Biman Borah vs The State Of Assam
2021 Latest Caselaw 530 Gua

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GAHC010065452018




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : CRL.A(J)/29/2018

             BIMAN BORAH
             SIVASAGAR



             VERSUS

             THE STATE OF ASSAM
             REP. BY P.P., ASSAM



Advocate for the Petitioner   : MR. U CHOUDHURY, AMICUS CURIAE

Advocate for the Respondent : MR. B.B. GOGOI

PP, ASSAM

Date of hearing : 09.02.2021 Date of Judgment/Order : 17.02.2021

BEFORE HONOURABLE MR. JUSTICE AJIT BORTHAKUR

JUDGMENT & ORDER Date : 17-02-2021

Heard Mr. U. Choudhury, learned Amicus Curiae appearing for the appellant. Also heard Mr. B.B. Gogoi, learned Additional Public Prosecutor, Assam appearing for the State Page No.# 2/7

respondent. Perused records.

2. This jail appeal is preferred against the judgment and order, dated 12.01.2018, passed by the learned Addl. Sessions Judge, Sivasagar in Sessions Case No. 44(S-S) 2014.

3. The prosecution case, in brief, is that on 04.12.2013, an FIR was lodged by one Shankar Sharma before the Officer-In-Charge of Simaluguri P.S. alleging that his 14-year-old daughter, namely Gunjan Sharma is a student of class VIII of Kendriya Vidyalaya, Nazira. As usual, on that day, she along with 12 home returning students travelled by a school Maruti Van bearing Registration No. AS-04-H-6454 and left Nazira at about 2.15 p.m. After dropping two female students at Borkola Godapani village they proceeded towards Simaluguri. On their way, one youth armed with a pistol hijacked the said vehicle along with the students and the driver. When the police and local public were chasing after them, they were taken towards Gormur Silasaku via Gomuta Maut Gaon and when they reached near the village Seujpur of Chantak Tea Garden, the armed miscreant took away his said daughter leaving behind the students and the driver along with the vehicle. While fleeing from the scene along with his daughter Gunjan, the miscreant fired shots from his firearm aiming at the public, who were chasing after him but as the target was missed, the bullet hit at the windshield of the vehicle causing a hole there.

4. Based on the above FIR, Simaluguri P.S. Case No. 204/2013 under Sections 365/427 of the IPC read with Section 25 (1)(A)/27(2) of the Arms Act, 1959 dated 04.12.2013 was registered. The Officer-In-Charge of Simaluguri P.S. entrusted the case for investigation to S.I. Satyajit Borah, who had already taken up the investigation. In course of investigation, the police recovered the victim Gunjan Sharma from the dense forest of Rangajan near Bihubar P.S. and on having identified the miscreant, the accused was arrested. After completion of investigation, the police laid a charge-sheet against the accused and two others under Sections 365/427/34 of the IPC read with Sections 25(1)(A)/27(2) of the Arms Act, 1959.

5. The Court of learned Chief Judicial Magistrate, Sivasagar committed the case to the Court of learned Sessions Judge, Sivasagar for trial. On having made over the case to the learned Addl. Sessions Judge, Sivasagar for trial, the learned Addl. Sessions Judge, Sivasagar framed charges as charge-sheeted vide order, dated 19.12.2015. The accused persons Page No.# 3/7

pleaded innocence and claimed to be tried. In order to establish the charges, the prosecution examined 12 witnesses and exhibited 12 documents and 2 material exhibits. Thereafter, on closing the evidence of the prosecution side the statements under Section 313 Cr.P.C. were recorded on 21.12.2017. The accused persons reiterated their innocence and declined to examine any witness in defence. Then, on hearing the arguments of the learned counsel of both sides and appreciation of the evidence, the learned trial Court convicted and sentenced the accused to undergo R.I. for 7 years and to pay fine of Rs.20,000/-, in default to suffer R.I. for 6 months under Section 365 of the IPC and also sentenced to undergo R.I. for 5 years and to pay fine of Rs.10,000/-, in default to suffer R.I. for 6 months under Section 25(1-A) of the Arms Act. He was further sentenced to undergo R.I. for 10 years and to pay fine of Rs. 20,000/-, in default to undergo R.I. for 1 year under Section 27(2) of the Arms Act.

6. Now, let us look to the evidence on record.

7. P.W. 4, Gunjan Sharma is the victim girl. She knows the accused Biman Borah from the day of the incident. She was studying in class VIII in Kendriya Vidyalaya, Nazira. At the time of the occurrence, the accused was armed with two guns. On 04.12.2013, after the classes were over, at about 2.10. p.m., she got into the school van bearing registration No. AS-04H- 6454 (Maruti Van). The said vehicle was driven by one Saikia uncle. A female student was dropped near Masjid Tinali. They noticed the accused on a bicycle, who was chased after by a crowd. The accused abandoned his bicycle at the place and sat down on the front seat of the school van where there were one boy and driver Saikia. The accused asked the driver to turn back the vehicle and proceed. At one point, the crowd tried to stop their vehicle and thereupon, he fired a gunshot which broke the window glass. The people dispersed and the driver drove on the vehicle as the accused threatened to fire unless proceeded. This incident happened in a village area. The children started raising hue and cry. After sometime, they reached a garden area where the vehicle stuck and stopped. Then, the accused got down from the vehicle and pulled a girl. But, as the girl had sustained injury in the leg, she told the accused to take her with him instead of the said injured girl. Then, the accused caught hold of her hand and asked the driver to drive the vehicle through some forest and water areas. As they noticed a police party, the accused asked her not to shout lest threatened to fire. The Page No.# 4/7

accused pointed the gun at her mouth for which she could not raise alarm. In the meantime, the darkness of the night descended. The accused assured that he would not harm her, but if he was caught, he threatened to shoot at her and shoot himself too. After sometime, the accused left asking her to remain seated. Meanwhile, it became dawn. She found one house and enquired the inmates of the house about the way. They in turn, enquired if she was Gunjan and when she replied in the affirmative, they informed the police. The police arrived and took her to the Police Station, where her parents also arrived. Her medical examination was done and her statement under Section 164 Cr.P.C. was recorded. She identified the accused in the T.I.P. She recognized Ext.- 4, her statement u/s 164 Cr.P.C, Ext.- 2, the memo of T.I.P. and Ext.- 3, the seizure memo. In cross-examination, she, inter-alia, stated that before the accused was arrested, his photograph was shown to her.

8. P.W. 3, Umananda Saikia was the driver of the school Maruti van bearing registration No. AS-04H-6454. He recognized the accused Biman Borah. His version is that on 04.12.2013, when the classes of Kendriya Vidyalaya, Nazira were over at 2.10 p.m., he drove the said vehicle to drop 2 girls at Gadapani Gaon. While coming back from Gadapani Gaon, on the way, he came across the accused, who was riding a bicycle and the accused asked him to turn back his vehicle. He refused to do so as he had school children to drop. Hearing his reply, the accused took out 2 pistols and threatened to shoot. He, therefore, turned back the vehicle and the accused abandoned his bicycle at that place and after taking a seat in the vehicle, the accused asked him to drive the vehicle from Ramudaedhai side towards Gumuthak Tinali. At Gumuthak Tinali, some villagers tried to stop the vehicle, but the accused fired one bullet with left hand and it broke the window glass of the vehicle. At that time, with his right hand, he held the other pistol on his head. The accused asked him to take the vehicle forward when the villagers dispersed. They moved forward and reached Rajgarh Chariali and then, took the road towards Silasaku and again towards Santak Tea Garden as directed by the accused. However, as near Rahdoi Tinali, they confronted with police, the accused asked him not to stop lest threatened to shoot and asked the school children not to raise any hue and cry. He, thereafter, stuck the vehicle intentionally at a place near Santak road fearing that the police was following them. When the vehicle stopped, the accused got down from the vehicle and made attempts to take with him one small girl, but as she had Page No.# 5/7

sustained injury in the leg, Gunjan asked him to take away her with him and accordingly, he took away her with him assuring to leave her at a designated place. Thereafter, they (accused and Gunjan) crossed a stream. On the following day, the police recovered Gunjan. He recognized the accused in T.I.P. vide Ext.- 2. The police seized the vehicle, one bullet and one gold ring vide Ext.- 3, the seizure memo. His statement under Section 164 Cr.P.C. was recorded vide Ext. -1. In cross-examination, he, inter-alia, stated that the photograph of the accused was shown to him by the police earlier.

9. On perusal of the evidence of P.W. 1, Pankaj Bora and P.W. 2 Biswajit Duwarah, it is revealed that they have testified to an incident of altercations between the customers at Dikhow Hotel and the accused, who was armed with two pistols, as shown to them apparently to put them (the crowd) in fear so as to enable him to leave the said Hotel. Thereafter, he moved towards the Maszid Tinali. This incident took place on 04.12.2013 at about 1 to 1.30 p.m., that is, just before the incident of kidnapping of Gunjan Sharma (P.W.-

4) and other school children and the school van driver Umananda Saikia (P.W. 3).

10. P.W. 5, Shankar Sharma is the informant and father of one of the victim children, namely Gunjan (P.W.- 4). His evidence shows that he did not witness the incident, but acted on the information of the parents of other kidnapped children. On the following day of the incident at about 5.30 a.m., the police of Santak informed him about recovery of his daughter. He recognized the F.I.R. vide Ext. - 5.

11. P.W. 6, Jitu Kotoky, P.W. 7 Mridul Borah, P.W. 8 Khagen Phukan and P.W. 9 Anupam Baruah are witnesses to the seizure memos. Ext.- 3 and Ext.- 6, whereby the police seized the vehicle, arms and ammunitions etc. used in the incident.

12. P.W. 10 Madhu Sharma is the Senior Scientific Officer, F.S.L., Guwahati examined the seized pistol and found, inter-alia, the same to be serviceable to fire 7.65 m.m. calibre cartridges. He recognized Ext.- 9, the report.

13. P.W. 11, Debyajyoti Dutta is the Motor Vehicle Inspector, Sivasagar, who examined the seized vehicle bearing registration No. AS-04H-6454 and found, inter-alia, bullet hole over the left side front windshield. He recognized Ext. -10, the report.

14. P.W. 12, S.I. Satyajit Bora is the investigating officer. He has deposed on the formal Page No.# 6/7

aspects of the investigation in the case. His evidence, inter-alia, shows that he recovered the seized pistol from the house of the accused on information given by co-accused Arup Dolakasaria. He did not draw any sketch map of the place of occurrence, but took photographs thereof.

15. Section 365 of the IPC enacts that kidnapping or abduction with intent to secretly and wrongfully confine a person is an offence. Here, the evidence of P.W. 3, Umananda Saikia, the driver of the school van and P.W. 4 Gunjan Sharma, the victim girl, aged about 14 years, who was reading in class VIII withstood all the tests of cross-examinations asserting that it was the accused, who kidnapped/abducted them on two pistol points holding the same by his two hands from near Masjid Tinali on 04.12.2013 at around 2.10 p.m. and continued a tremendous day and night long harrowing journey through villages and tea garden areas until sthe next day dawn. P.W. 3 Umananda was scot free at Santak with the vehicle where 12 number of school children were travelling in and the accused took away with him the victim child Gunjan (P.W. 4) crossing a stream to somewhere. It was on the following day morning (05.12.2013), P.W. 12 S.I. Satyajit Borah, the investigating officer and his party recovered the girl from near a house. Both P.Ws 3 and 4 have corroborated their statements under Sections 164 Cr.P.C. vide Exts. 1 and 4 respectively. This is a clear case of kidnapping and abduction. The identity of the accused is also established beyond doubt by P.Ws 3 and 4 through T.I.P. vide Ext. 2, the memo of T.I.P. and incidentally by the independent witnesses, namely P.Ws 1 and 2 by reason of the fierce altercations that took place between them and the accused at Dikhow Hotel on 04.12.2013 at about 1.30 p.m. that preceded immediately to the said incident of kidnapping of Gunjan (P.W. 4) and her companion school children of Kendriya Vidyalaya, Nazira.

16. It is abundantly clear from the evidence of the prosecution witnesses as stated above that in course of commission of the said offence of kidnapping or abduction, the accused possessed and used 2 number of pistols. As stated above, and P.W. 10 Madhu Sharma, the Senior Scientific Officer, F.S.L., Assam, on examination of one seized pistol found the same to be serviceable and used for firing vide Ext. -9, his report. P.W. 11 Debyajyoti Dutta, the Motor Vehicle Inspector, who examined the seized vehicle found bullet hole on the left side of its front windshield. Their evidence, therefore, establish beyond doubt that fire arm was Page No.# 7/7

used by the accused during commission of the offence of kidnapping or abduction. There is no evidence to show that the accused was licenced for possessing the prohibited firearms and ammunitions which he used in contravention of Section 7 of the Arms Act, 1959 and as such, this Court is of the opinion that he is rightly convicted under Section 27(2) of the said Act. To speak it differently, it is proved beyond doubt that the accused illegally possessed and used pistol to scare away the people who chased after him and then, used it to put the school children and the driver of the vehicle, where they all travelled in, for kidnapping or abduction. Therefore, the conviction under Section 27 of the Arms Act, 1959 was justified. In such a fact situation, in the considered view of this court, the conviction under Section 25(1-A) of the said Act was unnecessary as the ingredient of illegal possession of prohibited arms and ammunitions is implicitly present in both the aforesaid offences. However, as the learned trial Court by the impugned judgment and order directed to run the sentences concurrently and also directed for setting off the period of detention under Section 428 Cr.P.C., the Court is of the opinion that no interference is called for in the sentences passed against the accused.

17. Therefore, the appeal being devoid of merits, the same is dismissed.

18. Send back the LCR.

19. Appeal stands disposed off.

20. Before parting with the record, we appreciate the valuable service rendered by Mr. U. Choudhury, learned Amicus Curiae. Accordingly, it is directed that an amount of Rs.7,500/- as legal fees be paid to him by the High Court Legal Services Committee upon production of a copy of this judgment and order.

JUDGE

Comparing Assistant