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2017 DIGILAW 1223 (GAU)

Jamser Ali Alias Damser Ali v. State of Assam

2017-09-04

RUMI KUMARI PHUKAN

body2017
JUDGMENT : 1. None appeared for petitioner. Heard Mr. H. Sarma, learned Addl. Public Prosecutor for the State. 2. This revision is filed for setting aside the order of the learned Sessions Judge, Darrang dated 24.3.2008 in criminal appeal 42(D-4)/2007 whereby the order of the learned Assistant District Judge, Darrang dated 23.8.2002 in sessions case 7(DM-3)/1998 sentencing the petitioner to R/I for 7 years with fine of Rs. 2,000 and in default to R/I for one month under section 366 of the IPC and R/I for 3 years with fine of Rs. 2,000 and in default to R/I for one month under section 457 of the IPC to be run concurrently and setting off the period already undergone by him is confirmed. 3. It is alleged in the FIR that on the night of 29.10.1997 petitioner sneaked into the house of the informant by cutting a sindhi (hole) and kidnapped his sister Sarulata Saharia gagging her mouth to his house and kept there. 4. On the basis of the said FIR Mangaldai PS Case 279/1997 under sections 457 and 366 of the IPC is registered and investigation started and after completion of investigation charge sheet is submitted against petitioner under section 457/366 of the IPC. Charge is framed against him under section 457/366/376 of the IPC. The case was committed to the sessions court for trial which the petitioner faced and denied the charge. 5. To bring home the charge prosecution examined 9 witnesses including medical officer and the investigating officer. Defence did not examine any witness and denied the charge. Statement of petitioner is recorded under section 313 of the Cr.PC and after conclusion of trial he is held guilty as aforesaid. The appeal filed by the petitioner is also dismissed. Hence, this revision. 6. Submissions of learned State counsel is considered and the impugned order as well as the evidence on record is gone through. 7. The victim is found to be the main person in this case. She was examined as PW-6. Other witnesses, namely, PW-1 Kala Ram Saharia, the brother of the victim, PW-2 Narendra Bora, PW-3 Kushal Saharia, PW-4 Junu Saharia, the father of the victim; and PW-5 Dilip Saharia, a neighbour of the informant, deposed similar statement that on the day of occurrence they noticed a sindhi on the northern side of the house of PW-3 with the latter missing. Later, they came to know that it was the petitioner that kidnapped her. 8. Stating the said facts the FIR was filed by the brother of victim, PW-1. The police recovered the victim from the house of the petitioner when the victim told them that she was kidnapped by the petitioner. Obviously none of the witnesses were witness to occurrence and, hence, the evidence of the victim is crucial. 9. In the evidence of the victim, she is found to have categorically stated that on 29.10.1997 the petitioner entered her house stealthily cutting a sindhi through the wall and kidnapped her by gagging her mouth to his house which is at a distance of about 5 km and the next day the police recovered her. In her statement (Exhibit 2) recorded after her recovery she also stated about the filing of the FIR (Exhibit 1) by her brother. 10. It is noteworthy that the learned trial court as well as learned appellate court has accepted the said evidence of the victim in toto without appreciating her cross-examination statement which impacted much on the matter at hand. 11. Certain crucial matters require appreciation in the background of the case. First, the victim was adult at the time of the incident and so she was sleeping beside her mother. Next, she stated that petitioner entered her house cutting a sindhi and took her away but she did not utter a single word why she did not make hue and cry if she was really forcibly taken out. Her evidence is silent on this. Third, how could she be forcibly taken away when she is a full-grown girl? Fourth, she did not speak of any force on the part of the petitioner in kidnapping her. Fifth, even her mother who was sleeping beside her could not know of such kidnapping! Sixth, her evidence in the cross-examination is more peculiar she does not know from which side she was taken away. Seventh, she did not make hue and cry when she was being taken to the house of accused which is situate at a distance of about 5 km from her house. Certainly no such man can take her away from such a far-off place without her consent. Her testimony given before the court is quite different from what is stated before the Magistrate under section 164 of the Cr.PC. Certainly no such man can take her away from such a far-off place without her consent. Her testimony given before the court is quite different from what is stated before the Magistrate under section 164 of the Cr.PC. Her conduct itself shows that she was a consenting party to the affair. This discrepancy is crept into the matter at hand. 12. The mother of the victim who was sleeping beside her was also not examined by the prosecution and other witnesses did not see such kidnapping. The testimony of the medical officer as well as the investigating officer, in the given circumstances, is of no consequence. The evidence of medical officer has also belied any sign of coitus in the body of the victim to suggest any other offences like rape, etc. 13. The evidence of the victim is not at all found to be cogent and convincing. It proves exaggeration of facts and made only to save her from the opprobrium of being fled with the petitioner. An adult woman would certainly resist such illegal move if made forcibly. But nothing reflects in her evidence that she was ever forced while being taken away, if any, by the petitioner. 14. Considering all above it is held that the finding of guilt arrived at by the learned courts below is not at all proper and so the petitioner deserves benefit of doubt. Accordingly the orders of the learned courts below are quashed and set aside. Petitioner is acquitted of the charge being given the benefit of doubt. LCR be returned forthwith.