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2010 DIGILAW 581 (GAU)

Tutu Boruah v. State of Assam

2010-08-12

P.K.MUSAHARY

body2010
1. Heard Mr. P. Bora, learned counsel for the appellant and Mr. B.B. Gogoi, learned Addl. P.P., Assam. 2. This appeal is presented challenging the judgment and order dated 10.6.2003 passed by the learned Addl. Sessions Judge (Ad hoc), Sivasagar in Sessions case No.31(S-C)/2002 whereby he was convicted under section 498/865, IPC and sentenced to undergo R.I. for 1 year and to pay a fine of Rs. 500, in default, R.I. for another 1 month for the offence under section 498, IPC and again to undergo R.I. for 2 years and to pay a fine of Rs. 1000, in default, R.I for another 2 months, for the offence under section 365, IPC but both the sentences directed to run concurrently. 3. The story projected by the prosecution, in brief, is that in the morning of 22.6.1997 at about 9.00 a.m Smt. Anami Garh and Smt. Kunti Garh went out of their house to Kachi Mari Chariali for shopping and on their way, the present accused/appellants Tutu Boruah and Monu Mazhi kidnapped and abducted them. Search was made by Sri Lakheswar Garh husband of Anami Garh and in the morning of 5.7.1997 his wife Anami Garh was recovered from the village Moragaon along with accused/appellant Tutu Boruah and handedover them to police at Moranhat Police station where an ejahar was lodged by Sri Lakheswar Garh about the occurrence. The police, on receipt of the Ejahar, registered a case being Moranhat P.S. case No.61/97 under section 366/34, IPC. The police concluded the investigation and submitted charge sheet against Tutu Boruah and Monu Mazhi. 4. The case was committed to the Court of Sessions, Sivasagar as the same is exclusively triable by the Court of Sessions. The learned trial court framed charge under section 366/34/376, IPC. The accused persons pleaded not guilty and claimed to be tried. 5. After completion of the trial and on hearing the learned counsel for the parties, the learned trial court convicted and sentenced both the accused persons as stated earlier. Out of two convicts, only Sri Tutu Boruah has preferred this appeal and, therefore, this court would confine to the case of the present appellant alone. 6. As per the evidence of Investigating Officer, PW7, during investigation, the victim women were produced before the Judicial Magistrate for recording their statements under section 164, Cr.PC. They were also produced before the Medical and Health Officer. 6. As per the evidence of Investigating Officer, PW7, during investigation, the victim women were produced before the Judicial Magistrate for recording their statements under section 164, Cr.PC. They were also produced before the Medical and Health Officer. The victim Anami Garh was sent for medical examination. PW1 Dr. Sadhan Bora accordingly, examined Anami Garh. In his medical report, Ext.3, in respect of Anami Garh, he recorded that there is no sign of external injury on her person and her hymen was found absent. He found no sign of recent sexual intercourse. Besides, the said Medical Officer opined that the victim woman Anami Garh was above 18 years. PW8, Judicial Magistrate who recorded the statements of the victim Anami Garh under section 164, Cr.PC deposed affirming that the aforesaid victim woman was produced before him and she stated amongst other, that she was aged 21 years. 7. Now coming to the evidence of victim PW5, it is found she did not support the prosecution case and, therefore, she was, declared hostile. The prosecution then cross-examined her. In her cross-examination she stated that she used to treat the accused/appellant. Tutu Boruah, as her brother and she went out with him for roaming as because she was annoyed with her husband due to some quarrel with him. She clearly stated that the accused/appellant Tutu Boruah did neither kidnap or entice her. She stated that out of anger her husband produced her before the police and filled the present case. She also stated that she was forced by her husband to give evidence before the court against accused/appellant Tutu Boruah. 8. The accused/appellant was examined under section 313, Cr.PC to explain some evidence on records which are found against him. From his answers to the questions put by the learned trial court, it is found that he admitted the fact that the victim woman, Anami Garh boarded the Taxi/Ambassador Car in which he was travelling but he never put any pressure on her to go with him. The present accused/appellant did not examine any evidence in his defence. 9. From his answers to the questions put by the learned trial court, it is found that he admitted the fact that the victim woman, Anami Garh boarded the Taxi/Ambassador Car in which he was travelling but he never put any pressure on her to go with him. The present accused/appellant did not examine any evidence in his defence. 9. This case, in my considered view, is to be decided on the basis of evidence of victim woman and also her age at the time of alleged occurrence inasmuch as the age of the victim woman is the relevant factor to find out whether there was any possibility of kidnapping or abducting her and also the intention of the accused persons to constitute the offence under section 365, IPC. What is found from the evidence of PW1, Dr. Sadhan Bora, is that the victim woman Anami Garh was above 18 years of age. Moreover she herself declared her age as about 21 years when making her statement before the Magistrate under section 164, Cr.PC. There would be no difficulty in coming to a conclusion that the aforesaid victim woman was above 18 years at the time of occurrence. It indicates that she had attained the age of consent and she was capable of giving her consent for voluntarily going out with a person. Moreover, it is to be noted that she was a married woman who can take care of herself and her well being. 10. The important aspect of the matter is that before the learned trial court she refused to accept the prosecution story and deposed before the court voluntarily in her own way stating the real fact that she voluntarily went off with the accused/appellant and there was no case of kidnapping or abduction or using force on her to go with the appellant against her will. The prosecution counsel even could not destroy the evidence while cross-examining her after declaring the victim woman as hostile witness. 11. For consideration of the alleged charge under section 498, IPC similar approach may be made in the present case as the victim woman being a married woman and major in her age. The ingredients of offence under section 498, IPC are that there must be enticing or taking away or detaining with a criminal intent a married woman. 11. For consideration of the alleged charge under section 498, IPC similar approach may be made in the present case as the victim woman being a married woman and major in her age. The ingredients of offence under section 498, IPC are that there must be enticing or taking away or detaining with a criminal intent a married woman. The victim woman is admittedly a married woman, and she herself had denounced the prosecution story that she was ever enticed or taken away by the present accused/appellant. Victim woman had not stated in her deposition anything against the accused/appellant that she had established any physical relation or indulged in sexual intercourse with the appellant during her stay with him. Unless the victim woman herself deposes anything about the same, there is no scope for coming to a conclusion that there was an intention on the part of the appellant to impute any criminal intent, within the meaning of section 498, IPC. The other ingredient of wrongful confinement is also absent on the face of the evidence tendered by the victim woman. 12. What emerges from the aforesaid discussion is that the prosecution fails to prove its case beyond reasonable doubt, not to speak of beyond all shades of reasonable doubt as envisaged under the criminal jurisprudence. 13. In that view of the matter, the accused/appellant is entitled to get an order of acquittal. I am not in agreement with the findings and conclusion arrived at by the learned trial court. The impugned judgment and order dated 10.6.2003 convicting and sentencing the present accused/appellant Tutu Boruah is liable to be set aside and quashed. It is accordingly quashed and set aside. The present accused/appellant Tutu Boruah stands acquittal of the charge under section 365/498, IPC. 14. In the result, this criminal appeal stands allowed. 15. The bail bond stands discharged. 16. Return the L.C.R. forthwith.