High Court
Case Details
Crl.A. 8/2007 BEFORE HON’BLE MR. JUSTICE P. K. SAIKIA These appeals are directed against the judgment dated 04.11.2012, passed by the learned Sessions Judge, Darrang at Mangaldoi in Sessions Case No. 39(DM)/1999, c onvicting both of them under Sections 366/34 IPC and sentencing them to rigorous imprisonment for 7 (seven) years with a fine of Rs. 5,000/- each, in default, r igorous imprisonment for another 6 (six) months. 2. Aggrieved by the aforesaid judgment, Sri Babul Bania and Sri Dilip Bania preferred these appeals citing several infirmities in the judgment aforemention ed. While, Mr. Babul Bania had preferred this appeal from jail, Shri Dilip Bani a was enlarged on bail during the pendency of present appeal suspending the judg ment impugned as far as Sri Dilip Bania is concerned.
Legal Reasoning
3. I have heard Mr. S P Deka, learned counsel appearing for the appellant i n Crl. Appl. No. 8/2007 and Mr. N Dutta, learned Senior counsel appearing for th e appellant in Crl. A. No. 268/2006 and Mr. B. J. Dutta, learned Additional Publ ic Prosecutor, Assam. The brief facts necessary for disposal of the present appeals are that d 4. uring the time relevant, the prosecutrix was a student of H.S. 1st year class st udying in Sipajhar Higher Secondary & Multipurpose School, Sipajhar. On 31.10. 1998, at about 8.30 AM, she was proceeding to school in her bicycle. As she reac hed Puranbari, Sipajhar, she met the accused Babul Bania who stopped her and thr ew her bicycle to the side of the road and thereafter dragged her to an Ambassad or car which was parked at a place not far away there-from. 5. After dragging her to the car, the accused Babul Bania took her to Baih ata Chariali. The said car was driven by accused Dilip Bania. While being drag ged to the car, she raised hue and cry but the accused persons threatened her wi th dire consequences if she continued to raise hullah. After taking her to Baih ata Chariali, accused Babul Bania took her to Adabari, Guwahati and then to Niza rapar, Guwahati in a private buses. 6. On arriving at Nizarapar, the accused Babul Bania took her to his relat ives at such place. While she was at the residence of the relatives of the accus ed persons at Nizarapar, her father along with police came to such place, discov ered both of them there and thereafter they took them to Sipajhar Police Station . In the meantime, her father had lodged an FIR with the police. On receipt of the FIR, police registered a case under Sections 366/34 IPC. O/C, Sipajhar Police Station himself took up the investigation and in th 7. e course of investigation, he examined the witnesses, had the girl examined by d octor and also had her statement recorded by Magistrate. On completion of invest igation, he submitted charge-sheet under Sections 366/34 IPC against the accused persons and forwarded them to the Court to stand their trial. 8. Since the offence under Sections 366/34 IPC is exclusively triable by th e Court of Sessions, the Magistrate before whom the charge-sheet was so laid, co mmitted the case to the Court of Sessions at Mangaldoi. On the receipt of the c ase on commitment, learned Sessions Judge framed charges under Sections 366/34 I PC against the accused persons and charge, so framed, on being read over and exp lained to them, they pleaded not guilty and claimed to be tried. 9. During trial, the prosecution had examined as many as 7 witnesses includ ing the victim, Medical Officer and the Investigating Officer. The statements o f the accused persons were also recorded under Section 313 Cr.P.C. The accused Babul Bania pleaded that he took the victim girl from her aforesaid school and a ccompanied her from place to place as desired by her. On the other hand, Dilip Bania submitted that on the request of Babul Bania, he took the prosecutrix and the accused Babul Bania from Puranbari Gaon, Sipajhar to Changsari in his car an d dropped them there to undertake further journey from such place. The accused did not adduce any evidence in defence. The learned Trial Co 10. urt on the conclusion of the trial come to the conclusion that prosecution has p roved the charge under Sections 366/34 IPC against the accused persons beyond al l reasonable doubt and it accordingly, convicted them there-under and sentenced them to punishment as stated above. It is that judgment which has been assailed in the present appeals. 11. Opening up argument on behalf of the appellant, Babul Bania, Mr. S P Dek a, learned counsel, contends that the judgment of the trial Court is unsustainab le in law since it has been riddled with infirmities of extremely serious natur e. In that connection, it has been pointed out that the learned Trial Court fai led to appreciate the evidence of most vital witnesses, namely, PW1 and PW4 in p roper prospective. 12. According to the learned counsel for the appellant Sri Babul Bania, if o ne reads the evidence of those witnesses in between the lines, there cannot be a ny escape from the conclusion that prosecutrix was not a consenting party to al l the incidents which occurred on 31.10.1998. The facts that she was taken from Puranbari to Changsari, then to Fancy Bazar and from Fancy Bazar to Nizarapar, Guwahati without any difficulties, more particularly from the prosecutrix, is a clear testimony to victim being a willing party to all those episodes. 13. It has again been contended that some very vital persons who could have thrown proper light on the matter under consideration, such as, Dipen Nath, who was reportedly with the prosecutrix at the time when incident in question had o ccurred was not examined, and that too, without explaining any reason whatsoeve r for non-examination of such a vital witness. Non examination of such vital wi tnesses raised the presumption as contemplated under Section 114 (g) of the Evid ence Act. 14. Further case of the prosecution was that the father of the prosecutrix a dmitted that the case under consideration was filed due to some misunderstanding s between the parties. The father of the prosecutrix is also found saying that h e came to know later that the accused are innocent. These important pieces of ev idence having serious bearing on the matter under consideration was totally igno red by the learned Trial Court while convicting the accused persons of offence u nder Section 366/34 IPC. Since the prosecutrix is major girl as disclosed by the evidence on reco 15. rd and since she eloped with the accused persons on her own volition, the learne d trial Court ought to have concluded that prosecution has failed to prove the c harge brought against the accused persons. That being the position, according to learned counsel for the accused Babul Bania, the judgment of the Trial Court is liable to be set aside. 16. Supporting the contention advanced by Mr. S N Deka, Mr. N Dutta, the lea rned Senior counsel also submitted that the case against Dilip is far weaker sin ce except some passing references made by the prosecutrix, no other witnesses sp eak anything against the accused Dilip Bania. He further submits that prosecutr ix tried to improve her case whenever she found an opportunity to do so which ma ke her evidence utterly unreliable. 17. In support of their cases, the learned counsel for the appellant, Babul Bania and Dilip Bania have referred me to the decision of Hon’ble Supreme Court in the case of Shyam and Another Vs. State of Maharastra reported in AIR (1995) SC 2169. They, therefore, submits this Court to set aside the judgment impugned and to acquit the accused persons of the charge brought against him. The rele vant part of the judgment aforesaid is reproduced below: (cid:28)3. In her statement in court, the prosecutrix has put blame on the appellant s. She has deposed that she was threatened right from the beginning when being kidnapped and she was kept under threat till the police ultimately recovered her . Normally, her statement in that regard would be difficult to dislodge, but ha ving regard to her conduct, as also the manner of the so-called (cid:28)taking (cid:29), it doe s not seem that the prosecutrix was truthful in that regard. In the first place, it is too much of a coincidence that the prosecutrix on her visit to common tap , catering to many would be found alone, or that her whereabouts would be under check by both the appellants/accused and that they would emerge at the scene abr uptly to commit the offence of kidnapping by (cid:28)taking (cid:29) her out of the lawful guar dianship of her mother. Secondly, it is difficult to believe that to the strata of society to which the parties belong, they would have gone unnoticed while pr oceeding to the house of that other. The prosecutrix cannot be said to have bee n tied to the bicycle as if a load while sitting on the carrier thereof. She co uld have easily jumped off. She was a fully grown up girl may be one who had ye t not touched 18 years of age but still she was in the age of discretion, sensib le and aware of the intention of the accused-Shyam, that he was taking her away for a purpose. It was not unknown to her with whom she was going in view of his earlier proposal. It was expected of her then to jump down from the bicycle, o r put up a struggle and, in any case, raise and alarm to protect herself. No suc h steps were taken by her. It seems she was a willing party to go with Shyam-th e appellant on her own and in that sense there was no ’taking’ out of the guardi anship of her mother. The culpability of neither Shyam, A-1 nor that of Suresh, A-2, in these circumstances, appears to us established. The charge against the appellant/accused under Section 366, I.P.C. would thus fail. Accordingly, the a ppellants deserve acquittal. The appeal is, therefore, allowed acquitting the a ppellants. (cid:29) 18. On the other hand, the learned Additional Public Prosecutor appearing fo r the State respondent has submitted that the evidence of the prosecutrix is con sistent, cogent and clear and such evidence clearly make out the allegation brou ght against the accused persons. More importantly, the evidence of prosecutrix s tood corroborated on material points by the other witnesses as well. Therefore, the learned Trial Court committed no wrong, whatsoever, in convicting and punis hing the accused persons of offence under Section 366/34 IPC and as such, he urg es this Court not to interfere with the judgment passed by the learned Trial Cou rt. 19. I have considered the argument advanced by the learned counsel for the p arties having regard to the materials on record as well as the judgment impugned . Before we proceed further, let us see, whether the prosecutrix was a consenti ng party to the incident which occurred on 31.10.1998. In that regard, I find i t necessary to have a brief review of the evidence of witnesses, more particular ly, the testimony of the prosecutrix as well as the informant who is her father. 20. The prosecutrix was examined as PW 4. According to her, on 31.10.1998, while she was proceeding to her school riding her bicycle, the accused persons m et her near Puranbari. The moment, they met her, they stopped her and threw her bicycle to the side of the road and dragged her to an Ambassador car, parked ne arby. The accused Dilip Bania was in the aforesaid car, and once she was put in side the vehicle, they drove the vehicle towards Guwahati. 21. On arriving at Guwahati, the accused took her to his relative’s house at Nizarapar, Guwahati. In the house of the aforesaid relative of the accused Bab ul Bania, he proposed to marry her. Since she did not like the accused person, she refused such proposal. While they were in the residence of the aforesaid pe rson, her father arrived there taking police with him. The police took PW4 alon g with the accused to Sipajhar Police Station. 22. Thereafter, PW4 was taken to Magistrate who recorded her statement on oa th. In her cross-examination, she has stated that Sri Dilip Bania took her to Ch angsari from Puranbari in his car. From Changsari she was taken to Adabari, Guw ahti in a private bus. She was thereafter taken to Nizarapar, Guwahati. On way to Nizarapar, they dropped down at Fancy Bazar, Guwahati where the accused purc hased some cloths for her since she was still in school dress. They also took f ood in a hotel at Chandmari before going to the residence of relative of the acc used Babul Bania. In her cross-examination, she also admitted that she did not tell the police during investigation that the accused proposed her to marry her . 23. PW1, Sri Prabhat Chandra Kalita, is the father of the prosecutrix. Acco rding to him, on 31.10.1998, her daughter went to school. She came to school in her bicycle. On that day, towards the noon, one Bhupen Bania came to his house taking the bicycle of her daughter to his house and stated that he found the bic ycle of his daughter lying on the side of the road near Sipajhar Higher Secondar y School. 24. Being so informed, he immediately contacted the Principal of Sipajhar Hi gher Secondary School and reported him about the incident. In the meantime, he also lodged an FIR with police at Sipajhar Police Station, which he proved as Ex t. 1. Subsequently, his daughter was recovered from Nizarapar, Guwahati from th e house of a relative of the accused Babul Bania. In his cross-examination, he has stated that he lodged the FIR due to some misunderstandings with the accuse d persons. It is also in the evidence that he came to know later that both the accused persons are innocent. The other important witness namely, PW 5 is a doctor. He has stated tha 25. t on 01.11.1999, he was posted at Sipajhar Police Station and on that day he exa mined prosecutrix on police requisition. PW 5 had stated that he did not notice any injury on her person. He further opined that on that day, when he examined the girl, she was above 18 years of age. 26. PW 2, Pabitra Kalita, PW 3, Debakanta Bania and PW 6, Jadu Bania are not the eye witness to the incident under consideration and as such, they could not throw any light on the matter in question. PW 7 Md. Fazlul Hoque Khan is the I/O of the case. According to him, on 31.10.1998, he was posted at Sipajhar Po lice Station and on that day, he received an FIR from PW 1. On receipt of the F IR, he registered a case and he himself took up the investigation. During the course of investigation, he seized an ambassador car bearing 27. No. AS/01B/4324 from the residence of the accused Dilip Bania. He also recovere d the prosecutrix from Nizarapar, Guwahati from the residence of the relative of the accused Babul Bania. On conclusion of the investigation, he submitted charg e sheet under Sections 366/34 IPC against the accused persons and forwarded them to the Court to stand their trial. 28. Above being the evidence on record, let us see how far such evidence mak es out the allegations against the accused persons. It may be noted here that th e courts are entitled to take notice of normal human behavior since it gives the court an idea as to the inner side of a particular story. Thus, if a girl is ta ken by someone against her will, in normal circumstances, she must have done eve rything possible to have her released from charge of her abductor. If she does n ot do so inspite of her getting opportunity, in normal circumstances, it would c ertainly raise a presumption that she accompanied her alleged abductor on her ow n volition. 29. Coming back to our case, I have found that as per allegation made in th e case under consideration, on the fateful day, while the victim was proceeding to school in her bicycle, the accused met her near Puranbari. They immediately s topped her, threw her bicycle to the side of the road, dragged her to an Ambassa dor car parked nearby and then took her to Changsari in the vehicle of Dilip Ban ia. From Changsari she was taken to Adabari at Guwahati in public bus where from she was taken to Nizarapar , and again by public bus. 30. On reading her evidence in between the lines, it is also found that on w ay to Nizarapar, she was taken to Fancy Bazar where the accused purchased some c loths for her. Even before reaching the house of the relative of accused person at Nizarapar, they took food at a hotel in Chandmari. On arriving at the house of the relatives of the accused Dilip Bania at Nizarapar, she freely interacted with the relatives of the accused persons. 31. I may note here that the victim claimed that she was taken from Siphaja r to Guwahati against her will and using force. If that was the position, she mu st have done everything possible to release herself from the clutches of the acc used persons. There is evidence on record to show that during her journey from S ipajhar to Guwahati, particularly from Changsari to Nizarapar, Guwahati, she met a good number of persons. But very interestingly, at no point of her journey, p articularly from Changsari to Nizarapar, Guwahati, she raised any hue and cry, t he even semblance thereof. 32. Not raising any hue and cry is very important, more so, when she found e normous opportunity to do so since it is incompatible with her allegation that s he was taken by the accused persons against her will while she was still on her way as well as the allegation that she was forced to come Guwahati under threat to her life and since , therefore , it becomes a clear testimony to the fact t hat she was very willing party to all the episodes which occurred on the day in question. 33. The fact that on way to Guwahati , she went to Fancy bazaar to purchase clothes , that she took food at a hotel at Chandmari and that she freely engaged in discussion with the relatives of the accused person at Nizarapar , Guwahat i, and too, without giving any hint to the relatives of the accused person tha t she was taken by Babul Bania and Dilip Bania to Guwahati against her will far too firmly demonstrate that the victim eloped with the accused on 31.10.1998 on her own volition . 34. The evidence of informant is equally important. In his evidence, PW 1 th e father of the victim girl has stated that he lodged the case due to some misun derstandings. He also came to know that none of the boys against whom he initiat ed the case was involved in kidnapping/abducting his daughter on the eventful da y. Such evidence, in my considered opinion, throws its weight not behind the pr osecution story but such evidence favours the claim of accused persons particula rly accused Babul Bania. 35. I have found that one was Dipen was with the victim when she was alleg edly abducted by the accused persons. I have also found that a boy, Bhupen by name, took the bi-cycle of the victim from the place of occurrence having found the same at such place in an abandoned condition. Those persons therefore became very vital to the prosecution case since they could have thrown sufficient ligh t on the matter under consideration. But such vital witnesses were left out fr om the arena of the case and that too without assaying any cause whatsoever. Thi s is fatal since it raises a presumption that those witnesses would not have sup ported the case had they been called as witnesses. 36. On the perusal of the record, we have found that during the course of tr ial, the victim has stated that once the accused Babul Bania took her to the res idence of his relatives at Nizarapar, Guwahati, he proposed to marry her. Howeve r, she made such a statement for the first time only during trial. This is a cle ar testimony of victims trying to improve her case which only shows that she is not at all reliable. On this count too, her evidence deserves to be rejected. 37. We have already found that the doctor has stated that the victim girl was above 18 years of age at the time relevant. Her own father supported such a con tention. That being so, I have no hesitation in coming to the conclusion that on the date of incident, the victim was a major girl. I have also found that on t he fateful day, victim eloped with the accused persons particularly Babul Bania on her own volition. 38. In the face of above revelations, I am to conclude that the case in hand , is clearly covered by the principle laid down in Shyam and Another (supra) ord ered by trial court convicting the accused of the offence u/s 366/34 IPC and se ntencing them to punishment as aforesaid, is, therefore, liable to be quashed an d set aside.
Decision
39. In the result, the judgment, impugned, is set aside and the accused appellan t are acquitted of the offence under Sections 366/34 IPC. Accused are ordered t o be set at liberty forthwith if not wanted in connection with any other case. 40. 41. The appeals are allowed. Send down the LCR.