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2010 DIGILAW 78 (GAU)

Dilwar Hussain Laskar v. State of Assam

2010-02-04

P.K.MUSAHARY

body2010
JUDGMENT P.K. Musahary, J. 1. Heard Mr. N. Islam, learned Counsel for the appellant and also heard Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam. 2. This appeal is preferred against the judgment and order dated 14.11.2002 passed by the learned Sessions Judge, Hailakandi in Sessions Case No. 32/2001 convicting the accused-appellant under Section 366, IPC and sentencing him to undergo R.I. for 5 years and pay fine of Rs. 3,000 in default, R.I. for another 6 months. 3. The prosecution case is that in the mid night of 27.8.2001, the accused Dilwar Hussain Laskar @ Dilu entered into the house of the informant by breaking open the door and kidnapped his sister Smt. Jaba Chasha with intention to marry her forcibly and confined her in some unknown place. The informant hearing the cry of another younger sister got up from the sleep and searched for Jaba with the help of some neighbours but she could not be traced. On the following day, he lodged a written FIR with the In-charge of Kalacherra Police outpost under Lala Police, Station whereupon a case being Lala Rs. Case No. 158/2001 was registered under Sections 457/366A, IPC. On completion of investigation, the police submitted charge sheet against the accused-appellant under Sections 457/366A, IPC and the matter on being committed to the Court of Sessions, framed charge under Section 366A, IPC against him to which, he pleaded not guilty and claimed to stand trial. 4. The prosecution, in order to bring home the aforesaid charge, examined 7(seven) witnesses including the victim girl. The defence also examined 3(throe) witnesses. After completion of the trial, on consideration of the evidence on record, the learned trial court, instead of convicting the accused-appellant under Section 366A, convicted him under Section 366, IPC and sentenced him as mentioned earlier. 5. Mr. Islam, learned Counsel, appearing for the accused-appellant, taking me through the evidence, particularly the evidence of victim girl (PW1), the informant (PW2) and informant's brother Subash Chasha (PW3), submits that the charge under Section 366, IPC has not been established inasmuch as the ingredient of offence under Section 366 are not proved. According to him, the victim girl herself voluntarily came to the house of the accused-appellant and she was not kidnapped or abducted by the appellant for any of the purpose mentioned in the aforesaid section. According to him, the victim girl herself voluntarily came to the house of the accused-appellant and she was not kidnapped or abducted by the appellant for any of the purpose mentioned in the aforesaid section. He would rely on and refer to authority in Jinish Lal Sah v. State of Bihar (2003) 1 SCC 605 , wherein the Apex Court held that to establish charge under Section 366 there should be acceptable evidence to show that the girl was compelled to marry the accused-appellant against her will and/or was forced to or induced to intercourse against her will and the prosecution is required to prove that there was some such undue force on the girl either to marry the accused or to have intercourse with him. 6. First of all, I would like to examine whether, as submitted by the learned Counsel for the appellant, the victim girl voluntarily came to the house of the accused-appellant. From the case records, it is found that the victim girl was examined by a Judicial Magistrate, First Class and her statement was recorded on oath under Section 164, Cr.P.C. on 29.9.2001, wherein she stated that her age was 20 years and she was reading in Class-IX. She also stated that she had a love affair with the accused appellant and had gone with him. In her evidence before the trial court, she stated that she was aged 15 years and while she was sleeping, the accused Dilwar with Shiblu, Kamrul, Rahabuddin and Hussain entered her house and carried away by pressing her mouth to the house of Dilwar. The said persons thereafter brought her to the house of Ramdin Dusad and then to the house of one Rashid Ali. The police rescued her from the house of Rashid Ali. The police brought her before the doctor for medical test and also before the Magistrate. She made statement (Exh. 1) before the Magistrate as per dictation of the police. In cross-examination, she deposed that the accused-persons tutored her to make statement before the Investigating Officer that she had love affair with accused Dilwar Hussain. She further deposed that the accused-persons, after entering her house pressed her mouth for which she could not raise alarm. The accused-persons released her mouth after reaching the house of the accused Dilwar. She was physically carried by the accused persons and brought to the house of Dilwar. 7. She further deposed that the accused-persons, after entering her house pressed her mouth for which she could not raise alarm. The accused-persons released her mouth after reaching the house of the accused Dilwar. She was physically carried by the accused persons and brought to the house of Dilwar. 7. The evidence of PW2 is not important inasmuch as he stated that ho lives in a separate house at a distance of 2/3 far-long from the place of occurrence. P Ws 3, 4 and 5 are three brothers of Jaba Rani Chasha, who were sleeping in the same house in different rooms. The mother of Jaba Rani was sleeping with her but she was not examined as a witness by the prosecution. As per the evidence of P Ws 3, 4 and 5, they got up only when they heard the cry of her mother and another sister. None of the prosecution witnesses have seen the occurrence of forcefully entering the house by the accused persons by breaking open the door and carrying away Jaba Rani Chasha by pressing her mouth to the house of Dilwar. The evidence is not sufficient to come to a conclusion that the appellant along with other accused-persons kidnapped or abducted Jaba Rani Chasha from her house forcefully against her will. The court has to depend on the evidence of victim girl and the circumstantial evidence. In her evidence, the victim girl has categorically stated that the appellant along with other accused-persons in the night of 27.8.2001 came and entered her house by breaking open the door and carried away by pressing her mouth. She was recovered from the house of Rashid Ali. In her cross-examination, she stated that as per the direction of the Investigating Officer, she told the police that she had love affair with accused Dilwar Hussain. 8. The I.O. seized the wooden door (Exh-3) from the place of occurrence, as per his evidence, who was examined, as PW7. From his evidence, it has been proved that somebody had broken the door of the room where Jaba Rani was sleeping. The defence did not put any suggestion to the I.O. (PW7) that he did not seize any broken wooden door and that he has deposed falsely. Therefore, the fact of recovery/seizure of a broken wooden door has remained un-rebutted and un-impeached. The defence did not put any suggestion to the I.O. (PW7) that he did not seize any broken wooden door and that he has deposed falsely. Therefore, the fact of recovery/seizure of a broken wooden door has remained un-rebutted and un-impeached. There is no other suggestion to the I.O. or other prosecution witnesses namely, P Ws 1, 2, 3, 4 and 5 that the I.O. did not seize any broken door from their house, i.e., the place of occurrence. It is not even suggested by the defence that some other persons or offenders came to their house and committed some offence in their house by breaking the door. The evidence of the prosecution witnesses, particularly, the victim girl, is that it was the appellant and other 4 co-accused persons and none else, who entered her room by breaking open the door, whom she could identify while she was dropped in appellant's house and later confined in the house of Rashid Ali. The evidence is that all the accused-persons are co-villagers. The said Rashid Ali in whose house Jaba was confined was also a co-villager. With this evidence on record, there cannot be any doubt that she could very easily identify all those persons. The prosecution, in my considered view, has been able to prove that the accused-appellant and his party in fact, kidnapped/abducted the PW1 (victim girl) by entering her house by breaking open the door forcefully. 9. The next question arises as to whether the victim girl was taken away by force against her will or she voluntarily accompanied or she herself came to the house of the accused-appellant voluntarily due to subsisting love affairs. The defence story could have been believed as true if there was no incident of entering of somebody in her house by breaking open the door in the mid night. If the victim girl was in love with the accused-appellant, why should he come in the mid night and carry her away physically by entering the house by breaking open the door and pressing her mouth with the help of 4 other persons. 10. In order to examine whether the charge under Section 366, IPC has been proved by the prosecution, it is necessary to have a close look at the provision under Section 366, IPC which reads as under: 366. Kidnapping, abducting or inducing woman to compel her marriage, etc. 10. In order to examine whether the charge under Section 366, IPC has been proved by the prosecution, it is necessary to have a close look at the provision under Section 366, IPC which reads as under: 366. Kidnapping, abducting or inducing woman to compel her marriage, etc. - Whoever kidnaps or abducts any women 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 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 also be punishable as aforesaid. 11. Reading the provision of law, it is clear that the prosecution, apart from approving the fact of kidnapping or abducting, must prove further that the woman or the girl was abducted with intention to marry with her against her will or in order that she may be forced to illicit intercourse. This is the mandate of law as enunciated by the Apex Court in Kuldeep K. Mahato v. State of Bihar AIR 1998 SC 2694 . It is also held in Chote Lal and Anr. v. State of Haryana AIR 1979 SC 1494 that mere finding that accused abducted the woman is not sufficient for sustaining conviction under Section 366, IPC; the prosecution is further required to prove that accused abducted the woman for any of the purpose mentioned in Section366, IPC. 12. So far intention of the accused-appellant in abducting or kidnapping Jaba Rani Chasha, nothing has been said neither in the FIR nor in the statement under Section 164, Cr.PC or even in the evidence of the victim girl before the learned trial court. If that is so, can the court entertain inference or presumption of intention of the accused-persons of marrying her against her will or forcing her to illicit intercourse? If that is so, can the court entertain inference or presumption of intention of the accused-persons of marrying her against her will or forcing her to illicit intercourse? In a case of forcibly abducting or kidnapping, there is always dearth of direct evidence on the actual intention of the abductor and such intention can be inferred from the fact and circumstance in a given case under Section 114 of the Evidence Act. It is because human mind is very complex and it is difficult to ascertain what was in his mind for abducting/kidnapping a girl. It is to be noted that in the instant case, the accused-appellant was aged about 22 years at the time of alleged occurrence as recorded in his statement under Section313, Cr.PC and the victim girl was below 17 years as per evidence of medical officer (PW6). The abducted girl was young and at her near marriageable age. The accused-appellant is a full grown youth and as such, the first natural presumption must be that he abducted/kidnapped her with intention to have sexual intercourse with her forcibly without her consent or with her consent after abduction or after marrying her. It is also a natural presumption that a young mind like the accused-appellant is not unlikely to undertake an act of kidnapping or abducting a young girl like the victim for sexual adventurism through illicit intercourse. As against this, the accused-appellant in his statement under Section 313, Cr.PC in reply a question put by the learned trial court as to whether he had anything more to say, he stated that the girl came to his resident/house in the morning at 4 a.m. He thereby meant to say and clarify that the victim girl came to his house on her accord. If that is so, as a natural consequence, burden would lie upon him to prove it by adducing evidence that he had no role to play in making the girl come to his house and that she came voluntarily. 13. The defence, in order to discharge the said burden, examined 3 witnesses. DW1, Ayaj Ali Hazari is the father of co-accused Hussain Hazari. Similarly, DW3, Hussain Ahmed Laskar is also the brother of co-accused Rahan Uddin. Both these D Ws no doubt deposed that Jaba Rani came to the house of Dilwar on her own accord. 13. The defence, in order to discharge the said burden, examined 3 witnesses. DW1, Ayaj Ali Hazari is the father of co-accused Hussain Hazari. Similarly, DW3, Hussain Ahmed Laskar is also the brother of co-accused Rahan Uddin. Both these D Ws no doubt deposed that Jaba Rani came to the house of Dilwar on her own accord. As per the evidence of PW1 (victim girl), both the above accused persons abetted the appellant in abducting her and they are no doubt interested witnesses and they would naturally defend the co-accused being their relations. The evidence of such interested witnesses has little or no evidentiary value and the same would not give any effective defence to the main accused person namely the appellant. DW2, Shri Ramdin Dusad, besides being the head of the community, is the uncle of Jaba Rani and guardian of their family. DW2 refused to go to the house of Dilwar although he was requested by some persons and he rather asked them to bring to his house. Accordingly Dilwar, his father and victim girl were brought to his house where some villagers were already present. As he enquired from Jaba Rani, she stated that she came to the house of Dilwar voluntarily as because her brother beat her in the night of the incident as they did not like her maintain any relationship with Dilwar. 14. In cross-examination, DW2 stated that informant Kanchan or his mother or none of his family members made any complaint against Jaba. Rani. He further stated that a 'Bichar' (Meeting) was called in the house of Kanchan for this matter but no 'mel' was held. It must be noted that this DW2 Ramdin Dusad was cited as one of the witnesses by the prosecution in the, charge sheet (Annexure-4). But why this important witness being the head of the community and guardian of the victim's family was not produced and examined as prosecution witness is not known. It must be noted that this DW2 Ramdin Dusad was cited as one of the witnesses by the prosecution in the, charge sheet (Annexure-4). But why this important witness being the head of the community and guardian of the victim's family was not produced and examined as prosecution witness is not known. However, on close examination of his evidence, it could be understood that he was not happy with the informant party as they did not care to inform him at the first instance and take his advice about the course of action: Due to some ego, even after being informed and requested, he refused to visit the house of accused Dilwar; rather he asked the informant party to bring the victim girl (Jaba Rani) and accused (Dilwar) along with his father to his house. He did hot behave and act as a head of the family and the community as a whole as was expected from him. The prosecution must have thought it proper not to produce him as a witness with an apprehension that he may not support its case. 15. On further examination of the evidence of D Ws 1 and 3, it is found that they did not depose anything about the summoning of Jaba Rani and Dilwar with his father to the resident of DW2 nor have they stated about calling/holding of a 'Bichar' (meeting) of the villagers in his house. The honesty and integrity of witness DW2 is not free from cloud of doubt. The possibility of being gained over or being influenced for some reasons by the defence and making false deposition, cannot be ruled out. In my considered view, the court cannot be persuaded to accept the evidence of DW2, as reliable and trustworthy for discharging the accused appellant from the charge under Section366, IPC. Even if the evidence of DW2 as regard voluntarily corning to the house of Dilwar by Jaba Rani, is accepted, the court should not overlook his statement that Jaba Rani came to his house along with the accused and his father and she was made to make statement in presence of some villagers. The defence did not produce any of the villagers who were so present at that time in his house to corroborate the evidence of DW2. Unless such corroboration is found; it is difficult to accept the evidence of DW2 as correct and honest. 16. The defence did not produce any of the villagers who were so present at that time in his house to corroborate the evidence of DW2. Unless such corroboration is found; it is difficult to accept the evidence of DW2 as correct and honest. 16. The appreciation of evidence on record establishes the allegation of entering the house by breaking open the door of the room where the victim girl (PW1) was sleeping and forcefully carrying her away by pressing her month to the house of the accused appellant and shifting her to the house of Rashid Ali and her recovery there from by the police. That apart, the evidence of I.O. (PW7) establishes seizure of a broken wooden door from the place of occurrence. The only point remains for consideration is whether the accused appellant is liable to conviction under Section 366, IPC as according to medical report and evidence of PW6 (medical officer), no sign of recent intercourse and no sign of violence on her private parts was found and her virginal swap was found normal. The said evidence establishes that the accused appellant did not have sexual intercourse with her. But the purport of provision under Section 366, IPC does not require actual sexual intercourse. What is needed is the intention of the perpetrator to commit sexual intercourse with the kidnapped/abducted woman/girl. Enough has been discussed earlier about such intention of the accused-appellant and requires no further elucidation. 17. I have carefully read the decision in Jinish Lal Sah (supra). That was a case where the accused was a tuition teacher of the victim girl who left her house with him and went around several places for a number of days. In the said case, the accused was convicted under Sections 366A and 376, IPC and sentenced to undergo rigorous imprisonment for 5 years and the said conviction and sentence was upheld in appeal by the High Court concerned. In the said case, the Apex Court after due appreciation of evidence found that there was a prior planning with the appellant together to elope and it was because of that, the accused appellant came to victim's house on a particular day and told her that he would not be taking tuition of that day and immediately thereafter victim girl left her house on the pretext of going to her grandfather's house to see television. It was also found that she was with the accused appellant from 30th April to 10th May, during which period, she had travelled by train, tempo and stayed with the ' appellant without there being any evidence of her having protested or having made any effort to seek help from others or even trying to run away. In my considered view, the facts and circumstances of the said case is quite different from the ones in the present case and the ratio of decision in the said case is not at all applicable to the present case. 18. With the materials and evidence on record, I am satisfied that the prosecution have been able to prove that accused appellant abducted/kidnapped PW1 (victim girl) and it was for the purpose of illicit intercourse, one of the ingredients of offence under Section 366, IPC. The conviction and sentence under challenge, therefore, calls for no interference. Accordingly, this appeal stands dismissed. The conviction and sentence passed by the learned Sessions Judge Hailakandi in Session Case No. 32 of 2001 stands upheld. 19. The accused appellant shall surrender forthwith to serve the sentence failing which the court below shall take necessary steps against him in accordance with law. 20. Send down the LCR to the learned court below forthwith.