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2015 Supreme(Gau) 1180
Gauhati High Court
Biplab Kumar Sharma, J.
Sahidul Islam Khan - Appellant
Versus
State of Assam - Respondent
Crl. Appeal (J) 139 of 2013
Decided On : 01-04-2015
For the Petitioner: B. Sarma, Amicus Curiae.
For the Respondents: D. Das, Addl. PP.
Headnote:
Indian Penal Code, 1860 - Section 366/328/34 – Criminal Procedure Code, 1973 – Section 164 , 313 and 428 – Criminal Law - Kidnapping , abducting and inducing women for compel her marriage – Appeal against Conviction - As per FIR, previous night i.e. on when all family members were sleeping after their meal accused appellant entered into house by breaking open bamboo wall and made all members unconscious administering narcotic medicine and thereafter kidnapped victim wrapping a black cloth around her face - At around 1.O clock of same night, accused appellant also threatened members of family that if kidnapped victim was not given on marriage to him, he would create havoc - Prosecution examined 11 witnesses and accused persons were also examined under Section 313 Cr.P.C - Learned trial court after having framed the following points for determination, answered same in affirmative towards convicting accused appellant leaving aside two other accused persons and hence this appeal from jail - According to her, victim girl had willingly gone with accused and because of circumstances, particularly fact that accused was already a married person family members made out a story of abduction learned APP on other hand submits that there being nothing to show that victim had willingly accompanied accused coupled with fact that in his statement – Held, Victim was recovered by police from particular village along with the accused appellant - As stated above, accused in his statement made simply denied his involvement with incident but furnished no explanation as to how the victim came to be in his possession - There is absolutely no evidence that the victim had voluntarily gone with accused to the particular village - It is in such circumstances learned trial Court has rightly held that prosecution has established that accused appellant on the day of incident, kidnapped/abducted the victim from her house without her consent - Accused appellant is already a married person, coupled with the fact that he was under an obsession that victim was in love with him and that he wanted to marry her, sentence of 7 years R.I. imposed by learned Trial Court is required to be reduced - Accused appellant is in imprisonment ever since judgement was delivered - During investigation also he was in jail for some period - Aforesaid submissions made by learned Amicus Curiae - Court of considered opinion that the ends of justice would be met if sentence is reduced to 3 (three) years R.I, maintaining fine only already imposed by the learned Trial Court - Needless to say that from this modified sentence of 3 years R.I., period already undergone by the accused appellant shall stand set off - Appeal is partly allowed with modification of sentence as aforesaid
1. This is a jail appeal against the judgement of conviction dated 21/11/2013 of the learned Additional Sessions Judge (FTC), Barpeta in Sessions Case No. 50/2010. By the aid judgement while convicting the accused appellant under Section 366 IPC, he has been sentenced to undergo R.I. for 7 (seven) years with fine of Rs. 10,000/- and in default to undergo S.I. for another 6(six) months. The sentence provides the benefit of the provision laid down in section 428 Cr.P.C.
2. Barpeta PS Case No. 293/2007 was registered under Section 366/328/34 IPC on the basis of the FIR lodged on 27/04/2007. The FIR was lodged by PW-1. As per the FIR, previous night i.e. on 26/04/2007, when all the family members were sleeping after their meal, the accused appellant entered into the house by breaking open the bamboo wall and made all the members unconscious administering narcotic medicine and thereafter kidnapped the victim wrapping a black cloth around her face. At around 1.O clock of the same night, the accused appellant also threatened the members of the family that if the kidnapped victim was not given on marriage to him, he would create havoc. Following morning, people gathered and found the family members in unconscious state. All of them had undergone treatment at Barpeta Civil Hospital.
3. With the registration of the case, I.O. carried out investigation and thereafter on completion of the same submitted charge sheet against the 3(three) accused persons under Section 366a/34 IPC. Eventually, charge was framed under Section 366/34 IPC. The defence plea was that of denial.
4. During trial, prosecution examined 11 witnesses and the accused persons were also examined under Section 313 Cr.P.C. The learned trial court after having framed the following points for determination, answered the same in the affirmative towards convicting the accused appellant leaving aside the two other accused persons and hence this appeal from jail.
"Points for determination:
(i) Whether the accused persons in furtherance of common intention on the night of 26.4.2007 at Palhazi village under Barpeta Police Station kidnapped or abducted the victim/and sister of the informant as alleged?".
5. Ms. B. Sarma, learned Amicus Curiae representing the accused appellant submits that on a total reading of the evidence on record, it is not a case for which the accused appellant can be convicted under Section 366 IPC. According to her, the victim girl had willingly gone with the accused and because of the circumstances, particularly, the fact that the accused was already a married person, the family members made out a story of abduction. Mr. D. Das, learned APP, Assam on the other hand submits that there being nothing to show that the victim had willingly accompanied the accused coupled with the fact that in his statement made under Section 313 Cr.P.C., the accused did not furnish any explanation as to how the victim was found in his possession, the learned Trial Court rightly convicted him and thus the judgement of conviction requires no interference.
6. I have given my anxious consideration to the submissions made by the learned counsel for the parties and have also perused the entire materials on record. It will be pertinent to mention here that during investigation, the victim girl's statement was recorded under Section 164 Cr.P.C. As to what was the fact narrated in the FIR has been noted above. In her statement under Section 164 Cr.P.C., the victim stated about her abduction by the accused taking advantage of the fact that all the family members became unconscious after the accused had administered/mixed medicine with the food. She also stated that the accused was accompanied by two other persons while abducting her. She was also unconscious and regained her senses on the following day. According to her said statement, the accused tried to commit sexual intercourse with her but she resisted from doing so. Police recovered her from Sartebari. In the said sta
