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2018 DIGILAW 259 (GAU)

MD. KADAM ALI @ SUJIT v. STATE OF ASSAM

2018-02-12

HITESH KUMAR SARMA

body2018
JUDGMENT/ORDER : 1. This is an appeal against the judgment and order, dated 31.08.2009, passed by the learned Additional Sessions Judge, Fast Track Court, Bongaigaon in Sessions Case No. 87 (B) /2008 convicting the accused-appellant under Section 363 of the IPC to rigorous imprisonment for 5 (five) years and to pay a fine of Rs. 2,000/- with a default clause. 2. Heard Mr. A.R. Sikdar, learned counsel for the accused-appellant as well as Mr. B.J. Dutta, learned Additional Public Prosecutor, appearing for the State respondent. 3. The fact leading to the case is that the informant Shyamal Saha lodged an FIR before the Bijni Police Station on 16.10.2018 alleging that on 15.10.2018, at about 10:00 pm, his domestic help, 16 years old, Kumari Saraswati Barman went out of the compound of his house to drop the kitchen waste, when the accused-appellant accompanied by three unknown miscreants forcibly took her to the nearby "Moorie Factory" and thereafter when the people gathered there, they left the victim girl there and she was immediately rescued by the elder brother of the informant. Thereafter, she was handed over to the Police. 4. I have perused the record of the learned trial court including the evidence as well as the impugned judgment. 5. The prosecution examined as many as 9 (nine) witnesses who were subjected to cross-examination by the defence. The defence examined none. 6. After closure of the prosecution evidence, statement of the accused-appellant was recorded under Section 313 Cr.PC and he denied his involvement with the alleged offence in his such statements. 7. After marshalling the evidence on record, the learned trial court convicted and sentenced the accused-appellant, as indicated above. 8. I have meticulously scanned the evidence of the 9 (nine) prosecution witnesses and it is found that the victim/PW7 is the most vital witness in respect of the offence alleged to have been committed on her person. 9. The victim, examined as PW7, is heard saying in her evidence that at about 10:00 pm, on 15.10.2008, while she came out of the house of the informant to throw the garbage of the kitchen, she was kidnapped by the accused-appellant with three other persons and taken to the nearby "Moorie Factory" by putting a gamosha on her mouth. She was dragged to the nearby jungle. She was dragged to the nearby jungle. Hearing the alert raised by the informant and the members of his family, the people around located her near the jungle of the "Moorie Factory". Such evidence of the PW7/victim tallies with her statement made under Section 164 of the Cr.PC so far kidnapping is concerned although there is some discrepancies about the companions of the accused-appellant who were present while she was being kidnapped. 10. The PWs 1 and 2 are respectively the informant and his wife. They are heard saying in their evidence that hearing some noise at their gate at the relevant time of occurrence, they came out and found no trace of the victim/PW7, who was their domestic help, and who came out of their house to drop the garbage of the kitchen. With the help of the co-villagers, they initiated search of the victim and she was found left by the kidnappers in the jungle near the "Moorie Factory". She was recovered therefrom and was handed over to the Police. 11. The PWs 3 and 5 also deposed in the same line with that of the PWs 1 and 2 in respect of recovery of the victim. 12. The PW4 is the doctor who examined the victim and his evidence does not appear to be relevant in view of the fact that neither any injury nor any sign of rape was noticed in the person of the victim and the accusations are also not in respect of such offences. 13. The evidence of PW8 is of routine nature being the Investigating Police Officer of the case. 14. The PW9 is the Bench Clerk of Magistrate who recorded the statement of the victim under Section 164 of the Cr.PC. 15. The evidence of the PWs, referred to above, makes it appear that the victim was kidnapped by the accused-appellant but was left immediately thereafter and she was in the custody of the accused-appellant for a very short time. She was rescued by the PW3 unhurt immediately after the occurrence. 16. That being so, on the basis of the consistent and corroborative evidence, the order recording conviction by the learned trial court appears have been based on evidence on record. She was rescued by the PW3 unhurt immediately after the occurrence. 16. That being so, on the basis of the consistent and corroborative evidence, the order recording conviction by the learned trial court appears have been based on evidence on record. But, considering the evidence on record and the background facts and also the fact that the victim was recovered within few minutes, the substantive sentence of rigorous imprisonment of 5 (five) years imposed upon the accused-appellant appears to be on the higher side. Therefore, in the considered view of this Court, rigorous imprisonment for 1 (one) year, as substantive sentence, will meet the ends of justice. The fine of Rs. 2,000/- imposed upon the accused-appellant by the learned trial court is retained along with the default clause. 17. That being so, the substantive sentence of the accused-appellant is reduced to rigorous imprisonment for 1 (one) year and the period of detention and trial during investigation and trial be set off against the substantive sentence. The accused-appellant will pay the fine of Rs. 2,000/- or in default rigorous imprisonment for 3 (three) months, as imposed by the learned trial court. 18. The accused-appellant will surrender before the learned trial court within one month from today to serve out the sentence. 19. The appeal is partly allowed. 20. Send down the LCR along with a copy of this judgment.