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2018 DIGILAW 699 (GAU)

Bhanita Garh v. State of Assam

2018-04-24

MIR ALFAZ ALI

body2018
JUDGMENT AND ORDER : 1. This appeal is directed against the judgment and order dated 04.03.2016 passed by the learned Additional Sessions Judge, Golaghat, in Sessions Case No. 145/2014. By the said judgment, the accused appellants were convicted under Section 365/370 (4) IPC and sentenced to rigorous imprisonment for two years under Section 365 IPC and for term of 10 years under Section 370 (4) IPC with varied amounts of fine. 2. As per the prosecution case, the victims, PW-5 & PW-6 went to Sarupathar Market on 23.06.2014 at about 10 AM and thereafter, both of them were missing and did not return home. The informant suspected that the victims might have gone out of Assam being induced by the appellant Bhanita Garh. An FIR was lodged by the father of the victims on 25.06.2014, on the basis of which, police registered a case and commenced investigation. In the meantime, both the victims came back on 29.06.2014. On completion of the investigation, charge sheet was laid against four accused persons, including the present appellants under Section 365/370 (5)/34 IPC. 3. All the four charge sheeted accused persons stood trial and charges under Section 365/370 (5) IPC R/W Section 34 IPC were framed against all the accused persons, to which they pleaded not guilty. 4. In course of trial, 9 witnesses were examined by the prosecution in order to establish the charges. On appreciation of the evidence, learned Trial Court acquitted the accused Birju Goala. However, holding the present appellants guilty of committing offence under Section 370 (4) and 365 IPC, convicted them and awarded sentence as indicated above. 5. Aggrieved by conviction and sentence, the accused/appellants, have preferred the instant appeal. 6. Learned counsel Mr. M. Dutta for the appellants and learned Addl. P.P., Assam Ms. S. Jahan for the respondents were heard. 7. From the impugned judgment and the evidence brought on record, it appears that the learned Trial Court essentially relying on the oral testimony of PW-5 & PW-6 being the victims as well as PW-2, PW-4, PW-7 and PW-8 recorded the conviction. It is therefore necessary to scrutinize the oral testimony of these vital witnesses. 8. PW-5, stated in her evidence that on the previous day of the occurrence i.e. on 22.06.2014, while going to the shop with PW-6 at about 2 PM, they met the accused appellant Bhanita Garh on the way. It is therefore necessary to scrutinize the oral testimony of these vital witnesses. 8. PW-5, stated in her evidence that on the previous day of the occurrence i.e. on 22.06.2014, while going to the shop with PW-6 at about 2 PM, they met the accused appellant Bhanita Garh on the way. Bhanita asked them whether they were interested to go to Delhi for work. Initially she refused, but when Bhanita told that some other girls were also going, she expressed her desires to go to Delhi. Bhanita also told that they will get job in AIRCEL company. As advised by Bhanita, on the next day, she along with PW-6 went to the house of Bhanita, where they met accused Junaki and Birju. Bhanita told them to go to Silapathar on the next day. Accordingly on 23.06.2014 at about 10 Clock in the morning, on the pretext of going to the house of her elder sister at Silapathar, she along with PW-6 went out and Junaki took them to her rented house, where Bhanita also came. As they could not arrange money on that day, they were asked to stay in the house of Junaki and accordingly she along with PW-6 came to the house of Junaki. They were kept confined in the house, so that no one could know about their whereabouts. In the evening, Junaki and Latika came back and told that it would not be possible to go to Delhi on that day and they were asked to shift the place, as the parents of the victims lodged FIR on 25.06.2014. They were taken to the houses of Latika and after staying two days there, Latika asked her to go back home as police was after them. While PW-5 was going home, Junaki met her on the road and asked them to go back to the house of Latika. Accordingly, she came back and on the next day, they were taken to Dimapur and kept them in the house of one Sila Kachari, where said Sila Kachari told them not to go to Delhi and advised them to inform somebody in their house so that they can be taken back to home. Accordingly, she called PW-8 over phone from the mobile of Sila Kachari, who came and took them back from Dimapur. 9. PW-6 also deposed in the same tune. Accordingly, she called PW-8 over phone from the mobile of Sila Kachari, who came and took them back from Dimapur. 9. PW-6 also deposed in the same tune. According to PW-6 on 21.06.2014, while they were going to shop, they met Bhanita on the road and Bhanita asked them whether they were willing to go to Delhi for work, to which they agreed and as advised by Bhanita, they came to the house of Bhanita on 22.06.2014, where Junaki also came. She also reiterated as deposed by PW-5 that on 22.06.2014 they were initially taken to the rented house of Junaki and on 25.06.2014, they were asked to go to the house of Latika, where they stayed for three days and on 28.06.2014, Junaki brought them to Nowjan Railway station, wherefrom they were taken to Dimapur and kept in the house of one Sila Kachari. According to PW-5, Sila Kachari was initially reluctant to keep them in her house. However, upon receiving Rs. 200/- from Junaki, she kept them. When Sila Kachari came to know about the incident, she asked them not to go to Delhi and told that they would be sold and advised them to inform some relative, so that they can be taken back home. Accordingly, they informed PW-8 over phone, who came and took PW-5 and PW-6 from Dimapur. During cross examination, it was elicited that PW-6 appeared HSLC examination three years before the occurrence. 10. PW-7 stated that he had seen Bhanita talking with PW-5, PW-6 and PW-2 on the road. According to PW-2, on 22.06.2014, when she was going to the shop along with PW-5 & PW-6, they met Bhanita on the road and Bhanita asked them whether they were willing to go to Delhi for work. She further stated, that PW-5 told that she was willing to go to Delhi for work, but she had no money, where upon Bhanita told that they need not worry for money, money would be arranged. From the cross examination of the PW-2, PW-7, PW-5 & PW-6 as well as the evidence of PW-9, the Investigating officer, it was revealed that PW-2 did not tell before the Investigating Officer that Bhanita, Junaki and the other accused persons took PW-5 & PW-6. PW-5 also did not state before police that Junaki took them to Dimapur and kept them in the house of Sila Kachari. PW-5 also did not state before police that Junaki took them to Dimapur and kept them in the house of Sila Kachari. She also did not tell that Sila Kachari asked them not to go to Delhi. PW-6 did not state before police that Bhanita told that she would arrange job in AIRCEL company for them. She did not state before police that they met Bhanita on 22.06.2014. She also did not state before police that they were kept in the house of Sila kachari at Dimapur or Sila Kachari informed them that they would be sold in Delhi and advised them to inform their relative. PW-7 also did not tell before police regarding noticing the accused Bhanita talking to the PW-5 & PW-6 on 22.06.2014. 11. PW-1 & PW-3 deposed that after coming back from Dimapur, both PW-5 & PW-6 told them about the occurrence. According to PW-1, PW-5 told him that Junaki sent them to Dimapur and they were given address of one Bihari person at Dimapur and as per the said address, they went to the house of the said Bihari person at Dimapur and from a PCO at Dimapur, they called PW-8 and requested him to take them home. According to PW-3, PW-6 told him that Junaki took them to Dimapur and kept them in the house of one Ghila Kachari wherefrom PW-5 & PW-6 contacted PW-8 over phone and PW-8 recovered them from Dimapur. 12. A dispassionate scrutiny of oral testimony of PW-1, PW-3, PW-5, PW-6, PW-7 transpires, that the testimony of PW-1, PW-3, PW-5, PW-6 and PW-7 were contradictory as regards the victims being taken to Dimapur. According to PW-5 & PW-6, they were taken to the house of one Sila Kachari, wherefrom they talked to PW-8 over mobile phone of Sila Kachari. Whereas, as per the version of PW-1, PW-5 told him, that they were sent to Dimapur by Junaki giving address of a Bihari person and accordingly they went to the said Bihari person, and they talked to PW-8 over phone from a PCO. Whereas according to PW-3, PW-6 told him that they were kept in the house of one Ghila Kachari. Therefore, the testimony of PW-1, PW-3, PW-5 and PW-6 appears to be contradictory and mutually destructive so far the prosecution story of the victims being taken to Dimapur and keeping in the house of one Sila Kachari. 13. Whereas according to PW-3, PW-6 told him that they were kept in the house of one Ghila Kachari. Therefore, the testimony of PW-1, PW-3, PW-5 and PW-6 appears to be contradictory and mutually destructive so far the prosecution story of the victims being taken to Dimapur and keeping in the house of one Sila Kachari. 13. According to PW-5, they met Bhanita on 22.06.2014, whereas according to PW-6, they met Bhanita at about 2 PM on 21.06.2014. Though, PW-2 and PW-7 stated in their deposition, that on 22.06.2014, the victims met Bhanita, they did not make such statement before police. Again PW-6 stood contradicted with PW-5 as well as PW-2 and PW-7 as to the date of meeting Bhanita. Thus the contradiction as to the date of alleged conversation between the PW-5 and PW-6 with Bhanita on their way to the shop and the fact that PW-2 and PW-7 did not state before police regarding such conversation rendered the testimony of PW-2 and PW-7 that they have seen Bhanita talking PW-5 & PW-6 unreliable and unworthy of trust. 14. The prosecution version as regards the victims going to Dimapur and staying in the house of one Sila Kachari also appears to be not reliable because of the material contradiction, inasmuch as according to the version of PW-5 before PW-1, they themselves went to the house of one Bihari person at Dimapur as per the address given by Bhanita, whereas according to the version of PW-6 to her father, Junaki took them to Dimapur. According to PW-1 they went to the house of one Bihari person as per the address given by Bhanita. According to PW-3, they went to the house of one Ghila Kachari. Though, PW-5 & PW-6 deposed before court that they were taken to the house of one Sila Kachari at Dimapur, neither PW-5 nor PW-6 stated before police regarding their staying in the house of Sila Kachari or Sila Kachari informing them that they would be sold out at Delhi. Therefore, the testimony of PW-5 & PW-6 for the first time in court that they were taken to Dimapur wherefrom they informed PW-8 as per the advice of Sila Kachari is hardly convincing. 15. Therefore, the testimony of PW-5 & PW-6 for the first time in court that they were taken to Dimapur wherefrom they informed PW-8 as per the advice of Sila Kachari is hardly convincing. 15. What is evident from the totality of the oral testimony of PW-5 & PW-6 is that they have either concealed the real genesis of the occurrence or did not tell the truth before court. There is no material on record that they were taken forcibly or by inducement inasmuch as the testimony of PW-5 & PW-6 makes it abundantly clear that they went from their respective home out of their own volition on the pretext of going to the house of their elder sister. 16. PW-4, the doctor who examined the PW-5 & PW-6 stated that the age of the PW-5 & PW-6 was below 18 years. Prosecution has proved two school certificate produced by PW-1 & PW-3 showing that both the victims were reading in Class-IX and X respectively in the year 2012. According to PW-6, she appeared in HSLC examination three years prior to the occurrence. If the testimony of PW-6 is believed, in that case, she could not be in Class-X in the year 2012 as mentioned in the school certificate. The author of the school certificates, material Ext. 1 & 2 was not examined nor the relevant register from which those school leaving certificates were issued had been proved. Evidently, the said certificates were prepared on the same day for handing over to police for the purpose of this case only. In view of the evidence of PW-6 and in absence of production of the original register and without duly proving the material Ext. 1 & 2, no credibility could be attached to the material ext. 1 & 2, showing the date of birth of the victims. According to prosecution, the age of the victims was about 17 years at the relevant time and according to doctor, it was below 18 years. Interestingly, learned Trial Court also expressed doubt about the age of the victims. 1 & 2, showing the date of birth of the victims. According to prosecution, the age of the victims was about 17 years at the relevant time and according to doctor, it was below 18 years. Interestingly, learned Trial Court also expressed doubt about the age of the victims. Thus, the evidence of PW-6 that she appeared HSLC examination three years prior to the occurrence, as well as medical evidence that they were below 18 years and the observation of the learned Trial Court as to the age of the victims, it is apparent that prosecution has not been able to establish beyond doubt by adducing evidence, that the victims were below 18 years of age. Even, if the evidence of doctor is accepted, having regard to the omission and commission of two years plus-minus, the age of the victims could either be presumed as 20 years or below 18 years. The settled principle of appreciation of evidence in criminal case, is that where two views are possible, the views which is favourable to the accused has to be accepted and not the one, which is favourable to the prosecution. Thus, from the totality of the evidence with regard to the age of the victims brought on record, it could not be presumed that the age of the victims were below 18 years. 17. From the oral testimony of PW-2, PW-5, PW-6 and PW-7 as well as PW-1 & PW-3, it is apparent that though prosecution sought to project a case that they were induced by the accused Bhanita and Junaki before the victims left their house, such evidence is found to be unreliable because of inherent infirmities in the testimony of the prosecution witnesses as indicated above. The testimony of PW-5 & PW-6 that they were taken to Dimapur and kept in the house of Sila Kachari, who warned them for not going to Delhi is also found to be unreliable and unworthy of trust. Admittedly, the victims left their house on the pretext of going to the house of their relative at Silapathar and they returned after 4/5 days. Admittedly, the victims left their house on the pretext of going to the house of their relative at Silapathar and they returned after 4/5 days. Even if it is assumed for the sake of argument that the PW-5 & PW-6 went out, for going to Delhi in search of job upon saying by Bhanita, who happened to be a co-villagers and distant relative and after realizing that they were misled by Bhanita came back home, such facts does not constitute any offence under Section 370 (4) IPC. At best, it can be said that there might be a preparation for an offence of trafficking. But mere preparation to commit an offence under Section 370 is not punishable by the law. 18. Since both the victims were major, there was no question of kidnapping. Evidently, PW-5 & PW-6 left their respective houses out of their own volition, and as such, ingredients of abduction were also absent. In view of the above facts and circumstances, the evidence and materials brought on record are found to be grossly inadequate to bring home the charges under Section 365 or 307 (4) IPC against the appellants and as such the appellants were atleast entitled to the benefit of doubt. Unless the offence is proved beyond reasonable doubt, no one can be convicted on mere surmise and conjecture. Thus, the totality of the evidence and the facts and circumstances of the case crystalises that prosecution has failed to prove the guilt of the appellants beyond reasonable doubt and as such, the impugned judgment of conviction and sentence cannot be maintained. 19. In view of the discussion made above the appeal is allowed and the conviction and sentence of the accused appellants is set aside. The accused appellants be released and set at liberty forthwith, if not required in any other case. 20. Send down the LCR.