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2018 DIGILAW 273 (GAU)

Sunayan Saiki v. State of Assam

2018-02-13

HITESH KUMAR SARMA

body2018
JUDGMENT & ORDER : HITESH KUMAR SHARMA, J. 1. These two criminal appeals, being Criminal Appeal No. 152/2009 and Criminal Appeal No. 155/2009, are taken up together for disposal, in view of the fact that both the appeals have arisen out of the same judgment passed by the learned Additional Sessions Judge, FTC, Biswanath Chariali in Sessions Case No. 222/2007, convicting the accused-appellants under Sections 363/34 of the IPC, and sentencing them to rigorous imprisonment for 3 (three) years and fine of Rs. 500/- each, and in default, simple imprisonment for 30 (thirty) days. 2. None appears for the accused-appellant in Criminal Appeal No. 152/2009 on call. I have heard Mr. S. Rahman, learned counsel appearing for the accused-appellant in Criminal Appeal No. 155/2009. I have also heard Mr. B.J. Dutta, learned Additional Public Prosecutor, appearing for the State respondent in both the appeals. 3. In spite of the fact that none appeared for the accused-appellant in Criminal Appeal No. 152/2009, this Court proposes to dispose of both these appeals on perusal of the records of the learned trial court including the evidence on record. 4. The fact leading to the case is that, the accused-appellant, Md. Mainul Khan (Crl. A. No. 155/2009) and accused-appellant, Sri Sunayan Saikia @ Papu (Crl. A. No. 152/2009) kidnapped the victim on 10.02.2007, at about 9:30 pm. While the victim was found missing, her uncle/informant, Chittaranjan Roy lodged the FIR in respect of the said facts on the next date of the date of occurrence although there was an intimation to the Police verbally on the date of occurrence itself. It was alleged in the FIR that both the accused-appellants aforesaid had taken away the victim. 5. On receipt of the FIR, on the above facts, through Borgang Police Out Post, the Behali Police Station registered a case, investigated into it, collected evidence, and finally, submitted charge-sheet against the accused appellants under Sections 366(A)/34 of the IPC. 6. After exhausting all the required legal formalities, the learned Additional Sessions Judge, aforesaid, framed a formal charge against the accused-appellants, under Sections 366(A)/34 of the IPC and put the accused appellants to trial. 7. The prosecution examined as many as 10 (ten) witnesses in this case including the Investigating Police Officer and the Medical Officer. The defense examined none. 8. After exhausting all the required legal formalities, the learned Additional Sessions Judge, aforesaid, framed a formal charge against the accused-appellants, under Sections 366(A)/34 of the IPC and put the accused appellants to trial. 7. The prosecution examined as many as 10 (ten) witnesses in this case including the Investigating Police Officer and the Medical Officer. The defense examined none. 8. After closure of the prosecution evidence, statements of the accused-appellants were recorded under Section 313 of the Cr.PC, and in their such statements, they are heard denying the allegation leveled against them. 9. After completion of the trial, the learned trial court of Additional Sessions Judge, referred to above, convicted and sentenced the accused appellants, as indicated above. 10. I have meticulously examined the evidence on record. 11. Out of the 10 (ten) witnesses, the victim, examined as PW 2, and the informant, examined as PW1, and also the evidence of PW3 and PW7 appears to be important for the decision of the case at hand. 12. The learned counsel for the accused-appellant, in Criminal Appeal No. 155/2009, has submitted, on the basis of the evidence on record that the victim was 17 years of age at the relevant time of occurrence and she went on her own with the accused-appellants and there is no evidence that she was kidnapped by them. 13. The evidence of PW 3 and PW 7 makes it clearly appear, as they have stated in their evidence in unequivocal terms that the victim went with the accused-appellants to attend a marriage ceremony, that they have not implicated the accused-appellants with the commission of the alleged offence. 14. In her statement, recorded under Section 164 of the Cr.PC by the learned Judicial Magistrate First Class, vide Ext. 2, the victim stated that she went out on her own with the accused-appellants and she has echoed the same statement in her evidence, on oath, before the learned trial court. She is categorical that she went with the accused-appellants to attend a marriage ceremony. 15. The Investigating Police Officer, examined as PW 10, also stated in his evidence that there is no allegation of kidnapping made by the victim herself during the investigation. 16. The accused-appellants are convicted under Sections 363/34 of the IPC for commission of offence under Section 361 thereof. Section 361 provides for kidnapping of a minor. 15. The Investigating Police Officer, examined as PW 10, also stated in his evidence that there is no allegation of kidnapping made by the victim herself during the investigation. 16. The accused-appellants are convicted under Sections 363/34 of the IPC for commission of offence under Section 361 thereof. Section 361 provides for kidnapping of a minor. In the instant case, the statement of the FIR itself makes it appear that the victim was enticed to leave with the accused appellants by them. But, the victim herself has not complained of kidnapping her and not even whispered a single word accusing the accused-appellants with the commission of the alleged offence. She being a minor, the question of consent or no-consent would have arisen had there been any allegation from her side alleging kidnapping of her by the accused-appellants. 17. Therefore, it appears to be a case of absence of evidence, in view of the admitted fact that the victim went with the accused-appellants on her own. That being so, the order of the learned trial court recording conviction of the accused-appellants of both the aforesaid appeals appears to be not based on evidence on record, and therefore, requires interference by this Court. 18. Accordingly, the judgment of the learned trial court of the learned Additional Sessions Judge, FTC, Biswanath Chariali in Sessions Case No. 222/2007 is set aside. 19. The appeals are accordingly allowed. 20. Send down the LCR along with a copy of this judgment.