran
... ... Appellant/s
Versus
State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Ravi Bhardawaj, Amicus Curie
For the Respondent/s : Mr. A.M.P. Mehta, APP
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CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND
MALVIYA
ORAL JUDGMENT
Date: 10-04-2025
Heard Mr. Ravi Bhardwaj, Amicus Curiae for the
appellant, and Mr. A.M.P. Mehta, learned APP for the State.
2. The appellant has been convicted under
Section 366 and 376 Indian Penal Code by the Judgment dated
17.12.2007
and Sentence of order dated 19.12.2007 passed by
the learned Additional District Judge F.T.C. IInd Bettiah (West
Champaran) in Sessions Trial No. 264 of 2001 and sentenced to
undergo rigorous imprisonment of 10 years in each sentence and
also sentenced to fine of Rs. 10,000/- (ten thousand rupees). The
sentences were directed to run concurrently.
3. The prosecution case is that the informant
namely Sk. Mustak filed a Written report to the Superintendent
of police of West Champaran (Bettiah) on 08.07.1998 stating
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therein that he used to work in the house of Sk. Haroon for the
last 6 years. During that period Sk. Haroon’s son Sk. Firoz
enticed his daughter Kaushar Johan aged about 18 years and
established illicit relations with her and thereby made her
pregnant. The informant inquired about the matter but the
accused persons threatened to kill the informant. He further
alleged that on 05.07.1998 accused Sk. Firoz abducted the girl
and took her away. He further alleged that on the same day all
the accused persons kidnapped the informant from Jawakatiya
Village and took him away to Village Lal Saraiya and confined
him in a room and brutally assaulted him threatening that if he
would talk about the alleged relationship between the victim girl
and the accused Sk. Firoz, he would be killed. The police
investigated the case and after completing the investigation
submitted Charge-sheet against the appellant and other accused
persons. The case was committed to the Court of Sessions and
the same was pending in the Court of the learned Additional
District Judge F.T.C. IInd Bettiah (West Champaran) as Sessions
Trial No.264 of 2001 (State Versus Sk. Firoz and others) for
Trial.
4. During the course of trial the Prosecution
altogether examined 7 prosecution witnesses: PW-1 Sk. Choukat
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(Co-Villager), PW-2- Sarman Nesha (Mother of the Victim).
PW-3- Sk. Mustak Ahmad (Informant), PW-4 Sk. Akhtar (Co-
Villager), PW-5 Kaushar Jahan (Victim), PW-6 Md. Mazid and
PW-7 Ram Pyare Ram (IO). On the other hand, the defence
produced one witness- DW-1, Ram Babu Tripathi (Judicial
Magistrate who recorded victim’s statement under Section 164
Cr.P.C.).
5. PW-1 stated in his examination-in-chief that
the occurrence took place at 7:30 PM on 05.07.1998 on Sunday.
He stated that Sk. Haroon, Sk. Javed, Sk. Saral, Sk. Feroz, Sk.
Johar, Sk. Noordasar and Sk. Shamsheralam kidnapped the
victim (PW-5) and forcefully caused her to abort the child she
was carrying. He stated that the victim (PW-5) used to work at
the house of Sk. Mustaq, Sk. Haroon. During this time, she had
an illicit relationship with the son of Sk. Haroon, i.e. Sk. Firoz
and she became pregnant, for which a panchayat was held in the
village. He further stated that he was informed of the
miscarriage by the villagers. He further stated that the
accused/appellant brought the informant to Sk. Rauf’s place and
confined him in a room for two days and kept him hanging
upside down where the appellant along with other accused
persos assaulted the informant. He stated that after that he and
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other villagers freed the informant, Mustaq.
5.i. In his cross-examination, PW-1 stated that at
the time of the incident the age of the victim was 12-13 years.
He further stated that in the Panchayat that was held, there was
no Maulvi or Panch. The members of the Panch did not do any
investigation. He stated that before the Panchayat it was proved
that Sk. Haroon had caused the miscarriage of the victim and the
matter of abortion was proved to be true. He further stated that
apart from the assault on the informant, he did not see any
occurrence and his evidence was based on hearsay.
6. PW-2 is the wife of the informant. In her
examination-in-chief she stated that her husband, the informant
used to work at Sk. Haroon’s place and in the course of the
same, her daughter used to visit the accused/appellant’s house
regularly. During this time, Sk. Firoz established physical
relations with her daughter because of which she became
pregnant. She stated that when she complained to Sk. Haroon,
the father of accused/appellant, the accused came to her door
with a gun and tied her husband’s mouth and took him to the
garden of Sk. Rauf in Lal Taraiya, where he along with others
tied his hands and hung him upside down and then hit him with
a stick on the sole of his feet. She stated that the villagers freed
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her husband after three days.
6.i. During cross-examination, PW-2 stated that
at the time of the abortion, her daughter was not with her. In
Para-9 of her cross-examination she stated that her daughter, the
victim did not lodge the FIR after the accused/appellant aborted
her child. She further stated in Para-11 of her cross-examination
that injuries on her husband were examined by a doctor in
Majhaulia hospital.
7. PW-3, Sk. Mustaq is the informant of the case.
In his examination-in-chief he stated that accused/appellant Sk.
Feroz kidnapped his daughter and when he inquired about the
same, Sk. Haroon, Sk. Javed, Sk. Saral, Sk. Feroz (appellant),
Sk. Johar, Sk. Noordasar and Sk. Shamsher Alam threatened to
kill him if he told anyone about the kidnapping. He stated that
on the same day the accused came to his house with lathi, bhala
and guns and took him away to Lal Saraiya where they tied him
upside down from a tree in Sk. Rauf’s garden and hit him with a
stick on the sole of his feet. He stated that they kept him tied for
four days. He stated that his daughter, the victim used to work at
Sk. Feroz’s house and in the course of the same, the
accused/appellant Sk. Feroz established illicit relations with her
under the false promise of marriage. He stated that he continued
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to do so for a year and thereby made his daughter pregnant. He
stated that when his daughter informed the accused/appellant
about the pregnancy he took her to Bettiah to abort the child.
PW-3 further stated that his daughter came back to her home
from the accused/appellant’s house three years before the date
of deposition.
7.i. In Para-10 and 11 of his cross-examination,
PW-3 stated that at the time of the occurrence, his daughter was
12-13 years of age and that he was informed of her pregnancy
from PW-2, his wife. He also stated that after being informed of
her pregnancy he did not have his daughter examined. In Para-
12 he stated that he did not file any case of kidnapping of his
daughter. The informant was throughout aware of the alleged
illicit acts by the accused/appellant but even then he did not
lodge an FIR. In Para-15 he stated that he was assaulted by the
accused. He further stated that after being informed of his
daughter’s abortion, he did not lodge any FIR. In Para-16 he
stated he stated that the police at Majhaulia P.S. did his medical
examination in which they recorded injuries on his body. In
Para-17 he stated that at the time when he was assaulted PW-1
was present. Further in Para-19 he stated that the he did not
know whether the police conducted a medical examination of
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his daughter or not and neither was he aware if the S.P. recorded
the statement of his daughter. In Para-22 he stated that his
daughter was living with him for three years and before that for
6 years she lived with the accused/appellants.
8. PW-4, Sk. Akhtar was declared hostile by the
prosecution as he denied having any knowledge about the
occurrence.
9. PW-5, Kaushar Jahan is the victim in the
instant case and she stated in her examination-in-chief that the
accused Sk. Feroz kidnapped her from her house. She stated that
since two years before the incident her father used to work at the
house of the accused/appellant and during that time she used to
visit the house of the accused/appellant along with her father.
The accused Sk. Feroz had raped her and when she complained,
he gave her a false promise of marriage. Thus, by luring her
with the promise to marry, he kept establishing illicit
relationship with her and raping her continuously for a year due
to which she became pregnant and when her parents came to
know about this, her father went to Sk. Haroon’s house to
complain. At Sk. Haroon’s place there were Sk. Saral, Sk.
Amanullah, Sk. Johar, Sk. Javed, Sk. Navsoor and Sk. Haroon
who threatened her father with assault and then the
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accused/appellant took her to Dr. Nirmala Gupta’s place in
Bettiah and got her abortion done. When her father, PW-3 went
to the accused/appellant’s place to ask about the matter, all the
accused kept her father locked up for four days and beat him.
9.i. During her cross-examination, PW-5 stated
that she did not remember when the inspector had recorded her
statement. In Para-15 she stated that she had the abortion when
she was 8 months pregnant. In Para-16 she stated that no
Panchayat was held after her abortion. She further stated that
police did not conduct any medical examination of her and
neither did her father, PW-3 conduct any medical examination
of her. In Para-17 she stated that she did not make any
complaint to the S.P. and neither did she file any case against the
accused/appellant.
10. PW-6, Md. Mazid, Advocate Clerk is a
formal witness who only proved the contents of the FIR.
11. PW-7, Ram Pyare Ram is the second
Investigating Officer in the instant case. He stated in his
examination-in-chief that he did not examine any of the
prosecution witnesses and neither did he inspect the place of
occurrence. He stated that he only submitted the charge-sheet.
12. DW-1, Ram Babu Tripathi is the Judicial
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Magistrate who recorded the statement of the victim (PW-5)
under Section 164 of the Cr.P.C.
13. Learned counsel for the appellant submitted
that firstly, there was an unexplained delay in lodging of the
FIR. The informant was well aware of the kidnapping of PW-5
which took place on 05.07. 1998 and yet he filed the FIR on
08.07.1998. PW-5 (victim) herself stated that she was living
with the accused/appellant for over a year when the appellant
was having an illicit relationship with her and thereby became
pregnant. When the informant confronted the accused/appellant
he was allegedly threatened by him but the informant still did
not lodge an FIR. Secondly, the doctor who is said to have done
the abortion of PW-5 has not been examined and no evidence
has been produced by the prosecution to show that abortion was
done. He further submitted that there is no proof of pregnancy
of victim girl apart from oral testimony of the victim and her
family members. The doctor, namely Dr. Nirmala Gupta who
allegedly conducted the abortion has not been examined. No
medical report has been produced by the prosecution to show
that she was pregnant. Thirdly, learned counsel submitted that
there is no injury report on record to support PW-3’s statement
that he was assaulted and that there was injury on the person of
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the informant. Further there are no eye-witnesses to the alleged
assault on the informant. Fourthly, no independent witnesses
have been examined in support of the prosecution case. Fifthly,
the statement of PW-5 (victim) under Section 164 Cr.P.C. does
not show any allegation against the accused’ side. Learned
counsel further stated that in Para-5 of his cross-examination,
PW-3 stated that his daughter came back home three years
before the date of recording of his statement. The statement of
PW-3 was recorded in 2004 therefore PW-3 admitted that his
daughter came back in 2001 which means that even after
lodging the FIR in the year 1998, the victim was staying at
accused/appellant’s house for three years.
14. On the other hand, learned Additional Public
Prosecutor has vehemently opposed this appeal and submitted
that there is direct allegation against the present appellant, for
kidnapping the informant and raping the victim PW-5. In view
of the aforesaid statements and the evidence on record, learned
trial Court has rightly convicted the appellants and the present
appeal should not be entertained.
15. At this stage, I would like to appreciate the
relevant extract of entire evidence led by the prosecution before
the Trial Court.
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16. Having perused the FIR, statement of the
witnesses and materials available on record and after
considering the submissions made by the learned counsels for
the respective parties, it is seen that in the instant case out of the
seven witnesses presented by the prosecution, none of the
witnesses are independent. PW-4 the sole independent witness
turned hostile. It is further observed that the FIR was lodged on
08.07.1998 whereas the incident occurred on 05.07.1998.
Moreover as per the statement of PW-3 (victim), her
relationship with the accused/appellant was going on for a year
but no FIR was lodged for the alleged offence of rape. PW-2,
the mother of the victim admitted in Para-9 of her cross-
examination that the victim did not lodge the FIR after the
accused/appellant aborted her child. She further stated in Para-
11 of her cross-examination that injuries were examined by
doctor in Majhaulia hospital but no injury report has been
brought on record. On perusal of the records it is further clear
that the prosecution has not presented any evidence to show that
the victim was pregnant and neither any medical report has been
filed to show that there was termination of pregnancy. PW-5
named the doctor who did her abortion, but the doctor has also
not been examined by the prosecution. There is no prove of
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illicit relationship or alleged pregnancy or even abortion of PW-
5. The statement of PW-3 (informant) that he was tied by his
legs upside down and assaulted on his feet is also not supported
by any documentary or oral evidence. PW-2 who supported the
incident of assault was not an eye-witness and hence her
statement is not cogent evidence. PW-5 gave her statement
under Section 164 Cr.P.C. but the same does not reveal any
allegation against the accused/appellant. It is further observed
that there is contradiction in the statement of the PW-3
(informant) given before the Court and the FIR with respect to
the age of the victim. In the FIR he stated that his daughter was
18 years of age at the time of occurrence but in his statement
before the Court he stated that his daughter is 12-13 years of
age. In Para-5 of his cross-examination, PW-3 stated that his
daughter came back home three years before the date of
recording of his statement. The statement of PW-3 was recorded
in 2004 therefore PW-3 admitted that his daughter came back in
2001 which means that even after lodging the FIR in the year
1998, the victim was staying at accused/appellant’s house for
three years.
17. Thus, in light of the above discussion, it is
clear that the prosecution has failed to produce any cogent
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evidence which would establish the offences alleged to have
been committed by the appellant beyond shadow of all
reasonable doubt. In such circumstances, it would not be proper
to uphold the order of conviction of the appellant/accused.
18. In view of the above, the judgment of
conviction dated 17.12.2007 and order of sentence dated
19.12.2007 by the learned Additional District Judge F.T.C. IInd
Bettiah (West Champaran) in Sessions Trial No. 264 of 2001
arising out of Majhaulia P.S. Case No. 149 of 1998, GR No.
1380 of 1998 is set aside and the appellant is acquitted of all the
charges leveled against him. The appellant is set at liberty if in
custody. Bail bond executed, if any, shall stand canceled.
19. Before parting with this appeal, Secretary,
Patna High Court Legal Services Committee is directed to pay
Rs. 5,000/- (five thousand) to the learned Amicus Curiae,
namely, Mr. Ravi Bhardwaj towards honorarium for assisting
this Court in the present appeal.
20. Let a copy of first and last page of this
judgment be handed over to the advocate Mr. Ravi Bhardwaj,
learned Amicus Curiae and Office is directed to proceed further
in granting honorarium to him which is to be paid by Patna High
Court Legal Services Committee.
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21. Accordingly, this appeal is allowed.
(Ramesh Chand Malviya, J)
Brajesh Kumar/-
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