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2012 DIGILAW 317 (GAU)

Pankaj Kuri v. State of Assam

2012-03-07

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. This appeal is directed against the judgment, dated 09.02.2010, passed by the learned Sessions Judge, Dhemaji, in Sessions Case No. 33 (DH)/ 2009, whereby both the appellants stand convicted under Section 366A, read with Section 34, IPC, and both of them stand sentenced to suffer rigorous imprisonment for a period of five years with fine of Rs. 1,000/- and, in default, to suffer rigorous imprisonment for a further period of one month. The prosecution's case may, in brief, be described thus : On 24.12.2008, at about 6-30 p.m., while PW 1 and PW 2 came out of the house, where both of them resided, they happened to meet the accused-appellant No. 2, Ajit Dey, on the street, and, on seeing him (accused-appellant No. 2), PW 2 talked to him as he (accused-appellant No. 2) was known to her. PW 2, then, went ahead of PW 1 and PW 1 followed PW 2 and, at that point of time, PW 2 saw one Maruti Car parked by the side of the road with two persons standing near the car. When PW 1 and PW 2 reached near the place, where the car stood parked, the two appellants, namely, Pankaj Kuri and Ajit Dey, dragged them (PW 1 and PW 2) forcibly, put them inside the vehicle and took them to a house at a distance of about 2 kilometers away and kept them (PW 1 and PW 2) in the said house with a woman. Both PW 1 and PW 2 cried a lot and requested the two accused-appellants to take them back to their house, but the accused-appellants threatened to kill them. On the night of 24.12.2008, the two girls (PW 1 and PW 2) slept with the said woman in the said house and, on the following day, in the morning, the two accused-appellants, on the pretext of taking the two girls back to their house, took them to another house at another place. Though both the girls requested the two accused-appellants to release them, the accused-appellants did not listen to them and kept them there with another woman. Though both the girls requested the two accused-appellants to release them, the accused-appellants did not listen to them and kept them there with another woman. PW 1 and PW 2 spent a night with the woman in the said house and, on the following day, in the morning, taking advantage of the absence of the accused-appellants, PW 1 and PW 2 came out of the house pushing the said woman away and ran towards the road and, on reaching the road, they raised alarm. Though the said woman came behind them, she went back on seeing people coming and assembling there on hearing the alarm raised by the two girls (PW 1 and PW 2). In the meanwhile, on 24.12.2008 itself, father of PW 1 lodged a written ejahar informing the police that PW 1 and PW 2 had disappeared and, treating the written Ejahar as First Information Report (in short, 'FIR'), a case was registered under Section 366A/34, IPC. However, on reaching the road, as mentioned hereinbefore, the two girls, namely, PW 1 and PW 2, happened to meet one of their relatives, who, accompanied by CRPF personnel, had been looking for the two girls. The two girls were, then, taken to the police station by the said relative of the girls and the CRPF personnel and the police sent the girls to doctor for their medical examinations and, thereafter, they were sent to the Court to get their statements recorded by the Magistrate. During investigation, PW 1 and PW 2 were medically examined and, on completion of investigation, a charge-sheet was laid against the two accused-appellants under Section 366A/34, IPC and the two accused-appellants were apprehended by the police. 2. During trial, charge was framed against the two accused-appellants under Section 366A read with Section 34, IPC. To the charges, so framed against them, both the accused-appellants pleaded not guilty. In support of their case, prosecution examined altogether 7 witnesses. The accused were, then, examined under Section 313, Cr PC. In their examinations aforementioned, both the accused denied that they had committed the offence, which was alleged to have been committed by them, the case of the defence being that of total denial. Both the accused also took the plea of alibi and adduced evidence in this regard. 3. The accused were, then, examined under Section 313, Cr PC. In their examinations aforementioned, both the accused denied that they had committed the offence, which was alleged to have been committed by them, the case of the defence being that of total denial. Both the accused also took the plea of alibi and adduced evidence in this regard. 3. However, having found both the accused guilty of the offence charged with, the learned trial Court convicted them accordingly and passed sentence against them as mentioned above. 4. Aggrieved by their conviction and sentence, passed against them, the two convicted persons have preferred the present appeal. 5. I have heard Mr. P. Bora, learned counsel for the accused-appellant, and Mr. D. Das, learned Additional Public Prosecutor. 6. While considering the present appeal, I deem it appropriate to have a look at the evidence, which were adduced by the parties at the trial. 7. Broadly in tune with each other, PW 1 and PW 2 have deposed that PW 1, along with her parents, went to the house of her maternal uncle at Silapathar. On the day of the occurrence, at about 6-30 p.m., when they (PW 1 and PW 2) came out to the street, accused Ajit Dey, who knew PW 2, daughter of the maternal uncle of PW 1, talked to PW 2 and, thereafter, PW 2 went ahead, PW 1 followed her and they saw a Maruti Car parked by the side of the road and two persons standing near the car. When the two girls happened to reach the car, the two accused aforementioned dragged them forcibly to the car and put them inside the vehicle, took them to a house at a distance of about 2/3 kilometers and kept them in the said house. It is in the evidence of PW 1 and PW 2 that they cried and requested the two accused to let them go back to their home, but the accused threatened to kill them and, as a consequence thereof, they spent the night with the woman in the house and, on the following day, the two accused, again, on the pretext of taking them (PW 1 and PW 2) to their house, actually, took them to another place and kept them in another house with another woman. However, on the following day, in the morning, taking advantage of the absence of the accused, they (PW 1 and PW 2) ran away from the house and met, on the road, one of their relatives, who had been looking for them with the help of CRPF personnel. As far as the remaining witnesses are concerned, none of them knew as to what actually happened between the time, when PW 1 and PW 2 had disappeared till the time they reappeared on the scene. The best witnesses, therefore, who could have told the Court as to what had happened, were PW 1 and PW 2. 8. What logically follows from the above discussion is that the incident, which PW 1 described to her mother, is material and ought not to have been ignored by the learned trial Court. In this regard, it is worth pointing out that in her evidence, PW 3 (i.e., the mother of PW 1) deposed that she (PW 3) went to the house of her elder brother, at Silapathar, whose daughter was PW 2, and, on the date of the occurrence, i.e. 24.12.2008, when she (PW 3) went out to meet some of her acquaintances in the neighbourhood , her daughter (PW 1) and also PW 2 went missing and when her daughter (PW 1) came back, she (PW 3) asked her daughter (PW 1) as to where she had been to and what had happened to her. To her (PW 3) query, the reply given by her daughter (PW 1) is most important inasmuch as the evidence of PW 3 is to the effect that PW 1 reported to her (PW 3) that she (PW 1) had gone with accused Ajit to roam around. This piece of evidence appears to have completely escaped the attention of the learned trial Court and if this piece of evidence is taken note of, which ought to have been taken note of by the learned trial Court, it is impossible to confidently hold that PW 1 and PW 2 had been forcibly taken away. 9. Coupled with the above, there is no evidence given by the prosecution as regards the age of PW 1 and PW 2. 9. Coupled with the above, there is no evidence given by the prosecution as regards the age of PW 1 and PW 2. It is, therefore, not only difficult, but wholly unreasonable to hold the accused-appellants guilty of offence under Section 366A read with Section 34, IPC, particularly, when there is not even an iota of evidence on record to show that PW 1 and PW 2 had been forcibly taken away by the two accused-appellants with the intent to put force on the two girls to have illicit intercourse with the two accused-appellants and/or with anyone else. 10. What emerges from the above discussion is that the evidence of PW 3 cannot be, and could not have been, ignored. Though the evidence of PW 3 is hearsay for the purpose of determining if what had been reported to her by PW 1 was or was not true, the fact of the matter remains that PW 1 had reported to her mother that she had gone with the accused, Ajit, on her own. 11. In the circumstances indicated above, no case of kidnapping or abduction can be said to have been proved against the accused-appellants, or any one of them, beyond reasonable doubt. The conviction of the accused-appellants cannot, therefore, be sustained. 12. In the result and for the reasons discussed above, this appeal succeeds. The judgment and order under appeal are hereby set aside. Both the accused-appellants are hereby held not guilty of the offence charged with. The two accused-appellants are, therefore, directed to be released unless they are required to be detained in connection with any other case. 13. With the above observations and directions, this criminal appeal stands disposed of. Send back the LCR.