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2017 DIGILAW 113 (GAU)

SIBU DAS v. STATE OF ASSAM

2017-01-24

RUMI KUMARI PHUKAN

body2017
JUDGMENT : Mrs. Rumi Kumari Phukan, J. Heard Mr NS Laskar, learned counsel for appellant. Also heard Mr B. Sarma, learned additional public prosecutor for the state. 2. This appeal is filed against judgment of the learned Sessions Judge, Cachar dated 30.5.2008 in criminal appeal 10/2006 whereby the appellant is convicted under Section 366 of the IPC and sentenced to r/i for two years with a fine of Rs 1,000 and in default to R/I for one month. 3. The prosecution case in a nutshell is that on 21.10.2005 one Sanjib Chanda lodged an FIR with the officer-in-charge of Katigorah police station to the effect that his younger sister Bappi Chanda had been kidnapped by accused Sibu Das on 17.10.2005 at around 6.30 PM. The said FIR was filed only after recovery of the victim girl. The victim gave statement that she was forcibly taken away from her house. Katigora PS case 399/2005 u/s 366(A) of the IPC was registered. On due completion of investigation charge sheet was submitted against accused under Section 366(A) of the IPC. Accused faced the trial and denied the charge brought against him. Prosecution examined five witnesses including the medical officer and investigating officer. Defence did not examine anybody. The plea of the defence is of total denial. Accused in his statement u/s 313 of the CrPC has also denied the allegation. On conclusion of the trial the accused is convicted and sentenced as aforesaid. Hence this appeal. 4. Considered the submissions of learned counsel for appellant that the conviction given is bad in law inasmuch as the learned trial court did not ascertain the actual age of the victim and consider the ground of delay in filing the FIR and did fail to appreciate the evidence in proper perspective of law and fact. Also considered the conduct and testimony of the victim who failed to give her statement convincingly about her stay with the accused for several days without protest. It is also contended that the evidence of PW2 is sufficient enough to negate the case of the prosecution which has certainly proved that it is not a case of inducement but of elopement. 5. Also considered submissions of learned additional public prosecutor. He has basically opined that the victim was minor at the time of occurrence. This opinion is also supported by the medical opinion. 5. Also considered submissions of learned additional public prosecutor. He has basically opined that the victim was minor at the time of occurrence. This opinion is also supported by the medical opinion. Accordingly as per the statement of the victim it is a case of kidnapping. The learned trial court has rightly convicted the accused. 6. In support of his submissions learned counsel for appellant relied on the decision of the Supreme Court in Jaya Mala v. Home Secretary, Government of Jammu & Kashmir and others reported in (1982) 2 SCC 538 ; and decisions of this Court in Samsul Haque @ Samsul Alam v. State of Assam reported in 2005 (3) GLT 105, Tafiz Ali and another v. State of Assam reported in 2007 (3) GLT 481 and Nasib Hussaain(Md) v. State of Assam and others reported in 2015 (3) GLT 89. 7. In the evidence on record the victim(PW3) is found to have stated that on the day of incident accused suddenly came to their house and holding her hand took her to the vehicle which was parked in front of her house to different places. She is also found to have given evidence u/s 164 of the CrPC to the same effect. In her cross-examination she stated that while she was being taken by the accused she did not make hue and cry though there were several houses of neighbouring people residing with their family. That apart she did not complain to the father of the accused where she was first taken and thereafter to the house of the aunt of accused where she stayed for four days. It is notable that though she stated about forcible abduction on the part of the accused, her conduct itself reveals that she did not make hue and cry to resist her forcible abduction; rather, she silently went inside the vehicle and remained with the accused somewhere for four days without protest either to resist the accused or to unshackle his clutches. All this is enough to infer that she has voluntary gone with the accused because the conduct of everybody is always relevant in every case to prove the guarantee of the statement spoken to. She has also stated in evidence that the accused did not commit any sexual offence with her but did propose to marry him but she refused the proposal. 8. She has also stated in evidence that the accused did not commit any sexual offence with her but did propose to marry him but she refused the proposal. 8. The evidence of PW2, an independent witness, goes to show that PW3 had a love affair with the accused as disclosed to him by her saying if she is not allowed to go with the accused she will commit suicide. According to PW2 the age of the victim was 18 years at the time of occurrence. Thus the evidence of PW2 is sufficient to hold that the victim was an adult at the time of the occurrence and accordingly the long stay of the victim with the accused without protest is also an indication of love affairs between them. 9. The informant(PW1) Sanjit Chanda is totally silent about the delay in filing the FIR. If the victim were a minor child at the time of occurrence and accused had abducted his minor sister why PW1 did not make a complaint to any authority and preferred to remain muted for five days. This is also not explained. 10. In criminal justice system, delay in filing the criminal case is always fatal and the prosecution is bound to explain the delay in proper perspective of law and fact. The aspect of delay coupled with the fact that the actual age of the victim was suppressed by the prosecution reveals that the victim was not minor at the time of the occurrence. The medical officer (PW5) Dr BC Roy Medhi opined that the age of the victim is 16 years. The finding of medical officer being a non-conclusive nature another 2 years can be added to the age of the victim in view of the decision of the Apex Court in Jaya Mala(supra) wherein it is held that the court can take judicial notice that the margin of error in the age ascertained by such examination is two years on either side. That being the position another 2 years can be added to the age of the victim and in that case the victim would be adult at the time when the occurrence took place since the prosecution has failed to submit any age certificate, school certificates etc to prove the age of the victim girl. Mere submission of the approximate age is not enough to prove the age. 11. Mere submission of the approximate age is not enough to prove the age. 11. Investigating officer Mr AH Choudhury, examined as PW4, stated about the investigation. In cross-examination he stated that the informant did not say the age of the victim girl to him. 12. Taking into consideration the evidence on record and the facts and circumstances emerged it is felt that the conviction on the solitary evidence of the victim who testified that she has no love affair with the accused in the given circumstances is not correct and is belied by the evidence of PW2. The accused was also a man of 23 years at the time of occurrence. He made a proposal of marriage to the victim. Therefore it cannot be denied that out of love affair the victim voluntarily eloped with the accused and subsequently blamed the accused after recovery at the behest of her family members. 13. From the facts and circumstances depicted in the record it can be held that it is not a case of kidnapping but elopement on the part of victim. That being the position accused deserves benefit of doubt. Accordingly the charge u/s 366 of the IPC has failed. Accused is acquitted being given the benefit of doubt. Return the LCR.