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2020 DIGILAW 289 (GAU)

Abdul Kader Alom @ Tinku v. State Of Assam

2020-02-27

HITESH KUMAR SARMA

body2020
JUDGMENT 1. This is an appeal against the judgment and order, dated 14.12.2009, passed by the learned Additional Sessions Judge, Kamrup (M), Guwahati in Sessions Case No. 331(K)/2008, convicting and sentencing the accused-appellant to suffer rigorous imprisonment for 4 years and to pay a fine of Rs. 1,000/-, in default of payment of fine rigorous imprisonment for 3 months. 2. The case for the prosecution is that, on 12.6.2008, at about 5:00 pm, while the victim was returning to her home after attending computer classes at Amingaon, then she was kidnapped from Baihata Chariali by the accused-appellant and had taken her to his house situated in the district of Dhubri. After the incident the FIR was lodged by Sanjib Kr. Banikya (PW1). 3. On receipt of the FIR, the Baihata Police Station registered a case being No. 101/2008 under Sections 366(A)/34 of the IPC and investigated into it. During the course of investigation, the victim was recovered and got her statement recorded under Section 164 Cr.PC. After completion of investigation, charge-sheet was laid against the accused-appellant under Sections 366/376/34 of the IPC. A formal charge under Section 366 IPC was framed against the accused-appellant to which he pleaded innocence. Hence, the trial. 4. In this case, prosecution examined as many as 7 (seven) witnesses and the defence examined none. The accused-appellant denied the accusations in his statement recorded under Section 313 Cr.PC. After conclusion of the trial, the accused-appellant was convicted and sentenced as indicated above. 5. I have scanned the records of the learned trial court including the evidence and the impugned judgment. 6. I have also heard Mr. M.U. Mondal, learned counsel for the accused-appellant and Mr. N.K. Kalita, learned Additional Public Prosecutor for the state respondent. 7. During the course of hearing, learned counsel for the accused-appellant has submitted that there are 3 (three) vital witnesses in this case i.e. the victim, examined as PW4, the investigating officer, examined as PW6 and the informant, examined as PW1. 8. On perusal of the impugned judgment also, it is found that the judgment is based on the evidence of these three witnesses. 9. The evidence of the victim is very categorical that while she was returning from computer classes and alighted from the bus at Baihata Chariali she was called from behind by the accused-appellant. 8. On perusal of the impugned judgment also, it is found that the judgment is based on the evidence of these three witnesses. 9. The evidence of the victim is very categorical that while she was returning from computer classes and alighted from the bus at Baihata Chariali she was called from behind by the accused-appellant. This accused-appellant was introduced to her by one of her friends Mallika to be her maternal uncle. The accused-appellant requested the victim to have a cup of tea which she refused. Thereafter she was offered a bottle of cold drinks which she had taken. After taking the cold drinks, she became senseless. Later on, she found herself in the district of Dhubri and in the house of a relation of the accused-appellant. She has specifically stated that she was kidnapped by the accused-appellant while she was not having her sense after taking the cold drinks. During her cross-examination, the defence could not dislodge the evidence of this victim witness in respect of the material evidence about her recovery at Dhubri. There is also no attempt to discard the evidence of this witness that while she refused to take meal provided by the accused-appellant at Dhubri, she was assaulted by him. While the accused-appellant left his phone by her side she attempted to ring up her brother but such attempt could not be materialized as the accused-appellant appeared at the scene. Thereafter, the police recovered her after 14 days. Her evidence, as indicated above, has not at all been discarded during her cross-examination. 10. The evidence of investigating officer, examined as PW6, makes it clearly appear that the victim was recovered from the clutches of the accused-appellant from the district of Dhubri and his such evidence tallies with the evidence of PW4/victim. The evidence of both the witnesses are found confirmed by the evidence of the informant (PW1) who has also narrated in the similar line as regards recovery of the victim from the clutches of the accusedappellant. The evidence so adduced by the PW1, PW4 & PW6 remained unshaken throughout as regards kidnapping of the victim by the accused-appellant. 11. This court has also noticed from the evidence of PW4 & PW6 that the statement of the victim was recorded under Section 164 Cr.PC after she was recovered. In her such statement (PW4) had narrated the fact leading to her kidnapping. 11. This court has also noticed from the evidence of PW4 & PW6 that the statement of the victim was recorded under Section 164 Cr.PC after she was recovered. In her such statement (PW4) had narrated the fact leading to her kidnapping. The statements she made, under Section 164 Cr.PC, and her evidence on oath before the court are consistent and there is no reason to disbelieve her evidence at all. On the other hand, we have already believed her evidence being consistent with the evidence of PW1 & PW6. 12. In the statement of the accused-appellant recorded under Section 313 Cr.PC, he has not only denied the allegations made against him but he is found to have given evasive replies to the incriminating evidence brought his notice. 13. Considering the above evidence on record and also taking into account the argument canvassed before this court by the respective learned counsel for the parties, this court is of the view that the conviction of the accused-appellant is based on evidence on record and requires no interference. However, it has been submitted by the learned counsel for the accused-appellant that considering the facts and circumstances of the case, the sentence appears to be in the higher side and he has canvassed for reducing the sentence. He has also submitted that he has no objection if substantive sentence is reduced and the sentence of fine is enhanced. Learned Additional Public Prosecutor, Mr. N.K. Kalita, while defending the judgment, has left the matter of punishment to the court. 14. On perusal of the records, it is found that during the period of investigation of the case and after delivery of the judgment, the accused-appellant was in custody for a period of 235 days i.e. slightly less than 8 months. Considering the entire facts of the case, this court is of the view that if the substantive sentence is reduced to the period already undergone and the fine imposed upon the accused-appellant if enhanced to Rs. 20,000/- and in default of payment of fine, simple imprisonment for 3 months, will meet the ends of justice. 15. Accordingly, the substantive sentence of the accused-appellant is modified to the period already undergone and fine has been enhanced from Rs. 1,000/- to Rs. 20,000/-, and in default of payment of fine, he shall suffer simple imprisonment for 3 months. 16. Accordingly, the appeal is, partly allowed. 17. 15. Accordingly, the substantive sentence of the accused-appellant is modified to the period already undergone and fine has been enhanced from Rs. 1,000/- to Rs. 20,000/-, and in default of payment of fine, he shall suffer simple imprisonment for 3 months. 16. Accordingly, the appeal is, partly allowed. 17. Send the LCR along with a copy of this judgment. 18. The accused-appellant shall surrender before the learned court below within 1 (one) month from today with a copy of this judgment to serve the sentence.