IMPORTANT POINT
The prosecution failed to prove the charges of kidnapping and rape beyond a reasonable doubt, leading to the acquittal of the appellants.

JUDGMENT :

(Susmita Phukan Khaund, J.)

Heard Mr M U Mondal, learned counsel for the appellant, Mr B B Gogoi, learned Additional Public Prosecutor for the respondent State and Mr A Hussain, learned counsel for the informant/respondent No. 2

2. This appeal is preferred against the Judgment and Order dated 17.09.2022, passed by the learned Additional Sessions Judge, Bilasipara, District-Dhubri, in connection with Sessions Case No. 118/2012, convicting Aktar Ali (also referred to as the appellant, or accused or A-1), under Section 376 of the Indian Penal Code, 1860 (IPC, for short) and sentencing him to undergo Rigorous Imprisonment for 7 years and to pay a fine of Rs. 20,000/-, with default stipulation, convicting Moynal Hoque (also referred to as the appellant, or accused or A-2) and Fajlul Hoque (also referred to as the appellant, or accused or A-3), under Section 366 IPC, read with Section 34 of the IPC, and sentencing them to undergo Rigorous Imprisonment for 5 years and to pay a fine of Rs. 5,000/- each, with default stipulation, and convicting them under Section 506 IPC, read with Section 34 of the IPC and sentencing them to undergo Simple Imprisonment for 1 year and to pay a fine of Rs. 1,000/- each, with default stipulation. The sentences are ordered to run concurrently and the period of detention already undergone by the appellants is to be set off with the custodial sentence.

3. The genesis of the case was that on 19.08.2006, at about 11:00 pm, the appellants trespassed into the informant, ‘Y’’s house and kidnapped his married daughter-‘X’. The name of the informant is withheld and he will be referred to as-‘Y’ and his wife, i.e., the victim’s mother will be referred to as- ‘Z’.

4. It is further alleged that when the informant’s wife tried to resist, the appellants threatened her with dire consequences by pointing a pistol towards her chest. An FIR regarding this incident was lodged with the Police at Bilasipara Police Station and Bilasipara PS Case No. 228/2006 under Section 366/506 IPC was registered and the ASI JU Sk. was entrusted with the investigation.

5. The Investigating Officer (IO, in short) embarked upon the investigation. He went to the place of occurrence (PO, for short), and prepared the sketch map and examined the witnesses. He forwarded the victim for medical examination and also for recording her statement under Section 164 of the Code of Criminal Procedure, 1973 (CrPC, for short). On finding prima facie case against the appellants, charge sheet was laid against them under Sections 366/506 of the IPC. Charge sheet was also laid against the accused Sultan Ali Ahmed. On appearance of the appellants, including the accused Sultan Ali Ahmed, a formal charge under Sections 366/506/376 IPC, was framed and read over and explained to them. The accused pleaded not guilty and claimed to be tried. During the pendency of the trial, the accused Sultan Ali Ahmed remained absent and this case against him was split up and separated and trial proceeded against the present appellants.

6. To connect the appellants to the crime, the prosecution adduced the evidence of 8 (eight) witnesses, including the IO and the Medical Officer (MO, for short). The witnesses were cross-examined in extenso. On the incriminating materials arising against them through the evidence of the prosecution witnesses, several questions were asked to the appellants. The tenor and trend of the answers of the appellants to questions under Section 313 CrPC, depicts a plea of total denial. The answers were evasive in nature. They preferred to answer in short sentences like, “this is not true,” “I am innocent,” ”it is false”, and so on and so forth. The appellants did not tender any evidence in defence.

7. It is submitted on behalf of the appellants that the accused persons named in the FIR are father and sons, and three of the accused are cousins. It is not plausible that cousins along with father and son will commit an offence of rape. The scribe of the FIR was