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2018 DIGILAW 367 (GAU)

Md. Sirajul Hoque @ Bapa v. State of Assam

2018-02-27

HITESH KUMAR SARMA

body2018
JUDGMENT & ORDER : 1. This is a criminal appeal, filed under Section 374 (2) of the Cr.PC, against the judgment and order, dated 29.9.2009, passed by the learned Sessions Judge, Darrang, Mangaldai, in Sessions Case No. 82 (DM)/2004, convicting the accused-appellant under Sections 366/451 of the IPC and sentencing him to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 5,000/- with a default clause under Section 366 of the IPC and also to undergo rigorous imprisonment for 6 months and to pay a fine of Rs. 1,000/- with a default clause for offence under Section 451 of the IPC. 2. I have heard Mr. A. Khaleque, learned counsel for the accused-appellant as well as Mr. B.J. Dutta, learned Additional Public Prosecutor for the state respondent. 3. I have scanned the judgment of the learned trial court and also perused the record of the learned trial court including the evidence adduced by both the parties. 4. The fact leading to the aforesaid sessions case is that, at about 2:40 am on 10.10.2002, the accused-appellant along with some others, abducted the victim from her house while she was in deep sleep. They came to the house of the informant at the dead hours of the night, knocked the door and while the informant opened the door, they entered into the house, and thereafter, abducted the victim and taken away her to the official quarter of PW5 and as the PW5 refused to allow them to stay there, she was taken to the house of another person who also refused to allow them to stay there, and thereafter, in the morning, the victim was recovered by villagers. 5. Thereafter, the father of the victim/informant lodged the FIR on the above facts with Darrang Police Station, and on receipt of such FIR, it registered a case, being No. 279/2002, under Sections 366/506/34 of the IPC, investigated into it, collected evidence, and finally, laid charge-sheet against the accused-appellant under the aforesaid sections of law. 6. The learned trial court of Sessions Judge, Darrang, Mangaldai, after exhausting all the required formalities, framed a formal charge against the accused-appellant under Sections 366/452/34 of the IPC to which the accused-appellant pleaded innocence, and therefore, the trial commenced. 7. During trial, the prosecution examined 9 (nine) witnesses including the informant, victim, investigating police officer and the medical officer. 8. The learned trial court of Sessions Judge, Darrang, Mangaldai, after exhausting all the required formalities, framed a formal charge against the accused-appellant under Sections 366/452/34 of the IPC to which the accused-appellant pleaded innocence, and therefore, the trial commenced. 7. During trial, the prosecution examined 9 (nine) witnesses including the informant, victim, investigating police officer and the medical officer. 8. After closure of the prosecution evidence, statement of the accused-appellant was recorded under Section 313 Cr.PC wherein he is found to have denied the accusations made against him by the prosecution. The accused-appellant also led defence evidence of two witnesses, one of whom is the maternal uncle of the victim and the accused-appellant, namely, Mahammad. 9. As stated above, this court has scanned the evidence on record and considering the allegation against the accused-appellant, proposes to look in the evidence of the victim, examined as PW3. 10. The victim, in her evidence, categorically deposed that the accused along with some others came to their house in army dress armed with weapons, knocked the door and while her father (examined as PW1) opened the door, they entered inside, took her out of the house, and as such, kidnapped her. During the course of cross-examination of this witness, the defence attempted to project a case of elopement. The defence suggested that both of them in love since few years back and as a result of their relationship, the victim eloped with the accused-appellant and the prosecution has given the colour of such elopement to make it a case of kidnapping. 11. PW1, who is the informant of the case, appears to have laid evidence to support the evidence of PW3/victim as he deposed that the accused-appellant, along with others, came to their house and he opened the door on being knocked by the accused-appellant and others, they came out of the house to the courtyard wherefrom the victim was taken away by the accused-appellant and his companions. 12. The evidence of PW2 and PW4, who are the sister and the mother of the victim/PW3, respectively, is also consistent in their evidence with that of PW1 and PW3 so far taking away of the victim from their house by the accused-appellant along with his companions. 13. 12. The evidence of PW2 and PW4, who are the sister and the mother of the victim/PW3, respectively, is also consistent in their evidence with that of PW1 and PW3 so far taking away of the victim from their house by the accused-appellant along with his companions. 13. It has come out from the evidence of PWs 1, 2, 3 and 4 that the victim was recovered by some villagers wherefrom she was recovered by the police and such fact is subscribed by the evidence of the investigating police officer, examined as PW8. He also deposed that the victim was recovered from the village where the village people recovered her. The other evidence of PW8 relates to the various stages of the investigation from receipt of the FIR till completion of the investigation is of routine nature. As per evidence of PW8, he got the statement of the victim recorded under Section 164 of the Cr.PC which is exhibited as Ext.2. The statement of the victim, under Section 164 of the Cr.PC, forms part of her evidence since she has exhibited her statement in her evidence. On perusal of her statement, made under Section 164 of the Cr.PC, it is found that the same tallies with her evidence, on oath, before the learned trial court on the core issue of kidnapping her by the accused-appellant. 14. The evidence of the doctor, examined as PW9, shows that the victim was above 20 years of age and no injury etc. were found on her person. The evidence of the doctor is relevant only for the purpose of ascertaining of the age of the victim. 15. However, since the charge under Section 366 of the IPC is framed against the accused-appellant, the age of the victim is not a factor as Section 366 of the IPC is in respect of the offence defined therein in respect of a women irrespective of the age. On the other hand, the charge against the accused-appellant under Section 451 of the IPC in respect of the alleged house trespass being not the principal offence, and the principal offence committed by the accused-appellant is alleged to be under Section 366 of the IPC. 16. On the other hand, the charge against the accused-appellant under Section 451 of the IPC in respect of the alleged house trespass being not the principal offence, and the principal offence committed by the accused-appellant is alleged to be under Section 366 of the IPC. 16. In the considered view of this court, when the offence intended to be committed after entering into the house has been committed and charge is framed for such offence under Section 366 of the IPC, framing of charge under Section 451 of the IPC appears to be redundant, and therefore, this court holds that the offence under Section 366 of the IPC is only committed, if otherwise found proved. 17. Therefore, this court has decided to confine its discussion with reference to the offence under Section 366 of the IPC. 18. I have already discussed the prosecution evidence, as indicated above. On the other hand, the evidence of the prosecution witnesses appears to be consistent on the core issue of kidnapping of the victim from her residence at the dead of night by the accused-appellant along with his companions. 19. Now, let us scan the evidence of the defence witnesses as to whether he has been able to demolish the prosecution version of the case. 20. The defence witness No. 2, Mahammad, maternal uncle of both the accused-appellant and the victim is heard saying in his evidence that victim and the accused-appellant are close relation, accused-appellant being the son of the younger sister of the victims mother. 21. As found in the cross-examination of all the witnesses for the prosecution, the defence tried to project a case of elopement instead of kidnapping with an additional element brought in the evidence to show that both of them were brother and sisters in relation and were in love since long and the accusation of kidnapping the victim by the accused-appellant is a make-belief story staged by the prosecution. 22. In a case under Section 366 of the IPC, the evidence of the victim is the most important one. 22. In a case under Section 366 of the IPC, the evidence of the victim is the most important one. In the instant case, the victim, examined as PW3, has categorically accused the accused-appellant of kidnapping her at the dead of night from her house, and thereafter, took her to different places for safe stay is indicative of the fact that the accusation leveled against the accused-appellant by her can be comfortably relied upon, particularly, when her such evidence was supported by PWs 1, 2 and 4, her mother, father and the sister respectively. But, at the relevant time, they could be the only natural witnesses since the occurrence took place in their house while they were sleeping, and in such a situation, only the family members could be the natural witnesses. That apart, PW5, who has no relation with the either of the parties, appears to be an independent witness and supports the prosecution version so far kidnapping of the victim by the accused-appellant is concerned, as he had taken her to her house for safe stay which she refused. 23. That being so, in the considered view of this court, the defence evidence has failed to crumble the prosecution version of the case, and therefore, conviction recorded by the learned trial court for offence under Section 366 of the IPC appears to have based on evidence on record although this court has already held in the foregoing paragraphs that an offence under Section 451 of the IPC has not been committed by the accused-appellant, and as such, conviction recorded under Section 451 of the IPC needs interference by way of setting aside the same. 24. In view of the above, the accused-appellant needs to be sentenced under Section 366 of the IPC only. The learned trial court has sentenced the accused-appellant to rigorous imprisonment for 5 years and to pay a fine of Rs. 5,000/-, in default, rigorous imprisonment for 3 months. 25. In the considered view of this court, considering the fact that the case is of the year 2002 and the accused-appellant has been fighting a prolonged legal battle as well as the background fact of this case, this court is of the view that if the accused-appellant is sentenced to the period already undergone, will meet the ends of justice so far substantive sentence is concerned. However, the fine is enhanced to Rs. However, the fine is enhanced to Rs. 15,000/- and in default of payment of fine, simple imprisonment for 20 days. 26. The appeal is, accordingly partly allowed. 27. The accused-appellant is directed to surrender before the learned trial court within 1 (one) month from today to serve out the sentence. 28. Send down the LCR along with a copy of this judgment.