Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 1233 (GAU)

Milon Bora S/O Akran Bora v. State of Assam

2017-09-05

HITESH KUMAR SARMA

body2017
JUDGMENT AND ORDER : 1. The Criminal Revision Petition, before this court, is filed challenging the legality and propriety of the judgment and order, dated 4.1.2007, passed by the learned Assistant Sessions Judge, Golaghat, convicting and sentencing the accused revision petitioners to rigorous imprisonment for 5 years and a fine of Rs. 5,000/-, in default, rigorous imprisonment for another 1 month as well as the judgment and order, dated 5.9.2007, passed by the learned Sessions Judge, Golaghat, in Criminal Appeal No. 5/2007, affirming the conviction and sentence imposed upon both the accused revision petitioners by the learned trial court. 2. Heard Mr. A Choudhury, learned counsel for the revision petitioner as well as Mr. N K Kalita, learned Additional Public Prosecutor for the state. 3. The case of the prosecution is that, on 26.10.200 at about 6:30 pm, while the victim, Smti. Sarifa Begum, was standing in front of her residence, the accused revision petitioners appeared there in a Maruti Van and forcibly took her into the van, and then, left towards Nagaon. One Md. Rajib Ali witnessed the occurrence, and he, in no time, informed the father of the victim Md. Rezzak Ali about the occurrence. The father of the victim, aforesaid, and Rezzak, immediately, in another car, followed the Maruti Van and could found the same in front of a restaurant at Jokholabandha. Then, with the help of the police there, he apprehended the driver of the vehicle, and on being led by the driver of the victim, i.e. the accused petitioner Milan Bora, recovered the accused revision petitioner Sahidur Rahman and the victim girl from a nearby house. Then, the aforesaid and Rezzak lodged the FIR. Both the accused revision petitioners and the victim were taken to Jokholabandha Police Station. 4. On receipt of the FIR, Bokakhat Police Station registered a case being No. 104/1998, under Section 366 IPC, investigated into it, arrested the accused persons, got recorded the statements of the victim under Section 164 Cr.PC, and finally, submitted charge-sheet against the accused revision petitioners under Section 366 IPC. 5. The learned trial court of Assistant Sessions Judge, Golaghat, after exhausting all the required formalities, framed a formal charge against the accused revision petitioners under Section 366/34 IPC. Both the accused revision petitioners pleaded innocence while the charge was read over and explained to them, and, therefore, the trial commenced. 6. 5. The learned trial court of Assistant Sessions Judge, Golaghat, after exhausting all the required formalities, framed a formal charge against the accused revision petitioners under Section 366/34 IPC. Both the accused revision petitioners pleaded innocence while the charge was read over and explained to them, and, therefore, the trial commenced. 6. The issue for decision in the facts of the case is, whether the accused revision petitioners kidnapped or abducted the victim Sarifa Begum with intent that she might be compelled or knowing it to be likely that she would be compelled to marry another person against her will. 7. In the considered view of this court, issue for determination mentioned above, covers one of the component of Section 366 IPC, and not the remaining components, considering the background facts of the case, as there is no accusation in respect of illicit intercourse etc. and as the findings available in the record makes it look like a case of abducting the victim to marry one of the accused revision petitioners Sahidur Rahman. 8. For the determination of the above noted point, the prosecution examined as many as 6 (six) witnesses who were subjected to cross-examination by the defence. 9. The incriminating evidence appearing against the accused revision petitioners were brought to the notice while recording their statements under Section 313 Cr.PC. The accused revision petitioners denied the accusations made against them. In their such statements, both the accused revision petitioners also declined to lead any defence evidence. 10. In view of the above, let us now scan the evidence on record to find out whether the prosecution has been able to bring home the accusation against the accused revision petitioners. 11. PW1, Sarifa Begum, is the victim in this case. The victim, in her evidence, is heard saying that at the time of occurrence, she was forcibly picked up by the accused revision petitioners from in front of her house. She was waiting for her father there. In her statement under Section 164 Cr.PC, which is exhibited, vide Ext.1, she is heard saying that she was waiting for her brother to come. At that time, she was picked up in a Maruti Van by the accused revision petitioners. She was waiting for her father there. In her statement under Section 164 Cr.PC, which is exhibited, vide Ext.1, she is heard saying that she was waiting for her brother to come. At that time, she was picked up in a Maruti Van by the accused revision petitioners. She has also very categorical in her evidence on oath before the learned trial court as PW1 as well as in her statement recorded under Section 164 Cr.PC that as soon as she was put inside the Maruti Van, she was gagged with a cloth preventing her from shouting and raising alarm. The further evidence of the PW1/victim is that, once while she was coming in a bus from Bokakaht to Nagaon with her mother, the accused revision petitioner, Sahidur Rahman, got introduced himself with them and told her mother that he wanted to marry the victim Sarifa Begum. The mother of the victim then told him to send is parents to their house. But, instead of his parents, accused revision petitioner Sahidur Rahman himself went to the house of the victim, and they refused to give her in marriage with him after coming to know that he was already a married person with children. The incident of kidnapping/abduction of the victim occurred after the refusal to give her in marriage with the accused revision petitioner Sahidur Rahman. The fact of refusal on the part of the parents of the victim to give their daughter/victim Safira Begum in marriage with the accused revision petitioner Sahidur Rahman remain un-assailed even during the cross-examination of the victim. The evidence of PW3 appears to be very important in the case in the sense that he is the eyewitness of picking up of the victim by the accused revision petitioners in the Maruti Van. In his evidence, he is very specific while stating that he saw that the victim was taken inside the Maruti Van, and even, he remembers the number of the Maruti Van. The Registration No. of Maruti Van is AS-02/4668. It has come out from his evidence that immediately on seeing that the victim/PW1 was taken inside the vehicle, aforesaid, he informed PW2, the father of the victim Md. Rezzak. The Registration No. of Maruti Van is AS-02/4668. It has come out from his evidence that immediately on seeing that the victim/PW1 was taken inside the vehicle, aforesaid, he informed PW2, the father of the victim Md. Rezzak. Then himself with PW2 followed the Maruti Van in another vehicle to catch the accused and the driver was apprehended Milan Bora in a restaurant at Jokhlobandha, and then, on being led by him, apprehended the accused revision petitioner Sahidur Rahman along with the victim in a nearby house. Such evidence of the PW3, received absolute corroboration from the evidence of the PW2/informant as well as the father of the victim PW1. PW2 deposed that on being told to him by the PW3, he followed the Maruti Van carrying his daughter/victim by another vehicle along with PW3 and another and nabbed one of the accused revision petitioners Milan Bora at Jokholabandha restaurant, and thereafter, on being led by him, his daughter/victim and the accused Sahidur Rahman were apprehended from a nearby house. PW4 is heard saying in his evidence that he was busy in his shop nearby the place of occurrence he being the shopkeeper and that he only saw the victim boarding in a Maruti Van. The evidence of PW5 is that he also saw PW2 and PW3 while following the Maruti Van carrying the daughter of the PW2, as he was a part of the team which followed the Maruti Van taking away the victim from the place of occurrence. His evidence corroborates with the evidence of PW2 and PW3 so far the fact of recovery of the victim is concerned. PW6 is the Investigating Police Officer. His evidence is of formal character. His evidence relates to investigation of the case and its various stages including recording of the statement of the victim under Section 164 Cr.PC, recording statements of the witnesses as well as the arrest of the accused revision petitioners till submission of the charge-sheet against the accused revision petitioners. 12. In view of the consistent and corroborative evidence of the witnesses, referred to above, it appears that the prosecution has been able to prove that the victim was kidnapped/abducated. 13. The learned counsel for the accused revision petitioners referred to a decision of the Hon’ble Supreme Court in Faiyas Ahmed & Ors. 12. In view of the consistent and corroborative evidence of the witnesses, referred to above, it appears that the prosecution has been able to prove that the victim was kidnapped/abducated. 13. The learned counsel for the accused revision petitioners referred to a decision of the Hon’ble Supreme Court in Faiyas Ahmed & Ors. –vs- State of Bihar reported in 191 Supp (1) Supreme Court Cases 186, and pointed out that, like in the facts of the above said decision of the Hon’ble Supreme Court, in the instant case also, there is no evidence on record to show that the victim was abducted or kidnapped to compel her either to marry against her wish or to subject her to sexual intercourse against her wish. On such finding, the accused was acquitted of the charge under Section 366 of the IPC in the case referred to above. But, in the instant case the fact is not similar to that of one referred to in the decision above. None of the witnesses, including the victim are found to have deposed in their evidence before the court that after kidnapping her, there was no attempt to marry her against her will and sexual intercourse is also not alleged. But, the fact remains that the accused revision petitioner Sahidur Rahman proposed to marry the victim girl sometime back and on being refused on the ground that he is already a married person having children, he had abducted her, and as such, it is implied that taking away the victim girl was with the intention of marrying her. The further fact is that the victim was recovered within 1 (one) hour of taking her away by the accused revision petitioners, and, during this 1 (one) hour, they travelled a lot, and as such, to marry her against her will or to detain her with such intention would have arisen had she not been recovered within 1 (one) hour of the occurrence. The fact of the case so far kidnapping of the victim on the date of occurrence is concerned, cannot be read in isolation with the fact that his proposal to marry her was refused by the parents of the victim on the ground stated above. The fact of the case so far kidnapping of the victim on the date of occurrence is concerned, cannot be read in isolation with the fact that his proposal to marry her was refused by the parents of the victim on the ground stated above. Learned counsel for the revision petitioners has also referred to a decision of the Hon’ble Supreme Court in Gabbu –vs- State of M.P. reported in (2006) 5 Supreme Court Cases 740, and pointed out to this court, with reference to the contents of paragraph-5 therein, that the victim did not raise alarm while she was abducted. The Hon’ble Supreme Court found justification in not raising alarm by the victim in the above case. Paragraph-5 of the said decision is quoted below: “5. The High court held that nothing is brought in the cross-examination of the prosecutrix whereby the story of the incident narrated by her, should not be believed. The story given by her is telltale and does not create any doubt about all what has been said by her. The argument that normally a person will raise a cry when he is being forcibly taken away, was dealt with by the High Court by recording a finding that she did not raise alarm as she was frightened and it was to be borne in mind that she was an illiterate., rural and rustic village lady who would believe in superstitions, more particularly when in 10 years’ married life she did not have a child and accused-appellant Gabbu had promised her that he would do something by which she would have a child. The tribe to which the prosecutrix belonged is known to believe in superstitions. The High Court observed that it was not impossible that because of the fear she did not raise any cry, more particularly when she was taken away to a place unknown to her. “ 14. It appears from the above that the fact of that case and the fact of the instant case is completely different. The High Court observed that it was not impossible that because of the fear she did not raise any cry, more particularly when she was taken away to a place unknown to her. “ 14. It appears from the above that the fact of that case and the fact of the instant case is completely different. In the case referred to by the learned counsel for the revision petitioner above was in respect of a married woman who did not have a child for 10 years, and, in the instant case, the victim is said to be a girl of 16 years of age, and in her evidence she is categorical that she could not raise alarm because she was gagged with a cloth by the accused revision petitioners. 15. This is not a case that there is no explanation for not raising alarm, but there is an explanation given by the victim in her evidence which does not appear to have been assailed by the defence and which this court belies to be true in the given facts of the case. 16. That being so, the said two decisions, referred to by the learned counsel for the revision petitioners, do not appear to be of any helf to the defence and the facts and circumstances of the case at hand. 17. The judgment of the learned trial court of Assistant Sessions Judge, Golaghat, and the judgment in appeal, passed by the learned Sessions Judge, Golaghat, are found to have been based on the evidence on record requiring no interference by this court in exercise of its revisional jurisdiction so far the conviction is concerned. 18. Considering the fact that the victim was apprehended within 1 hour after the occurrence and there was no caused harm to her person during her captivity as well as the fact that the occurrence in the instant case took place in the year 1998, and that the accused revision petitioners have fought a prolonged legal battle till date, in the considered view of this court, if the substantive sentence is reduced to the period already undergone, and the fine of Rs. 5,000/- imposed by the learned courts below is enhanced to Rs. 15,000/- each, will meet the ends of justice. 19. 5,000/- imposed by the learned courts below is enhanced to Rs. 15,000/- each, will meet the ends of justice. 19. Accordingly, the substantive sentence imposed upon the accused revision petitioners is reduced to the period already undergone, and, the fine imposed upon them is enhanced to Rs. 15,000/- each, in default, 1 month rigorous imprisonment each. 20. This Criminal Revision Petition stands disposed of accordingly. 21. Send back the LCR along with a copy of this judgment. 22. The accused petitioners are directed to surrender before the learned trial court within 1 (one) month of this order to serve out the sentence.