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2015 DIGILAW 407 (GAU)

Sahidul Islam Khan v. State of Assam

2015-04-01

BIPLAB KUMAR SHARMA

body2015
Biplab Kumar Sharma, J. 1. This is a jail appeal against the judgement of conviction dated 21/11/2013 of the learned Additional Sessions Judge (FTC), Barpeta in Sessions Case No. 50/2010. By the aid judgement while convicting the accused appellant under Section 366 IPC, he has been sentenced to undergo R.I. for 7 (seven) years with fine of Rs. 10,000/- and in default to undergo S.I. for another 6(six) months. The sentence provides the benefit of the provision laid down in section 428 Cr.P.C. 2. Barpeta PS Case No. 293/2007 was registered under Section 366/328/34 IPC on the basis of the FIR lodged on 27/04/2007. The FIR was lodged by PW-1. As per the FIR, previous night i.e. on 26/04/2007, when all the family members were sleeping after their meal, the accused appellant entered into the house by breaking open the bamboo wall and made all the members unconscious administering narcotic medicine and thereafter kidnapped the victim wrapping a black cloth around her face. At around 1.O clock of the same night, the accused appellant also threatened the members of the family that if the kidnapped victim was not given on marriage to him, he would create havoc. Following morning, people gathered and found the family members in unconscious state. All of them had undergone treatment at Barpeta Civil Hospital. 3. With the registration of the case, I.O. carried out investigation and thereafter on completion of the same submitted charge sheet against the 3(three) accused persons under Section 366a/34 IPC. Eventually, charge was framed under Section 366/34 IPC. The defence plea was that of denial. 4. During trial, prosecution examined 11 witnesses and the accused persons were also examined under Section 313 Cr.P.C. The learned trial court after having framed the following points for determination, answered the same in the affirmative towards convicting the accused appellant leaving aside the two other accused persons and hence this appeal from jail. "Points for determination: (i) Whether the accused persons in furtherance of common intention on the night of 26.4.2007 at Palhazi village under Barpeta Police Station kidnapped or abducted the victim/and sister of the informant as alleged?". 5. Ms. B. Sarma, learned Amicus Curiae representing the accused appellant submits that on a total reading of the evidence on record, it is not a case for which the accused appellant can be convicted under Section 366 IPC. 5. Ms. B. Sarma, learned Amicus Curiae representing the accused appellant submits that on a total reading of the evidence on record, it is not a case for which the accused appellant can be convicted under Section 366 IPC. According to her, the victim girl had willingly gone with the accused and because of the circumstances, particularly, the fact that the accused was already a married person, the family members made out a story of abduction. Mr. D. Das, learned APP, Assam on the other hand submits that there being nothing to show that the victim had willingly accompanied the accused coupled with the fact that in his statement made under Section 313 Cr.P.C., the accused did not furnish any explanation as to how the victim was found in his possession, the learned Trial Court rightly convicted him and thus the judgement of conviction requires no interference. 6. I have given my anxious consideration to the submissions made by the learned counsel for the parties and have also perused the entire materials on record. It will be pertinent to mention here that during investigation, the victim girl's statement was recorded under Section 164 Cr.P.C. As to what was the fact narrated in the FIR has been noted above. In her statement under Section 164 Cr.P.C., the victim stated about her abduction by the accused taking advantage of the fact that all the family members became unconscious after the accused had administered/mixed medicine with the food. She also stated that the accused was accompanied by two other persons while abducting her. She was also unconscious and regained her senses on the following day. According to her said statement, the accused tried to commit sexual intercourse with her but she resisted from doing so. Police recovered her from Sartebari. In the said statement, she categorically stated that it was none other than the accused appellant who himself stated to her that she was abducted. In her said statement she stated that she would go with her mother. 7. Thus, if we go by the said statement in reference to the fact stated in the FIR, it was the accused appellant who had abducted her. It is in this context, Mr. In her said statement she stated that she would go with her mother. 7. Thus, if we go by the said statement in reference to the fact stated in the FIR, it was the accused appellant who had abducted her. It is in this context, Mr. Das, learned APP, Assam, submits that had it been a case of willfully going with the accused appellant, the victim a major would not have desired to go with her mother but instant would have volunteered to go with the accused appellant. 8. PW-1 Firoz Ali Sikdar is the informant of this case, PW-2 is the victim of this case, PW-3 is Jabeda Khatun Sikdar, mother of the victim, PW-4 Marzina Sikdar, PW-5 is Ssfuqul Islam, PW-6 Shaheb Khan, PW-7 Phul Mala Khatun, PW-8 is the Medical Officer, PW-9 is Abida Sikdar, PW-10 is Jalal Dewan and PW-11 is the Investigating Officer of this case. 9. PW-1 narrating the incident stated that on the day of occurrence, the accused along with two others had entered into their house by breaking the door and kidnapped his sister. Upon search being made, she could not be recovered and thereafter the Ext.1 FIR was lodged. Making phone call on the mobile phone of the accused, they could come to know that he had kept the victim in the particular village and thereafter the victim was recovered with the help of the Police. 10. PW-3 is the mother of the victim who in her deposition stated that on the day of occurrence, her daughter complained of uneasiness, because of one Ayurvedic Physician was brought. On the following morning, the victim was found missing from the house. This testimony of PW-3 will have to be considered in reference to the evidence laid by the prosecution that all the family members became unconscious on that night. She also stated in her deposition that the victim was recovered by the police from the possession of the accused appellant. PW-4 also stated the same fact as to how all the family members became unconscious and the victim was kidnapped. 11. PW-5 duly supported the ocular testimony of the other witnesses regarding the unconsciousness of the family members. She also stated in her deposition that the victim was recovered by the police from the possession of the accused appellant. PW-4 also stated the same fact as to how all the family members became unconscious and the victim was kidnapped. 11. PW-5 duly supported the ocular testimony of the other witnesses regarding the unconsciousness of the family members. PW-6 in his deposition stated that on the previous day, the mother of the victim reported him that the accused appellant had proposed to marry the victim and also threatened that in case of refusal, he would kidnap her. He also stated that the mother of the victim had refused the proposal. 12. PW-7 was sleeping with the victim on the night of the incident. She in her deposition stated that she could notice the uneasiness felt by the victim. She also stated about calling of the Ayurvedic Physician for treatment of the victim. Although, both of them were sleeping on the same bed but following morning she did not find the victim and noticed that the bamboo wall of the house was in damaged condition. According to her, someone had kidnapped the victim taking advantage of the fact that all the family members were unconscious. 13. PW-9 also stated in her deposition that the accused appellant had proposed to marry the victim. On the following day of the incident she found the victim missing. She also noticed that bamboo wall of the house was damaged. PW-10 in his deposition stated that the accused accompanied by two others had escorted the victim to the particular village. He further deposed that the police recovered the victim from the village. PW-8 is the Doctor who had examined the victim, who in his deposition stated that the victim was examined on 28/04/2007. According to his opinion, the girl was about 17-18 years of age and there was no sign of sexual intercourse at the time of examination. 14. PW-11 is the I.O. who in his deposition, while generally stated about the investigation that was carried out also stated that the family members of the victim had to undergo treatment in hospital. He also named the unconscious persons. 15. It is on the basis of the aforesaid evidence, the learned trial Court has convicted and sentenced the accused appellant as aforesaid. Ms. He also named the unconscious persons. 15. It is on the basis of the aforesaid evidence, the learned trial Court has convicted and sentenced the accused appellant as aforesaid. Ms. B. Sarma, learned Amicus Curiae, referring to the said evidence, more particularly, that of PW-7, has submitted that the she having slept with the victim on the bed, it was not possible on the part of the accused appellant to kidnap unless she was a willing party. This submission will have to be considered in reference to the fact that almost of the family members became unconscious on that fateful night for which they had to be hospitalized for treatment. Even the victim was also unconscious. The fact of the matter is that the victim was recovered from the possession of the accused appellant. It is in the evidence that the accused was in visiting terms to the house of the victim's family and that he was already married. It was in such circumstances, his proposal to marry the victim was rejected by her mother. 16. Admittedly, the victim was recovered by the police from the particular village along with the accused appellant. As stated above, the accused in his statement made under Section 313 Cr.P.C. simply denied his involvement with the incident but furnished no explanation as to how the victim came to be in his possession. There is absolutely no evidence that the victim had voluntarily gone with the accused to the particular village. It is in such circumstances, the learned trial Court has rightly held that the prosecution has established that the accused appellant on the day of incident, kidnapped/abducted the victim from her house without her consent and because of the said act on the part of the accused appellant, the ingredients of the offence punishable under section 366 IPC stood established. 17. Considering the matter in its entirety, I do not find any infirmity in the conviction of the accused appellant vide the impugned judgement. 18. This now leads us to the submission made by Ms. 17. Considering the matter in its entirety, I do not find any infirmity in the conviction of the accused appellant vide the impugned judgement. 18. This now leads us to the submission made by Ms. B. Sarma, learned Amicus Curiae that having regard to the fact that the accused appellant is already a married person, coupled with the fact that he was under an obsession that the victim was in love with him and that he wanted to marry her, the sentence of 7 years R.I. imposed by the learned Trial Court is required to be reduced. The accused appellant is in imprisonment ever since the judgement was delivered on 21/11/2013. During investigation also he was in jail for some period. 19. Considering the facts and circumstances and the aforesaid submissions made by Ms. B. Sarma learned Amicus Curiae, I am of the considered opinion that the ends of justice would be met if the sentence is reduced to 3 (three) years R.I, maintaining the fine of Rs. 10,000/-(Rupees ten thousand) only already imposed by the learned Trial Court. Needless to say that from this modified sentence of 3 years R.I., the period already undergone by the accused appellant shall stand set off under Section 428Cr.P.C. 20. Appeal is partly allowed with the modification of sentence as aforesaid. The Registry shall send down the LCR to the learned court below along with a copy of the judgement and order. 21. Before parting with the case record, I record my appreciation for the assistance rendered by Ms. B. Sarma, learned Amicus Curiae. She will be entitled to a sum of Rs. 5000/- (Rupees five thousand) as hearing fee, which the Jurisdictional Legal Services Authority shall pay to her on production of a copy of the judgement and order. Registry shall provide her a copy of this Judgement and order free of cost.