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2015 DIGILAW 68 (GAU)

Rumi Borah v. State of Assam

2015-01-23

B.K.SHARMA

body2015
JUDGMENT AND ORDER (ORAL) 1. Heard Mr.B.K. Mahajan, learned counsel for the accused/appellant and Mr. H. Sarma, learned Additional Public Prosecutor, Assam. I have also gone through the materials on record. 2. This appeal is directed against the judgment of conviction dated 15.05.2014 of the learned Additional Sessions Judge, Nagaon passed in Sessions Case No.343(N)/2010 convicting the accused/appellant along with one Sri Ajoy Bora @ Das for the offence allegedly committed u/s 366/34 IPC. Upon such conviction, she has been sentenced to undergo rigorous imprisonment for 07(seven) years with fine of Rs.2000/- and in default, to undergo further rigorous imprisonment for 02(two) months. 3. The prosecution case in brief is that on 14.03.2010, one Sri Sankar Roy (PW-2) lodged an FIR with the Police against three persons, namely, the accused/appellant, Sri Ajoy Bora and one Puja, alleging inter-alia, that they took his wife (PW-1) by inducing her that they would provide her employment in a company in Guwahati. After about 1 ½ months, when the first informant i.e. the PW-2 went to the house of the accused/appellant to know about whereabouts of his wife, he was informed that she would return soon. Thereafter, also he went to her house on 4/5 occasions, but on all occasions he was informed the same. The first informant further narrated that on 13.03.2010, his wife informed him over phone from Mumbai that the accused persons sold her at Thane, Mumbai and that she was confined in a room. 4. On receipt of the FIR, Nagaon P.S case No.355/2010 was registered u/s 366/34 IPC and investigation was carried out. During investigation, police visited the place of occurrence, recorded the statement of witnesses, arrested the accused persons and recovered the victim girl, got her medically examined. Her statement was also recorded u/s 164 Cr.P.C. Charge sheet was submitted for the offence u/s 366/371/34 IPC. Eventually, charges were framed against the accused persons under the said sections. During trial, the prosecution examined four witnesses, including the victim woman (PW-1). 5. PW-1 in her deposition narrating the incident stating that she was allured by the accused persons to go to Mumbai on the pretext of providing job. On reaching Mumbai, the co-accused Ajoy Bora took her along with two other ladies to a house by an Auto Rickshaw. In the house, there was a man namely, Rabi. 5. PW-1 in her deposition narrating the incident stating that she was allured by the accused persons to go to Mumbai on the pretext of providing job. On reaching Mumbai, the co-accused Ajoy Bora took her along with two other ladies to a house by an Auto Rickshaw. In the house, there was a man namely, Rabi. She stated in her deposition that when she was in the house, she could hear telephonic conversation between the two accused persons regarding transaction of money and deposit of the same in the bank. According to her statement, she had to remain there for about 06(six) months and could gather that the girls were engaged for immoral works. She was also sent for such immoral works and on denial she was beaten up. According to her statement, she had gone for such immoral works for a single day and thereafter she did not go for such work on the pretext of being ill. One day she gave a missed call to her husband and on being asked, she narrated the entire incident to her husband and as to how she was in confinement. She further stated in her deposition that police went to Mumbai in search of her, but could not get her as she was confined by the men at Mumbai. Thereafter, she was sent back to Guwahati putting her on a train on the request of the accused/appellant. She came to Nagaon and appeared before the police station and narrated the entire incident. Her statement was also recorded u/s 164 Cr.P.C. In the cross examination, she stated that she was introduced to the accused/appellant through one Puja and that she had gone to Mumbai with two other ladies, namely, Aloka and Purnima. It will be pertinent to mention here that neither said Puja was examined as witness nor she was made an accused. It will be further pertinent to mention here that during investigation or during trial, Aloka and Purnima were also not examined. 6. PW-2 is the husband of PW-1, who in his deposition stated that the accused/appellant had come to his house and wanted to take his wife along with her for about 1 ½ months for job. Although he had opposed the proposal, but thinking that his wife would earn some money, allowed her to go. 6. PW-2 is the husband of PW-1, who in his deposition stated that the accused/appellant had come to his house and wanted to take his wife along with her for about 1 ½ months for job. Although he had opposed the proposal, but thinking that his wife would earn some money, allowed her to go. Accordingly, his wife went out and he did not receive any information for about six months. Referring to the Phone call referred to by the PW-1, he in his deposition stated that after about six months, he got a phone call from his wife and she told him that the accused persons had taken her to Mumbai and sold her there for an amount of Rs.50,000/-. Then, he went to Hoyborgaon Police Outpost and filed an FIR against the accused/appellant. According to his statement, the police went to Mumbai and recovered his wife. Contrary to such statement, it is the stand of the PW-1 that she was put in the train by a man at Mumbai and she of her own came to Guwahati and thereafter reached Hoyborgaon and reported the entire matter to the police. 7. PW-4 is the Investigating Officer, who in his deposition stated about his visit to Mumbai in search of the victim. He in his deposition stated that in spite of search made, he could not recover the victim woman and thereafter he came back. After coming back, he found that the victim woman had already come back and reported to police. 8. Above are the evidence on record on the basis of which the learned trial Court has convicted the accused/appellant vide the impugned judgment of conviction dated 15.05.2014. As regards the statement made by the victim u/s 164 Cr.P.C, same was not exhibited during the course of trial. However, the learned trial Court placing reliance on the same as a public document along with the evidence on record, has convicted the accused/appellant. 9. Mr. B.K. Mahajan, learned counsel for the accused/appellant placing reliance on the two decision, reported in (2009) 14 SCC 541 [Musauddin Ahmed –vs- State of Assam] and 2007 (1) GLT 428 [Haider Islam –vs- State of Assam], submits that when there is variation in the evidence of PW-1, Pw-2 and PW-3, it will be unsafe to place reliance on their evidence so as to convict the accused/appellant. It will be pertinent to mention here that the PW-3 in her evidence stated that the PW-1 and PW-2 were known to her as they were her tenant. She in her deposition further stated that the accused persons used to visit the PW-1 and PW-2. According to her statement, the PW-1 had gone with the accused/appellant for work in an Embroidery Company by keeping her daughter with her. After about 06(six) months, the PW-2 told her that PW-1 i.e. his wife informed him over telephone that she was in Mumbai. Thereafter, the PW-2 lodged the FIR. 10. In the aforesaid two decisions what was emphasized is that is that it is the duty of the party to lead the best evidence in its possession, which could throw light on the issue in controversy and in case such material evidence is withheld, the Court would draw adverse inference. On the point of benefit of doubt, it was held that offering of two inconsistent and contradictory version of occurrence would lead to a situation in which the accused will have to be acquitted on benefit of doubt. 11. Referring to the aforesaid evidence and placing reliance on the aforesaid two decisions, Mr. B.K. Mahajan, learned counsel for the accused/appellant submits that there being inconsistency in the evidence of PW-1 and PW-2, no reliance can be placed on their testimonies and accordingly, the accused/appellant is at least entitled to benefit of doubt. Mr. H. Sarma, learned Additional P.P, on the other hand submits that PW-1 being the victim woman, her testimony cannot be brushed aside. He submits that the evidence are overwhelming to suggest that the PW-1 was allured in search of job either in Delhi or in Mumbai and she being the victim of such allurement, had gone to Mumbai, where she was forced to engage herself in immoral works. 12. I have given my anxious consideration to the submissions made by the learned counsels for the parties and have also perused the entire evidence on record. The learned trial Court has convicted the accused/appellant placing reliance on the testimonies of the PW-1 and PW-2. However, in the process, the inconsistencies in their deposition so far as the accused/appellant is concerned have been overlooked. The learned trial Court has convicted the accused/appellant placing reliance on the testimonies of the PW-1 and PW-2. However, in the process, the inconsistencies in their deposition so far as the accused/appellant is concerned have been overlooked. As against the evidence of PW-1 that she had come to Guwahati by train on being sent by a man at Mumbai, it is the evidence of PW-2 that the police had recovered PW-1 at Mumbai. This aspect of the matter will have to be considered in reference to the testimony of PW-4 i.e. the Investigating Officer, who in his deposition also stated that the victim woman could not be recovered in Mumbai and he could find the woman coming back from Mumbai at Nagaon. 13. When the PW-1 was cross examined by the defence, he stated that although his wife had gone for job, but he did not see when she left home. He also stated that although his wife’s whereabouts were not known for about 06(six) months, he did not lodge any FIR with the police. It is only after the purported receipt of the phone call from her, he lodged the FIR with the police. As regards the telephonic conversation regarding monitory transaction, it is rightly submitted by Mr. B.K. Mahajan, learned counsel for the accused/appellant that testimony of PW-1 is not believable inasmuch as it was not possible for her go guess as to with whom the co-accused was talking to. It is not in the evidence of PW-1 as to the amount of monitory transaction, but PW-2 in his evidence stated about payment of Rs.50,000/-. 14. Above inconsistencies apart, Puja, who allegedly introduced the accused/appellant with the victim woman was neither made a witness nor she was made accused. Similarly, the other two ladies with whom the victim woman had allegedly gone to Mumbai were also not examined. When the Investigating Officer was specifically asked about the same, he admitted that those two ladies were not examined. These three ladies were vital witnesses to the incident, examination of whom would have thrown light in respect of the alleged offence committed by the accused/appellant. 15. Above being the position, I am of the considered opinion that the prosecution failed to establish the offence alleged against the accused/appellant beyond all reasonable doubt. Accordingly, it is held that she is entitled to benefit of doubt. 16. 15. Above being the position, I am of the considered opinion that the prosecution failed to establish the offence alleged against the accused/appellant beyond all reasonable doubt. Accordingly, it is held that she is entitled to benefit of doubt. 16. The appeal is allowed setting aside the impugned judgment of conviction. Consequently, she shall be set at liberty forthwith, if not wanted in connection with any other offence. 17. Let the case record be sent down to the learned Court below along with a copy of this judgment.