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2010 DIGILAW 473 (GAU)

Subal Deb v. State of Tripura

2010-07-13

UTPALENDU BIKAS SAHA

body2010
JUDGMENT U.B. Saha, J. 1. All these three appeals preferred by the five Appellants namely, Shri Subal Deb, Chandan Shil, Chandan Saha, Sajal Das and Shri Bimal Sarkar have arisen from the judgment dated 29-3-2003 passed by the learned Addl. Sessions Judge, Court No. 3, West Tripura, Agartala in Sessions Trial No. 94 (W.T./A) of 2000. By the aforesaid judgment the learned trial Court convicted all the five Appellants under Section 366 read with Section 34 of the Indian Penal Code (for short 'IPC') and sentenced the Appellant Shri Sajal Das to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 10,000/-, i/d to suffer S.I. for three years, the Appellants Subal Deb and Bimal Sarkar to undergo R.I. for five years and to pay a fine of Rs. 5,000/- each, i/d to suffer S.I. for one year six months and the Appellants Chandan Shil and Chandal Saha to undergo R.I. for four years and to pay a fine of Rs. 3,000/- each, i/d to suffer S.I. for six months. Being aggrieved by the aforesaid judgment of conviction and order of sentence, the Appellants preferred the aforesaid appeals respectively. 2. The prosecution case, in short, is that on 27-11-1999 while P.W. 4, Smt. Sankari Das alias Sankari Sarkar, aged 14/15 years, a student of Class VII of Charipara Higher Secondary School and minor daughter of Shri Anil Sarkar and Smt. Rekha Rani Das (P.W. 1) of vill-Panchamukh, Agartala was returning home after appearing hi the school examination along with P.W. 5, Miss Soma Chakraborty, P.W. 6. Shri Dipal Choudhury and another Rina Baul and reached near Ramthakur Ashram at Panchamukh, suddenly the Appellants with a Maruti Van coming from her back side stopped on-brake condition near them and accused Sajal Das and Bimal Sarkar come out of the vehicle. Accused-Sajal caught Sankari and gagged her mouth with a towel and accused-Bimal had a Bhujali in his hand and they forcibly dragged Sankari inside the vehicle and taken her away to some unknown destination. The face of Sankari was covered and, therefore, she could not ascertain as to which direction the vehicle was going. Accused-Sajal caught Sankari and gagged her mouth with a towel and accused-Bimal had a Bhujali in his hand and they forcibly dragged Sankari inside the vehicle and taken her away to some unknown destination. The face of Sankari was covered and, therefore, she could not ascertain as to which direction the vehicle was going. When the aforesaid incident was reported to the mother of Sankari, her mother, the informant (P.W. 1) Smt. Rakhi Rani Das rushed to home and lodged FIR with the O/C, Amtali Police Station alleging, inter alia, that her minor daughter had been kidnapped and accordingly, police registered a case. The informant and others searched her here and there, but they could not trace out Sankari upto the evening of that day. At about 6/7 p.m. on the same day, a police patrolling party found a Maruti Van No. TR-01-B-0373 at Birchandra Manu under Manpathar Police Outpost of Santirbazar Police Station passing towards Santirbazar direction with high speed and the police party stopped the vehicle and found the victim girl along with the accused-Appellants and when police enquired about them, Sankari narrated the incident how and in what manner she was forcibly kidnapped by the accused-Appellants, with a view to marry her by the accused-Appellant Sajal against her will. Hearing the incident from Sankari, police detained all the accused-Appellants along with the vehicle and took them to Manpathar Police Outpost and had handed over them to the O/C of the said outpost. On such production, P.W. 10 Inspector Sajal Sharma examined the victim, then Sankari again narrated the incident to him. Thereafter, P.W. 10 detained all the five accused persons in the police outpost and also kept the victim minor girl (P.W. 4) in a separate room of the said outpost and reported the incident to the O/C Amtali Police Station through SP (DIB), South Tripura. P.W. 10 also detained the vehicle and on search he found a Bhojali, (dagger type sharp instrument), printed saree, blouse, petticoat, bra, vermilion, couch bangle etc. and seized the same by preparing seizure list in presence of witnesses. P.W. 10 also detained the vehicle and on search he found a Bhojali, (dagger type sharp instrument), printed saree, blouse, petticoat, bra, vermilion, couch bangle etc. and seized the same by preparing seizure list in presence of witnesses. O/C, Amtali P.S. on receipt of the information from the O/C, Manpathar O.P. reported the recovery of P.W. 4 to her mother, the informant (P.W. l), but since it was night and the road was not safe, for extremist problem, the informant could not go to Manpathar O.P. on that night and on the following morning she along with her neighbours went to Manpathar O.P. and O/C, Manpathar O.P. after getting the information of institution of a case in the Amtali P.S. forwarded the victim girl and all the accused persons to the Court of learned SDJM, Belonia, South Tripura and made a prayer for handing over the victim girl to her mother, the informant and accordingly, the victim, girl (P.W. 4) was handed over to her mother (P.W. 1) and her mother brought her back home and produced her before the O/C, Amtali P.S. who seized the school uniform and badge etc. of the victim. The case was ultimately handed over to P.W. 13, SI Aktar Hussain for investigation. I.O. of the case made prayer before the learned Chief Judicial Magistrate, West Tripura, Agartala for issuing custody warrant in the name of the accused persons and for production of the accused persons before the Court of learned CJM, West Tripura, Agartala and such prayer was allowed and the accused persons were remanded by the learned SDJM, Belonia in jail custody at Belonia and subsequently as per order of the learned CJM, West Tripura all the five accused persons were produced before the learned CJM, West Tripura and were remanded to custody. It is the further case of the prosecution that the accused persons with a previous meeting of mind and pre-arranged plan kidnapped the minor girl of P.W. 1 with a view that accused Sajal would marry her forcibly against her will and against the consent of her legal guardian. As all the accused persons shared the common intention, they committed offence punishable under Section 366 of the IPC. 3. As all the accused persons shared the common intention, they committed offence punishable under Section 366 of the IPC. 3. On completion of investigation police filed charge-sheet against the accused persons and the case being exclusively triable by the Court of Session, the learned Judicial Magistrate 1st Class, Agartala committed the case to the learned Sessions Judge, West Tripura. Agartala who ultimately transferred the case to the Court of learned Addl. Sessions Judge, Court No. 3, West Tripura, Agartala for trial and accordingly, the learned Addl. Sessions Judge framed charges against the accused-Appellants under Section 366 read with Section 34, IPC to which they pleaded not guilty and claimed to be tried while the defence case was of total denial. 4. In the course of trial to prove the case, prosecution examined as many as 13 witnesses including the official witnesses of whom P.W. 4, Smt. Sankari Das alias Sankari Sarkar is the star witness, P.W. 5. Miss. Soma Chakraborty and P.W. 6, Shri Dipak Choudhury are partly eye-witnesses of the alleged offence of kidnapping. P.W. 1, Smt. Rakhi Rani Das is the mother of the victim (P.W. 4) and P.W. 2, Smt. Atashi Majumder and P.W. 3, Shri Brajendra Debnath are the neighbours of the victim girl. P.W. 3 is also a seizure witness of the school uniform and badge of the victim girl. P.W. 7. Shri Haradhan Majumder is also a seizure witness, relating to the school uniform and badge of the victim, who heard the incident from his wife and went to the TSR camp along with P.W. 1 and requested the officer to make a search for the kidnapped girl (P.W. 4) and accordingly, they made a search, but could not trace out either the vehicle or the kidnapped girl, P.W. 8, Shri Bikash Debnath is the owner of a tailoring shop near Manpathar Police Outpost who witnessed the seizure of offending vehicle and a bag with some articles. P.W. 9, Shri Dipak Chakraborty is the owner of the offending vehicle. P.W. 9, Shri Dipak Chakraborty is the owner of the offending vehicle. P.W. 10, Inspector Sajal Sharma was the O/C of Manpathar Outpost at the relevant time to whom the victim girl narrated the incident of kidnapping by the accused persons and who ultimately after arresting the accused persons forwarded them along with the victim girl to the Court of learned SDJM, Belonia, P.W. 11, Shri Kumud Behari Malla was the Headmaster of Charipara Higher Secondary School, Agartala at the relevant time who issued the certificate showing the date of birth of the victim girl as on 13-3-1985 on the basis of school register. P.W. 12. Shri Benu Choudhury is the owner of a stationery shop near Manpathar Police Outpost who witnessed the seizure of some printed saree, blouse, brassier, petticoat, vermilion, conch bangles and one Bhujali by the O/C of Manpathar Outpost and identified Exbt. M. Os. 2 and 3 series. RW. 13, S.I. Aktar Hussain is the I/O of the case. 5. Heard Mr. D.C. Roy, learned Counsel for the Appellant in Cri. Appeal No. 19 of 2003, Mr. B. Nandi Majumder, learned Counsel for the Appellants in Cri. Appeal No. 25 of 2003 and Mr. H. Debnath, learned Counsel appearing for the Appellants in Cri. Appeal No. 32 of 2003. Also heard Mr. D. Sarkar, learned Public Prosecutor for the Respondent State. 6. Mr. Debnath, learned Counsel appearing for the Appellants Shri Sajal Das and Bimal Sarkar would fairly contend that the evidence on record does not suggest for acquittal of the Appellants as it is the admitted position that the victim girl was a minor at the relevant time and she was forcibly taken away by the accused Sajal and Bimal to marry her as alleged by the victim girl. Learned Counsel contended that it is also an admitted position that the Appellants were detained and arrested by the police along with the victim girl and the seized articles were found in the offending vehicle on the date of occurrence itself. He urged for reduction of the period of sentence as according to him, the order of sentence passed by the learned trial Court is in higher side. He urged for reduction of the period of sentence as according to him, the order of sentence passed by the learned trial Court is in higher side. He also contended that the intention of the accused Sajal was only to marry the victim girl (P.W. 4) and not to do any harm to her and the alleged incident took place in the year 1999 when accused Sajal and Bimal were 22 and 15 years of age respectively and as they were youth they committed the offence without understanding the consequence of the same. He finally submitted that the accused-Appellant Sajal has been suffering from certain illness for which he requires day-to-day treatment. 7. In support of his aforesaid contention, Mr. Debnath relied upon a judgment of the Apex Court in Rajesh v. State of Maharashtra reported in AIR 1998 SC 2724 : 1998 Cri LJ 4042 wherein Apex Court after taking note of the fact of that case reduced the sentence of the accused from two years' RI to one year's RI while maintaining the conviction of the accused. 8. The other case-laws referred to by Mr. Debnath were Kakoo v. The State of Himachal Pradesh AIR 1976 SC 1991 and Phul Singh v. State of Haryana AIR 1980 SC 249 : 1980 Cri LJ 8 wherein the Apex Court considering the age of the Appellants of those cases and other circumstances of the cases reduced the sentence of the Appellants of those cases. 9. Mr. Roy, learned Counsel appearing for the Appellant Subal echoed in the same manner. He mainly urged that from the evidence it reveals that the accused Subal was the driver of the offending vehicle and he did not directly participate in the alleged offence. The victim girl also did not make any allegation that he (Subal) committed any overt act. Therefore, the order of sentence passed by the learned trial Court against Subal is in higher side and as such the same requires to be interfered with by this Court. 10. Mr. Nandi Majumder, learned Counsel appearing for the Appellants Chandan Shil and Chandan Saha made his submission in a different tune. According to him, no case under Section 366, IPC is made out against these Appellants as they did not participate directly in the alleged kidnapping. 10. Mr. Nandi Majumder, learned Counsel appearing for the Appellants Chandan Shil and Chandan Saha made his submission in a different tune. According to him, no case under Section 366, IPC is made out against these Appellants as they did not participate directly in the alleged kidnapping. He also contended that their mere presence in the offending vehicle also does not attract Section 34, IPC though he conceded that the evidence adduced by the prosecution admits the fact that these two Appellants were also with the principal accused Sajal and Bimal and the victim girl in the offending vehicle on the date of alleged incident while the vehicle was detained by the police party and subsequently arrested by P.W. 10 at Manpathar outpost. He further contended that the victim (P.W. 4) specifically stated that she was forcibly taken into the car by the accused Sajal and Bimal and not by these two Appellants and not only that while she was forcibly taken inside the vehicle, her face and mouth were covered with a towel and therefore, there was no scope for her to identify these two accused persons and more so, the said towel was not seized by the police and non-seizure and non-production of the towel has also not been explained and for such non-explanation, these two Appellants are entitled to get the benefit of doubt. Placing reliance on Girija Shankar v. State of U.P., reported in (2004) 3 SCC 793 : 2004 Cri LJ 1388 he urged that Section 34, IPC has been enacted in the principle of joint liability in the doing of a criminal act and the true concept of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. In the instant case, the prosecution failed to prove the common intention of these two Appellants so far kidnapping of the victim girl by the accused Sajal is concerned. In the instant case, the prosecution failed to prove the common intention of these two Appellants so far kidnapping of the victim girl by the accused Sajal is concerned. He also contended that there is no such evidence available on record that there was a plan or meeting of mind of these two accused persons with Sajal and Bimal to commit the offence for which they are charged with the aid of Section 34, IPC. He finally contended that the evidence on record does not show that the accused persons shared the common intention to kidnap the victim girl. Therefore, these two accused-Appellants are entitled to be acquitted from the charge levelled against them. 11. To support the aforesaid contention Mr. Nandi Majumder also placed reliance on another judgment of the Apex Court in Manik Das v. State of Assam, reported in AIR 2007 SC 2274 : AIR 2007 SCW 3959 wherein the Apex Court noted, inter alia, that in order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. 12. He finally placed reliance on a decision of this Court in the case of Bhally Saikia v. State of Assam, reported in (2009) 1 GLR 272, particularly para 27 of that report wherein this Court discussed about the distinctive feature of Section 34, IPC and noted that the distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34, IPC if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. The existence of a common intention amongst the participants in a crime is the essential element for application of this section. 13. While resisting the submissions of the learned Counsel for the Appellants, Mr. The existence of a common intention amongst the participants in a crime is the essential element for application of this section. 13. While resisting the submissions of the learned Counsel for the Appellants, Mr. Sarkar, learned Public Prosecutor would contend that from the evidence of the Headmaster (P.W. 11) of the Charipara Higher Secondary School where the victim girl was studying at the relevant time, it is established that the victim girl was a minor one at the relevant time and from the evidence of P.W. 4 victim girl and her associates (P. Ws. 5 and 6), it is established that the victim girl was kidnapped by the accused Sajal and Bimal with intention to compel the victim girl to marry accused Sajal against her will and it is also established that all the accused persons were with them sharing the common intention upon being present in the vehicle while she was forcibly kidnapped by accused Sajal and Bimal. Not only that it is also the admitted position that all the accused persons were found in the offending vehicle with the victim minor girl (P.W, 4) while the police detained the vehicle along with the seized articles. 14. While resisting the submission of Mr. Roy, learned Counsel appearing for the accused-Appellant Subal, Mr. Sarkar submitted that the accused-Appellant, the driver of the offending vehicle was aware about the intention of the criminal act of the other accused-Appellants. Hence, he also shared the same intention allowing the other accused-Appellants to utilize his vehicle for alleged criminal act. Therefore, the plea of Mr. Roy that the accused-Appellant Subal was a mere driver would not absolve him from the charge of kidnapping the victim girl under Section 366 read with Section 34 of the IPC. 15. In support of his aforesaid contention, Mr. Sarkar placed reliance on a decision of this Court in Bhagya Hazarika, Sadhan Debnath v. State of Assam, reported in (1999) 1 GLR 416 wherein his Lordship Mr. Justice P.C. Phukan, the then he was noted, inter alia. "...I could not persuade myself to accept the submission of Mr. S. Mitra, learned Counsel for the accused Appellant Bhagya Hazarika, that he was a mere taxi driver whose taxi was hired by the accused Appellant Sadhan Debnath and hence he committed no offence". Justice P.C. Phukan, the then he was noted, inter alia. "...I could not persuade myself to accept the submission of Mr. S. Mitra, learned Counsel for the accused Appellant Bhagya Hazarika, that he was a mere taxi driver whose taxi was hired by the accused Appellant Sadhan Debnath and hence he committed no offence". Therefore, in view of the aforesaid decision, according to him, it cannot be said that the learned trial Court committed any error while convicting the accused-Appellant Subal under Section 366 read with Section 34, IPC. 16. Learned Public Prosecutor while resisting the submissions of Mr. Debnath contended that the learned trial Court while awarding sentence also took note of the Apex Court decision in Sevaka Perumal v. State reported in AIR 1991 SC 1463 : 1991 Cri LJ 1845 wherein the Apex Court held that undue sympathy to impose adequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society cannot long endure under serious threats. It is the duty of the every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. 17. He finally contended that the Court is to keep in mind that in the instant case the offence is against a minor girl and unless the Court passes the proper sentence there will be a wrong message to the society. Therefore, no interference is called for so far the order of sentence passed by the learned trial Court is concerned. 18. Before appreciating the submissions of the learned Counsel for the parties, it would be proper for this Court to reproduce the salient portion of the evidence of P. Ws. 4, 5, 6, 9, 10 and 11 as the learned trial Court mainly relying on the evidence of these witnesses convicted and sentenced the Appellants herein. 19. P.W. 4, Smti Sankari Das alias Sankari Sarkar. 4, 5, 6, 9, 10 and 11 as the learned trial Court mainly relying on the evidence of these witnesses convicted and sentenced the Appellants herein. 19. P.W. 4, Smti Sankari Das alias Sankari Sarkar. the victim minor girl in her statement specifically stated that on 27-11-1999 she was a student of Class VII of Charipara Higher Secondary School and on the date of occurrence while she reached near Rarnthakur Ashram on her return from school at about 4.30 p.m. after appearing in the examination along with P.W. 5, Miss Soma Chakraborty, P.W. 6 Shri Dipak Choudhury and another Rina Paul, suddenly a Maruti Van came from their backside and the speed of the said vehicle was controlled though it was in starting condition and the Appellants Bimal and Sajal came out from the vehicle. Bimal had a dagger in his hand and Sajal forcefully pulled her inside the vehicle. There were also three more persons including the driver Subal in the vehicle. They gagged her mouth with a towel, as a result, she could not cry and thereafter, the vehicle ran way. She could not realize in which direction the said vehicle was going since her head was under cover. She stated that after a considerable time the vehicle stopped and then she could remove the cloth from her face and found police personnel there. On query of the police she told that she was alone in the vehicle and was forcibly kidnapped while she was on the way to home from school. She also stated that Appellant Sajal and other miscreants were in the vehicle and police took all of them inside Manpathar outpost at about 7/7.30 p.m. and when they were taken to Manpathar Police Station, she narrated the entire incident including her address to P.W. 10. She also informed the police that the number of the Maruti vehicle was 0373. She did not tell the names of the other companion of Bimal and Sajal though she stated that besides Sajal and Bimal the other accused persons were Chandan Saha and another Chandan might be Sarkar and driver Subal Deb. She further stated that Darogababu arrested all of them in the outpost and she was kept in the outpost in a separate room. She further stated that Darogababu arrested all of them in the outpost and she was kept in the outpost in a separate room. On the following morning her mother along with other neighbours went there and after their arrival the police took her and the accused persons to Belonia Court and from Belonia Court she was handed over to her mother. Thereafter, her mother brought her back to home and accordingly, she narrated the entire occurrence to her mother. She identified Ext. M.O. 1 series as her wearing apparels at the time of occurrence and her signature in the seizure list, Ext. 2/2. This witness further stated that accused Sajal was her close neighbour and accused Bimal was also a resident by the side of the road through which she used to go to school and accused Sajal with his associates forcefully kidnapped her with a view to marry her against her will and not only that Sajal used to tease her often while on way to school and on other occasions, whereas she used to call him uncle. Accused Bimal kept the dagger (Bhojali) inside the vehicle while kidnapping her and that was seized by Darogababu. She identified the dagger, Ext. M.O. 2. She further deposed that at Manpathar O.P. Darogababu on search of the vehicle recovered saree, petticoat, vermilion and conch, bra and other articles, all in new condition, from the possession of accused Sajal and seized the same and she identified all those articles, Ext. M.O. 3 series. In her cross, this witness denied all the suggestions put to her by the accused persons including the suggestion that she had love affairs with accused Sajal and that she enticed Sajal to elope with her. She also denied the suggestion that she took saree, blouse, vermilion, petticoat, conch etc., Ext.M.O. 3 series at the time of going with Sajal. 20. P.W. 5, Miss Soma Chakraborty and P.W. 6, Shri Dipak Choudhury who were with the victim (P.W. 4) at the time of occurrence and witnessed the incident corroborated the statement of the victim so far the alleged kidnap is concerned. 21. 20. P.W. 5, Miss Soma Chakraborty and P.W. 6, Shri Dipak Choudhury who were with the victim (P.W. 4) at the time of occurrence and witnessed the incident corroborated the statement of the victim so far the alleged kidnap is concerned. 21. P. W. 9, Shri Dipak Chakraborty, the owner of the offending vehicle in his deposition stated that the accused-Appellant Subal was his driver at the relevant time and on the date of occurrence he (Subal) took out his vehicle saying that with his family members he would undergo a visit to Udaipur Tripureswari Temple and would come back with the vehicle in the evening. But on that night neither he returned with the vehicle nor did he(P.W.9) receive any information about his vehicle. On the following morning he got the information of detainment of his vehicle by the police from daily newspaper. Ultimately he released his vehicle on bail. Thereafter, accused Subal never met him and even did not take the wages which was due to be given to him. 22. P. W 10, Inspector Sajal Sharma deposed before the learned trial Court that on 27-11-1999 while he was working as Sub-Inspector of Tripura Police and was posted as O/C. of Manpathar O. P. under Santirbazar Police Station at about 1900 hrs. TSR Havildar Raghunath Mumu and Police Constable Krishna Chakraborty and other police and TSR personnel brought a Maruti Van bearing No. TR-01-B-0373 along with a school girl and four other persons and driver of the Maruti vehicle and informed him that while the TSR and Police personnel were on patrolling duty on Agartala-Sabroom Road at Patichari they found the vehicle running with abnormal speed and being suspicious they stopped the vehicle while the vehicle was running towards southern direction and found the school girl and others and on query driver told that the vehicle with those persons were going to Birchandra Manu and they also found a school girl in the vehicle and on their query the girl told them that those youths forcibly kidnapped her from Charipara area of Agartala while she was on way to home from school and forcefully taking her to unknown destination and therefore, they detained the vehicle with those five persons including driver and the school girl. They also produced a bag found in custody of those youths with some new cloths, a kurki (bhujali), some vermilion, conch etc. They also produced a bag found in custody of those youths with some new cloths, a kurki (bhujali), some vermilion, conch etc. and produced those articles before him. On his query the girl told that her name is Sankari Sarkar, daughter of Anil Sarkar of Panchamukh, Charipara and that those five youths forcibly kidnapped her. On his query those youths also disclosed that they kidnapped the girl as Sajal wanted to marry her. This witness further stated that he entered the fact in Manpathar O.P.G.D. No. 637 dated 27-11-1999 and seized the vehicle and other articles found in the vehicle by preparing a seizure list in presence of the witnesses. As he was informed by Amtali P.S. through S. P. (DIB), Udaipur that a case relating to the said incident being Amtali P.S. Case No. 100/99 under Section 366 IPC had been registered, he sent all the accused persons, the victim girl to the Court of learned SDJM, Belonia. 23. P. W. 11, Shri Kumud Behari Malla, who was the Headmaster of Charipara Higher Secondary School at the relevant time proved Ext. 4 the certificate issued by him and stated that the date of birth of the victim girl is 13-3-1985. 24. As the accused-Appellants were charged under Section 366 read with Section 34 IPC, it would be profitable to reproduce the provisions of Section 366 as well as Section 34 IPC. Accordingly, the same are reproduced herein under: Section 366. Kidnapping, abducting or inducing woman to compel her marriage, etc.- Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; (and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid) .... Section 34. Section 34. Acts done by several persons in furtherance of common intention. When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. 25. In Moniram Hazarika v. State of Assam, reported in 2004 (2) E Cr. No. 590: 2004 CriLJ 2553, the Apex Court while deciding the appeal preferred by the accused who was convicted by the learned Addl. Sessions Judge, Jorhat after trial under Section 366 IPC and sentenced to suffer R.I. for three years and a fine of Rs. 300/- in default in payment of fine to undergo further R.I. for three months which was upheld by the High Court held, inter alia, that the Appellant of that case who was a regular visitor to the house of P.W. 1, brother of the minor kidnapped girl, took undue advantage of friendship and persuaded the minor to abandon the guardianship with a promise of marriage which on facts of that was sufficient to uphold the judgments of the Courts below. 26. A proper scrutiny of the evidence of P. Ws. 4, 5, 6, 9, 10 and 11 clearly establishes the presence of all the Appellants in the vehicle along with the victim girl and they were also present when the accused Sajal forcibly kidnapped the victim Sankari in presence of P. Ws. 5 and 6 and one Rina Baul with an intent to marry her against her will and without the consent of her lawful guardian, i.e. the parents. It is the admitted position that the victim girl (P. W. 4) did not tell the name of all the Appellants except the Appellants Sajal and Bimal while they were detained by the police party, but as the other accused persons were arrested by the police party from the offending vehicle and she also saw all of those persons after removing cloth from her eyes and head, she saw those persons and ultimately identified those persons at the time of trial and she referred their names before the learned Court. Therefore, it cannot be said that the accused Chandan Shil and Chandan Saha and the driver Subal had not the similar intention like the accused Sajal and Bimal. Therefore, it cannot be said that the accused Chandan Shil and Chandan Saha and the driver Subal had not the similar intention like the accused Sajal and Bimal. Moreso, they might not participate actively in the action of abduction of the victim girl, but at the same time, they also did not prohibit the accused Sajal and Bimal from committing the offence of kidnapping/abduction. 27. In the instant case from the evidence of the foregoing prosecution witnesses it appears that the accused-Appellants played some role either to solicit or persuade the minor victim to abandon the legal guardianship which itself is sufficient to hold such persons guilty of kidnapping in view of the observation of the Apex Court in the case of Moniram Hazarika (supra). 28. However, as Mr. Nandi Majumder, the learned Counsel tried to make out a case that none of the Appellants for whom he is appearing are liable to be convicted under Section 366 read with Section 34 IPC, it would be proper for this Court to discuss about the requirement of Section 34IPC which has already been quoted herein above. 29. According to this Court, active participation in the crime is not the requirement of Section 34IPC. In Barendra Kumar Ghosh v. King Emperor, reported in AIR 1925 PC 1: 1925 (26) Cri LJ 431, the Privy Council stated thus - The words of Section 34 are not to be eviscerated by reading them in this exceedingly limited sense. By Section 33 a criminal act in Section 34 includes a series of acts and, further, 'act' includes omission to act, for example an omission to interfere in order to prevent a murder being done before one's very eyes. By Section 37, when any offence is committed by means of several acts whoever intentionally co-operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Even if the Appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things they also serve who only stand and wait. 30. The aforesaid decision of the Privy Council is also considered by the Apex Court in the case of Lallan Rai and Ors. Even if the Appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things they also serve who only stand and wait. 30. The aforesaid decision of the Privy Council is also considered by the Apex Court in the case of Lallan Rai and Ors. v. State of Bihar, reported in AIR 2003 SC 333 : 2003 Cri LJ 465 wherein the Apex Court noted that the requirement of the statute is sharing the common intention upon being present at the place of occurrence. Mere distancing himself from the scene cannot absolve the accused though the same however depends upon the fact-situation of the matter under consideration and no rule steadfast can be laid down therefor. 31. From the trend of the cross-examination, it appears that the defence tried to make out that the victim girl from her own accompanied the Appellants and, therefore, no offence under Section366 IPC is made out and unless an offence under Section 366 IPC is made out against the accused-Appellant Sajal and Bimal, question of sharing common intention by the other Appellants does not arise. But in the instant case, the prosecution first proved that the victim girl was a minor at the time of alleged offence and thereafter proved that she was taken away from the custody of her lawful guardian forcibly with an intention to marry her by the accused Appellant Sajal against her will. Therefore, it cannot be said that no case under Section 366 is made out. Moreso, the prosecution also established by way of adducing evidence that the other Appellants except Sajal and Bimal were in the offending vehicle and not only that the accused-Appellant driver Subal was also a party to the offence as would be evident from the evidence of P. W. 9 the owner of the aforesaid vehicle to whom accused Subal stated that he with his family members would undergo a visit to Udaipur Tripureswari temple and not only that he also told that he would return with the vehicle by evening. But fact remains that on that night neither he returned with the vehicle nor he informed his owner (P. W. 9) regarding the whereabouts of his vehicle as the said vehicle was used for kidnapping the victim girl (P. W. 4). But fact remains that on that night neither he returned with the vehicle nor he informed his owner (P. W. 9) regarding the whereabouts of his vehicle as the said vehicle was used for kidnapping the victim girl (P. W. 4). On the contrary, P. W. 9 got information regarding the detention of his vehicle by the Manpathar outpost while the same was used in kidnapping the victim girl through daily newspaper. The decision of this Court in Bhagya Hazarika, Sadhan Debnath (supra) would not only help to decide the appeal preferred by accused Subal, driver of the offending vehicle, rather squarely covers his case as Bhagya Hazarika was also a driver like him who was convicted for an offence of kidnapping a woman pursuant to a pre-arranged plan of other accused of that case. 32. This Court has gone through the decision of the Apex Court in Manik Das and Ors. (supra) as relied on by Mr. Nandi Majumder, learned Counsel for the Appellants in Crl. Appeal No. 25 of 2003 wherein the Apex Court stated in para 7-8 as follows: 7-8. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34, if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true content of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab AIR 1977 SC 109 : 1977 Cri LJ 164, the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. 33. There is no quarrel with the proposition laid down by the Apex Court in the aforesaid case, but the aforesaid decision in no way helps the accused-Appellants for whom Mr. Nandi Majumder appeared as the prosecution established by direct evidence that both the Appellants were in the offending vehicle along with the victim girl and Appellant Sajal and Bimal when the said vehicle was detained by the police authority. Moreso, it is also admitted position that these two Appellants did not prohibit the accused Sajal from committing the offence of kidnapping the minor victim girl. The other decision cited by Mr. Nandi Majumder is almost on the same point. Therefore, it would not be proper for this Court to burden this judgment by discussing the fact of that case in details as that case also in no way helps the Appellants, rather strengthens the case of the prosecution. 34. In view of the aforesaid discussions, this Court is of the considered opinion that the learned trial Court did not commit any error in convicting the Appellants under Section 366 read with Section 34IPC for kidnapping the minor victim girl (P. W. 4) with an intent of marrying her against her will and also for taking her away from her lawful guardian. 35. Now, let us consider the plea regarding the sentence awarded by the learned trial Court as raised by Mr. Roy and Mr. Debnath learned Counsel appearing for the Appellants in Crl. Appeal No. 19 and 32 respectively. 36. 35. Now, let us consider the plea regarding the sentence awarded by the learned trial Court as raised by Mr. Roy and Mr. Debnath learned Counsel appearing for the Appellants in Crl. Appeal No. 19 and 32 respectively. 36. There is no doubt that it is the duty of the Court in a criminal case to protect the interest of the accused, the victim as well as the society for which the proper appreciation of evidence is required. 37. For kidnapping, abducting or inducing woman to compel her marriage etc., the legislature has prescribed punishment for a term which may extend to ten years with a fine. Therefore, it is the position that the legislature has prescribed the maximum punishment often years with fine for an offence of kidnapping, but has not prescribed the minimum punishment for such an offence and the same is left to the Court to award considering the facts and circumstances of each case. In the instant case, the learned trial Court awarded sentence of five years' R, I. with a fine of Rs. 5,000/-, i/d. to suffer S. I. for one year and six months to the each of the Appellants Subal and Bimal, four years' R.I. with a fine of Rs. 3,000/- i/d. to suffer S. I. for six months to the each of the Appellants Chandra Shil and Chandan Saha and seven years' R.I. with a fine of Rs. 10,000/- i/d. to suffer S.I. for three years to the Appellant Sajal, which according to Mr. Roy and Debnath are on higher side. 38. To substantiate the aforesaid plea Mr. Debnath relied upon the decision of the Apex Court in Rajesh and Ors. (supra), wherein in a case of abduction, the Apex Court modified the sentence from two years' RI to one year's RI. This Court has gone through the aforesaid judgment. The fact of that case is totally different from the present one. In that case, P.W. 6 Archana, the victim did not name the Appellants in her complaint as the persons whom she had recognized while she was being taken away in the car. She, however, did refer to their names in the complaint itself as the persons whose names were disclosed by Appellant Irshad when he was caught and asked by Dr. Mahajan and others as to who were the other companions and why they had come to Nandura. She, however, did refer to their names in the complaint itself as the persons whose names were disclosed by Appellant Irshad when he was caught and asked by Dr. Mahajan and others as to who were the other companions and why they had come to Nandura. It was also noted by the Apex Court in that case that for some reasons she had tried to protect Appellants Irshad, Taufiq, Santosh and Manoj even though they were known to her as they were studying with her in the College previously and not only that the accused Navneet and the victim Archana were close to each other while they were studying at Nagpur. More so, Archana had completed 18 years of age and the accused Navneet probably believed that she would come with him. Therefore, according to this Court, the said case is also distinguishable. 39. In a catena of decisions, the Apex Court held that the measure of punishment/sentence in a case cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, nature and gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio-economic status, religion, race, caste or creeds of the accused or the victim are irrelevant consideration in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and those required to be achieved by imposing an appropriate sentence. The sentencing Courts are expected to consider all relevant facts and circumstances on the question of sentence and propose to impose a sentence commensurate with the gravity of the offence. Court should not close its eyes and avoid to hear the cry of the society for justice in case of a heinous crime like kidnapping of minor girl, rape on innocent helpless girls offender age, married women while passing order of sentence. In a case of kidnapping of a minor girl from her lawful guardian to marry her against her will and in a case of heinous crime like rape on an innocent helpless girl of tender age, the measure of punishment should not be taken merely on social position of the parties injured, but on the greater or less atrocity of the crime, the conduct of the criminal and defenceless and unprotected stage of the victim. 40. 40. In the instant case, from a combined reading of the evidence of prosecution witnesses as referred to supra it is established that the Appellants proceeded for committing the offence of kidnapping with preplan, an offence punishable under Section 366 IPC with the aid of Section 34IPC. As it further appears from record that before the alleged kidnapping the Appellants purchased new clothes and other materials including vermilion, conch etc. which are required for a marriage and not only that one of them was armed with a kurki (bhujali). Therefore, the order of sentence passed by the learned trial Court would not be considered to be in higher side or wholly disproportionate. The only thing is that while passing the order of sentence, the learned trial Court did not consider the fact, inter alia, that the accused Sajal and the victim (P. W. 4) are neighbours and it cannot be ruled out that they were known to each other and almost all the Appellants including the prime accused Sajal and Bimal were at their youth age at the relevant time and are the first offenders having no previous criminal record. Above all, the incident took place in 1999 and the trial was completed in 2003, i.e. after four years of the alleged incident. More so, the aforesaid appeals were filed in the year 2003 and fact remains that all the Appellants are on bail and according to Mr. Debanath, the accused Appellant has been suffering from certain illness which requires day to day treatment. 41. Considering all the aforesaid circumstances of the case, this Court is of the opinion that it would meet the ends of justice if the sentence of accused-Appellant Sajal is reduced to five years' RI from seven years' RI with a fine of Rs. 5,000/-, i/d. to suffer one year's simple imprisonment, the sentence of accused Appellant Subal and Bimal is reduced to three year's RI from five years' RI with a fine of Rs. 5,000/-, i/d. to suffer S.I. for one month and the sentence of accused Appellants Chandan Shil and Chandan Saha is reduced to three year's RI from four years' RI with a fine of Rs. 1,000/- each, i/d. to suffer S.I. for three months. Order accordingly. 42. The period they have already undergone during investigation trial, appeal etc. be set off from the above sentence. 43. 1,000/- each, i/d. to suffer S.I. for three months. Order accordingly. 42. The period they have already undergone during investigation trial, appeal etc. be set off from the above sentence. 43. In the result, appeals are partly allowed. The order of conviction passed by the learned trial Court in the impugned judgment is upheld and the order of sentence is modified to the above extent. 44. The Appellants are on bail. Their bails stand cancelled. They are directed to surrender before the learned trial Court within a month from today to serve out the remaining part of their sentence and to pay the fine and if they fail to surrender within the aforesaid period then the learned trial Court shall take necessary steps for taking them into custody. 45. Send down the lower court records along with a copy of this judgment and order.