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2014 DIGILAW 270 (TRI)

Pradyut Malakar v. State of Tripura

2014-07-09

DEEPAK GUPTA

body2014
JUDGMENT Deepak Gupta, CJ. 1. This appeal by the convicts is directed against the judgment dated 17-01-2009 passed by the learned Additional Sessions Judge, Fast Track Court, Kailashahar, North Tripura, in Case No. Sessions Trial 06(NT/K) of 2008 whereby he convicted the accused of having committed an offence punishable under section 366 read with section 34 of the Indian Penal Code (IPC) and sentenced them to undergo rigorous imprisonment for 3(three) years and to pay fine of Rs. 1,000/- (rupees one thousand) each and in default of payment of fine to undergo simple imprisonment for 3 (three) months each. 2. The prosecution case, briefly stated, is that on 05-05-2007, the complainant/informant (PW-1), Sri Rathindra Dhar, filed a written complaint with the Nepal Tilla police station. In this complaint, it was alleged that at about 4 a.m. in the morning when his daughter (hereinafter referred to as "B") went to answer the call of nature, she did not return home and that he came to know that the accused persons had kidnapped his minor daughter by enticing her and promising to marry her. The case was registered and the victim was recovered and her statement was recorded. It would be pertinent to mention that the statement of the victim was also recorded under section 164 of Cr.P.C. by the learned Judicial Magistrate 1st Class, Kailashahar. Thereafter, charge-sheet was submitted. The trial Court convicted the accused. Hence, this appeal. 3. The victim (B) appeared as PW-2 and stated that on 05-05-2007 at about 4 a.m. she went to answer the call of nature. Her parents and younger brothers were sleeping in the hut. After she had answered the natural call and was washing her hands and legs, the two accused came to her house and forcibly took her to the road. She was taken to the house of one Jitendra Malakar. There she was forced to wear a petticoat, saree and blouse and then accused Pradyut put vermilion on her forehead. Conch bangles and "polar" (red coloured bangles) were also put on her hands. Thereafter, Pradyut told her that he was her husband and she was his wife. She did not raise any alarm but stayed in the house. At about 9 p.m., the Darogababu of Nepal Tilla police station came to the house and thereafter she along with the accused persons was taken to the police station. Thereafter, Pradyut told her that he was her husband and she was his wife. She did not raise any alarm but stayed in the house. At about 9 p.m., the Darogababu of Nepal Tilla police station came to the house and thereafter she along with the accused persons was taken to the police station. She was also medically examined by the doctor. Her statement was also recorded by the Magistrate under section 164 Cr.P.C. According to her, she was a student of Class-VIII at the relevant time. She has admitted that she knew Jitendra Malakar. The suggestion put to her is that she voluntarily left her house, dressed in the saree and blouse and went to the house of Jitendra Malakar without the knowledge of her parents. She denied the suggestion that she had a love affair with accused Pradyut Malakar. She denies the fact that she asked Jitendra Malakar to inform her parents that she had left her house voluntarily with the intention of marrying Pradyut. She denies the suggestion that she made a statement before the Magistrate as per dictation of her parents and police officials. 4. The father (PW-1) states that when he woke up in the morning, he found that his daughter was not there. He suspected that she might have gone to the house of her grandfather which was at a distance of one furlong from his house. Thereafter, he sent his son Tutan to his father's house. The son Tutan returned immediately and informed that the victim (B) was not in the grandfather's house. Thereafter, they carried out a search for the daughter in nearby houses, but did not find her. The father of the victim stated that at about 8-30 a.m. Jitendra Malakar and Sailendra Dutta came to his house and Jitendra Malakar told him that his daughter (B) had gone to the house of Jitendra voluntarily very early in the morning and had expressed a desire to marry his nephew Pradyut. He also told the father (PW-1) that his daughter (B) was in his house. Thereafter, the father called his relatives and after consultation lodged written complaint with the officer-in-charge of the Nepal Tilla police station. 5. One fails to understand why he had to lodge the complaint when he could have easily gone to the house of Jitendra Malakar and got back his daughter. Thereafter, the father called his relatives and after consultation lodged written complaint with the officer-in-charge of the Nepal Tilla police station. 5. One fails to understand why he had to lodge the complaint when he could have easily gone to the house of Jitendra Malakar and got back his daughter. He also stated that when he went to the police station, he found that his daughter was dressed in a saree with vermilion in her head and wearing conch bangles. In cross-examination, he stated that even after Jitendra Malakar told him that his daughter (B) was in the house of Jitendra Malakar, he did not go to the house of Jitendra. In the written complaint which is filed, again there is no mention that Jitendra Malakar had told the father that his daughter was in the house of Jitendra. Admittedly, Jitendra Malakar had met this witness at about 8-30 a.m. in the morning. There is no explanation as to why no complaint was lodged till 9-35 p.m. 6. PW-3, Ramakanta Das, is the witness to the seizure of the clothes etc. but has not supported the prosecution. According to him, his signatures were obtained on a piece of paper but he did not know what was written therein. 7. PW-4, Kalipada Das, states that on 05-05-2007 at about 8 a.m., the complainant Rathindra Dhar came to his house and informed him that his daughter was missing. According to this witness, Rathindra told him that his daughter was detained in the house of Jitendra Malakar. This witness has written the complaint but his evidence is not relevant for any other purpose. The statement of the other witnesses is to the similar effect. 8. According to the complainant, Rathindra Dhar, and other witnesses, they were informed by PW-6, Dinabandhu Das, about the victim (B) being abducted by the accused. Dinbandhu Das turned hostile and did not support the prosecution and denied that he had made any such statement to the police. Therefore, he has not supported the prosecution. 9. From the aforesaid evidence, it is apparent that the victim (B) left of her own accord with the accused persons. Jitendra Malakar had come to the house of the complainant at 8-30 in the morning and informed him that his daughter was in the house of Jitendra and that she wanted to marry his nephew Pradyut. 9. From the aforesaid evidence, it is apparent that the victim (B) left of her own accord with the accused persons. Jitendra Malakar had come to the house of the complainant at 8-30 in the morning and informed him that his daughter was in the house of Jitendra and that she wanted to marry his nephew Pradyut. If she had been kidnapped, why would Jitendra come to her parents' house? Furthermore, if she had been kidnapped, the father would have immediately gone to the police or gone to the house of Jitendra to rescue the daughter. It is apparent that the father knew that the daughter had gone of her own accord and, therefore, no complaint was lodged at the first instance. After consultation with relatives and family members, a false case was lodged at 9-35 in the evening. The learned trial Court has wrongly convicted the accused totally relying upon the statement of the prosecutrix without considering the fact that Jitendra had told the complainant Rathindra Dhar that his daughter (B) had come to his house. 10. In view of the above discussion, the appeal is allowed. The impugned judgment of the trial Court is set aside and the accused persons are acquitted. Their bail bonds stand discharged. 11. The appeal is disposed of in the aforesaid terms. 12. Send down the lower court records forthwith.