Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 172 (GAU)

Meghnath @ Meghu Kanda v. State of Tripura

2012-02-08

SUBHASIS TALAPATRA

body2012
JUDGMENT Hon'ble Mr. Justice S. Talapatra 1. Heard Mr. D.P. Ghosh, learned counsel appearing for the appellant No.1 namely Sri Meghnath @ Meghu Kanda and also for the appellant No.2 namely Sri Rajendra @ Kutu Mahapatra as the Amicus Curiae as engaged by this court. Also heard Mr. R.C. Debnath, learned Special Public Prosecutor representing the State. 2. From the records as well as the submissions of the learned counsel for the appellants, the prosecution case in brief, as surfaced is that, on 26.08.1995 at about 1415 hours, one Laxmi Dey appeared at Kalyanpur police station and lodged an ejahar alleging that in the previous night at about 1.00 am while the informant was sleeping in her hut with her minor son Sibu Dey and younger brother Sri Tanoy Bhowmik and her daughter Smti Suchitra Dey, she heard sound of beating of the windows of her hut from outside and some persons were calling them for opening the door. When she opened the door, 3/4 armed persons entered into the room and tied herself, her brother and her minor son and forcibly kidnapped her daughter Smti Suchitra Dey at dead hour of night. She also stated in the ejahar that one Pratima Goala, D/o Sri Abhiram Goala was also kidnapped by those miscreants in the same transaction of events. On the basis of that written ejahar, Kamalpur P.S. Case No.39/2005 under Sections 457/366 read with Section 3 of IPC and Section 27 of the Arms Act. Since a cognizable offence was disclosed, the Officer In-charge of Kamalpur police station, endorsed the case to S.I. Sri N. Mog Choudhury for investigation. 3. On completion of investigation, charge sheet was filed against the accused Sri Meghnath @ Meghu Kanda and Sri Rajendra @ Kutu Mahapatra (the present appellants), Sri Babul Kanda and another Sri Padma Kr. Debbarma under Sections 457/366 read with Section 34 of IPC and Section 27 of Arms Act. 4. During the proceeding for committal, the case was adjourned sine die against the accuseds Sri Padma Kr. Debbarma and Sri Babul Kanda and on 06.08.1998 the case being found exclusively triable by the court of Sessions, was committed to that court. On 13.07.2000, charge against the present appellants was framed under Sections 457/366 of IPC, to which the appellants pleaded not guilty and claimed to be tried. 5. Debbarma and Sri Babul Kanda and on 06.08.1998 the case being found exclusively triable by the court of Sessions, was committed to that court. On 13.07.2000, charge against the present appellants was framed under Sections 457/366 of IPC, to which the appellants pleaded not guilty and claimed to be tried. 5. The prosecution to support their case adduced as many as 9 witnesses including the informant and the kidnapped girls as PWs. 4 and 5 respectively. The prosecution also admitted into evidence as many as 11 Exbts. marked as Exbt.P/1 to P/11. After analysis of the evidence on record as to whether the prosecution could successfully establish the commission of lurking house trespass or house breaking by night by entering into the house of the informant and another and whether the appellants had abducted/kidnapped Smti Suchitra Dey and Smti Pratima Gowala respectively (PWs. 4 and 5) and that such kidnapping/abduction was for forcing the kidnapped into illicit intercourse or not. The learned Sessions Judge reached to findings that the charges against the appellants under Sections 457/366 read with Section 34 of IPC have been well established. As consequence of such findings, the appellants were convicted by the judgment dated 30.05.2001 and sentenced by the order dated 31.05.2001 as passed in Case No.S.T.27(NT/KMP)/1998, to suffer imprisonment for a term of five years and also with a fine of Rs.1,000/-, in default to suffer imprisonment for a term of three months under Section 366 read with Section 34 of IPC and to suffer imprisonment for a term of three years and to pay fine of Rs.1,000/-, in default to suffer imprisonment for three months under Section 457 read with Section 34 of IPC. The period of detention as already undergone by the appellants till that date was directed to be set off from the period of imprisonment. Being aggrieved by that judgment and order dated 30.05.2001 and 31.05.2001, the present appeal has been filed. 6. Learned counsel appearing for the appellants has urged this court for a scrutiny of the evidence as he stoutly contends that from a survey of the oral testimony it appears that the appellants have been convicted without any proper basis. 7. Being aggrieved by that judgment and order dated 30.05.2001 and 31.05.2001, the present appeal has been filed. 6. Learned counsel appearing for the appellants has urged this court for a scrutiny of the evidence as he stoutly contends that from a survey of the oral testimony it appears that the appellants have been convicted without any proper basis. 7. PW.2 namely Smti Laxmi Dey, who lodged the information to the police on 26.08.1995, exhibited the ejahar as Exbt.P/1, where it appears that she categorically stated of the occurrence as follows : 3-4 (three-four) persons, armed with guns, entered my room. Just after entering the room, first of all they tied the hands and legs of me, my son Shibu aged 9 years and my brother Shri Tapan Bhowmik aged 19 years with cloth and gaged all of us with cloth. The men armed with guns fled away with my 17 years old daughter Kumari Suchitra Dey at gun point. Before leaving (they) said that if anyone is reported (about the incident) they would kill everyone of the house. About 1 hour after the occurrence, Kumar Pratima Goala aged 16 years, D/O Shri Abhiram Goala whose house is situated at the fag end of our house, was lifted and taken away in a similar manner. Therefore I pray to your goodself that the Govt. pass orders to set our daughter free, following investigation into the said incidents. PW.2 stated before the court in consonance to what she stated in the ejahar but in the court she identified the persons who entered in her hut at that night as Meghu Kanda, Padma Kr. Debbarma, Katu Mahapatra and Babul Kanda being armed with weapons. She further stated that Katu Mahapatra had beaten her brother with the butt of the gun and she was tied by the miscreants. She also stated that the miscreants ransacked her hut and took away one tape recorder, some clothes, one bhari golden ornaments, 3/4 bharis silver ornaments etc. and thereafter at the time of leaving her hut, the miscreants kidnapped her daughter. In the cross-examination, she stated that though she divulged everything to the scribe but the scribe perhaps had not written all the contents. She denied the suggestion that her daughter was of the habit of loitering here and there and used to come home in irregular manner. 8. Most vital witnesses of this case are PWs. In the cross-examination, she stated that though she divulged everything to the scribe but the scribe perhaps had not written all the contents. She denied the suggestion that her daughter was of the habit of loitering here and there and used to come home in irregular manner. 8. Most vital witnesses of this case are PWs. 4 and 5, the kidnapped girls. PW.4 namely Smti Pratima Gowala stated before the court that at around 5/6 years back in the night at about 3.00 am when she was sleeping in her hut, some persons called her by name from outside and requested to open the door. Her mother refused to open the door and thereafter one of those persons introduced him as Naresh, who was her brother. Even then her mother refused to open the door. Thereafter, those persons had broken the door and forcibly entered into the hut and asked her to come at the door. At that point of time, Suchitra was at the threshold and those persons took away her from the custody of her mother and threatened them not to shout. PW.4 further stated that they were initially taken to the hut of one Babulal Sabar at a distance of half mile from their hut. Those persons gave her a cloth and detained there for 5/10 minutes and thereafter again taken her to an unknown tilla at a distance of few miles. She had come to know from the accused that the area was Lakhai Bagan at Bangladesh. On the following day, she and Suchitra fled away from their custody in the pretext of going to attend the nature call. Somehow they reached their house in the evening and disclosed the entire facts to their family members. PW.4 had categorically stated that she could identify the appellant Meghnad Kanda on that night and the appellant Katu Mahapatra on the following day. On their arrival at their respective huts they were taken to the Kamalpur Police Station, where they narrated the incident to the Investigating Officer and thereafter they were forwarded to Kamalpur Court where the Magistrate recorded her statement and on the written statement she put her signature. In the cross, PW.4 stated that the Investigating Officer did not dictate her to say any particular thing before the Magistrate. She denied the suggestion that the accused persons did not kidnapped her. 9. In the cross, PW.4 stated that the Investigating Officer did not dictate her to say any particular thing before the Magistrate. She denied the suggestion that the accused persons did not kidnapped her. 9. Almost in the same line, PW.5 stated the incident, which has been recorded as under. About 5/6 years back one day at night at about 1 am when myself along with my mother, my younger brother and my maternal uncle were sleeping in our hut suddenly we heard sound of bitting out doors and windows from outside. One of them shouted calling my name. We refused to open the door but they broke out door. Out of fear I got up in the ceiling. The miscreants tied my mother, younger brother and my Mama and compelled me to get down from the ceiling. They looted one tape recorder, ornaments etc. which were kept in a box and forcibly kidnapped me. They took me in the house of Pratima Gowala. Ultimately they broke the door of Pratima and forcibly taken her from the custody of her mother. PW.5 also confirmed that the miscreants forcibly took them to the house of one Babulal Sabar and there Pratima changed her cloth as at the time of crossing one charra her clothes became wet. Ultimately they were taken to Lakhai Bagan situated at a distance of about 4/5 miles from their hut and kept them there for the whole night. On the following day they pretended to attend the nature's call and they fled away from the clutch of the miscreants and reached their house somehow. On reaching the house, they narrated the incident to her mother and on the following day police was informed about the incident. The police forwarded them to the Kamalpur Court, where their statements were recorded and they put their signatures on the body of the statements. They have identified their statements, which is part of Ext.P/3 series. In cross-examination, PW.5 has stated that the miscreants released them near Natun Bagan at noon and that the day she was released along with Pratima on that night she stayed in the house of Pratima and came to her house on the following morning. Other suggestions as given to her were denied. 10. PW.1 namely Sri Dipesh Das did not depose anything of material importance. Other suggestions as given to her were denied. 10. PW.1 namely Sri Dipesh Das did not depose anything of material importance. PW.3 namely Smti Chhaya Rani Gowala is the mother of Pratima Gowala (PW.4). She stated on oath that in the year 1995, one night at about 3.00 am some persons called her daughter Pratima from outside. On asking their identity, one of them told that he was Naresh, the son of her brother-inlaw but, she being unconvinced, refused to open the door and as such the miscreants broken her door and told that Suchitra wanted to meet Pratima and thereafter the latter was forcibly kidnapped by the miscreants. PW.3 stated that she could identify one Meghnad Kanda out of four miscreants by the flash of torch-light lit by the miscreants. She also stated that the appellant Meghnad Kanda was known to her prior to the alleged occurrence. In the cross-examination, PW.3 denied the suggestion that she did not identify Meghnad Kanda. 11. PW.6 namely Sri Naresh Gowala is the brother of Pratima Gowala (PW.4), who stated that 5/6 years back at night at about 3.00 am hearing hue and cries in the house of his uncle Ashiram Gowala, he hurriedly went there and found that his uncle and aunt were crying. To a query as posed by him, they stated that the miscreants had kidnapped Pratima. On repeated insistence his aunt disclosed the name of one Meghnad Kanda as one of the miscreants. On cross-examination, PW.6 denied that his aunt i.e. the mother of Pratima Gowala did not tell him that Meghnad Kanda was involved in the kidnapping. 12. PW.7 Sri Babulal Sabar stated that some years back one night at about 3.00 am, while they were sleeping, some persons called them. His son namely Gopal Sabar opended the door and enquired the matter about. Then they demanded drinking water. They also demanded one saree and one chadar and thereafter they left their house. He had confirmed that his son had told him that he could recognise Meghu Kanda and two girls were also with them. In the dock, PW.7 identified Meghnad Kanda, the appellant No.1 in the appeal in hand. 13. PW.8 Sri Gopal Sabar is the son of PW.7. He had confirmed that his son had told him that he could recognise Meghu Kanda and two girls were also with them. In the dock, PW.7 identified Meghnad Kanda, the appellant No.1 in the appeal in hand. 13. PW.8 Sri Gopal Sabar is the son of PW.7. He corroborated that some years back at about 3.00 am, Meghu Kanda accompanied by two girls went to their house and on their calling he opened the door and gave them drinking water. They took away one saree and one chadar and left their house. PW.8 further stated that his father and mother did not see the miscreants, he only told them after the miscreants left their house. PW.8 also confirmed that he could identify Megnhad Kanda amongst the miscreants. In the cross-examination he did not deny any of his statements. 14. PW.9 is the Investigating Officer of the case, namely Sri Newlafru Mag Choudhury, Inspector of Police. He stated that Smti Laxmi Dey i.e. the informant, initially did not disclose to him the name of Kutu Mahapatra and Meghnad Kanda but she disclosed to him after the FIR was lodged. She did not disclose their names out of fear. PW.9 also ascertained before the court that on 31.08.1995 he reached the house of Meghu Kanda and he was found absconding but on the next date on getting secret information, Babul Kanda, Meghu Kanda and Kutu Mahapatra and another unknown person were arrested from the house of one Manik Acharjee at Baralutma. They were in possession of some weapons including one point 22 revolver and one country made gun and those were exhibited as material object in the Sessions trial. PW.9 submitted further that, on 05.03.1996 he filed the charge sheet against the accused Babul Kanda, Meghnad Kanda, Rajendra @ Kutu Mahapatra, Padma Kr. Debbarma under Sections 457/366/34 of IPC and Section 27 of Arms Act. However, this court has avoided the facts not related to the present appellants for the purpose of brevity. 15. PW.9 submitted further that, on 05.03.1996 he filed the charge sheet against the accused Babul Kanda, Meghnad Kanda, Rajendra @ Kutu Mahapatra, Padma Kr. Debbarma under Sections 457/366/34 of IPC and Section 27 of Arms Act. However, this court has avoided the facts not related to the present appellants for the purpose of brevity. 15. Learned counsel appearing for the appellants, drawing attention to this court to the statements as recorded under Section 164 of Cr.P.C. and admitted in evidence as Exbt.P/2 and Exbt.P/3 series, submitted that in those statements the kidnapped girls had stated that they were released by the accused persons but what they had stated before the court is contrary to that statement as such the statements will be cautiously scrutinised otherwise there may be the failure of justice. Be that as it may, the statements of PWs. 4 and 5 were not shown them to have their response for the purpose of using this part of the statement as evidence in the case. Learned counsel further argued that the appellants have already undergone imprisonment of more than 21/2 years and as such his alternative submission would be that the charges may be modified to Section 363 of IPC and converting their sentence to the period they had already undergone imprisonment, the appellants be set at liberty. 16. On the other hand, Mr. R.C. Debnath, learned Special Public Prosecutor appearing for the State-respondent, submits that it cannot be denied so far the evidence of PWs. 2, 4 and 5 are concerned, there are some embellishments and also some departures are noticed but that would not take away the main crux of the evidence so far as that has been corroborated by other witnesses. It is well founded that the appellants took force entry into the hut of PWs. 4 and 5 and kidnapped PWs. 4 and 5 from their hut unlawfully and taken them to an unknown destination for the purpose of confinement. 17. Situated thus, it appears before this court that PWs. 4 and 5 though was kidnapped from their house but they were somehow escaped from the custody of the appellants and other miscreants. As such the charge under Section 457 for lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment has been well established without any shred of doubt. 4 and 5 though was kidnapped from their house but they were somehow escaped from the custody of the appellants and other miscreants. As such the charge under Section 457 for lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment has been well established without any shred of doubt. All the elements as provided under Section 446 IPC have been satisfied by the prosecution. Apart that, the charge under Section 366 of IPC requires modification in view of the evidence that has surfaced from the prosecution evidence. No element of intent that PWs. 4 and 5 were kidnapped for purpose of marriage by any person against their will or in order that they may be forced or seduced to illicit intercourse, have been found on survey of the entire evidence and as such no charge under Section 366 of IPC can be stated to have been established by the prosecution. However, the charge under Section 363 of IPC has been well established and well corroborated by the witnesses. 18. In view of this, this court alters the charge against the appellants under Section 366 of IPC to that of charge under Section 363 of IPC in exercise of powers under Section 222 of Cr.P.C. as the offence under Section 363 of IPC is cognate to the offence under Section 366 of IPC and it also carries a lesser period of imprisonment. 19. In view of the observation and on aggregate assessment of the evidence, the conviction as made under Section 366 of IPC is interfered with. The appellants are convicted under Section 363 of IPC for kidnapping two minor girls, namely Smti Pratima Gowala aged about 17 years and Smti Suchitra Dey aged about 16 years on the day of occurrence as it is evident from their evidence. Their escape from the confinement is still shrouded with conundrum and it cannot be stated definitely that the kidnapped girls found their way on release or they fled from the confinement rather it appears that out of frustration the miscreants allowed them to return to their families. No allegation has been made against either of the appellants that they wanted to harm either of the kidnapped girls in any manner. Accordingly, the sentence as imposed on the appellants is required to be modified. No allegation has been made against either of the appellants that they wanted to harm either of the kidnapped girls in any manner. Accordingly, the sentence as imposed on the appellants is required to be modified. Accordingly, this court converts the sentence under Section 457 of IPC from 3(three) years to 2(two) years and sentence the appellants to rigorous imprisonment for 3(three) years under Section 363 of IPC. It is made clear that the imprisonment they have already undergone during investigation and trial and after conviction would be set off from the imprisonment as indicated above. It is further clarified that the sentences as imposed shall run concurrently. 20. In view of this, the appeal is partly allowed. Return the Lower Court Records.