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2006 DIGILAW 515 (GAU)

Amu Mia v. State of Assam

2006-05-31

I.A.ANSARI

body2006
JUDGMENT I.A. Ansari, J. 1. By judgment and order, dated 07.12.2001, passed, in Sessions Case No. 10/2001, the learned Sessions Judge, Karimganj, has convicted the accused-Appellant under Sections 366 and 376 of the Indian Penal Code and sentenced him, for his conviction under Section 366 of the Indian Penal Code, to suffer rigorous imprisonment for 3 (three) years and pay a fine of Rs. 3,000.00 and, in default of payment of fine, suffer rigorous imprisonment for a further period of 3 (three) months and also to suffer, for his conviction under Section 376 of the Indian Penal Code, rigorous imprisonment for 7 (seven) years and pay fine of Rs. 5,000.00 and, in default of payment of fine, suffer rigorous imprisonment for a further period of 6 (Six) months with direction that both the sentences shall run concurrently and the fine shall, if realized, be paid to the victim woman. 2. The case of the accused-Appellant, as unfolded at the trial, may, in brief, be described thus : The first informant's married daughter, 'S' was at the house of her father, on 25.07.1999, and on that day, at about 9/10 P.M., when 'S' was cooking rice, the accused, accompanied by two or more persons, entered into the kitchen of the said house, gagged 'S' and took her away from her father's house. After around 3 (three) days after the disappearance of his daughter 'S', from his house when she could not be recovered, the informant lodged a missing entry with the police. For about a week, the accused alongwith his associates kept shifting 'S' from one place to another, but did not allow her to go away. During her such confinement, the accused, once, committed rape on 'S'. Thereafter, the accused brought 'S' to Karimganj Bus Stand and left her, on 04.08.1999, there. From the said Bus Stand, 'S's father sent 'S' alongwith her cousin to her father's house and also lodged a written Ejahar. Based on this Ejahar and treating the same as the First Information report, a case was registered against the accused under Sections 366, 376 and 379 of the Indian Penal Code. On completion of investigation, the police laid charge-sheet against the accused under Sections 366, 376 and 379 of the IPC. 3. To the charges framed against him, at the trial, under Sections 366,376 and 379 of the IPC, the accused pleaded not guilty. 4. On completion of investigation, the police laid charge-sheet against the accused under Sections 366, 376 and 379 of the IPC. 3. To the charges framed against him, at the trial, under Sections 366,376 and 379 of the IPC, the accused pleaded not guilty. 4. In support of their case, the prosecution examined altogether 7 (seven) witnesses including the victim 'S'. The accused was, then, examined under Section 313 Code of Criminal Procedure and in his examination aforementioned, the accused denied that he had committed the offences alleged to have been committed by him, the case of the defence being that of total denial. On finding the accused not guilty of the offence under Section 379 of the Indian Penal Code, the learned trial Court acquitted him accordingly, but on finding the accused guilty of the charges framed against him under Sections 366 and 376 of the IPC, the learned trial Court convicted the accused accordingly and passed sentences against him as mentioned hereinabove. Aggrieved by his conviction and the sentences passed against him, the accused has preferred the present appeal. 5. I have heard Mr. I. Uddin, learned Counsel for the accused-Appellant, and Mr. P.C. Gayan, learned Additional Public Prosecutor, Assam, for the Respondents. 6. While considering the present appeal, what needs to be carefully noted is that it is the alleged victim, 'S' (PW 2), around whose evidence revolves the entire case of the prosecution. Imperative it is, therefore, that her evidence is closely and dispassionately scrutinized in the light of the other available evidence on record. 7. Bearing in mind what has been pointed out above, when I turn to the evidence of PW2, I notice that according to her evidence, after about one and half months of her marriage, she came to her parents, house and on the day of the occurrence, at about 9 PM, when she was in the kitchen and preparing food, the accused alongwith two others entered into the kitchen-room, gagged her and took her away. The accusations, so made, by this witness need to be tested for its inherent veracity. It is, therefore, necessary that the evidence of those, who were present in the house, including the parents of 'S', be scrutinized to ascertain if what PW2 has deposed it true, believable and safe to rely upon. 8. The accusations, so made, by this witness need to be tested for its inherent veracity. It is, therefore, necessary that the evidence of those, who were present in the house, including the parents of 'S', be scrutinized to ascertain if what PW2 has deposed it true, believable and safe to rely upon. 8. Close on the heels of the evidence of PW2, her father (PW1) has deposed that while he was sleeping in his bedroom and PW 2 was preparing food in the kitchen, he woke up on hearing some sound and found a window of his bedroom broken and the door of the bedroom lying open. PW1 has also deposed that on a search made by him, he found his daughter 'S' missing from their kitchen and one suit-case, which was lying in his room, had also disappeared. It is in the evidence of PW1 that they looked for 'S' for about two/or three days, but found no clue and, then, he informed the police. It is also in the evidence of PW 1 that after about six or seven days of the disappearance of his said daughter, he found his daughter, 'S', at Karimganj Bus Stand and sent her with her cousin to his house and, then, he informed the police also. 9. So far as PW 3, who is mother of 'S' is concerned, her evidence is that on the night of the occurrence, while 'S' was cooking food in their kitchen, she (PW 3) was sleeping and it was on the following day that she (PW 3) came to learn that 'S' was found missing from the kitchen and that it was after about seven or eight days that 'S' was found at Karimganj Bus Stand and from there, she (PW 2) was brought to their house. 10. Turning to the evidence of PW 4, who is step-mother of 'S' what I notice is that according to her evidence, one day at night, while 'S' was in the kitchen, the accused took her away and she (PW 4), later on, came to learn that 'S' has disappeared. 11. On a careful and dispassionate scrutiny of the evidence of PWs 1, 2, 3 and 4, what transpires is that while PWs 1, 3 and 4 were asleep, PW 2 was preparing food in the kitchen and she, suddenly, disappeared from the kitchen. 11. On a careful and dispassionate scrutiny of the evidence of PWs 1, 2, 3 and 4, what transpires is that while PWs 1, 3 and 4 were asleep, PW 2 was preparing food in the kitchen and she, suddenly, disappeared from the kitchen. In this regard, while PW 1 claims that he woke up on hearing sound of a window of his room breaking and, then, on a search made by him, he found his daughter 'S' missing, PWs 3 and 4, who are the mother and step mother of 'S' respectively, claim that they came to know, on the following day, that 'S' was missing from the kitchen. It is well-neigh impossible to believe that while PW 1 woke up on hearing the sound of the window breaking and he started looking for his daughter 'S' and did not find her, PW 3, who is mother of 'S', and PW 4, who is step-mother of 'S', would remain ignorant of the fact that PW 2 had disappeared from their house and would come to know only on the following day about the disappearance of 'S'. This apart, it is also not believable that all the members of the house would be sleeping and 'S' would be cooking food in the kitchen, for, there is no evidence on record indicating that PWs 1, 3 and 4 had slept without having their meals and/or that they were to get up and have their meals after 's" would have cooked the same. Far from this, the evidence of PW 3 and PW 4 indicate that they were not to wake up from their sleep to have their meals and that is why, it was only on the following day that they woke up and found 'S' missing from their house. 12. Coupled with the above, the Investigating Officer (PW 7) has confirmed that he did not find the door and/or the window of the house of the informant broken. 13. 12. Coupled with the above, the Investigating Officer (PW 7) has confirmed that he did not find the door and/or the window of the house of the informant broken. 13. The impression that the entire evidence given by PWs 1, 2, 3 and 4, describing the incidence of disappearance of 'S', is concocted and far from the truth is clear from the fact that while 'S' claims that she was cooking food in their kitchen, at about 9 PM, her father's statement made to the police is to the effect that the occurrence had taken place at about 2 O-clock at night. Similarly, while PW 1 claims that he woke up on hearing sound of the window of his bedroom breaking his statement made to the police was that he had woken up on bearing the cries of his daughter. One can also not ignore the fact that in his evidence, PW1 asserts that he looked for his daughter, but did not find her in the kitchen; whereas his statement before the police was that he had come to know about the disappearance of' S' from PW 4. As against this, the evidence of PW 4 is that she came to know later on about the disappearance of 'S'. 14. It is also impossible to ignore that contrary to what PW 4 has deposed in the Court, her statement before the police was that at about 2 O-clock, at night, she woke up on hearing the sound of some one entering into the room and dragging away 'S' from there. 15. For what have been pointed out above, it becomes abundantly clear that all the four witnesses aforementioned have given their evidence, which are not only inconsistent with each other, but are also contradictory to their previous statements made before the police. Their evidence, thus, suffer from wholly irreconcilable assertions. In the face of such evidence on record, no reliance can at all be placed on the evidence of any of these witnesses given to the effect that 'S' had been forcibly taken away from her father's house by the accused. Their evidence, thus, suffer from wholly irreconcilable assertions. In the face of such evidence on record, no reliance can at all be placed on the evidence of any of these witnesses given to the effect that 'S' had been forcibly taken away from her father's house by the accused. When the evidence given by PW 2 that she had been forcibly taken away by the accused is found unbelievable, her further assertion that the accused had committed rape on her cannot be readily relied upon, particularly, when her evidence clearly indicates that she had been shifted from place to place for about a week since the time she had disappeared from her father's house, yet there is absolutely no indication from the evidence of 'S' (PW 2) that she had raised any hue and cry or tried to raise alarm during the course of such shifting from place to place, though she does not claim that while she was being shifted from one place to another, she had been kept gagged or she was under any kind of threat or intimidation. In fact, PW 2 has not even asserted that the accused had threatened her or intimidated her. 16. What emerges from the above discussion of the evidence on record is that no convincing and reliable evidence was adduced by the prosecution, which can be taken to have proved that the accused had abducted 'S' and/or forcibly had sexual intercourse with her. Considered thus, it is clear that the accused-Appellant could not have been convicted of offences under Sections 366 and 376 of the Indian Penal Code. 17. In the circumstances, as in the present case, the conviction of the accused-Appellant, if not interfered with, would cause serious miscarriage of justice. 18. In the result and for the reasons discussed above, this appeal succeeds. The impugned judgment and order, dated 07.12.2001, shall accordingly stand set aside. The accused-Appellant is held not guilty of the charges framed against him under Sections 366 and 376 of the Indian Penal Code and he is acquitted of the same. 19. The bail bond of the accused is cancelled and his sureties shall stand discharged. 20. Send back the LCRs.