High Court
Case Details
Crl.A. 127/2006 BEFORE HON’BLE MR JUSTICE B.K. SHARMA 1. This appeal is directed against the judgment of conviction dated 07.06.2006 passed by the learned Sessions Judge, Hailakandi in Sessions Case No . 67/20 convicting the accused/appellant under Section 366/376 IPC and sentencin g him to undergo RI for six years and to pay fine of Rs. 1000/- and in default t o suffer RI for one month.
Legal Reasoning
2. l for the accused/appellant as well as Mr. D. Das, learned Addl. P.P., Assam. I have heard Mr. S.C. Biswas alongwith Mr. B.M. Choudhury, leaned counse 3. The criminal proceeding against the accused appellant was initiated purs uant to the FIR that was lodged with Panchgram out post on 02.05.2004. The FIR w as lodged by PW1, i.e. father of the victim girl. As per the FIR, the victim gir l was kidnapped by the accused/appellant on 28.04.2002 on her way to her school. When the victim did not return home, the informant made enquiries and he found that the victim did not attend the school on that day. The FIR further disclose d that the victim might have been kidnapped by the accused/appellant. 4. On receipt of the FIR, the police registered Algapur P.S. Case No. 44/20 04 under Section 366 IPC. On conclusion of the investigation, charge sheet was s ubmitted and upon framing of the charges under Section 366 IPC coupled with 376 IPC, proceeding started against the accused/appellant. While the prosecution exa mined six witnesses, the accused was examined under Section 313 Cr.P.C. The defe nce case was complete denial. 5. PW 1 is the first informant, i.e. the father of the victim girl who in h is deposition stated about the purported kidnapping of his daughter (PW 2) by th e accused/appellant. PW 3 is the mother of the victim who also in her deposition stated that her daughter was kidnapped by the accused/appellant. PW 4 is the in dependent witnesses who in his deposition stated that the victim was studying in school. However, he did not state anything about the incident. PW 5, the Doctor who had examined the victim stated that the victim was examined on 12.05.2004, but no injury was found on her body including the private parts. He also stated that as per X-ray finding, the age of the victim was about 16/17 years. PW 6 is the I.O. who in his deposition stated about the investigation etc. and submissio n of charge sheet. 6. The conviction of the accused is primarily based on the basis of the dep osition made by PW 2. I have carefully gone through the deposition. In examinati on in chief, she has stated that the incident occurred when she was studying in Class-XII and on the fateful day when she was waiting for bus at Panchgram bus stoppage, the accused arrived at the place with a Maruti van and offered her li ft to the school. The victim knew the accused/appellant since he was a bus condu ctor, so she boarded in the Maruti van for school. On the way, the accused offer ed her something to eat. She took the same and few minutes thereafter she lost h er sense and she regained her full sense while she reached Guwahati. The victim further stated that after reaching Guwahati she wanted to talk to her parents bu t the accused did not allow her to do so and the accused took her to the house o f his paternal uncle situated at Guwahati and two days thereafter she was taken to Lumding to the house of accused’s maternal uncle and there the accused commi tted sexual intercourse. Thereafter the accused again took her to Badarpur and 2 /3 days thereafter police recovered her alongwith the accused. 7. The aforesaid stand of the victim was completely demolished in the cross examination. In her cross examination she categorically stated that the accused /appellant was known to her and in fact they were in love. While narrating the f act of travelling with the accused/appellant in Maruti van, she stated as to how they had boarded the bus at Kalain. . As per her own statement, the bus was ful l of passengers and it stopped at the place called Lydrimbhai and the accused t ook lunch. The victim girl did not take launch. They again boarded the bus to Gu wahati. The victim further stated that at Guwahati they boarded an Auto-rickshaw and after about 1 ‰ hours they reached the house of the paternal aunt of the ac cused/appellant where the victim girl disclosed her identity as the wife of the accused/appellant. She also stated that she had vermillion at her forehead and b angles (sakas) at her hand. As disclosed in the cross examination, the house was surrendered by many people where she disclosed her identity as the wife of the accused/appellant. Thereafter the accused/appellant took her to Lumding by train where also her identity was disclosed as the wife of the accused/appellant. The y also visited Badarpur where near relatives of the accused/appellant reside. Mo st significantly, in her cross examination the victim stated about voluntary enj oyment of sex with the accused/appellant. The aforesaid revelation made in the cross examination will have to be t 8. ested in the touchtone of her statement made under Section 164 Cr.P.C. In the sa id statement she had stated that she had voluntarily gone with the accused/appel lant and got married with him in accordance with law after giving notice etc. Sh e also stated that on that date of arrest of the accused/appellant they were to go to the Registration office to get the marriage registered. From the above wha t is seen is that her version in the examination in chief made after two years o f the incident is not believable compared to her statement made under Section 16 4 Cr.P.C. coupled with her admission in the cross examination. Above apart, the age of the victim girl having been said to be 16/17 years with little variation could have been more than 18 years. There is no concrete evidence regarding the age of the victim. At the time of cross examination, she disclosed her age as 20 years and the incident occurred two years back. There is absolutely no evidence of applying any force on her by the accused/appellant.
Decision
9. In view of the above, I am of the considered opinion that there is no ev idence to establish that the offence was committed under Section 366/376 IPC and accordingly, the accused/appellant deserves acquittal. Be it stated here that t he accused/appellant is on bail vide order dated 11.12.2006 passed in Crl. Misc. Case No. 488/2006. Such bail was granted after about six month’s detention of t he accused in jail. 10. The appeal is allowed setting aside and quashing the judgment of convict ion dated 07.06.2006 passed by the learned Sessions Judge, Hailakandi in Session s Case No. 67/20. The bail bond stands discharged. Send down the LCR to the lear ned Trial court alowngwith a copy of this judgement.