High Court · 2012

The prosecution’s case may, in brief, be described thus: On 24.12.2008, at about 6-30 p.m., while PW1 and PW2 came out of the house, where both of them resided, they happened to meet the accused-appellant No. 2, Ajit Dey, on the st reet, and, on seeing him (accused-appellant No. 2), PW 2 talked to him as he (ac cused-appellant No. 2) was known to her. PW 2, then, went ahead of PW1 and PW1 followed PW 2 and, at that point of time, PW2 saw one Maruti Car parked by the s ide of the road with two persons standing near the car. When PW 1 and PW 2 reac hed near the place, where the car stood parked, the two appellants, namely, Pank aj Kuri and Ajit Dey, dragged them (PW 1 and PW2) forcibly, put them inside the vehicle and took them to a house at a distance of about 2 kilometers away and ke pt them (PW 1 and PW2) in the said house with a woman. Both PW 1 and PW2 cried a lot and requested the two accused-appellants to take them back to their house, but the accused-appellants threatened to kill them. On the night of 24.12.2008 , the two girls (PW 1 and PW2) slept with the said woman in the said house and, on the following day, in the morning, the two accused-appellants, on the pretext of taking the two girls back to their house, took them to another house at anot her place. Though both the girls requested the two accused-appellants to releas e them, the accused-appellants did not listen to them and kept them there with a nother woman. PW 1 and PW 2 spent a night with the woman in the said house and, on the following day, in the morning, taking advantage of the absence of the ac cused-appellants, PW 1 and PW 2 came out of the house pushing the said woman awa y and ran towards the road and, on reaching the road, they raised alarm. Though the said woman came behind them, she went back on seeing people coming and asse mbling there on hearing the alarm raised by the two girls (PW1 and PW2). In the meanwhile, on 24.12.2008 itself, father of PW1 lodged a written Ejahar informin g the police that PW1 and PW2 had disappeared and, treating the written Ejahar a s First Information Report (in short, ’FIR’), a case was registered under Sectio n 366A/34 IPC. However, on reaching the road, as mentioned hereinbefore, the two girls, namely, PW1 and PW2, happened to meet one of their relatives, who, accom panied by CRPF personnel, had been looking for the two girls. The two girls wer e, then, taken to the police station by the said relative of the girls and the C RPF personnel and the police sent the girls to doctor for their medical examinat ions and, thereafter, they were sent to the court to get their statements record ed by the Magistrate. During investigation, PW 1 and PW 2 were medically examin ed and, on completion of investigation, a charge-sheet was laid against the two accused-appellants under Section 366A/34 IPC and the two accused-appellants were apprehended by the police.

3. During trial, charge was framed against the two accused-appellants under Section 366A read with Section 34 IPC. To the charges, so framed against them, both the accused-appellants pleaded not guilty. In support of their case, pros ecution examined altogether 7 witnesses. The accused were, then, examined under Section 313 CrPC. In their examinations aforementioned, both the accused denie d that they had committed the offence, which was alleged to have been committed by them, the case of the defence being that of total denial. Both the accused a lso took the plea of alibi and adduced evidence in this regard. However, having found both the accused guilty of the offence charged wit 4. h, the learned trial Court convicted them accordingly and passed sentence agains t them as mentioned above.

5. Aggrieved by their conviction and sentence, passed against them, the two convicted persons have preferred the present appeal.

6. I have heard Mr. P. Bora, learned counsel for the accused-appellant, and Mr. D. Das, learned Additional Public Prosecutor.

7. ok at the evidence, which were adduced by the parties at the trial. While considering the present appeal, I deem it appropriate to have a lo Broadly in tune with each other, PW1 and PW2 have deposed that PW1, alon 8. g with her parents, went to the house of her maternal uncle at Silapathar. On t he day of the occurrence, at about 6-30 p.m., when they (PW1 and PW 2) came out to the street, accused Ajit Dey, who knew PW 2, daughter of the maternal uncle o f PW1, talked to PW2 and, thereafter, PW2 went ahead, PW1 followed her and they saw a Maruti Car parked by the side of the road and two persons standing near th e car. When the two girls happened to reach the car, the two accused aforementi oned dragged them forcibly to the car and put them inside the vehicle, took them to a house at a distance of about 2/3 kilometers and kept them in the said hous e. It is in the evidence of PW1 and PW2 that they cried and requested the two a ccused to let them go back to their home, but the accused threatened to kill the m and, as a consequence thereof, they spent the night with the woman in the hous e and, on the following day, the two accused, again, on the pretext of taking th em (PW1 and PW2) to their house, actually, took them to another place and kept t hem in another house with another woman. However, on the following day, in the morning, taking advantage of the absence of the accused, they (PW1 and PW2) ran away from the house and met, on the road, one of their relatives, who had been l ooking for them with the help of CRPF personnel. As far as the remaining witnes ses are concerned, none of them knew as to what actually happened between the ti me, when PW1 and PW2 had disappeared till the time they reappeared on the scene. The best witnesses, therefore, who could have told the Court as to what had ha ppened, were PW1 and PW2.

9. What logically follows from the above discussion is that the incident, w hich PW1 described to her mother, is material and ought not to have been ignored by the learned trial Court. In this regard, it is worth pointing out that in h er evidence, PW3 (i.e., the mother of PW1) deposed that she (PW3) went to the ho use of her elder brother, at Silapather, whose daughter was PW2, and, on the dat e of the occurrence, i.e. 24.12.2008, when she (PW3) went out to meet some of he r acquaintances in the neibourhood, her daughter (PW1) and also PW2 went missing and when her daughter (PW1) came back, she (PW3) asked her daughter (PW1) as to where she had been to and what had happened to her. To her (PW3) query, the re ply given by her daughter (PW1) is most important inasmuch as the evidence of PW 3 is to the effect that PW1 reported to her (PW3) that she (PW1) had gone with a ccused Ajit to roam around. This piece of evidence appears to have completely e scaped the attention of the learned trial Court and if this piece of evidence is taken note of, which ought to have been taken note of by the learned trial Cour t, it is impossible to confidently hold that that PW1 and PW2 had been forcibly taken away.

10. Coupled with the above, there is no evidence given by the prosecution as regards the age of PW1 and PW2. It is, therefore, not only difficult, but whol ly unreasonable to hold the accused-appellants guilty of offence under Section 3 66A read with Section 34 IPC, particularly, when there is not even an iota of ev idence on record to show that PW1 and PW2 had been forcibly taken away by the tw o accused-appellants with the intent to put force on the two girls to have illic it intercourse with the two accused-appellants and/or with anyone else.

11. What emerges from the above discussion is that the evidence of PW3 canno t be, and could not have been, ignored. Though the evidence of PW3 is hearsay f or the purpose of determining if what had been reported to her by PW1 was or was not true, the fact of the matter remains that PW1 had reported to her mother th at she had gone with the accused, Ajit, on her own.

12. In the circumstances indicated above, no case of kidnapping or abduction can be said to have been proved against the accused-appellants, or any one of t hem, beyond reasonable doubt. The conviction of the accused-appellants cannot, therefore, be sustained.

13. In the result and for the reasons discussed above, this appeal succeeds. The judgment and order under appeal are hereby set aside. Both the accused-ap pellants are hereby held not guilty of the offence charged with. The two accuse d-appellants are, therefore, directed to be released unless they are required to be detained in connection with any other case.

14. disposed of. With the above observations and directions, this criminal appeal stands

15. Send back the LCR.