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2013 DIGILAW 555 (GAU)

Babul Bania v. State of Assam

2013-08-13

PRASANTA KUMAR SAIKIA

body2013
JUDGMENT Prasanta Kumar Saikia, J. 1. These appeals are directed against the judgment dated 04.11.2012, passed by the learned Sessions Judge, Darrang at Mangaldoi in Sessions Case No. 39(DM)/1999, convicting both of them under Sections 366 /34 IPC and sentencing them to rigorous imprisonment for 7 (seven) years with a fine of Rs.5,000/- each, in default, rigorous imprisonment for another 6 (six) months. Aggrieved by the aforesaid judgment, Sri Babul Bania and Sri Dilip Bania preferred these appeals citing several infirmities in the judgment aforementioned. While, Mr. Babul Bania had preferred this appeal from jail, Shri Dilip Bania was enlarged on bail during the pendency of present appeal suspending the judgment impugned as far as Sri Dilip Bania is concerned. 2. I have heard Mr. S.P. Deka, learned counsel appearing for the appellant in Crl. Appl. No. 8/2007 and Mr. N Dutta, learned Senior counsel appearing for the appellant in Crl. A. No. 268/2006 and Mr. B.J. Dutta, learned Additional Public Prosecutor, Assam. 3. The brief facts necessary for disposal of the present appeals are that during the time relevant, the prosecutrix was a student of H.S. 1st year class studying in Sipajhar Higher Secondary & Multipurpose School, Sipajhar. On 31.10.1998, at about 8.30 AM, she was proceeding to school in her bicycle. As she reached Puranbari, Sipajhar, she met the accused Babul Bania who stopped her and threw her bicycle to the side of the road and thereafter dragged her to an Ambassador car which was parked at a place not far away there-from. 4. After dragging her to the car, the accused Babul Bania took her to Baihata Chariali. The said car was driven by accused Dilip Bania. While being dragged to the car, she raised hue and cry but the accused persons threatened her with dire consequences if she continued to raise hullah. After taking her to Baihata Chariali, accused Babul Bania took her to Adabari, Guwahati and then to Nizarapar, Guwahati in a private buses. 5. On arriving at Nizarapar, the accused Babul Bania took her to his relatives at such place. While she was at the residence of the relatives of the accused persons at Nizarapar, her father along with police came to such place, discovered both of them there and thereafter they took them to Sipajhar Police Station. In the meantime, her father had lodged an FIR with the police. While she was at the residence of the relatives of the accused persons at Nizarapar, her father along with police came to such place, discovered both of them there and thereafter they took them to Sipajhar Police Station. In the meantime, her father had lodged an FIR with the police. On receipt of the FIR, police registered a case under Sections 366 /34 IPC. 6. O/C, Sipajhar Police Station himself took up the investigation and in the course of investigation, he examined the witnesses, had the girl examined by doctor and also had her statement recorded by Magistrate. On completion of investigation, he submitted charge-sheet under Sections 366 /34 IPC against the accused persons and forwarded them to the Court to stand their trial. 7. Since the offence under Sections 366 /34 IPC is exclusively triable by the Court of Sessions, the Magistrate before whom the charge-sheet was so laid, committed the case to the Court of Sessions at Mangaldoi. On the receipt of the case on commitment, learned Sessions Judge framed charges under Sections 366 /34 IPC against the accused persons and charge, so framed, on being read over and explained to them, they pleaded not guilty and claimed to be tried. 8. During trial, the prosecution had examined as many as 7 witnesses including the victim, Medical Officer and the Investigating Officer. The statements of the accused persons were also recorded under Section 313 Cr.P.C. The accused Babul Bania pleaded that he took the victim girl from her aforesaid school and accompanied her from place to place as desired by her. On the other hand, Dilip Bania submitted that on the request of Babul Bania, he took the prosecutrix and the accused Babul Bania from Puranbari Gaon, Sipajhar to Changsari in his car and dropped them there to undertake further journey from such place. 9. The accused did not adduce any evidence in defence. The learned Trial Court on the conclusion of the trial come to the conclusion that prosecution has proved the charge under Sections 366 /34 IPC against the accused persons beyond all reasonable doubt and it accordingly, convicted them there-under and sentenced them to punishment as stated above. It is that judgment which has been assailed in the present appeals. 10. Opening up argument on behalf of the appellant, Babul Bania, Mr. It is that judgment which has been assailed in the present appeals. 10. Opening up argument on behalf of the appellant, Babul Bania, Mr. S.P. Deka, learned counsel, contends that the judgment of the trial Court is unsustainable in law since it has been riddled with infirmities of extremely serious nature. In that connection, it has been pointed out that the learned Trial Court failed to appreciate the evidence of most vital witnesses, namely, PW 1 and PW 4 in proper prospective. 11. According to the learned counsel for the appellant Sri Babul Bania, if one reads the evidence of those witnesses in between the lines, there cannot be any escape from the conclusion that prosecutrix was not a consenting party to all the incidents which occurred on 31.10.1998. The facts that she was taken from Puranbari to Changsari, then to Fancy Bazar and from Fancy Bazar to Nizarapar, Guwahati without any difficulties, more particularly from the prosecutrix, is a clear testimony to victim being a willing party to all those episodes. 12. It has again been contended that some very vital persons who could have thrown proper light on the matter under consideration, such as, Dipen Nath, who was reportedly with the prosecutrix at the time when incident in question had occurred was not examined, and that too, without explaining any reason whatsoever for non-examination of such a vital witness. Non examination of such vital witnesses raised the presumption as contemplated under Section 114(g) of the Evidence Act. 13. Further case of the prosecution was that the father of the prosecutrix admitted that the case under consideration was filed due to some misunderstandings between the parties. The father of the prosecutrix is also found saying that he came to know later that the accused are innocent. These important pieces of evidence having serious bearing on the matter under consideration was totally ignored by the learned Trial Court while convicting the accused persons of offence under Section 366/34 IPC. 14. Since the prosecutrix is major girl as disclosed by the evidence on record and since she eloped with the accused persons on her own volition, the learned trial Court ought to have concluded that prosecution has failed to prove the charge brought against the accused persons. 14. Since the prosecutrix is major girl as disclosed by the evidence on record and since she eloped with the accused persons on her own volition, the learned trial Court ought to have concluded that prosecution has failed to prove the charge brought against the accused persons. That being the position, according to learned counsel for the accused Babul Bania, the judgment of the Trial Court is liable to be set aside. 15. Supporting the contention advanced by Mr. S.N. Deka, Mr. N. Dutta, the learned Senior counsel also submitted that the case against Dilip is far weaker since except some passing references made by the prosecutrix, no other witnesses speak anything against the accused Dilip Bania. He further submits that prosecutrix tried to improve her case whenever she found an opportunity to do so which make her evidence utterly unreliable. 16. In support of their cases, the learned counsel for the appellant, Babul Bania and Dilip Bania have referred me to the decision of Hon'ble Supreme Court in the case of Shyam and Another Vs. State of Maharastra reported in AIR (1995) SC 2169. They, therefore, submits this Court to set aside the judgment impugned and to acquit the accused persons of the charge brought against him. The relevant part of the judgment aforesaid is reproduced below: 3. In her statement in court, the prosecutrix has put blame on the appellants. She has deposed that she was threatened right from the beginning when being kidnapped and she was kept under threat till the police ultimately recovered her. Normally, her statement in that regard would be difficult to dislodge, but having regard to her conduct, as also the manner of the so-called 'taking', it does not seem that the prosecutrix was truthful in that regard. In the first place, it is too much of a coincidence that the prosecutrix on her visit to common tap, catering to many would be found alone, or that her whereabouts would be under check by both the appellants/accused and that they would emerge at the scene abruptly to commit the offence of kidnapping by 'taking' her out of the lawful guardianship of her mother. Secondly, it is difficult to believe that to the strata of society to which the parties belong, they would have gone unnoticed while proceeding to the house of that other. Secondly, it is difficult to believe that to the strata of society to which the parties belong, they would have gone unnoticed while proceeding to the house of that other. The prosecutrix cannot be said to have been tied to the bicycle as if a load while sitting on the carrier thereof. She could have easily jumped off. She was a fully grown up girl may be one who had yet not touched 18 years of age but still she was in the age of discretion, sensible and aware of the intention of the accused-Shyam, that he was taking her away for a purpose. It was not unknown to her with whom she was going in view of his earlier proposal. It was expected of her then to jump down from the bicycle, or put up a struggle and, in any case, raise and alarm to protect herself. No such steps were taken by her. It seems she was a willing party to go with Shyam-the appellant on her own and in that sense there was no 'taking' out of the guardianship of her mother. The culpability of neither Shyam, A-1 nor that of Suresh, A-2, in these circumstances, appears to us established. The charge against the appellant/accused under Section 366, I.P.C. would thus fail. Accordingly, the appellants deserve acquittal. The appeal is, therefore, allowed acquitting the appellants. 17. On the other hand, the learned Additional Public Prosecutor appearing for the State respondent has submitted that the evidence of the prosecutrix is consistent, cogent and clear and such evidence clearly make out the allegation brought against the accused persons. More importantly, the evidence of prosecutrix stood corroborated on material points by the other witnesses as well. Therefore, the learned Trial Court committed no wrong, whatsoever, in convicting and punishing the accused persons of offence under Section 366 /34 IPC and as such, he urges this Court not to interfere with the judgment passed by the learned Trial Court. 18. I have considered the argument advanced by the learned counsel for the parties having regard to the materials on record as well as the judgment impugned. Before we proceed further, let us see, whether the prosecutrix was a consenting party to the incident which occurred on 31.10.1998. 18. I have considered the argument advanced by the learned counsel for the parties having regard to the materials on record as well as the judgment impugned. Before we proceed further, let us see, whether the prosecutrix was a consenting party to the incident which occurred on 31.10.1998. In that regard, I find it necessary to have a brief review of the evidence of witnesses, more particularly, the testimony of the prosecutrix as well as the informant who is her father. 19. The prosecutrix was examined as PW 4. According to her, on 31.10.1998, while she was proceeding to her school riding her bicycle, the accused persons met her near Puranbari. The moment, they met her, they stopped her and threw her bicycle to the side of the road and dragged her to an Ambassador car, parked nearby. The accused Dilip Bania was in the aforesaid car, and once she was put inside the vehicle, they drove the vehicle towards Guwahati. 20. On arriving at Guwahati, the accused took her to his relative's house at Nizarapar, Guwahati. In the house of the aforesaid relative of the accused Babul Bania, he proposed to marry her. Since she did not like the accused person, she refused such proposal. While they were in the residence of the aforesaid person, her father arrived there taking police with him. The police took PW 4 along with the accused to Sipajhar Police Station. 21. Thereafter, PW 4 was taken to Magistrate who recorded her statement on oath. In her cross-examination, she has stated that Sri Dilip Bania took her to Changsari from Puranbari in his car. From Changsari she was taken to Adabari, Guwahti in a private bus. She was thereafter taken to Nizarapar, Guwahati. On way to Nizarapar, they dropped down at Fancy Bazar, Guwahati where the accused purchased some cloths for her since she was still in school dress. They also took food in a hotel at Chandmari before going to the residence of relative of the accused Babul Bania. In her cross-examination, she also admitted that she did not tell the police during investigation that the accused proposed her to marry her. 22. PW 1, Sri Prabhat Chandra Kalita, is the father of the prosecutrix. According to him, on 31.10.1998, her daughter went to school. She came to school in her bicycle. In her cross-examination, she also admitted that she did not tell the police during investigation that the accused proposed her to marry her. 22. PW 1, Sri Prabhat Chandra Kalita, is the father of the prosecutrix. According to him, on 31.10.1998, her daughter went to school. She came to school in her bicycle. On that day, towards the noon, one Bhupen Bania came to his house taking the bicycle of her daughter to his house and stated that he found the bicycle of his daughter lying on the side of the road near Sipajhar Higher Secondary School. 23. Being so informed, he immediately contacted the Principal of Sipajhar Higher Secondary School and reported him about the incident. In the meantime, he also lodged an FIR with police at Sipajhar Police Station, which he proved as Ext. 1. Subsequently, his daughter was recovered from Nizarapar, Guwahati from the house of a relative of the accused Babul Bania. In his cross-examination, he has stated that he lodged the FIR due to some misunderstandings with the accused persons. It is also in the evidence that he came to know later that both the accused persons are innocent. 24. The other important witness namely, PW 5 is a doctor. He has stated that on 01.11.1999, he was posted at Sipajhar Police Station and on that day he examined prosecutrix on police requisition. PW 5 had stated that he did not notice any injury on her person. He further opined that on that day, when he examined the girl, she was above 18 years of age. 25. PW 2, Pabitra Kalita, PW 3, Debakanta Bania and PW 6, Jadu Bania are not the eye witness to the incident under consideration and as such, they could not throw any light on the matter in question. PW 7 Md. Fazlul Hoque Khan is the I/O of the case. According to him, on 31.10.1998, he was posted at Sipajhar Police Station and on that day, he received an FIR from PW 1. On receipt of the FIR, he registered a case and he himself took up the investigation. 26. During the course of investigation, he seized an ambassador car bearing No. AS/01B/4324 from the residence of the accused Dilip Bania. He also recovered the prosecutrix from Nizarapar, Guwahati from the residence of the relative of the accused Babul Bania. On receipt of the FIR, he registered a case and he himself took up the investigation. 26. During the course of investigation, he seized an ambassador car bearing No. AS/01B/4324 from the residence of the accused Dilip Bania. He also recovered the prosecutrix from Nizarapar, Guwahati from the residence of the relative of the accused Babul Bania. On conclusion of the investigation, he submitted charge sheet under Sections 366/34 IPC against the accused persons and forwarded them to the Court to stand their trial. 27. Above being the evidence on record, let us see how far such evidence makes out the allegations against the accused persons. It may be noted here that the courts are entitled to take notice of normal human behavior since it gives the court an idea as to the inner side of a particular story. Thus, if a girl is taken by someone against her will, in normal circumstances, she must have done everything possible to have her released from charge of her abductor. If she does not do so inspite of her getting opportunity, in normal circumstances, it would certainly raise a presumption that she accompanied her alleged abductor on her own volition. 28. Coming back to our case, I have found that as per allegation made in the case under consideration, on the fateful day, while the victim was proceeding to school in her bicycle, the accused met her near Puranbari. They immediately stopped her, threw her bicycle to the side of the road, dragged her to an Ambassador car parked nearby and then took her to Changsari in the vehicle of Dilip Bania. From Changsari she was taken to Adabari at Guwahati in public bus where from she was taken to Nizarapar, and again by public bus. 29. On reading her evidence in between the lines, it is also found that on way to Nizarapar, she was taken to Fancy Bazar where the accused purchased some cloths for her. Even before reaching the house of the relative of accused person at Nizarapar, they took food at a hotel in Chandmari. On arriving at the house of the relatives of the accused Dilip Bania at Nizarapar, she freely interacted with the relatives of the accused persons. 30. I may note here that the victim claimed that she was taken from Siphajar to Guwahati against her will and using force. On arriving at the house of the relatives of the accused Dilip Bania at Nizarapar, she freely interacted with the relatives of the accused persons. 30. I may note here that the victim claimed that she was taken from Siphajar to Guwahati against her will and using force. If that was the position, she must have done everything possible to release herself from the clutches of the accused persons. There is evidence on record to show that during her journey from Sipajhar to Guwahati, particularly from Changsari to Nizarapar, Guwahati, she met a good number of persons. But very interestingly, at no point of her journey, particularly from Changsari to Nizarapar, Guwahati, she raised any hue and cry, the even semblance thereof. 31. Not raising any hue and cry is very important, more so, when she found enormous opportunity to do so since it is incompatible with her allegation that she was taken by the accused persons against her will while she was still on her way as well as the allegation that she was forced to come Guwahati under threat to her life and since, therefore, it becomes a clear testimony to the fact that she was very willing party to all the episodes which occurred on the day in question. 32. The fact that on way to Guwahati, she went to Fancy bazaar to purchase clothes, that she took food at a hotel at Chandmari and that she freely engaged in discussion with the relatives of the accused person at Nizarapar, Guwahati, and too, without giving any hint to the relatives of the accused person that she was taken by Babul Bania and Dilip Bania to Guwahati against her will far too firmly demonstrate that the victim eloped with the accused on 31.10.1998 on her own volition. 33. The evidence of informant is equally important. In his evidence, PW 1 the father of the victim girl has stated that he lodged the case due to some misunderstandings. He also came to know that none of the boys against whom he initiated the case was involved in kidnapping/abducting his daughter on the eventful day. Such evidence, in my considered opinion, throws its weight not behind the prosecution story but such evidence favours the claim of accused persons particularly accused Babul Bania. 34. He also came to know that none of the boys against whom he initiated the case was involved in kidnapping/abducting his daughter on the eventful day. Such evidence, in my considered opinion, throws its weight not behind the prosecution story but such evidence favours the claim of accused persons particularly accused Babul Bania. 34. I have found that one was Dipen was with the victim when she was allegedly abducted by the accused persons. I have also found that a boy, Bhupen by name, took the bi-cycle of the victim from the place of occurrence having found the same at such place in an abandoned condition. Those persons therefore became very vital to the prosecution case since they could have thrown sufficient light on the matter under consideration. But such vital witnesses were left out from the arena of the case and that too without assaying any cause whatsoever. This is fatal since it raises a presumption that those witnesses would not have supported the case had they been called as witnesses. 35. On the perusal of the record, we have found that during the course of trial, the victim has stated that once the accused Babul Bania took her to the residence of his relatives at Nizarapar, Guwahati, he proposed to marry her. However, she made such a statement for the first time only during trial. This is a clear testimony of victims trying to improve her case which only shows that she is not at all reliable. On this count too, her evidence deserves to be rejected. 36. We have already found that the doctor has stated that the victim girl was above 18 years of age at the time relevant. Her own father supported such a contention. That being so, I have no hesitation in coming to the conclusion that on the date of incident, the victim was a major girl. I have also found that on the fateful day, victim eloped with the accused persons particularly Babul Bania on her own volition. 37. In the face of above revelations, I am to conclude that the case in hand, is clearly covered by the principle laid down in Shyam and Another (supra) ordered by trial court convicting the accused of the offence u/s. 366/34 IPC and sentencing them to punishment as aforesaid, is, therefore, liable to be quashed and set aside. 38. 37. In the face of above revelations, I am to conclude that the case in hand, is clearly covered by the principle laid down in Shyam and Another (supra) ordered by trial court convicting the accused of the offence u/s. 366/34 IPC and sentencing them to punishment as aforesaid, is, therefore, liable to be quashed and set aside. 38. In the result, the judgment, impugned, is set aside and the accused appellant are acquitted of the offence under Sections 366 /34 IPC. Accused are ordered to be set at liberty forthwith if not wanted in connection with any other case. 39. The appeals are allowed. Send down the LCR. Appeal allowed.