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2020 DIGILAW 387 (GAU)

Dilip Maitra v. State Of Assam

2020-03-13

HITESH KUMAR SARMA

body2020
JUDGMENT 1. This is an appeal against the judgment and order, dated 3.12.2011, passed by the learned Additional Sessions Judge, Nagaon, in Sessions Case No. 250(N)/2001, convicting and sentencing the accused-appellant under Section 342 of the IPC to undergo simple imprisonment for 1 year. 2. The fact of the case is that, Nurul Amin Choudhury (PW3) lodged an FIR, on 23.8.1996, at Haiborgaon Police Outpost alleging that one Sabitri Chakraborty was confined in a room by her brother i.e. the accused-appellant. It has also been alleged in the FIR that the accused-appellant had administered intoxicating drugs to her with a view to cause imbalance in her mind for the purpose of grabbing her property. The husband of the victim Sabirti died 12 years prior to filing of the FIR. 3. On receipt of the FIR, the Haiborgaon Town Outpost entered the same in General Diary, vide GDE No. 765 dated 23.8.1996, and forwarded the same to Nagaon Police station. Accordingly, the Nagaon Police Station Case No. 483/1996 under Sections 328/344 IPC was registered and investigated. On completion of investigation, charge-sheet against the accused-appellant was filed under Sections 328/344 IPC. 4. After exhausting all required legal formalities, a formal charge was framed against the accused-appellant under Sections 328/342 IPC to which he pleaded innocence. 5. In this case, the prosecution examined as many as 8 (eight) witnesses who were subjected to cross-examination by the defence. Defence plea is of denial. In his statement recorded under Section 313 Cr.PC also, the accused-appellant had pleaded innocence and denied the accusations made against him. 6. I have examined the record of the learned trial court including the evidence. Also heard Mr. M.H. Choudhury, learned counsel for the accused-appellant and Mr. K. Konwar, learned Additional Public Prosecutor for the state respondent. 7. On going through the evidence of PW3/informant, it appears that he had lodged the FIR stating that the victim Sabirti was kept confined in a room locked from outside by the accused-appellant. She is the sister of the accused-appellant. The intention of the accusedappellant, as found from the evidence of PW3 is that, he wanted to grab the property of Sabitri (victim) whose husband died 12 years prior to the date of the FIR. The victim is also stated to be a mentally unsound person. 8. She is the sister of the accused-appellant. The intention of the accusedappellant, as found from the evidence of PW3 is that, he wanted to grab the property of Sabitri (victim) whose husband died 12 years prior to the date of the FIR. The victim is also stated to be a mentally unsound person. 8. The evidence of PW1 is to the effect that one day the victim Sabitri had requested her to recover her from the clutches of the accused-appellant as she was confined by him in her house. The accused-appellant was staying with the victim since after the death of her husband. This PW1 had reported such fact to the informant and the informant had lodged the FIR thereafter only. PW1 also deposed that the victim Sabitri was a mentally retarded person. 9. The evidence of investigating police officer, examined as PW8, shows that the statement of victim Sabitri was not recorded as she was a mentally unsound person. 10. In paragraph-16 of the impugned judgment, there is an observation of the leaned trial court that the victim Sabitri could not be examined as she had expired during the trial of the case. The investigating officers evidence is very categorical to the effect that he did not record the statement of the victim, under Section 161 Cr.PC, because of the fact that she was mentally unsound. 11. This court proposes to discuss the law relevant so far competency of a witness to testify in the court is concerned, which has become necessary in view of the observation in the judgment, mentioned above, as well as in view of the evidence of the investigating officer. Section 118 of the Indian Evidence Act provides that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Explanation. A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them. Explanation. A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them. 12.Therefore, it appears from the above provision that it is the court to decide whether a person is competent to testify depending on as to whether he is prevented from understating the question to be put to him, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. The evidence of investigating officer clearly shows that the statement of the victim Sabitri was not recorded, under Section 161 Cr.PC, as she was a mentally unsound person. But, the fact remains that the trial court did not have an opportunity to test her competency as wetness which was required in view of the above provisions of Section 118 of the Indian Evidence Act. The court has also observed in the impugned judgment that the victim expired during the trial, and therefore, she could not be examined. 13. In view of such facts, it could not be established by the prosecution as to whether the victim was competent to testify or not and the mandate of Section 118 of the Indian Evidence Act is apparently discarded in this case. There is no specific evidence otherwise also adduced by the witnesses implicating the accused-appellant. It has not come out succinctly that the victim was, in fact, confined by the accused-appellant. It is an admitted position that the victim was allegedly confined in her house where the accused-appellant used to stay after the death of her husband. There is also no evidence on record specifically to the effect that at the relevant time of alleged confinement of the victim in a room, locked from outside, the accused-appellant had played any role. The fact that PW1 had informed about the aforesaid confinement of the victim to PW3, who had, in turn, lodged the FIR, does not necessarily prove that it was the accused-appellant who had confined the victim Sabitri. None of them appears to have independent knowledge about the occurrence. 14. The fact that PW1 had informed about the aforesaid confinement of the victim to PW3, who had, in turn, lodged the FIR, does not necessarily prove that it was the accused-appellant who had confined the victim Sabitri. None of them appears to have independent knowledge about the occurrence. 14. Therefore, in the considered view of this court, even without discussing the evidence of the remaining witnesses, on the basis of the evidence of PW1 and PW3 and also taking into account the violation of the mandate of Section 118 of the Indian Evidence Act, this court is of the view that the impugned judgment is not only not based on evidence on record but is also not subscribed by the provisions of Section 118 of the Indian Evidence Act. Therefore the accused-appellant deserves to be acquitted on benefit of doubt. 15. Accordingly, the accused-appellant is acquitted, on benefit of doubt, and is set at liberty forthwith. 16. Bail bond of the appellant, if any, stands discharged. Send down the LCR along with a copy of this judgment.