Habil Mia v. State of Tripura — 1996 DIGILAW 15 (GAU)

This is an appeal under section 374 (2) of the Criminal Procedure Code against the judgment of the learned Additional Sessions Judge, West Tripura, Agartala in Sessions Case No.45 (WT/S) of 1985, convicting the two appellants namely Habil Mia and Hariz Mia, under section 366 read with section 149, IPC with a sentence of RI for six years and a fine of Rs. 1,000/- each and in default RI for further one year and also convicting them to RI for six months each under section 323 read with section 149 IPC, all the aforesaid sentences to run concurrently. 2. The facts briefly are that a First Information Report was lodged on 24.3.82 at about 19.45 hours at the Sunamura Police Station by one Nur Ahmed alleging that at about 18.30/19.00 hours on the same day while he was in his bed in North viti hut and his daughter Hasina Khatun, aged about 15/16 years, was cooking rice in the East viti hut suddenly he heard a cry and when he opened the door and ran out he saw that Habil Mia, appellant No. 1, had caught hold of his daughter Hasina and was dragging her to the Western side of his house. Two or three persons were standing in the courtyard with lathi in their hands, whom he could not recognise. It is further alleged in the FIR that when he went running and pulled his daughter back, Hariz Mia, appellant No.2, gave him a lathi blow on his head and right hand as a consequence of which he fell down and the miscreants went away with his daughter. Thereafter, he informed the incident to the local BSF who took him to the Police Station in the vehicle. It has been further stated in the FIR that a month before the incident Habil Mia wanted to marry, his daughter Hasina but Nur Ahmed, the father of the victim girl, did not agree to the proposal and hence he came along with other persons and kidnapped his daughter Hasina. On the basis of the said FIR, a case was registered under section 148/149/447/323/366 IPC, being Sunamura PS Case No.22 (3) of 1982 and investigation was conducted and charge sheet was filed against 10 accused persons including the appellants. 3. On the basis of the said FIR, a case was registered under section 148/149/447/323/366 IPC, being Sunamura PS Case No.22 (3) of 1982 and investigation was conducted and charge sheet was filed against 10 accused persons including the appellants. 3. On receipt of the charge sheet, the SDJM, Sunamura, committeed the accused persons to the Court of Sessions for trial, Thereafter, charges were framed against the accused persons on 4.9.85 under section 366 read with 149 IPC as well as section 323 read with section 149 IPC. The accused Suraj Mia from whose house the victim girl was recovered by the police soon after the incident was further charged under section 368 IPC. During trial, 17 witnesses were examined in support of the prosecution case but no one was examined by the defend Amongst the PWs Nur Ahmed (PW 1) the informant, Akhina Khatun (PW 2) the sister of Nur Ahmed, Moiramnessa (PW 10) wife of Nur Ahmed, Hasina Khatun (PW 8), the victim girl, and Abdul Malik (PW 6) the neighbour of the informant Nur Ahmed, are all eye witnesses to the occurrence. Jalu Mia (PW 11) is the witness to the seizure of articles from the house of the informant, PW 13, is the Officer- in-charge of the Sonamura Police Station who received the FIR and Dr. Sailesh Ranjan Das (PW 4) is the doctor who examined the injuries on PW 1 and PW 2 in the occurrence, PW 17 is the Investigation Officer who conducted the investigation into the case. On the basis of the aforesaid prosecution evidence, by the impugned judgment, the learned Additional Sessions Judge, West Tripura, Agartala, convicted only the two appellants and acquitted all other accused persons on the ground that there is no evidence implicating them in the offences. 4. At the hearing of the appeal Mr.SK Laskar, learned counsel for the appellants submitted that the defence case is that the girl Hasina Khatun fled away from the house of her father and was not kidnapped by the appellants and as a matter of fact, the girl was found from the house of Suraj Mia soon after the incident and is presently happily married. He submitted that the prosecution had failed to prove that the victim girl was a minor. He submitted that the prosecution had failed to prove that the victim girl was a minor. He vehemently argued that the appellants have been falsely implicated for the various offences by the PW 1 and this would be evident from the discrepancies in the versions in the FIR and the evidence before the Court of PW 1. He argued that the eye witnesses PWs 1, 2, 6, 8 and 10 did not corroborate each other on the factual facts constituting the offence but have contradicted each other and that there is also a lot of variance in their statements under section 161 CrPC, before the police and their deposition before the Court and hence evidence is not credible. He contended that the material witnesses such as the BSF personnel to whom PW 1 reported the incident had not been examined. According to Mr. Laskar, on the basis of such doubtful evidence led by the prosecution, the Court cannot come to a definite conclusion that the two appellants were guilty of offence under section 366 and 323 read with section 149 IPC, particularly when the other accused persons have been acquitted due to the benefit of doubt. 5. In reply, Mr. S.Das, the learned Public Prosecutor, submitted that the evidence of two eye witnesses PWs 1 and 2 remained unshaken in their cross examination and have been corroborated by PW 8, the victim girl as well as PW 6, the neighbour. He also argued that there are witnesses to the seizure of the saree of the victim girl which had come off during the scuffle at the time of occurrence, the broken pieces of earthen pot which had also fallen down from the hands of the victim girl and the kupi batti with the help of which the accused persons could be identified by the eye witnesses. He also argued that PW 4, the doctor who treated the injuries of PW 1 and 2 had also proved that as a matter of ' fact PWs 1 and 2 were hurt by the accused persons in the occurrence. Thus there was ample evidence led by the prosecution to support the conviction of the two appellants. Mr. He also argued that PW 4, the doctor who treated the injuries of PW 1 and 2 had also proved that as a matter of ' fact PWs 1 and 2 were hurt by the accused persons in the occurrence. Thus there was ample evidence led by the prosecution to support the conviction of the two appellants. Mr. Das argued that even it is held that section 149 of the IPC was not applicable to the facts of the present case, the Court could still hold the two appellants guilty under section 366 and 323 read with sec.ion 34 of the IPC. 6. The defence case that the victim girl Hasina fled away from the house of her father on her own is belied by the circumstantial evidence on record. The saree of Hasina and broken pieces of earthen jiot in which rice was being cooked by her have been seized from the place of occurrence soonafter the incident. There was therefore application of force at the time of occurrence as a result of which the saree came out from the body of Hasina and the earthen pot in which she was cooking rice fell down on the ground and broke into pieces. I have no doubt in my mind that this is not a case where the girl left her house on her own. 7. In support of his contention that the prosecution has failed to prove that Hasina was a minor girl, Mr. Laskar, took; me through the evidence of doctor, PW 3, who has opined that it was not possible to ascertain the age of the victim girl at hospital where her physical examination was carried out, as there was no X-Ray facility in the said hospital and who had further opined that she should be referred to GB Hospital for radiological test. Mr. Laskar submitted that Radiological Test was never conducted on Hasina and hence the prosecution has not been able to prove beyond reasonable doubt that she was a minor. Mr. Laskar submitted that Radiological Test was never conducted on Hasina and hence the prosecution has not been able to prove beyond reasonable doubt that she was a minor. I have carefully gone through the evidence led by the prosecution with regard to age of the girl as well as the impugned judgment and I find that the learned Additional Sessions Judge while noting that radiological test ought to have been carried out on the victim girl, has relied on the evidence of PWs 1, 2 and 10 of the father, aunt and mother of the victim girl as well as the opinion of PW 3 on her physical examination and has come to the conclusion that Hasina was below 17 years of age on the date of occurrence. In my opinion, in the absence of a report on the basis of a radiological test on the victim girl it was not possible to hold beyond reasonable doubt that Hasina was below 17 years of age on the date of occurrence, but the age of the victim girl at the time of occurrence was not relevant for the purpose of deciding a case under section 366IPC inasmuch as the offence,pf kidnaping under section 366 IPC, relates to kidnapping or abducting of any 'woman'. The age of Hasina, however, would have been material if the two appellants had been charged under section 363 IPC, read with section 361 IPC for the offence of kidnapping a female under 18 years of age from lawful guardianship. 8. Developing his argument that there were discrepancies in the version in the FIR as well as the evidence of PW 1 before the Court, Mr. 8. Developing his argument that there were discrepancies in the version in the FIR as well as the evidence of PW 1 before the Court, Mr. Laskar submitted that in the FIR PW 1 stated that Hasina was cooking rice in the East viti hut but in his deposition before the Court he stated that she was cooking rice in the courtyard, in the FIR he stated that he could only identify Habil Mia and Hariz Mia and could not identify other persons who were standing in the courtyard, but in his deposition before the Court, he stated that he could identify Habil, Idrish, Kuddus and Hariz Mia and further in his FIR he stated that Hariz Mia delivered a lathi blow on his head and right hand but in his statement before the Court, he stated that Habil Mia gave a blow on his head and Hariz gave blow on his right hand. Hence, the prosecution story should not be believed. It has been held by the Apex Court in the case of Radheshyam Narendra vs. State of Orissa, (1980) 1 SCC 585 that minor omissions or variations in the FIR which do not detract from substratum of the prosecution story would not make the prosecution story unreliable. Similarly, in the case of Surjit Singh vs. State of Punjab, AIR 1992 SC 1389 , the Apex Court has ruled out that omission misdescription of details in the FIR which was recorded most promptly within three hours of the occurrence would not tell on the prosecution case or the statement of the eye witnesses with regard to participation of the accused in the crime. In my opinion, the aforesaid variations in the version of PW 1 in the FIR and before the Court do not materially affect the prosecution case made out by the eye witnesses PWs 1, 2, 6, 8 and 10. In fact, PW 1 who lodged the FIR was the father of the victim girl who was kidnapped from his house within an hour or two of lodging the FIR and he must have been in a disturbed state of mind and it was quite natural for him to make some errors with regard to details of the incident while lodging the FIR. These errors in the FIR so long as they do not entirely destroy the prosecution case cannot render the evidence of as many as five eye witnesses unreliable. 9. Elaborating his argument on contradictions in the prosecution evidence, Mr. Laskar pointed out that the evidence of PW 2 was entirely different from that of PW 1. While PW 2 has stated that after the occurrence, BSF personnel came to their house and one Aiyat AH who was present there narrated the incident to the BSF personnel and further admitted in cross examination that Aiyat Ali was their relation, PW 1 flatly denied that Aiyat Ali was their relation. Mr. Laskar further pointed out that whereas PW 1 in his evidence has stated that he alone went to the Police Station with the BSF personnel by a jeep, PW 2 has stated that PW 1 and 2 together went to the Police Station with the BSF personnel. These discrepancies in the evidence of PWs 1 and 2 do not relate to the main occurrence as such and cannot in any way belie the prosecution story. In the case of Krishna Pillai vs. State of Kerela, AIR 1981 SC 1237 , the Supreme Court held that no criminal case is free from inconsistencies and discrepancies in the prosecution evidence and unless such inconsistencies and discrepancies pertain to significant aspects or go to the root of the matter, the defence cannot take benefit of the same. Mr. Laskar further submitted that there are even discrepancies with regard to the occurrence in the evidence of PW 1 and 10. While PW 1 in his version before the Court has stated that Habil gave a blow on his head and Hariz Mia delivered a lathi blow on his right hand, PW 10 in her examination-in-chief has stated that Habil Mia gave a blow on the forehead of her husband (PW 1) and Hariz Mia also dealt with the blow on his head. It is true that there are some discrepancies relating to the occurrence also, but it must be remembered that PWs 1 and 10 are the father and mother of the victim girl (PW 8) and were in a state of shock and horror when their daughter was kidnapped and further the occurrence took place in the year 1982, about four years prior to their evidence in Court in the year 1986. In the case of State of Rajasthan vs. Kalki, AIR 1989 SC 1390, the Apex Court held that in the deposition of witnesses there are always normal discrepancies due to normal error of observation, normal error of memory due to lapse of time and mental disposition such as shock and horror at the time of occurrence and the like and these discrepancies are normal for witnesses, however, honest and truthful they may be and cannot be treated as material discrepancies. 10. It was further argued by Mr. Laskar that the doctor (PW 4) to whom PWs 1 and 2 reported on 24.3.82 for examination of their injuries has admitted in his evidence that PW 1 stated before him that the incident took place at about 7.30. PM on 23.3.82 and that PW 2 has stated before him that the incident took place on 24.3.82 at 6.00 PM. According to Mr. Laskar, since PW 4 was an independent witness, these discrepancies in the statements of PWs 1 and 2 relating to the date and .time of the incident makes the prosecution story doubtful. I am unable to accept the aforesaid submission of Mr. Laskar. The statements either by PW 1 or PW 2 with regard to date and time of incident before PW 4 do not constitute substantive evidence before the Court but could only be utilised by the defence for the purpose contradicting PW 1 and PW 2 at the time of their cross examination under section 145 of the Indian Evidence Act of the said statements had been in writing or reduced to writing, but there is nothing on record to show that the said statements were either in writing or reduced to writing. 11. Coming to the contradictions between the statements of witnesses made before the police under section 161 CrPC, 1973, and those made before the Court, Mr. Kaskar submitted that before the police, PW 1 stated that Hariz Mia delivered lathi blow on his head and right hand but before the Court he deposed that Habil Mia gave a blow on his head and Hariz Mia on his right hand. There is no substance in the submission of Mr. Kaskar submitted that before the police, PW 1 stated that Hariz Mia delivered lathi blow on his head and right hand but before the Court he deposed that Habil Mia gave a blow on his head and Hariz Mia on his right hand. There is no substance in the submission of Mr. Laskar as PW 17, the IO has stated in his cross examination that he has not examined or recorded any statement of PW 1 except the FIR and I have already held that the variations in the versions of the PW 1 in the FIR and before the Court do not detract from the substrarum of the prosecution story. Mr. Laskar further pointed out that PW 2 stated before the Court that Kuddrus Mia assaulted her with lathi but in her statement before the police under section 161 CrPC with which she was confronted during her in cross examination she has stated that she has not made any such statement. This submission of Mr. Laskar may discredit the prosecution case that Kuddrus Mia. assaulted PW 2 and as a matter of fact Kuddrus Mia has been given benefit of doubt and acquitted by the trial Court, but this submission has no relevance at all to the question as to whether the two appellants Habil Mia and Hariz Mia, were involved in the offences of kidnapping and assault under section 366 and 323IPC. It was next urged by Mr. Laskar that the victim girl PW 8 stated before the Court that she stated before the Darugababu that seeing police Suraj Mia " and his wife ran away from the house but in fact there was no such statement before the police under section 161 CrPC. This submission also may have been relevant for finding out the complicity of Suraj Miaout Suraj Mia has also been acquitted by the trial Court for lack of evidence against him and it is not at all relevant for the purpose of determining as to whether the two appellants were guilty of offence under section 366 and 323 IPC. It was also submitted by Mr. Laskar that PW 8 stated before the Court that while entering into the hut with rice pot, 3 or 4 persons caught hold of her from back and her attention was drawn to her statement under section 161 CrPC which did not contain a statement in such form. It was also submitted by Mr. Laskar that PW 8 stated before the Court that while entering into the hut with rice pot, 3 or 4 persons caught hold of her from back and her attention was drawn to her statement under section 161 CrPC which did not contain a statement in such form. But I find that no question has been put to the IO regarding this statement made by PW 8 and in any case absence of a statement by PW 8 before the IO would at best amount to an omission which does not contradict her evidence before the Court that 3 or 4 persons caught hold of her from back during the occurrence particularly when broken pieces of the earthen pot and her saree were seized from the place of occurrence soon after the incident, which corroborate her statement that some of the accused persons caught hold of her. 12. Mr. Laskar further argued that material witnesses, namely the BSF personnel to whom PW 1 had reported about the occurrence and with whom PW 1 had gone to the Police Station had not been examined. In support of his argument Mr. Laskar relied on the judgment of a Division Bench of this Court in the case of Amir Ali vs. State of Assam, 1987 (3) Crimes 342, in which this Court found that some of the eye witnesses in the occurrence named in the FIR considered important for unveiling the prosecution case had been kept back without giving any explanation and in view of the discrepancies in the FIR and the version of the occurrence given in the prosecution case acquitted the accused. But in the present case, the BSF personnel are not eye witnesses to the occurrence and hence their non examination by the prosecution before the Court does not materially affect the prosecution case, particularly when there are no significant discrepancies in the versions of the prosecution in the FIR and in the evidence before the Court. 13. Mr. But in the present case, the BSF personnel are not eye witnesses to the occurrence and hence their non examination by the prosecution before the Court does not materially affect the prosecution case, particularly when there are no significant discrepancies in the versions of the prosecution in the FIR and in the evidence before the Court. 13. Mr. Laskar cited before me the judgment in the case of Palaniswamy and Raju vs. State of Tamil Nadu (1986) 1SCC 693, wherein it has been hekT by the Supreme Court that where there are several circumstances in the case which raise reasonable doubt in the mind of the Court about the complicity of the accused persons, benefit of doubt should be given to the accused persons'. The said judgment does not apply to the facts of the present case in which PWs 1, 2 and 6 and 10 are all eye witnesses to the occurrence and their evidence before the Court establishes beyond doubt the complicity of two appellants in the offences under section 366 and 323 IPC. Mr. Laskar, however, relied on the decision of the Apex Court in the case of BN Singh vs. State of Gujrat, AIR 1990 SC 1628 , and submitted that since the PWs 1, 2 and 10 are all related to the victim girl being her father, aunt and mother they are all interested witnesses and their evidence should not be relied on. In the case of BN Singh (supra) the Supreme Court found that the evidence of eye witnesses was rendered improbable by the nature of injuries found on the body of the deceased and as a matter of fact one of the accused persons had been falsely implicated by the eye witnesses and thus the Court came to the conclusion that the evidence of eye witnesses were not trustworthy and acquitted rest of the accused. In the present case, however, the evidence of eye witnesses PW 1 and PW 10 establish beyond reasonable doubt that the two appellants dealt the blows on PW 1 and also participated in the offence of kidnapping and their evidence is corroborated by the injuries on the right forehead and right upper arm of PW 1 described by PW 4, the doctor and the fact that the PWs 1 and 10 are related to the victim girl does not make them interested witnesses. It has been held by the Supreme Court in the case of State of Raj as than vs. Kalki (supra) that a witness who is related to the deceased is not necessarily an interested witness and so long as a witness is a natural one in the sense that he is an eye witness to the occurrence his evidence cannot be discarded on the ground that he is related to the deceased. Mr. Laskar also cited the decision of the Apex Court in the case of Harendra Narain Singh vs. State of Bihar, AIR 1991 SC 1842 , wherein it has been held that if two views are possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the Court should adopt the later view favourable to the accused. This decision has no applicability to the facts of the present case as there is direct evidence of eye witnesses to the occurrence apart from circumstantial evidence and on the direct and circumstantial evidence before the Court the only view that is possible is that the two appellants were guilty of the offences under section 366 and 323 IPC. 14. Mr. Laskar finally relied on the judgment of the Supreme Court in the case of State of Rajasthan vs. Madho, AIR 1991 SC 1065 and in the case of Ch Pulla Reddy vs. State of Andhra Pradesh, AIR 1993 SC 1899 and vehemently argued that since the trial Court had given the benefit of doubt to all the other accused persons, similar benefit of doubt should be given to the two appellants. But on a reading of the judgment of the trial Court it is clear that benefit of doubt was given to the other accused persons only because their complicity in the offence has not been established by evidence, but there is clear evidence of eye witnesses in proof of participation of two accused persons in the offence under section 366 and 323 IPC. Even assuming that after the acquittal of the other accused persons, the remaining two accused-appellants cannot be convicted with the aid of section 149 IPC, their conviction can still be sustained under section 366 and 323 read with section 34 IPC as common intention on the part of the two appellants and their participation in the offences under section 366 and 326 IPC are clearly established by the evidence on record. 15. Coming now to the sentence, I find that before the trial Court it was argued on behalf of the two accused-convicts that the two appellants are married men and have children and their previous conduct has not been found to be bad. After considering the aforesaid submission, the trial Court imposed the sentence of RI for 6 years and fine of Rs. 1,000/- on each of the two accused-convicts and in default of payment fine, to suffer a further period of one year for the offence under section 366 read with section 149 of the IPC and for the offence under section 323 with section 149 IPC, the trial Court imposed a sentence of RI for 6 months on each of the two accused-convicts. The trial Court further ordered that the sentences would run concurrently. Considering the fact that the two appellants are married and have children and also the fact that the victim girl Hasina Khatun was not physically harmed by the two appellants and is now married, I reduce the sentence in case of offence under section 366 read with section 34 of the IPC from 6 years RI to 2 years RI with fine of Rs.1,000/- for each of the two appellants and in default of payment of fine the appellants are to suffer further RI for one year. I am however not inclined to reduce the sentence of RI for 6 months on each of the two appellants for the offence under section 323 read with section 34 IPC. The aforesaid sentences of RI for the two offences shall run concurrently and the period of detention suffered by each of the two appellants as under trial prisoners shall be deducted from the aforesaid periods of RI awarded to them. Subject to aforesaid modification of sentence, the appeal is dismissed.