Decided on September 05,1994

STATE OF ASSAM Respondents


- (1.)THIS appeal has been preferred by the appellant from jail against the impugned judgment dated 20. 7. 93 passed by the Sessions Judge, Jorhat in Sessions Case No. 86 (J.-J) 1989. The prosecution story in brief is that one Padmanath Sarmah of Hatigarh, Balichapori lodged an F.I.R. on 13.5.89 alleging that his daughter Smti Suranjona Debi a minor girl aged about 15 years was kidnapped by the accused from the road while she returned from School towards her house. He suspected the petitioner had kidnapped his daughter, the appellant-petitioner was charged under section 376 and subsequently the charge was amended only to Section 366 IPC. Along with the accused appellant other persons were also charged, but they were acquitted. In the trial the prosecution examined 6 (six) witnesses including the doctor and after trial the appellant was convicted U/s 366 I. P. C. and sentenced to 3 years R. I. and to pay a fine of Rs. 500/- in default R.I. for 6 months more and the period of detention was set-off U/s 428 Cr.P.C. Heard Miss B. Choudhury, Amicus Curiae and also Mr. N. Mahammad, learned Public Prosecutor Miss Choudhury submits that there was no sufficient material against the appellant to bring home the offence against the appellant. The learned counsel leads this court to the facts of the prosecution and submits that the evidence on record does not show that the appellant has committed offence under section 366 I. P. C. To appreciate the submission of the learned counsel I prefer to re-appreciate the evidence on record. P. W. 1 Smti. Suranjona Debi is the victim girl. In her evidence she stated that she was returning from her School towards her house and the accused on the way near the house of one Narayan Bora knocked her down and thereafter two persons namely accused Puma and Narayan came out from the nearby Jingle, gagged her mouth and took her towards the jungle. She wanted to raise alarm, but accused Romen gave her a slap and threatened her not to raise any alarm and then she was taken to a paddy field and then took her in a taxi towards Rongdoi village. That the three acccused persons took her by a taxi and kept her in a house and on the following day she was taken to some other place. That the accused appellant promised her to marry and raped her inspite of her protest. That the accused appellant along with two other accused persons took her to the appellant's house wherefrom the police recovered her. P.W.3 is the informant, the father of P. W. 1. In his evidence he stated that in the night of occurrence when his daughter did not return from her school he got information that his daughter was taken away by the appellant. He filed an First Information Report. On the basis of his FIR, police recovered his daughter from the house of accused Ramen Saikia appellant and that his daughter reported her that she was forcibly taken away by the appellant being helped by other accused persons and that his daughter was about 14 years 7 months at the time of occurrence. In the cross-examination these two witnesses i. e. P. W. 1 and 3 stated about the intimacy between the appellant and the victim girl. P. W. 1 in her cross examination stated that before two years of the occurrence, the appellant took her away and afterwards there was some compromise between the parties. P. W. 3 in his cross-examination stated that on previous occassion also his daughter was taken away by the appellant and the matter was amicably settled at the intervention of the village people and stated that his daughter was minor. P. W. 2 is the Taxi Driver in which the appellant took the victim girl. In his cross-examination he stated that the girl (P. W. 1) did not raise any alarm. P. W. 4 in his deposition stated that while they were travelling by the taxi they requested by the appellant for a lift and accordingly they did. In his cross-examination this witness stated that the girl did never raise any alarm and she was also not found weeping. P. W. 2 the Investigating Officer stated that after recovery of the girl she was sent for medical examination and during the investigation he found that the girl was taken away by the appellant 2 years prior to the date of occurrence and accordingly a case was registered against the accused appellant. In his statement under Section 313 Cr. P. C. the appellant denied the occurrence as the case U/s 366 I. P. C. P. W. 5 is a doctor. In his report he stated that the age of the victim girl was below 18 years.
(2.)FROM the evidence on record it appears that the girl was below 18 years, but though the prosecution tried 1 to establish a prime-facie case U/s 366 I. P. C. there is some intimate relationship between the appellant and the girl and this intimacy was continued for 2 years prior to the occurrence. Inspite of that there is no sufficient material in the evidence on record that the girl tried to escape from the appellant or she never raise any alarm at the time of taking her by a taxi. But evidence disclosed that the girl is a minor and she has not completed her 18 years at the time of occurrence. FROM that view of the matter 1 uphold the conviction U/s 366, but from the facts and circumstances of the case as it reveals from the evidence on record I modify the sentence from 3 years rigorous imprisonment to the period that the appellant has already undergone. It is submitted by the learned counsel for the appellant that the appellant had already served more than one year including custody before the trial. In that view of the matter I modified the sentence from 3 years to one year which the appellant has already undergone. The appeal is partly allowed. The bail bond if any is cancelled and the fine is also set aside.

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