CRIMINAL APPEAL No.74 OF 1993 (Against the judgment of conviction and order of sentence dated 15.3.2003 passed by Sri Bishwanath Prasad Singh, the 2nd Additional Sessions Judge, Darbhanga in Sessions Trial No.7 of 1990). ---------- HARUN RASHID---------------------------------------------------------------APPELLANT. Versus THE STATE OF BIHAR---------------------------------------------------RESPONDENT. -------- For the Appellant : M/s. Barun Kumar Choudhary and Prashant Kumar Jha, Advocates. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For the informant : Mr. K.C.K. Sinha, Advocate. -------- P R E S E N T THE HON'BLE MR. JUSTICE ABHIJIT SINHA Abhijit Sinha,J: This appeal has been preferred by the appellants under Section 374(2) Cr.P.C. against the judgment of conviction and order of sentence dated 15.3.1993 passed by Sri Bishwanath Prasad Singh, the erstwhile Additional Sessions Judge-II, Darbhanga, in Sessions Trial No.7 of 1990, arising out of Darbhanga (Town) P.S.Case No.125 of 1989. By the aforesaid judgment and order the appellant has been convicted under Sections 363/120-B, 366/114 and 372 I.P.C. and sentenced under Sections 366/114 and 372 I.P.C. to undergo rigorous imprisonment for 7 years under each count which were to run concurrently. However, no separate sentence was passed in connection with the conviction under Sections 363 and 120-B I.P.C. 2. The prosecution case as per the written report (Ext.5) - 2 - submitted by one Mahavir Prasad Tekriwal is that his daughter Meena Kumari alias Tingu , aged about 15 years and a student of Class-IX-B had left the house for school at around 10 A.M. on 26.8.1989 and did not return till 2 P.M. when the school hours were till 1.30 P.M. The anxious family members on enquiry from the school staff learnt that she had not gone to school on that day. Inquiries and searches for her at the houses of the neighbours and relatives proved fruitless whereupon the informant lodged a sanha entry (Ext.2/2) in the police station wherein he did not express his suspicion against any one but a prayer was made for search and recovery of the girl. A photograph of the girl was also annexed with the sanha. It is further stated that on further inquiry they came to learn that she was last seen with Narain Sahni on the way near the Tower Chowk, Darbhanga and since then she has been traceless. The informant expressed his apprehension/suspicion that his minor daughter had been kidnapped with ulterior motive since Narain Sahni from earlier occasions was given to tease her. It is also alleged that Narain Sahni had come with 2-3 other persons to Masraf Bazar Chowk for a couple of minutes and as soon as the informant’s son stopped him he ran away. The names of the companions of Narain subsequently came to be known as Ram Pukar Ram and Umesh Sahni. Accordingly, on the basis of the information supplied by the informant Town P.S. Case came to be registered and a formal F.I.R.. was drawn up under Sections 363 and 366 I.P.C. against Narain Sahni. The further prosecution case is that one Narain Agrawal - 3 - runs his General Store in the name and style of “Bandana General Stores” near Tower Chowk which lies enroute the house of the informant and the school attended by his daughter and this Narain Agrawal claimed to have seen the girl going to school with a boy whom he could not identify. However, when photographs, including that of the present appellant which was found kept in one of the copies of the victim, were shown to Narain Agrawal he identified the photograph of the present appellant as the one which resembled with the boy accompanying Meena Kumari. On information given by Narain Agrawal, the informant went to village Bajitpur, the home village of the present appellant where he narrated the entire story to the uncle of the present appellant, Md. Issa, and requested him to persuade the present appellant to come to Darbhanga for identification by Narain Agrawal. The present appellant was interrogated by his uncle but he refused to come to Darbhanga for identification. The informant came back to Darbhanga suspecting that it was Harun Rashid who had a hand in the kidnapping of his daughter. The informant then filed a further written report of further discovery of facts to the Officer Incharge (Ext.6) which was endorsed to the Investigating Officer of the case vide Ext. 7. 3. It appears that the present appellant Harun Rashid was arrested on 9.9.1989 at Urdu Bazar and was produced before the learned Chief Judicial Magistrate, Darbhanga on 10.9.1989 and on 11.9.1989 in course of interrogation he stated to the Investigating Officer that on 26.8.1989 he had sent Meena Kumari with accused - 4 - accused Safi Ahmad Khan to Bombay and that they were staying in Saroj Lodge at Goregaon and also divulged the telephone number of the hotel. The Investigating Officer is said to have informed the Superintendent of Police, Darbhanga, about the disclosure on which the latter asked the Investigating Officer to go to Bombay on 11.9.1989 and also sent a wireless message to the Assistant Commissioner of Police, Criminal Branch, Bombay, on 12.9.1989. It is said that Ajit Sawant (P.W.6), S.I. , Crime Branch, Bombay, alongwith police personnel reached Saroj Lodge on 12.9.1989 and therefrom arrested Safi Ahmad Khan and recovered Meena Kumari from room No.113. On 13.9.1989, the Investigating Officer reached Bombay and contacted the Assistant Commissioner of Police and inspected room No.113 where he recovered and seized the articles belonging to the girl as also of accused Safi Ahmad Khan vide seizure list (Ext.8). He took charge of Meena Kumari and Safi Ahmad Khan at Bombay and brought them back to Darbhanga on 18.9.1989. Meena Kumari was examined by the Inspector of Police (P.W.5) in presence of the Investigating Officer on 29.9.1989. Meena Kumari’s statement under Section 164 Cr.P.C. (Ext.9) was recorded by Sri V.P. Mishra, Judicial Magistrate, First Class, Darbhanga and on 20.9.1989 she was examined by Dr. V.C.S, Verma (P.W.8) and as per his report (Ext.3) she was aged about 14-15 years. 4. Assailing the impugned judgment and order, the learned counsel for the appellant submitted that notwithstanding all materials on record standing in favour of the appellant, the learned Trial Judge - 5 - had erroneously convicted the appellant. 5. It was submitted on behalf of the appellant that the trial court had erred in law in holding the victim girl to be a minor on the alleged date of occurrence even though the prosecution had failed to produce the school certificate of the girl in proof of her age and the trial court overlooking this major lacuna in the prosecution case on frivolous grounds. It was also submitted that in the face of the evidence available on record the learned Trial Judge had erred in holding that the appellant was responsible for kidnapping the victim and sending her to Bombay in company of Safi by placing reliance on entries made in the register seized from Suraj Rest House, Laheriasarai that too when no evidence on record that entries had been made in the register even after it had been seized by the police. In this connection, it was also submitted that the learned Trial Judge without verifying the bonafides of the alleged signature of the appellant on the register wrongly held that the signature in the register of the Rest House was that of the appellant. 6. It was next submitted that the defence of the appellant- accused was a denial of kidnapping of the girl, her entrustment to co- accused Safi by him at Suraj Rest House, his disclosure to the I.O. which ended in the recovery of the victim girl from Bombay as also his prior acquaintance with the victim, staying at the house of the informant on several occasions and allegations of kissing the girl against her will at her house during his frequent visits there. The further defence of the appellant was that there was a written agreement - 6 - for sale of land including house at Bajitpur by the informant in his favour and that of his uncle Md. Issa and in performance of their part of the contract this accused had paid the entire consideration money on different dates and thereafter the informant grew dishonest and with a view to usurp the entire amount of consideration falsely implicated this appellant in the case with the help of the police. The defence plea was that this accused had been put in possession of the property on the date of execution of Mahadnama much prior to the date of occurrence. Another plea of the defence was that the victim was entangled with Narain Sahni and she had voluntarily escaped from the guardianship of her parents with him and subsequently case was filed to grab Rs.1,25,000/- of the accused which had been paid to the informant by way of consideration for sale of the lands. 7. I have had the occasion to peruse the impugned judgment and order as also exhibits which are available on record. The learned trial court having considered the matter in detail and relying on evidence of the doctor (P.W.8) who had examined the victim after her recovery, his report which indicated that the victim was between 14- 15 years, the age disclosed by the victim in her statement under Section 164 Cr.P.C., her age as assessed by the court and other materials, the court had rightly come to a finding that the victim at the time of the occurrence was a minor. 8. The fact of the informant knowing the present appellant is not denied. However, what is sought to be denied is the allegation of his frequent visits to the house of the informant at Darbhanga. But the - 7 - evidence of P.Ws.7 and 11 and paragraph-2 of P.W.12 sets the issue at rest and supplemented by certain material facts which indicated that Harun Rashid had rented a room in Suraj Rest House on 24.8.1989 and remained there till 26.8.1989 which is the date of the occurrence and he filled up column no.1323 dated 24.8.1989 in his own pen in the Hotel Register. This entry appears to have been proved by the Manager of the Rest House (P.W.9) who also identified Harun as the person who had rented the room. The defence plea on this aspect is that the same entry is forged and for the purpose it was submitted that although the register is said to have been seized by the police on 22.9.1989, yet entries have been made therein on subsequent dates. The seizure list prepared is also criticized on the ground that the same did not contain the date and time of seizure. 9. Even if the entries in the register as alleged are forged then in the face of other materials available, the fact of forgery does not come to the rescue of the appellant. The court itself appears to have compared the writing and signature of Harun in the Rest House register with his signature in the ordersheet and has come to the conclusion that the writings on Ext.4 (Hotel Register) are indeed those of accused Harun Rashid. In this context, it will not be out of place to mention here that the court is an expert of all experts and if in doubt a duty is cast upon the court to compare the writings on its own and come to a definite conclusion. 10. Another fact which goes against the appellant is that it was on the basis of his disclosure to the I.O. that the victim girl was - 8 - recovered from Bombay in the company of Saft. This fact is also supported by the evidence of P.W.12, the victim, in paragraph 53 whereof it is revealed that she was handed over to Safi by Harun. 11. Even the defence plea of false implication does not appear to be founded on cogent reasons. The learned Trial Judge has discussed in detail this plea of false implication in paragraph-28 of the impugned judgment which to my mind, appears to be a correct one. 12. On a careful consideration of the matters in issue, the conviction of the appellant is confirmed on both counts and the appeal filed by him is dismissed. 13. However, as it appears , the appeal preferred by the appellant remained pending before this Court for almost 15 years and the appellant even had to face the ordeal and trauma which may have had its adverse effect not only on his mind and physique but also on the financial angle, I am of the opinion that the interest of justice will be served if the sentence pronounced by the learned Trial Judge is modified to the period already undergone. 14. In the result, the appeal is dismissed with modification in sentence as referred to above. The appellant is on bail vide order of this Court dated 7.4.1993. He is, accordingly, discharged from the liabilities of his bail bonds. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 18th day of August, 2009. Pradeep Srivastava/A.F.R.