Tripura High Court
Sri Bhudeb Uchai vs The State Of Tripura on 27 May, 2020
Equivalent citations: AIRONLINE 2020 TRI 155
Bench: S.Talapatra, S.G.Chattopadhyay
HIGH COURT OF TRIPURA
AGARTALA
Crl. A(J) No. 34/2018
1. Sri Bhudeb Uchai,
son of Sri Briguram Uchai,
resident of Depacharra,
P.S. : Nutan Bazar, Amarpur,
District: Gomati Tripura
2. Sri Tarsaram Reang,
son of Lt.Tauthaha Reang,
resident of Laxmipur, Dashda,
Sub-Div: Kanchanpur,
P.S. : Kanchanpur,
District : North Tripura
.........Appellant(s).
Versus
The State of Tripura
.....Respondent(s).
BEFORE
HON'BLE MR. JUSTICE S.TALAPATRA
HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY
For the Appellant(s) : Mr. D. Debbarma, Advocate.
For the Respondent : Mr. S. Ghosh, Addl. P.P.
Date of hearing : 12.03.2020
Date of Judgment and Order : 27.05.2020
Whether fit for reporting : Yes No
JUDGMENT
( S.G.Chattopadhyay. J ) Among the two appellants herein, convict appellant Bhudeb Uchai, hereinafter referred to as the first appellant, has been convicted and sentenced to RI for 10 years and fine of Rs.10,000/- and in default RI for 6 months for offence punishable under Section 376(1), IPC and convict appellant Tarsaram Reang, hereinafter referred to as the second appellant, who is the father of the victim, has been convicted and sentenced to RI for 10 years and fine of Rs.10,000/- and in default RI for 6 months for offence Page 2 of 20 punishable under Section 376(1) read with Section 109, IPC by judgment and order of conviction and sentence dated 11.07.2018 passed by the Ld. Sessions Judge, North Tripura Judicial District in case No. S.T./T-1/13 of 2015.
Being aggrieved with the impugned judgment, the two convict appellants as above, have approached this court in this appeal. The facts leading to this appeal, briefly stated, are as follows:
[2] The victim (name withheld) lodged a written complaint in the court of Ld. Sub-divisional Judicial Magistrate at Kanchanpur on 26/09/2014 alleging, inter alia, that she had been living with her husband Udai Ram Reang at his home at Loharam Para at Kanchanpur since her marriage with him on 05/05/2010. On 13/03/2013 when she was in her parental home, the first appellant along with his associates forcibly lifted her from there and detained her in a hut inside a forest for 02 days and committed rape on her repeatedly. From there the first appellant had taken her to his home where he further subjected her to sexual intercourse with him against her will several times. After few days, she fled away to her husband's place. One year thereafter, again on 14/03/2014 the first appellant along with his associates came to her husband's place, assaulted her and abducted her from there in absence of her husband at home. Her father, the second appellant was then accompanying the first appellant and instigating and aiding him in committing the offence. The first appellant compelled the victim to live with him for about 6 months in his house and one day in his absence at home the victim left his house along with her 2 years' old daughter and returned to her husband Udai Ram Reang. During her stay with him, the first appellant had coerced the Page 3 of 20 victim to sign some documents without making her aware of the contents of those documents.
[3] The Ld. Sub-divisional Judicial Magistrate forwarded her complaint to the officer in-charge of the Kanchanpur Police Station with a direction to register a case on her complaint and submit report after investigation in terms of Section 156(3), Cr.P.C. After it was received at the police station on 24/10/2014, Kcp PS Case No.2014 Kcp 093 under Sections 366,346,376, and Section 120(B) read with Section 34, IPC was registered and investigation was taken up.
[4] The whole investigation was conducted by Shri Shakti Sadhan Jamatia, (PW-9), a Sub-inspector of police of Kanchanpur Police station. During his investigation the IO, apart from examining the witnesses and recording their statements under Section 161 Cr.P.C, subjected the victim to medical examination at Kanchanpur sub-divisional Hospital on 05/11/2014. The doctor did not find any mark of injury or any other visible symptom of sexual assault to show that the victim, a married woman, had been subjected to rape. The statement of the victim was also recorded by Ld. SDJM, Kanchanpur under Section 164(5), Cr.P.C on 06/11/2014. [5] On completion of the entire investigation, the first appellant was chargesheeted for offence punishable under Sections 366,346,376 and Section 120(B) read with Section 34, IPC and the second appellant was chargesheeted for offence punishable under Section 120(B) read with Section 34, IPC.
[6] The Ld. SDJM after taking cognizance of offence against the accused appellants committed the case to the Sessions court where the Page 4 of 20 case was numbered as S.T/T-1/13 of 2015 and the learned Sessions Judge framed charges of offence punishable under Section 376(1), IPC against the first appellant namely Bhudeb Uchai and charge of offence punishable under Sections 366 and 376(1) read with Section 109, IPC against the second appellant namely Tarsaram Reang i.e. the father of the victim. Both of the accused appellants denied the charges and claimed a trial and therefore, the case came to be tried by the learned Sessions Judge for the offence aforesaid.
[7] During trial the prosecution in support of its case examined as many as 09 witnesses including the victim as under:
01 Rishambati Reang PW-1 02 Santajoy Reang PW-2 03 Ripan Nath PW-3 04 Sunajoy Reang PW-4 05 Dhanyaram Reang PW-5 06 Bhabatosh Talukdar PW-6 07 Victim PW-7 08 Udai Ram Reang PW-8 09 Shakti Sadhan Jamatia PW-9 [8] After the closure of the prosecution evidence, two witnesses were examined on behalf of the accused appellants. They were Shri Sindrai Reang and Shri Purnajay Reang who have been examined as DW-1 and DW-2 respectively. Thereafter, the statement of both of the accused appellants were recorded by the trial judge under Section 313 Cr.P.C.
wherein both denied the circumstances appearing against them and pleaded innocence and false implication.
Page 5 of 20[9] On appreciation of evidence, the Ld. Trial court observed that the charge of rape was proved against the first appellant and the charge of the abatement of the commission of rape was proved against the second appellant beyond all reasonable shadow of doubt and consequentially the Ld. trial court convicted and sentenced the accused appellants, as above. Hence this appeal.
[10] During the hearing of this appeal it has been submitted on- behalf of the prosecution that the credible and cogent evidence of the victim is sufficient to record conviction and the Ld. trial court has rightly convicted and sentenced the appellants on the basis of the evidence of the victim which has been minutely corroborated by the evidence of other prosecution witnesses. Learned Public Prosecutor has, therefore, urged this court to maintain the judgment and order of conviction and sentence passed by the Ld. trial court dismissing the appeal.
[11] Learned Counsel appearing for the appellants on the other hand has contended that the prosecution case that the first appellant kidnapped the victim along with her 2 years' old daughter in broad daylight from her husband's place and kept her in detention for about 6 months and committed rape on her and that too, with the aid and abetment of her father and the husband of the victim did not report the matter to police for rescue of his wife and daughter during this prolonged detention of his wife in the custody of the first appellant inspite of having full knowledge of the incidence is quite improbable and unworthy of acceptance. Learned Counsel for the appellants has also taken us to the various contradictions appearing in the complaint (Exhibit-1) of the victim and her statement recorded by the court during trial of the case and contended that Page 6 of 20 prosecution version is clearly unbelievable. It is further contended by Learned Counsel appearing for the appellants that as per the complaint (exhibit-1), the first appellant allegedly kidnapped the victim on 13/03/2013 and committed rape on her repeatedly having her detained in a lonely hut inside a forest and from there he had taken her to his home where he had again subjected her to sexual intercourse with him against her will and admittedly the victim did not lodge any complaint against the first appellant after the occurrence which is quite surprising and the abstinence of the victim in lodging a complaint immediately after such occurrence casts ring of doubt over the prosecution case.
It is further argued by learned counsel of the appellants that the prosecution version that the victim was again kidnapped by the first appellant on 14/03/2014 from her husband's place with the aid of her father who is the second appellant herein and she was detained along with her minor daughter for about six months till 16/09/2014 by the first appellant and rape was committed upon her during such detention and on 16/09/2014 she fled away to her husband's place in absence of the first appellant is not supported by evidence. Finally, learned counsel of the appellants argued that allegedly the victim lodged her complaint (Exhibit-
1) in court ten days after she escaped from the custody of the first appellant and there is no plausible explanation of such delay in lodging the complaint against the appellants.
On the premises aforesaid, it is submitted on behalf the accused appellants that Ld. trial court has erred in convicting and sentencing the accused and as such the judgment and Page 7 of 20 order of conviction and sentence passed by the trial court may be set aside in appeal.
[12] Therefore, the question which has been posed before this court in appeal is whether in the given facts and circumstances of the case and the evidence on record, the Ld. trial court has committed any error in holding the accused appellants guilty of the charges brought against them and convicting and sentencing them for the offence.
[13] Among the witnesses examined on behalf of the prosecution, PW-1 Rishambati Reang, is an acquaintance of the victim who is totally unaware of the case. She has simply stated in her deposition recorded during trial that the victim is a married woman having two children. PW-2 Santajoy Reang is a neighbour of the victim and he does not have any first-hand knowledge about the occurrence. The PW only heard that the second appellant got his victim daughter married to the first appellant against her will and few days after her marriage with the first appellant, the victim left the first appellant and returned to her former husband Udai Ram Reang who is PW-8 and few days thereafter, she was kidnapped by the first appellant and again the victim returned to her husband Udai Ram Reang and thereafter, lodged the complaint which is exhibit-1. PW-3, Ripan Nath scribed the complaint which was lodged in court by the victim on 26/09/2014. On his identification the complaint was admitted into evidence and marked as exhibit-1 during trial of the case. According to Santajoy Reang PW-4, the victim married Udai Ram Reang, PW-8, which was not accepted by her second appellant father and as a result he aided and instigated the first appellant to kidnap the victim from her husband's place and have physical relationship with her against her will. In his cross Page 8 of 20 examination the PW admitted that Udairam Reang, husband of the victim is a relative of him. He, however, denied the suggestion of Ld. defence counsel at the trial that due to his relationship with Udai Ram Reang and enmity towards the first appellant, he gave false evidence against the first appellant. PW-5, Dhanyaram Reang, a neighbour of the victim told the trial court in his deposition that after her marriage with Udai Ram Reang, the victim visited her parents and lived there for about two weeks. At that time the second appellant, father of the victim, got her married to the first appellant against her will and after few days she escaped from the custody of the first appellant and returned to her husband (PW8) from where she was again kidnapped by the first appellant. PW-6, Bhabatosh Talukdar, a police officer received the complaint of the victim at the police station on 24/10/2014 which was forwarded from court. The witness identified his endorsement on the complaint which was marked as exhibit 1/3 during trial. PW-7 is the victim herself. In her examination-in-chief, the victim deposed that on a day in the year 2013 at about 9/10 o'clock in the morning when she was in her matrimonial home at Loharam Para at Kanchanpur, the first appellant, accompanied by 4/5 persons, appeared before her and forcibly taken her away to Jatanbari in Amarpur and detained her in a hut for 2/3 days and committed rape on her. Thereafter, she contacted her husband Udai Ram Reang from the cell phone of the first appellant in his absence and while an opportunity came, she left the house of the first appellant and reached her husband's place. In her examination in chief she also explained that since the first appellant was her maternal uncle in relation she had hesitation to lodge the complaint against him and she wanted to settle the matter amicably. PW-8 is Udai Page 9 of 20 Ram Reang who is the husband of the victim. He has deposed during trial that two years after his marriage with the victim, a matrimonial discord developed between them and his wife left him for her father's place. After three months she returned to him. On 5th March,2013 when he was away from home, the second appellant i.e is the father of the victim along with her mother and the first appellant, accompanied by 10 others, had taken her to the house of the first appellant along with the victim's child. Thereafter, the first appellant detained her for about one year wherefrom she returned to the PW and complained that during her stay with the accused, the first appellant committed rape on her. Thereafter, the present case was lodged. In his cross examination, PW-8, Udai Ram Reang admitted that he never lodged any complaint after his wife was allegedly kidnapped by the accused appellants. His sworn statement in cross is as follows:
"After abduction of my wife I did not lodge any case during one year, but informed our society. But our society invited for discussion. But my father -in-law and mother -in-law did not participate. During this period, I got information that my wife had been residing in the house of Bhudeb Uchai".
PW-9 Shaktisadhan Jamatia conducted the investigation and according to him a prima facie case having been established against both of the appellants, he charge-sheeted both of them to face trial. [14] Admittedly in this case, the second appellant is the father of the victim and it is quite apparent from the evidence on record that he did not accept his daughter's marriage with Udai Ram Reang (PW-8) because Page 10 of 20 the appellant was a Christian by religion and as such he wanted to get his victim daughter married to the first appellant who was also a Christian. In her cross examination the victim (PW-7) testified as under:
"It is true that my father is a Christian so I belong to a Christian family since childhood. It is true that my present husband is not a Christian."
Similarly, her husband PW-8 Udai Ram Reang testified during trial as follows:
"I married the victim as per Hindu rites and ceremonies. Priest of the marriage was a Hindu".
[15] We have noted that the victim PW-7 has denied to have any marital relationship with the first appellant. She, however, admitted in her cross-examination that she once lived with the first appellant in his house. She stated in her cross-examination as under:
"It is true that in the year 2013 my parents took me to the house of Bhudeb Uchai. At that time Bhudeb Uchai also accompanied us and thereafter my father returned after keeping me in the house of Bhudeb Uchai".
[16] Turning to her complaint (Exhibit-1) we find a different version. As stated by her in her complaint (Exhibit-1), the first incident occurred on 13/03/2013 when the first appellant had forcibly taken her away to an unknown place from her parental home and detained her in a hut inside a Jungle and committed rape upon her and thereafter he had taken her to his home and made physical relationship with her against her Page 11 of 20 will. From there the victim returned to her husband's place. Again on 14/03/2014 i.e after one year of the first occurrence, the first appellant with the aid of the second appellant and his other associates kidnapped her from her husband's place and detained her in his house. The victim was there in the custody of the first appellant for about six months and on 16/09/2014 she escaped from there along with her minor daughter and returned to her husband, PW-8.
[17] Admittedly after the first incident in March 2013, the victim never raised any grievance nor reported the matter to Police. She referred to this incident for the first time only after the second incident occurred to her after one year when she was allegedly kidnapped by the first appellant with the aid of the second appellant from her husband's place on 14/03/2014 and surprisingly even after his wife was allegedly kidnapped from his house along with their minor daughter and they were allegedly detained by the first appellant for as long as a year, PW-8 Udai Ram Reang, being the husband of the victim did neither report the matter to police nor did he make any effort for recovery of his wife and daughter from the custody of the first appellant. The following extract of his deposition from his examination-in-chief may be useful for proper appreciation of the facts:
"During my absence Tarsaram Reang, his wife i.e. my mother in-law and Bhudeb Uchai including total 10/13 persons came with three vehicles and forcefully abducted my wife and took her to the house of Bhudeb Uchai and during that time my wife already become a mother of a child. After my return at my house I came to know about the incident. Thereafter, my wife was detained by them for about one year and Page 12 of 20 Bhudeb detained my wife stating that he would marry my wife. After one year my wife returned my house in the year 2014 in the month of October. She complained me that during her captivity Bhudeb committed rape on her on several occasions. Thereafter, the present case was lodged as a Court complaint by her. My wife lodged the complaint against Bhudeb Uchai and her parent."
[18] It is thus quite evident that the second appellant father of the victim did not want to get his daughter married to Udai Ram Reang, PW-8. As also discussed herein above, his choice was first appellant Bhudeb Uchai who was also a Christian by religion. But the victim married Udai Ram Reang, PW-8 who is admittedly a Hindu by religion and his daughter's marriage with Udai Ram Reang was not accepted by him. It also emerges from the evidence of Udai Ram Reang, PW-8 who is the husband of the victim that after their marriage a matrimonial discord developed between them. In this regard, PW-8 Udai Ram Reang deposed in his examination in chief as follows:
"After 2 years of my marriage we had some disputes.
Thereafter, my wife went to her father's house. After 3 months again my wife voluntarily returned at my house."
[19] Though in his deposition, PW-8 Udai Ram Reang who is the husband of the victim, did not refer to the first incident which allegedly happened to his wife on 13/03/2013 the victim PW-7 in her complaint, (Exhibit-1) stated that on 13/03/2013 when she was in her father's house, the first appellant had taken her away from there, detained her and committed rape on her and after she returned to her husband's place then Page 13 of 20 again after one year on 14/03/2014 the first appellant, with the aid of her father, the second appellant, had kidnapped her from her husband's place and detained her in his house and committed rape upon her and she returned to her husband after 06 months whereas, her husband Udai Ram Reang referred to only one incident which, according to him, occurred on 5th March, 2013.
[20] The most significant aspects raising strong suspicion about the veracity of the prosecution case are that after the first incident which allegedly occurred on 13/03/2013, the victim did not lodge any complaint with police or anywhere else. Even her husband Udai Ram Reang (PW8) was not aware of the incident. As it emerges from the evidence of her husband (PW-8), he was not aware about the first incident which occurred to his wife even though they were married in 2010 and at that time they were in their matrimonial tie. The second incident allegedly occurred on 14/03/2014 when the victim was allegedly kidnapped by the first appellant from her husband's place and according to the victim, she was detained by the first appellant for 06 months and according to her husband (PW 8) it was for a period of 01 year when the first appellant committed rape on her but her husband did not report the matter to police during such detention of his wife in the custody of the first appellant or even after his wife returned home. Evidently his minor daughter was also with his wife when she was allegedly kidnapped by the first appellant from his house. It is quite difficult to believe that he would not have made any attempt for rescuing his wife and child from the custody of the first appellant, had they really been kidnapped by the first appellant. Moreover, it is on record that the victim spent quite a long period of time in the house of the first Page 14 of 20 appellant and therefore, it is equally difficult to hold that the accused appellant would have continued sexual relationship with the victim having her detained in his house for such a long period of time against her will particularly when there is no evidence that the accused appellant had subjected her to fear of death or physical injury or restricted her movements or he otherwise terrorised her in his house. [21] The settled principle pertaining to consent in rape cases is that whether the prosecutrix was a consenting party to the sexual intercourse or not, can only be ascertained on a careful study of all relevant circumstances of the given case. In this regard, the ratio laid down by the apex court in Udai Vs. State of Karnataka as reported in MANU/SC/0162/2003 : (2003) 4 SCC 46, may be gainfully reproduced hereunder prior to further appreciation of the evidence on record:
"21. .............. We are inclined to agree with this view, but we must add that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them."Page 15 of 20
[22] We are, in this case, concerned with a situation where the victim and the appellants are known to each other. The first appellant who allegedly committed rape on her claims the victim to be his wife and the second appellant is her own father who wanted his daughter (victim) to be married to the first appellant and in that connection the first appellant and the victim had access to each other. Admittedly, the victim did not object when her second appellant father, accompanied by her mother, had taken her to the house of the first appellant in March, 2013 when the first incident allegedly occurred. As told by the victim, the first appellant, during her stay with him at that time committed rape on her. But, apparently she did not lodge any complaint after the alleged occurrence. Moreover, her husband PW8 is not aware of such occurrence though he married the victim prior to that. It is no case of the prosecution that there was an application of force to take her to the house of the first appellant at that time. Rather, it has been stated by the victim in her statement recorded under Section 164(5) Cr.P.C (Exhibit-4), that in the month of March, 2013 she along with her father and mother visited the house of the first appellant and after she reached there the first appellant had taken her to a visit to his garden where he slept with her and committed rape on her in a bamboo made hut. But, she neither reported the matter to police nor made any allegation to anybody against the accused appellant immediately after the occurrence. She referred to the incident only in her complaint (Exhibit-1) which was filed in court after about 01 year on 26/09/2014 after she was allegedly kidnapped by the appellants from her husband's place.
Page 16 of 20[23] Sexual intercourse with a woman tantamounts to rape only when it comes within any of the descriptions provided under Section 375, IPC which is reproduced hereunder:
" 375. Rape.-- A man is said to commit "rape" if he--.
a) Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
b) Inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or.
c) Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or such woman or makes her to do so with him or any other person; or
d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:
First--Against her will.
Secondly --Without her consent.
Thirdly--With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly--With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly--With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him Page 17 of 20 personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly--With or without her consent, when she is under eighteen years of age.
Seventhly--When she is unable to communicate consent. Explanation 1 -- ................................................................................... Explanation 2-- .................................................................................... Exception 1-- ....................................................................................... Exception 2-- ......................................................................................" [24] In the given facts and circumstances of the case, evidently, the case in hand does not come within the purview of any of the fourth, fifth, sixth or seventh description enumerated under Section 375, IPC. Allegedly the victim was subjected to sexual intercourse by the first appellant without her consent and against her will which was abetted by the second appellant i.e. the father of the victim. Therefore, it needs to be examined in the light of the evidence discussed herein above and the materials available on record as to whether the case is covered by any of the first, second or third description provided under Section 375, IPC. [25] The apex court in Kaini Rajan Vs. State of Kerala reported in 2013 AIR SCW 5455 has elaborately discussed about what constitutes consent and what is the meaning of the expression "against her will" in terms of Section 375, IPC. On this issue, the apex court in paragraph 12 the judgment has held as follows:
"12. Section 375 IPC defines the expression "rape", which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her Page 18 of 20 will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she is interested in fear of death or of hurt. The expression "against her will" means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. "Consent" is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression "consent". Section 90, though, does not define "consent", but describes what is not consent. "Consent", for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances."
[26] In the given case, admittedly the victim was an adult and married woman having children. Moreover, evidently the first appellant is not a stranger to her and the second appellant is her father. Undisputedly, she returned to her parents when her matrimonial relationship with PW-8 got strained and during that time her parents had taken her to the house of the first appellant where she was allegedly subjected to sexual intercourse with the first appellant against her will. But, as already discussed, she did not report the matter to police and only when the second incident allegedly occurred to her she reported the matter to police and that too ten days after returning to her husband and there is no Page 19 of 20 plausible explanation of delay in lodging the complaint. Moreover, her husband also did not report the matter to police inspite of having full knowledge of the fact that his wife and daughter were in the custody of the first appellant for more than a year. There is no evidence that the victim was at any point of time kept captive in the house of the first appellant under the fear of death, injury or otherwise. Even there is no evidence that she ever sought for any help of the neighbouring people for her release from the custody of the first appellant. Applying the ratio of the decision of the apex court in the case of Kaini Ranjan, (supra) it can be easily held that in the given situation the victim could have fully exercised her choice between resistance and assent. But, there was no sign of resistance from the side of the victim particularly when it is admitted that she was there in the house of the first appellant along with her minor daughter for more than a year and there was no initiative either from her side or from the side of her husband PW-8 for their release. Therefore, even if it is believed that the victim was with the first appellant during that period it can be easily held that it was a consented act from her side.
[27] Despite the fact that the case relates to one of the heinous offences against women, the appellants cannot be held guilty unless on proper appreciation of evidence and the materials available on record, the charges are proved against them.
Situated thus, we are unable to affirm the conviction of the appellants as returned by the learned trial court. In the result, the judgment and order of conviction and sentence passed by the Ld. trial court is set aside and the appeal stands allowed.
Page 20 of 20
In the result, the two appellants, namely Bhudeb Uchai and Tarsaram Reang, be set at liberty forthwith.
Send back the LCRs.
JUDGE JUDGE S.Sarma