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2018 DIGILAW 6 (GAU)

Md. Elumuddin Ali @ Dilbar v. State of Assam

2018-01-03

HITESH KUMAR SARMA

body2018
JUDGMENT AND ORDER : 1. This criminal appeal is preferred by the appellant, Md. Elumuddin Ali @ Dilbar, challenging the judgment and order, dated 27.7.2009, passed by the learned Additional Sessions Judge (FTC) No. 2, Kamrup (M) in Sessions Case No. 280 (K)/2005, convicting the accused-appellant under Section 363 of the IPC and sentencing him to rigorous imprisonment for 1 year with a fine of Rs. 500/- in default of payment of fine, to suffer rigorous imprisonment for 1 month. 2. The fact leading to the prosecution case is that, the informant, on 12.03.1993, lodged an FIR with the Hajo Police Station alleging that his sister "x" had love affairs with the accused-appellant and she eloped with him. 3. On receipt of the FIR, Hajo Police Station, registered a case, being No. 55/1993 under Section 366 of the IPC against the accused-appellant, investigated into it, collected evidence and on completion of the investigation, laid the charge-sheet against the accused- appellant under Section 366 of the IPC. 4. The prosecution examined as many as 10 (ten) witnesses including the medical officer and investigating officer. 5. After closure of the prosecution evidence, statement of the accused-appellant was recorded under Section 313 of the Cr.PC and in his such statement, he is heard denying the accusation leveled against him by the prosecution. The accused-appellant also declined to adduce defence evidence. 6. I have perused the judgment of the learned trial court, challenged in this appeal. I have also gone through the record of the learned trial court including the evidence of the witnesses. 7. I have heard Mr. H.L. Maurya, learned counsel for the accused-appellant as well as Mr. B. Sarma, learned Additional Public Prosecutor for the state respondent. 8. In the instant case, the victim was examined as PW3, who is the most vital witness in this case being the victim as well as the subject matter of the offence alleged to have been committed by the accused-appellant. In her evidence, she is heard saying that she was 14 years of age on the date of occurrence. The accused-appellant stayed in their house as their servant. On the date of occurrence, the accused had taken her away forcibly while she was proceeding to her school saying that he loved her. Thereafter, he kept the victim in his house on the date of occurrence. The accused-appellant stayed in their house as their servant. On the date of occurrence, the accused had taken her away forcibly while she was proceeding to her school saying that he loved her. Thereafter, he kept the victim in his house on the date of occurrence. On the next day of the date of occurrence, the family members of the accused-appellant handed over the victim to the police coming to know that she was being searched by the members of her family. She was medically examined at Guwahati Medical College and Hospital and her statement was also recorded by the police under Section 164 of the Cr.PC, vide Ext.1. She is categorical in her statement that she was kidnapped by the accused-appellant. The mother of the victim, examined as PW1, is found to have stated in her evidence that the accused-appellant was released by them from his engagement as their servant after coming to know that he had developed intimacy with her daughter/victim. On the date of occurrence, the accused-appellant kidnapped her daughter while she was proceeding to her school. She was aged about 12 years. PW-2 is heard saying in his evidence that he got information that the victim eloped with the accused- appellant while proceeding to her school. He has not said anything further in his evidence. PW-5 also deposed that the victim eloped with the accused-appellant. PW-6 also appears to have made a similar statement in his evidence that the victim eloped with the accused- appellant. There is no evidence led by the PW-4 to even remotely implicate the accused- appellant with the commission of the alleged offence. PW-7 is the doctor who examined the victim. As per the report of the medical examination of the victim, vide Ext.2, the age of the victim is above 14 years and below 16 years. No evidence of recent sexual intercourse or any injury could be detected on her person or in the private parts by this PW-7. PW-9 and PW-10 are found to have stated about the recovery of the victim. PW-9 has not implicated the accused-appellant. PW-10 deposed that, on being asked, the victim stated to him that she went with the accused-appellant on her own. PW-9 and PW-10 are found to have stated about the recovery of the victim. PW-9 has not implicated the accused-appellant. PW-10 deposed that, on being asked, the victim stated to him that she went with the accused-appellant on her own. PW8 is the investigating officer, whose evidence is of routine nature from the registration of the case till completion of the investigation with the intermediary stages of recording statement of the witnesses and recovery of the victim girl. 9. It appears from the evidence, referred to above, that the victim has implicated the accused-appellant with the commission of the alleged offence and this court does not find any reason to disbelieve her evidence. Her such evidence received corroboration from the evidence of PW-9 as this witness deposed that the victim was handed over to police by the family members of the accused-appellant, meaning thereby, that she was kept in his house. The evidence of the PW-9 and PW-10 also makes it appear that the victim was recovered by the investigating officer. The evidence of the victim, examined as PW-3, is very specific to the effect that she was forcibly taken away by the accused-appellant and her such evidence also remains un-assailed during her cross-examination. 10. Such being the evidence on record, in the considered view of this court, the prosecution has been able to prove the accusation against the accused-appellant under Section 363 of the IPC. The judgment of the learned trial court is found to have been based on evidence on record requiring no interference by this court. Accordingly, the order of conviction recorded by the learned trial court is maintained. 11. So far the punishment imposed upon the accused-appellant is concerned, the learned counsel for the accused-appellant has submitted that the case originated in the year 1993 and the judgment passed by the learned trial court was delivered on 27.7.2009. There is also no evidence that the victim was subjected to any kind of torture including molestation etc. by the accused-appellant. Therefore, considering the facts and circumstances of the case as well as the fact that the accused-appellant has fought a long 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. 500/- imposed upon the accused-appellant is enhanced to Rs. 10,000/- will meet the ends of justice. 12. 500/- imposed upon the accused-appellant is enhanced to Rs. 10,000/- will meet the ends of justice. 12. Accordingly, the substantive sentence imposed upon the accused-appellant is reduced to the period already undergone and fine imposed upon him is enhanced to Rs. 10,000/- in default of payment of fine, he will suffer simple imprisonment for 2 months. 13. Accordingly, the appeal is partially allowed. 14. The accused-appellant is directed to appear before the learned trial court within 1 (one) month from the date of this judgment to serve out the sentence. 15. Send back the LCR along with a copy of this judgment.