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2006 DIGILAW 1108 (GAU)

Gouranga Roy v. State of Tripura

2006-12-13

MAIBAM B.K.SINGH

body2006
JUDGMENT Mutum B.K. Singh, J. 1. The judgment dated 01.03.2005 passed by the learned Additional Sessions Judge, Belonia, South Tripura in Sessions Trial No. 42 (ST/B)/2004, thereby convicting the appellants under Section 366read with Section 34 of the Indian Penal Code and sentencing them to undergo 5 years rigorous imprisonment with fine of Rs. 10,000/- and in default of payment, to suffer 1 year simple imprisonment, has been challenged in this appeal. 2. I have heard Mr. A. C. Bhowmik, learned Counsel appearing for the appellants and Mr. A. Ghosh, learned P.P. In-charge. 3. The prosecution story in brief, is that on 19.04.2004 the victim (PW No. 2) was kidnapped at about 10 a.m. from the vicinity of Rajnagar Power House by the accused-appellant Nos. 1 & 3 in a Maruti car while she was on the way to her school. She was, however, recovered in the night from Muhuripur Latua Tilla and the kidnappers were also arrested therefrom. P.W. No. 1 lodged a written report marked Exbt.-1 to the police on 20.04.2004. 4. During the course of trial, 14 PWs were examined, and the appellants were questioned under Section 313 of the Code of Criminal Procedure, to which they explained that the evidences against them were all false. The learned Trial Court on the basis of the evidences available on record primarily on the version of P.W. No. 2, convicted the accused-appellants. 5. In this case, it is to be examined whether the accused appellants kidnapped the k/girl and compelled her to marry the accused-appellant No. 1 against her consent. 6. P.W. No. 11, Amarchand Mura Singh was an Assistant Headmaster of Rajnagar Colony High School who confirmed the document marked Exbt. P/3 as age proof certificate of the k/girl. The genuineness of that document has not been challenged by the appellants. As per the document marked Exbt. P/3, the date of birth of the k/girl is 17.05.1987 i.e., she was about 17 years old at the time of occurrence. 7. P/3 as age proof certificate of the k/girl. The genuineness of that document has not been challenged by the appellants. As per the document marked Exbt. P/3, the date of birth of the k/girl is 17.05.1987 i.e., she was about 17 years old at the time of occurrence. 7. According to P.W. No. 1, the informant and father of k/girl, his daughter did not return from school on 19.04.2004, on being searched, he was informed by Kumari Dipa Mallik (P.W. No. 9) that his daughter was kidnapped in a Maruti car belonging to one Keshab Paul (P.W. No. 5) from whom he came to know that one Babul Sur (P.W. No. 6) was the driver of the said Maruti car. P.W. No. 6 disclosed that he had taken his daughter along with the accused-appellants to Muhuripur Latua Tilla. Thereafter, P.W. No. 6 together with P.W. Nos. 3, 4, 5, 7, 12 and 13 went to Muhuripur Latua Tilla and recovered her daughter and also arrested the accused persons. P.W. No. 1 admitted that the accused appellants are his neighbours and P.W. Nos. 7 & 12 are his brothers. He further deposed that he had no knowledge about the love affairs of his daughter with accused Gouranga and also had no idea about the writing of letters by his daughter to that accused. P.W. Nos. 3, 4, 6, 7, 12 and 13 were the persons claimed to have gone at Muhuripur Latua Tilla with the police personnel and recovered the k/girl along with the accused appellants. P.W. No. 6 was the driver who had dropped the k/girl and the accused-appellants at the said place and P.W. No. 9 was the one who informed about the occurrence to P.W. No. 1. Out of the above witnesses, P.W. Nos. 3, 4, 7, 12 and 13 deposed that the k/girl was recovered in the night of the same day along with the accused persons from a room of a house situated at Muhuripur Latua Tilla, they brought the k/girl at her residence and the accused persons were arrested by the police. P.W. No. 3 deposed that the k/girl was found wearing a printed saree of rosy-black colour at the time of her recovery but he could not say the name of the owner of the house from where the k/girl was recovered. According to P.W. No. 7 he went along with P.W. Nos. P.W. No. 3 deposed that the k/girl was found wearing a printed saree of rosy-black colour at the time of her recovery but he could not say the name of the owner of the house from where the k/girl was recovered. According to P.W. No. 7 he went along with P.W. Nos. 3,4, 13 and one Suman Banerjee to recover the k/girl but he did not mention about the presence of P.W. No. 12. P.W. Nos 12 and 13 did not mention about the presence of any other person at the time of recovery of the k/girl. P.W. No. 13 deposed that the k/girl was found wearing blue colour school dress at the time of her recovery. Admittedly P.W. Nos. 1,5,12 and 13 have not stated any where that they have been informed by P.W. No. 6 that the accused-appellants had forcibly kidnapped the k/girl and threatened her by the appellants. According to them, P.W. No. 6 just informed that he had taken the k/girl with the accused-appellants to Muhuripur Latua Tilla and dropped them threat. P.W. No. 6 and P.W. No. 9 were declared hostile and thus their statement are not to be relied upon except to the extent which supports the prosecution version. 8. The k/girl, the star witness of the case, deposed as P.W. No. 2 that on 19.04.2004 she called her friend Dipa Mallik (P.W. No. 9) from the road-side near the Rajnagar Power House, P.W. No. 9 responded that she would not go to school and in the meantime appellant Nos. 1 & 3 forcibly taken her in a Maruti vehicle, she could not arise alarm on being threatened her to be killed by them and also pressed her mouth by handkerchief. She further deposed that the accused-appellant No. 2 boarded the vehicle later on when the vehicle reached near the road going towards Kasari. The accused-appellants threatened her to marry the accused-appellants No. 1, she flatly refused and scuffled with them. The accused-appellants took her to an unknown place where she was kept confined the whole day in a house. The accused-appellant Nos. 2 & 3 tried to convince her to marry the accused-appellant No. 1. In the night her maternal uncles and others came there with police and arrested all of them. The accused-appellants took her to an unknown place where she was kept confined the whole day in a house. The accused-appellant Nos. 2 & 3 tried to convince her to marry the accused-appellant No. 1. In the night her maternal uncles and others came there with police and arrested all of them. Thereafter, they went to Baikhora police station, where the accused-appellants were kept but she was released and returned home along with her maternal uncles. In the cross-examination she denied of having love affairs with the accused-appellant No. 1, Gouranga. However, she admitted that she had written several letters to accused-appellant No. 1. According to her, she wrote the letters as pressured on her by the accused-appellant No. 1. 9. P.W. No. 5, the owner of the vehicle deposed that his driver, P.W. No. 6 informed him in presence of Suman Banerjee that on 19.04.2004 the vehicle was hired by accused-appellant No. 1 forgoing to Belonia and he took the accused-appellants along with the k/girl upto Muhuripur Latua Tilla. Thereafter, Suman Banerjee went out with his vehicle and driver for recovery of the k/girl. 10. P.W. No. 10, Shri Subhash Ch. Debnath, the Sub-Inspector of Baikhora police station, deposed that on 19.04.2004 P.W. Nos. 3,4 and some others came in the night at police station and sought for help in the recovery of the k/girl. He contacted the P.R. Bari police station for confirmation and thereafter he went along with them and on the pointing of P.W. No. 6, they searched the house of one Shankar Debnath, from where the accused-appellants along with the k/girl were recovered. The witness admitted that no complaint has been filed in his police station in connection with the said case and he had not opened any diary in connection with the recovery of the kidnapped girl. He also admitted that he did not arrest the house owner. P.W. No. 14, the I.O. who investigated the case, deposed that he arrested the accused persons on being produced by the Baikhora police Station, recorded the statement of the witnesses and also seized the saree and khata of the k/girl marked as Exbt. M.O.-1 and after investigation, charge-sheet has been submitted. 11. P.W. No. 14, the I.O. who investigated the case, deposed that he arrested the accused persons on being produced by the Baikhora police Station, recorded the statement of the witnesses and also seized the saree and khata of the k/girl marked as Exbt. M.O.-1 and after investigation, charge-sheet has been submitted. 11. On a careful examination of the above evidences, it is clear that the k/girl was a fully grown up aged about 17 years at the time of occurrence, the accused-appellants are the neighbours and they are well acquainted each other, on 19.04.2004 the k/girl went together with the accused-appellants in a Maruti vehicle and stayed the whole day in a house at Muhuripur Latua Tilla and in the night of the same day they were recovered by her relatives and the police personnel of Baikhora police station. The k/girl wrote many letters to the accused-appellant No. 1, though stated that she had written the letters on the pressure of the accused-appellant No. 1. According to the k/girl, she was threatened and pressured by the accused-appellants to many the accused-appellant No. 1 inside the vehicle, she refused and scuffled with them. However, there is no evidence for causing of any injuries on her body and she was also not medically examined. The prosecution did not examine the owner or any inmate of the house from where the k/girl was recovered in order to ascertain as to whether she stayed therein voluntarily with the accused-appellants or kept her confined against her consent and as to how she was brought thereat. These vital facts are missing without any explanation. There is not even a whisper to show what type of pressure was given to her, in which way the accused-appellant Nos. 2 & 3 tried to convince her to marry accused-appellant No. 1. There is no evidence that she was physically and mentally pressured by the accused-appellants to marry the accused-appellant No. 1. The evidence further reveals that the alleged occurrence took place on the road near the Rajnagar Power House and P.W. No. 9 was at the hearing distance. The vehicle again stopped on the way towards Kasari and therefrom the accused-appellant No. 2 boarded the vehicle. The evidence further reveals that the alleged occurrence took place on the road near the Rajnagar Power House and P.W. No. 9 was at the hearing distance. The vehicle again stopped on the way towards Kasari and therefrom the accused-appellant No. 2 boarded the vehicle. Had the alleged occurrence actually took place and the k/girl raised any alarm at the alleged place of occurrence as well as at the place where the vehicle was stopped, P.W. No. 9 who was at the hearing distance and the employees of Power House and the passerby must have noticed about the occurrence. Besides, there is no evidence that she made any protest while staying in the said room at Muhuripur Latua tilla. Had the k/girl was really kidnapped against her consent as alleged, P.W. No. 6 who was the driver of the Maruti vehicle should have been an accomplished and he must have been arrested but no such action was taken. Non-examination of the house owner raises a suspicion even regarding the recovery of the k/girl from that place. There are contradictions in the statement of P.W. Nos. 3, 4, 7, 12 and 13 regarding the recovery of the k/girl and the seizure of Exbt. M.O.-1. From the above facts and circumstances, it appears that the k/girl was a consenting party in going together with the accused-appellants and there is no evidence to presume safely that the k/girl, though she was under the age of 18 years at the time of occurrence, was kidnapped by the accused-appellants and compelled her to marry the accused-appellant No. 1 against her will. In Hazarat Ali v. State of Assam reported in 2004 (3) GLT 110: 2004(3) GLR 503 this Court held that the prosecutrix though found to be below 18 years did not resist the action of the appellant without making hue and cry or raising alarm and she proceeded with the appellant. Her version was not accepted as trustworthy and reliable and she was taken to be a willing party to go with the appellant on her own. Similar view was also taken by the Hon'ble Apex Court in Shyam and Anr. v. State of Maharastra reported in 1995 CriLJ 3974. Her version was not accepted as trustworthy and reliable and she was taken to be a willing party to go with the appellant on her own. Similar view was also taken by the Hon'ble Apex Court in Shyam and Anr. v. State of Maharastra reported in 1995 CriLJ 3974. In the present case, the alleged occurrence of kidnapping of k/girl is not free from suspicion and the lone version of k/girl that she was kidnapped forcibly by the accused/appellants and pressured her to marry accused-appellant No. 1 is not trustworthy and reliable. The prosecution story appears to be a got up story invented mechanically subsequent to the recovery of the girl with the boys from that place. 12. Considering the above facts and circumstances, this Court is of the view that the prosecution failed to establish the case beyond reasonable doubt and as such the judgment dated 01.03.2005 passed by the learned Trial Court needs for interference. 13. In the result, the judgment of conviction and sentence dated 01.03.2005 passed by the learned Trial Court in S.T. No. 42 (ST)/B)/2004 is quashed on the benefit of doubt. The accused-appellants are set at liberty forthwith, if not wanted in any other case and the PR and Surety Bonds stand discharged. 14. The appeal is accordingly allowed. Send back the Trial Court records. Appeal allowed.