Gauhati High Court
Smt. Satyaboti Rajbongshi vs The State Of Assam on 23 January, 2020
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GAHC010144052018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J) 67/2018
1:SMT. SATYABOTI RAJBONGSHI
W/O. RACHU DAS, R/O. LOHITPUR KULAMUA GAON, P.S. SILAPATHAR,
DIST. DHEMAJI.
VERSUS
1:THE STATE OF ASSAM
REP. BY PP, ASSAM.
Advocate for the Petitioner : MR. MRINMOY DUTTA, AMICUS CURIAE
Advocate for the Respondent : M.P. GOSWAMI, ADDL.PP, ASSAM
BEFORE
THE HON'BLE MR. JUSTICE MIR ALFAZ ALI
Date of Judgment : 23.01.2020
JUDGMENT & ORDER (ORAL)
Heard Mr. M. Dutta, learned amicus curiae for the appellant and Mr. M.P. Goswami, learned Addl. P.P., Assam for the respondent.
2. This appeal is directed against the judgment and order dated 19.05.2018 passed by the learned Sessions Judge, Dhemaji in Sessions Case No. 10(DH)/2017, whereby the learned Sessions Judge convicted the appellant under Section 363/367/370 IPC and sentenced him to imprisonment for 10 years under Section 370 IPC, rigorous imprisonment for 2 years under Page No.# 2/4 Section 363 IPC and rigorous imprisonment for three years under Section 367 IPC. The appellant was also sentenced by varied amount of fine with default stipulation.
3. The prosecution case, in brief was that on 06.11.2016, the accused/appellant kidnapped the younger sister of the informant, namely, Sonali Das and one Puja Barhoi, daughter of Babulal Barhoi and sold them in Arunachal Pradesh. Later on, the victims were recovered with the help of police. An FIR was lodged by PW-2, Dharmendra Das, on the basis of which, police registered Silapathar P.S. Case No. 364/2016 under Section 366(A)/370/371 IPC and commenced investigation. In course of investigation, the alleged victims were recovered, statement of the witnesses were recorded, statement of the victims were recorded under Section 164 CrPC, and on completion of the investigation charge sheet was laid against the present appellant under Section 366-A/370/371 IPC. The offence being triable by the court of sessions, the case was committed to the court of sessions and the learned Sessions Judge framed charge against the appellant under Section 363/367/370/371 IPC, to which, the appellant pleaded not guilty.
4. During the course of trial, 10 witnesses were examined by the prosecution to bring home the charge against the appellant and on appreciation of evidence, learned Sessions Judge convicted the appellant under Section 363/367/370(4) IPC and awarded sentence as indicated above.
5. Learned amicus curiae did not contest the conviction and sentence of the appellant under Section 363/367 IPC. However, contention of the learned amicus curiae was that there was no ingredient to constitute an offence under Section 370 IPC and as such, the conviction under Section 370 IPC cannot be maintained.
6. Supporting the conviction and sentence of the appellant, Mr. M.P. Goswami, learned Addl. P.P. contends that the prosecution adduced sufficient evidence including the oral testimony of the victims and proved the guilt of the accused/appellant beyond reasonable doubt and as such, there is no reason to interfere the conviction and sentence.
7. I have considered the submissions made by the learned amicus curiae and the learned Addl. P.P. and scrutinize the evidence brought on record.
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8. Evidently, the appellant has been in jail for more than three years and thereby completed the tenure of sentence for the offence under Section 363/367 IPC and perhaps, therefore, the learned amicus curiae has not contested the conviction and sentence of the appellant under Section 363/367 IPC. The only question therefore, to be considered is whether the prosecution evidence was sufficient to bring home the charge under Section 370 IPC, beyond reasonable doubt.
9. The charge under Section 370(4) was framed against the appellant for the allegation of the alleged transportation and sale of the victim Rupali, who was examined as PW-4. The statement of this witness recorded under Section 164 CrPC has also been proved as Ext. 6. A careful scrutiny of the evidence of this witness together with her previous statement would show, that her statements were not consistent. Although, it was stated by PW-2 (informant) that the victim Rupali was kidnapped and handed over her to a person of Arunachal Pradesh for slavery, admittedly, no FIR was lodged for the last three months, when the FIR was lodged alleging abduction of the other two girls, it was mentioned in the said FIR, that prior to three months of the said occurrence, the victim Rupali was also kidnapped by the present appellant. Evidently, the present appellant is the sister-in-law of the informant (PW-2). It is also in the evidence that they have visiting terms and the appellant used to visit their house. PW-4 stated in his cross examination that he did not see the appellant taking any money nor did she tell before police regarding taking of any money by the appellant, who happens to be her aunt.
10. PW-6 stated that the father of the alleged victim Rupali himself sent the PW-4 to work as maid servant because of his poor financial condition and the FIR was lodged due to misunderstanding. PW-8, from whose house, the alleged victim was purportedly recovered though, stated in his evidence that Rs. 30000/- was paid by him, he did not state the same before police, rather he stated that he kept the alleged victim like his daughter and she was reluctant to go back to her house. Be that as it may, if the evidence of PW-6 is believed, then it belies the entire prosecution story, that the accused, who is admittedly a close relative and had visiting term with the informant kidnapped the victim or sold her for the purpose of slavery. Admittedly, no FIR was lodged for three months. In fact, no FIR was lodged for abduction of the PW-4 at all, reason being that, while lodging the FIR alleging offence of abduction of the second daughter, PW-2 only mentioned that similar offence was committed by the appellant in respect of PW-4. However, later on, during evidence he stated, that his second daughter was not abducted and he lodged the FIR without knowing the real fact, that his daughter has came back home. If the evidence of PW-6 together with the circumstances, that Page No.# 4/4 no FIR was lodged for three months, though, it was within the knowledge of the informant that the alleged victim was taken by the appellant, is considered, the prosecution story as deposed by PW-2 that the victim was kidnapped and sold for slavery would hardly inspire any confidence.
11. What thus appear from the evidence on record as indicated above is that the prosecution has put forward two different stories regarding the offence against PW-4, through two sets of evidence, one supporting the accused/appellant and the other set implicating him. It is now settled position, that when two stories emerge from the prosecution evidence, one inculpating the accused and the other exculpating him, either both the versions has to be rejected or the one, which supports the accused is to be accepted.
12. In view of the above evidence of the prosecution witnesses as indicated above and the inordinate delay of three months in lodging the FIR, in my considered opinion, prosecution story as projected by PW-2 is hardly believable and as such, prosecution can by no stretch of imagination be held to have proved the charge under Section 370(4) against the appellant. Therefore, the conviction and sentence of the appellant under Section 370(4) cannot be sustained. Accordingly, the conviction and sentence under Section 370(4) against the appellant is hereby set aside. Since the appellant has already undergone the period of sentence under Section 363/367, she shall be released forthwith, if not required in any other case.
13. Appreciating the assistance rendered by Mr. M. Dutta, learned Amicus Curiae, we hereby provide that he will be entitled to Rs. 7000/- as professional fee, which shall be paid to him by the Gauhati High Court Legal Services Committee upon production of a copy of this judgment.
14. Send down the LCR.
JUDGE Mkk Comparing Assistant