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2017 Supreme(Gau) 29
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
RUMI KUMARI PHUKAN, J.
Nur Rahman – Appellant
Versus
State of Assam – Respondent
Criminal Appeal No. 107 of 2014
Decided On : 10-01-2017
For the Appellants : Mr. H.R.A. Choudhury, Mr. J. Islam, Mr. A.A.R. Karim and Ms.
S.F. Maitin.
For the Respondent: Mr. B. Sarma.
Headnote:
Criminal Procedure Code,1973 – Section 164 , 207 and 313 – Indian Penal Code, 1860 – Section 366 , 376 , 34 - Offence of kidnapping , abducting or inducing women to compel her marriage - Charge-sheet – Appeal against conviction - Prosecution case, inter-alia is that on at about 5 pm one District Cachar lodged a written ezahar to In-charge, Police Out Post alleging that on at about 8 AM where his daughter (aged about 17 years) was going to tailoring work at Bazar, accused appellant no.2 at instigation of accused appellant nos. 1 and 3 kidnapped his daughter - At that time his daughter had gold ornaments on her ear, neck and hands worth and a mobile phone worth with her - Charge-sheet, learned CJM, Cachar at Silchar was pleased to take cognizance and after furnishing the copies of relevant document u/s 207 CrPC, committed case to court of Sessions as case was exclusively triable by Session Court - Accordingly a case vide Sessions Case No. was registered and after hearing counsel of both sides, framed cartages against all accused appellants and same was explained to them to which they pleaded not guilty and claimed to be tried - Prosecution witnesses were cross-examined by defence and after conclusion of evidences for prosecution, accused appellants were examined and their plea was of total denial - Defence denied to adduce any evidence in its support - On conclusion of trial accused appellants convicted as aforesaid - Hence appeal before this Court – Held, informant has simply stated the they came to know about missing of PW 1 as told by informant (since expired) and they have no direct knowledge about occurrence - However, after recovery PW 1 reported that she was forcibly taken to shillong by accused persons and raped her - In cross examination PW 4 stated that while making search for victim girl they met owner of tailoring shop where the victim girl used to receive training, who replied that victim girl did not come to shop on that day - Equally, on enquiry in nearby shop nobody can give any information to them - Investigating officer has also stated that place of occurrence is of National Highway i.e. Imphal Road and that being so if victim girl made hue and cry at time of kidnapping she could have rescued by people passing by - I.O. has also contradicted statement of victim that she did not state before him that she was picked up by accused by gagging her mouth in a Maruti Van - There being no eye witness to occurrence and whole case centered around testimony of the victim girl who has given a inconsistent testimony during course of investigation and trial and more particularly she being a major one cannot be expected to give such twisting evidence unless motivated by falsehood - Her evidence being doubtful cannot be made sole basis for conviction of accused appellants - Learned trial Court failed to appreciate all above aspects in proper perspective of law and facts and has accepted version of victim as gospel of truth, whereas prosecution failed to prove charges against accused appellants beyond all reasonable doubts - Appeal is allowed.
1. Heard Mr. HRA Choudhury, learned senior counsel appearing for the appellants as well as Mr. B. Sarma, learned Addl. Public Prosecutor, Assam, for the Respondent State.
2. This appeal has been preferred by the appellants against the judgment and order dated 3.2.2014 rendered by the learned Addl. Sessions Judge, (FTC) Cachar at Silchar in Sessions Case No. 325/2010 U/S 366/376/34 IPC convicting the accused appellants and sentencing them to undergo rigorous imprisonment for (four) years and to pay fine of Rs.5,000/- each u/s 366/34 IPC, in default simple imprisonment for seven years and to pay a fine of Rs.5000/- each U/S 376/34 IPC in default S.I. for another four months.
3. The prosecution case, inter-alia is that on 26.5.2009 at about 5 pm one Md. Abdul Hamid of Lamba Basti, P.S. Lakhipur Silchar, District Cachar lodged a written ezahar to the In-charge, Banskandi Police Out Post alleging that on 21.5.2009 at about 8 AM where his daughter Halima Begum (aged about 17 years) was going to the tailoring work at Banskandi Bazar, the accused appellant no.2 at the instigation of accused appellant nos. 1 and 3 kidnapped his daughter. At that time his daughter had gold ornaments on her ear, neck and hands worth Rs.25,000/- and a mobile phone worth Rs.4000/- with her. On due search, he came to learn that the accused appellant no. 2 kept confined his daughter in the house of accrued appellant no. 1 with the help of accused appellant nos. 1 and 3. The delay in filing the ezahar was caused for the said searching process.
4. On receipt of the said ezahar, the In-charge, Banskandi Polcie Out Post made a G.D. Entry No. 474 dated 26.5.2009 at 5 PM and forwarded the same to the O/C Lakhipur Police Station for registering a case. Accordingly, a case was registered vide Lakhipur Police Station Case No. 142/09 U/S 366(A)/34 IPC (G.R. Case No. 1800/2009). After completion of investigation charge-sheet u/s 366 (A)/376/34 IPC was submitted against all the accused appellants showing accused appellant nos. 2 and 3 as absconders.
5. After receipt of the Charge-sheet, the learned CJM, Cachar at Silchar was pleased to take cognizance and after furnishing the copies of relevant document u/s 207 CrPC, committed the case to the court of Sessions as the case was exclusively triable by the Session Court. Accordingly a case vide Sessions Case No. 325/2010 was registered and after hearing the counsel of both the sides, framed cartages U/S 366 /376/34 IPC against all the accused appellants and the same was explained to them to which they pleaded not guilty and claimed to be tried.
6. During trial the prosecution examined as many as 6 witnesses including the Medical Officer and the Investigating Officer of the case. The prosecution witnesses were cross-examined by the defence and after conclusion of the evidences for prosecution, the accused appellants were examined U/S 313 CrPC and their plea was of total denial. The defence denied to adduce any evidence in its support. On conclusion of trial the accused appellants convicted as aforesaid. Hence the appeal before this Court.
7. The learned counsel for the appellants vehemently contended that the conviction of the accused appellants by the impugned judgment and order dated 3.2.2014 is unwarranted and unsustainable in law inasmuch as, the facts available on records clearly reveals that there is no eye witness in this case and the PW 1 (victim girl) is also not at all reliable and further, the prosecution miserably failed to bring home the prosecution case in all its fronts, not to speak to prove/establish its case beyond all reasonable doubts for which the impugned judgment and order of conviction and sentence are bad in the eye of law.
8. Further it has been contended that the learned trial Court failed to appreciate the evidence in due manner which has resulted failure of justice. The delay in filing the FIR is not explained satisfactorily as well as the statement of vital witness the victim woman is
