The need for the prosecution to prove the case beyond reasonable doubt and the significance of witness actions in establishing guilt.

JUDGMENT :

Ananya Bandyopadhyay, J.

1. This appeal is preferred against the judgment and order of conviction dated 21st May, 2005, passed by the Learned Additional Sessions Judge, 1st Fast Track Court, Malda, in Sessions Trial No. 8(9)/2003, arising out of Sessions Case No. 253/2002, (G.R. No. 928/99) arising out of Gazole Police Station Case No. 88/99 under Sections 364/34 of the Indian Penal Code and convicting the appellants for alleged offence punishable under Section 365 of the Indian Penal Code and sentenced the appellants to undergo rigorous imprisonment for 6 years each and to pay a fine of Rs. 1000/-each in default to suffer simple imprisonment for 3 months more.

2. The prosecution case precisely stated that on 10.6.99 at about 4 P.M. the appellants came to the house of the complainant and coerced her son Asiruddin the appellants to their house and kept him roped. At about 3 A.M. she came to know from neighbor Fazlul Haque that her son escaped after slitting the rope. She could not find her son on search. She suspected that the appellants concealed her son with an intention to kill him.

3. On the basis of the said written complaint, Gazole Police Station case being No. 88/99 dated 17.6.99 under Section 364/34 of the Indian Penal Code was initiated.

4. After completion of investigation, charge sheet under Section 364/34 of Indian Penal Code was submitted against the appellants.

5. The appellants, pleaded not guilty to the charges framed against them and claimed to be tried. The specific defence was they were totally innocent and had not committed any offence as alleged.

6. The prosecution in order to prove its case examined 11 (eleven) witnesses and exhibited certain documents.

7. Learned Advocate for the appellants submitted that-

i. The ingredients of the offence charged not having been established the convictions of appellant are not at all sustainable in law.

ii. The Learned Judge did not consider the evidence that PW-3 never stated before the Investigating Officer that the accused persons took away Asiruddin by a Bicycle and that the witness did not state before Investigating Officer that heavy shower prevented him from going to the house of the accused persons at the time of occurrence and that the witness did not state to Investigating Officer that he requested the accused persons not to take away his brother until his parents arrived.

iii. The Learned Judge erred in holding that “the fact of heavy rain is not all concerned of Court’s investigation. Courts investigation is to detect whether the accused person abducted Asiruddin or not. It matters very little to Court whether it rained on that very day or not. Similarly, it also matters very little how the accused persons caught away Asiruddin from his house whether by Bicycle or by anything else. So, mere omission of the words “Bicycle” does never go, as it appears to me to discredit the testimony of the witness. In my opinion, such variations of trivial nature are likely to arise in the statement of a person when a person gives same nature of statement after a long lapse of time. Be that as it may, I am not prepared to accept the view of Learned defence Lawyer that the testimony of PW-3 is to be brushed aside merely for the reason that there cropped up some variations. By the deposition of PW-3, it is established that the accused persons came to the house of Asiruddin on the very date of occurrence and forcibly caught away him to their house.”

iv. The Learned Judge did not consider the evidence of PW-4 that in his cross-examination it has come to light that there was a large gathering of 200/300 villagers at the house of the victim boy when the incident took place and that none of those villagers raised any protest against the accused persons nor did any of them obstruct the accused persons on their way whilst they were taking away the victim boy to their house. The family of the victim boy had good relation with those villagers which transpired from the cross-examination