Research › Search › Judgment

Gauhati High Court · body

2010 DIGILAW 572 (GAU)

Ghana Kanta Nath v. State of Assam

2010-08-12

P.K.MUSAHARY

body2010
JUDGMENT P.K. Musahary, J. 1. Heard Mr. A.K. Bhatacharjee, learned senior counsel assisted by Mr. A.K. Choudhury, learned Counsel for the Appellant. Also heard Mr. B.B. Gogoi, learned Additional Public Prosecutor for the State. 2. This appeal is directed against the judgment and order dated 29.5.2003 passed by Smt. D.D. Devi, learned Ad hoc Additional Sessions Judge, Darrang, Mangaldoi in Sessions Case No. 142/(DMFT) 2001 convicting the Appellant Nos. 1, 2 and 3 under Section 365/34 of the IPC and sentencing them to undergo rigorous imprisonment for 3(three) year and a fine of Rs. 2,000 each and in default payment of fine, a further period of punishment of 1(one) month and sentencing the other accused/Appellants under Section 365/34 of the IPC to undergo rigorous imprisonment for 5(five) years and also a fine of Rs. 2,000 each and in default of payment of fine, a further period of rigorous imprisonment for 6(six) months. 3. Briefly stated, the prosecution story, is that one Sri Ankur Nath (deceased), a student of High School, Son of Sri Suren Nath (PW4) was confined on 20.3.1999 in the house of accused Hanshadhar Nath for alleged attempt to commit rape on his daughter. The incident being reported, a village "Bichar" was held. In the said 'Bichar' several villagers were present. But in the first meeting no decision could be taken and as such the deceased Ankumoni @ Ankur Nath was not released. In the next morning, i.e., 21.3.1999 a rumor spread that Ankur fled away from his confinement on the plea to attend call of the nature but he did not return. As Ankur was missing, the remaining part of the 'Bichar' could not be held and as such both the parties started searching for him. 4. On 22.3.1999, at about 9 a.m., the dead body of Ankur was recovered by the villagers from a jungle. Accordingly, an FIR was lodged by Sri Dharma Kanta Nath on 22.3.1999, which was registered as Sipajhar P.S. Case No. 34/1999 under Sections 365/342/302/34, IPC. The I.O. after completion of the investigation, submitted charge sheet against all the accused-Appellants under Sections 365/342/302/34 of the IPC. The learned Judicial Magistrate 1st Class, Mangaldoi committed the case to the Court of Sessions, Mangaldoi, who framed the charge against them under Section 364/302/34 of the IPC. The charges being read over and explained, the accused-Appellants pleaded not guilty and demanded trial. The learned Judicial Magistrate 1st Class, Mangaldoi committed the case to the Court of Sessions, Mangaldoi, who framed the charge against them under Section 364/302/34 of the IPC. The charges being read over and explained, the accused-Appellants pleaded not guilty and demanded trial. The prosecution examined as many as 11(eleven) witnesses including the I.O. and the Medical Officer. The defence also examined 5(five) witnesses including the victim girl and her father. The learned trial court, after completion of the trial, on consideration of evidence and materials on record and upon hearing the learned Counsel for the parties convicted and sentenced the accused-Appellants as already stated above. On perusal of the evidence on records, I find that the deceased was taken in to the custody by the accused-Appellants and a village meeting was held in presence of several persons and he was kept in confinement whole night of 20.3.1999 and the 'Bichar' remained inconclusive in its first meeting. The second part of the meeting was to commence in morning of 21.3.1999. The deceased, with the permission of the members of the public went out for attending the call of the nature. This fact is undisputed. Unfortunately, the deceased did not return and admittedly members from both the parties started searching for him. Police was also informed. 5. The villagers could locate Ankur but he was found dead hanging from a tree. Immediately First Information Report (FIR) was lodged by the maternal uncle (PW2) of the deceased and the police came to the place of occurrence. The dead body was brought down in presence of the villagers. The I.O. prepared a sketch map of the place of occurrence and conducted inquest over the dead body. The inquest report has been exhibited and marked as 'Ext. 5'. In the inquest report, the I.O. recorded that he found no other mark of injury or violence on the body of the deceased except blood oozing out from his nose and mouth. The dead body was sent for post mortem examination. PW9, the Medical and Health Officer of Mangaldoi Civil Hospital, conducted the post mortem examination. In the post mortem report it is recorded, amongst other, as follows: ... The dead body was sent for post mortem examination. PW9, the Medical and Health Officer of Mangaldoi Civil Hospital, conducted the post mortem examination. In the post mortem report it is recorded, amongst other, as follows: ... On careful examination following Injuries are found on his person: (1) one oblique ligoture scar mark on the neck extending from below the mendible to mastoid process and back with its Revit on the pad of the neck. The furrow is dark brown in colour with presence of ectrymosis on either side. (2) The nose is swollen with scratch over (2cm x 2mm) with signs of bleeding from the nose.... Further he recorded his opinion to the effect that the death is due to asphyxia as a result of hanging. In his opinion hanging was ante mortem in nature. 6. There is no denial to the fact that the accused-Appellants brought the deceased to the house of Hanshadhar Nath (accused-Appellant No. 5) as it was reported by his daughter that the deceased attempted to commit rape on her. There is also no denial to the fact that the guardians of the deceased came to Hanshadhar's house and requested the accused-persons to release him with assurance to produce him again before the village 'Bichar' but he was not released. The villagers were aware about the confinement of the deceased in the house of Hanshadhar. The prosecution witnesses deposed that Joya Bala Devi, D/o of accused Hanshadhar should be taken by the deceased to his house as he attempted to commit rape on her. The intention of the accused-Appellants, as per their evidence, was to give Joya Bala Devi to marriage with the deceased but the said deceased Ankur and his guardians were not agreeing to it. 7. Offence under 365, IPC relates to punishment for committing kidnapping or abducting with intent secretly and wrongfully to confine person. It provides that whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. The learned trial court convicted and sentenced all the accused-Appellants under Sections 365 and 34, IPC. In this case, the accused-Appellants forcefully brought the deceased from his uncle's house to the house of the accused Appellant No. 5. The learned trial court convicted and sentenced all the accused-Appellants under Sections 365 and 34, IPC. In this case, the accused-Appellants forcefully brought the deceased from his uncle's house to the house of the accused Appellant No. 5. As per evidence of the defence witnesses, they knew about the presence of the deceased in the house of the accused Appellant No. 5 and they admittedly approached the accused-Appellants to release him from their custody. The accused-Appellants also made clear why they have brought the deceased and kept him in their custody, their purpose was to give Joya Bala Devi to marriage with the deceased. This evidence of the defence shows that the accused persons did not confine the deceased secretly although such confinement was wrong on their part. As discussed earlier they had no intention to kill the deceased during the confinement. They wanted justice from the villagers for which a "Bichar" was arranged. The village meeting/Bichar was adjourned/postponed to next morning. Since the meeting was postponed, there was a hope for the accused-Appellants for settlement of the issue in the meeting to be held again in the next morning. Under such circumstances, it can not be presumed or inferred that the accused-Appellant would do something that may cause his death. They might have done something to the deceased only after the failure of the village meeting/Bichar to be held in the next morning. Moreover, as discussed earlier, there is no evidence that the accused-Appellants assaulted or tortured while he was under their custody. 8. The learned trial court's observation that by confining the deceased and not informing the police, the accused-Appellants took the law in their hands is to be considered on the basis of the attending facts and circumstances of the case. The villagers often tried to resolve the issue/dispute in the Village Bichar' without taking the help of the police at the initial stage. There is nothing wrong in making such attempt. I do not find any valid reason why the simple living villagers should be deprived of the chance of resolving their dispute in their own simple way. The aforesaid observation of the learned trial court is unwarranted and against the interest of justice. It is the duty of the court to properly appreciate the evidence on records and pass an appropriate judgment convicting or acquitting the accused-persons without acting upon emotion, presumption or suspicion. 9. The aforesaid observation of the learned trial court is unwarranted and against the interest of justice. It is the duty of the court to properly appreciate the evidence on records and pass an appropriate judgment convicting or acquitting the accused-persons without acting upon emotion, presumption or suspicion. 9. There is no evidence in the present case that the accused Appellants put the deceased under extreme pressure to marry the girl and for that purpose, he has been tortured or assaulted physically or mentally. Had they had the intention to take the law in their own hands, the accused-Appellants would not have convened "Village Bichar" demanding justice from the village elders. Had they had intention to take revenge on the deceased, they would not have brought the matter to the villagers. The villagers, as per the prosecution witnesses, participated in the "Village Bichar" and there was an attempt to solve the issue. 10. In my considered view, the evidence and materials on record are not sufficient for the court to come to a conclusion that the accused-Appellants committed offence under Sections 365/34, IPC. In other words, the prosecution has failed to prove its case beyond reasonable doubt inasmuch as the learned trial court jumped into a conclusion holding the accused-Appellants guilty without properly appreciating the evidence and materials on record. 11. In view of the above I could not persuade myself to accept the findings and conclusion arrived at by the learned trial court. I disagree with the same. The impugned judgment and order convicting and sentencing the accused-Appellants are therefore, liable to be set aside and quashed. It is accordingly, quashed and set aside. The accused Appellants are acquitted. They are set at liberty forthwith. 12. It is stated at the Bar that the accused-Appellants are presently on bail. Consequently, the bail bonds stand discharged. 13. The appeal stands allowed. 14. Send down the LCR to the court below forthwith. Appeal allowed