Gauhati High Court
Pradip Boro vs The State Of Assam on 12 February, 2015
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM
AND ARUNACHAL PRADESH)
Crl.A 201/2005
1. Sri Pradip Boro
S/o- Sri Lalit Boro
Resident of village Dipraang,
P.O- Barpak
District- Morigaon, Assam.
......... Appellant
-Versus-
1. The State of Assam
............ Respondent
BEFORE
HON'BLE MR. JUSTICE B.K. SHARMA
For the appellant : Ms.P.B. Bordoloi,
Amicus Curie
For the respondent : Mr. D.Das, Addl.P.P.
Date of hearing : 12.02.2015
Date of Judgment : 12.02.2015
JUDGMENT & ORDER (ORAL)
1. This appeal is directed against the judgment of conviction dated 03.08.2005 of the learned Assistant Sessions Judge, Morigaon in Sessions Case No.38/04 convicting the accused/appellant u/s 366(A) IPC and sentencing him to undergo rigorous imprisonment for 08(eight) years with fine of Rs.5000/- (rupees five thousand) and in default, further rigorous imprisonment for 02(two) years.
22. The prosecution story in brief is that on 21.04.2003 at about 10 P.M., the accused/appellant kidnapped the informant's 13 years old daughter. Lodging the FIR to that effect on 24.04.2003, the informant prayed for recovery of his daughter and appropriate action against the accused/appellant. On the basis of the FIR, Mayong P.S Case No.24/2003 was registered u/s 366(A) IPC. During investigation, the statement of the victim girl was recorded u/s 164 Cr.P.C. In due course, charge sheet was submitted u/s 366(A) IPC and charge was also framed under the said section.
3. While the prosecution examined 06(six) witnesses, in the statement of the accused/appellant u/s 313 Cr.P.C, he denied the commission of the offence. The learned trial Court on the basis of the evidence on record, having convicted and sentenced the accused/appellant as aforementioned, he has preferred this appeal.
4. This appeal was admitted on 16.09.2005, but when there was no appearance of the learned engaged counsel of the accused/appellant, Ms. P.B. Bordoloi, learned counsel was appointed as Amicus Curie vide order dated 22.01.2015. She submits that there is manifest error of law as well as facts in the impugned judgment of conviction. According to her, there is absolutely no evidence to convict the accused/appellant u/s 366(A) IPC. On the other hand, Mr. D. Das, learned Additional Public Prosecutor, Assam submits that when the victim girl herself stated in her deposition that the accused/appellant had kidnapped her, the impugned judgment of conviction is not liable to be interfered with.
5. I have given my anxious consideration to the submissions made by the learned counsels for the parties and have also perused the entire evidence on record.
6. In her statement made u/s 164 Cr.P.C, the victim girl categorically stated that on 21.04.2003, the accused/appellant had visited her as per her advice and both of them left for the house of the accused/appellant. She also stated that on reaching the appellant's house, they got married as per the Rites and Rituals of the community to which the accused/appellant belongs 3 to. She also stated that they had love affairs for about one year and accordingly they thought over the matter and decided to get married. She also stated in her said statement that after the marriage, they were living as husband and wife.
7. Per-contra, in her evidence during trial, she stated that the accused/appellant kidnapped her by breaking upon the Ikara wall of her room. According to her, nobody could hear the breaking of the wall as it was raining.
8. PW-1 is the father of the victim girl, who is the first informant. He in his deposition stated that on the night of the occurrence, he found his daughter missing. When he was informed that she had gone along with the accused/appellant, he lodged the FIR and she was recovered. In the cross examination, he stated that he did not see as to how his daughter had gone along with the accused/appellant. He also stated that after about four months of the incident, his daughter was given on marriage.
9. PW-2 is the doctor who in his deposition stated that there was no injury mark on the private parts of the victim girl, but she was habituated to sexual intercourse. He also opined that the girl was aged about 17/18 years.
10. PW-3 is the mother of the victim girl, who in her deposition stated that the accused/appellant was known to her and that on the day of occurrence, he kidnapped the victim by breaking the Ikara wall of the room in which her daughter was sleeping. In the cross examination, she stated that the accused/appellant was her nearby resident at a distance of about 2/3 houses, which fact was also stated by the informant i.e. the PW-1. In the cross examination, she admitted that she did not see as to who had taken the victim girl away. She further stated that immediately after the incident, nobody came, but neighbouring people came in the morning.
11. PW-4 is the brother of the informant PW-1. He also stated that the accused/appellant kidnapped the victim girl by breaking the Ikara wall of the room, in which the victim was sleeping. In the cross examination, he stated that after the incident, the neighbouring people did not come. He denied the 4 suggestions that the victim had gone with the accused/appellant of her free will.
12. PW-5 in her cross examination stated that the room in which the victim used to sleep, her grandfather also used to sleep. She also admitted that her room was surrounded by the neighbouring people. According to her, it was a dark night and she could not recognize as to who had kidnapped the victim girl. She categorically stated that at the time of commission of the alleged offence, she was 18 years of age.
13. PW-6 is the Investigating Officer, who conducted the investigation. He in his deposition stated about the investigation that was carried out. In the cross examination, he stated that PW-3 did not state that the victim was taken away by breaking the Ikara wall. Significantly he also stated that during the visit to the place of occurrence, he did not see the wall of the room in broken condition.
14. When the accused/appellant was examined u/s 313 Cr.P.C, in explanation to the evidence on record, he stated that they had love affairs and she had gone with him voluntarily and that they also performed marriage. Above are the evidence on record on the basis of which the accused/appellant had been convicted u/s 366(A) of the IPC.
15. From the evidence on record, it is seen that the victim was not a minor when the alleged offence was committed. It is found that the prosecution did not lead any evidence to establish that she was a minor. As per the own statement of the victim girl, she was 18 years of age when the alleged offence occurred. The doctor also opined that she was in between the age of 16 to 18 years. Thus, on the face of it, section 366 (A) IPC is not attracted. However, it was argued that it will be a case falling u/s 366 IPC.
16. On perusal of the evidence on record, there is absolutely no matter of doubt that the prosecution failed to establish the ingredients of the offence punishable u/s 366/366(A) IPC. Immediately after the alleged recovery of the victim girl, she in her statement made u/s 164 Cr.P.C, admitted going with the accused/appellant of her free will and also getting married and living 5 together as husband and wife. The alleged incident occurred on 21.04.2003. Nearly 1 ½ years thereafter, the victim made her statement during trial giving an opposite version of what she stated u/s 164 Cr.P.C. Although it was alleged that she was kidnapped by breaking the Ikara wall of the room in which she used to sleep, but it is in the evidence of the Investigating Officer that during his visit to the place of occurrence, he did not notice that the wall of the room was in broken condition. Interestingly, she was not alone in her room, but was sleeping with her grandfather. But the said grandfather was not examined by the prosecution.
17. In view of the above, I am of the considered opinion that no case is made out for convicting the accused/appellant u/s 366(A) IPC. Accordingly, this appeal is allowed by setting aside the impugned judgment of conviction passed by the learned Assistant Sessions Judge, Morigaon in Sessions Case No.38/2004.
18. Registry shall transmit the case record to the learned Court below along with a copy of this judgment.
19. Before parting with the case record, I place on record my words of appreciation for the services rendered by Ms. P.B. Bordoloi, the appointed Amicus Curie and as a token of recognition of her service, it is hereby ordered that she will be entitled to hearing fee of Rs.5000/- (Rupees five thousand) on production of the copy of this judgment and order before the appropriate authority. She may be furnished with the copy of this judgment and order free of costs.
JUDGE Alam