Gauhati High Court
Page No.# 1/22 vs The State Of Assam on 2 August, 2024
Page No.# 1/22
GAHC010008982010
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./207/2010
HABIBUR RAHMAN
S/O SAMR UDDIN
2: RUSTUM ALI
S/O LATE MOINUDDIN
3: ABDUL MATALEB
S/O LATE ALIM UDDIN
4: RAHUL UDDIN @ RUHUL AMIN
S/O LATE ALIM UDDIN
5: IDRISH ALI
S/O RUSTAM ALI
6: SIDDIKUR RAHMAN @ ABU BAKKAR SIDDIQUE
S/O RUSTAM ALI
ALL ARE RESIDENT OF VILL. NO. 2 CHARKEY BASTY
P.S. LAMDING
DIST. NAGAON
ASSAM
VERSUS
THE STATE OF ASSAM
2:MUSSTT. RAHIMA KHATUN
Page No.# 2/22
W/O LATE ABDUL MAZID
VILL. NO. 2 CHARKEY BASTY
P.S. LAMDING
DIST. NAGAON
ASSAM
Advocate for the Petitioner : MRM RAHMAN, MR D TALUKDAR(AMICUS CURIAE),MR.N
UDDIN,MR.G SAROWAR,MR.M DUTTA
Advocate for the Respondent : MR. D DAS(ADDL.PP, ASSAM), ,,
- B E F O R E-
HON'BLE MR. JUSTICE ARUN DEV CHOUDHURY
For the Appellant : Mr. D. Talukdar, Amicus Curiae.
: Mr. N. Uddin, Adv.
For the Respondents : Mr. D Das, Addl. PP
Date of hearing : 17.05.2024
Date of judgment : 02.08.2024
JUDGMENT & ORDER (CAV)
1. Heard Mr. D. Talukdar, learned Amicus Curiae assisted by Mr.
N. Uddin, learned counsel for the appellant. Also heard Mr. M.P.
Goswami, learned Addl. PP, Assam.
2. The present appeal is filed under Section 374 of the Code of
Criminal Procedure, 1973 against the Judgment and Order dated
29.11.2010 passed by the learned Additional Sessions Judge (FTC),
Nagaon in Sessions Case No. 154(N)/2006 arising out of C.R. Case No.
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1203/2002, convicting the appellants/accused to undergo rigorous
Imprisonment for 3 years each and fine of Rs. 500/- each, in default
Simple Imprisonment for another 15 days for the offence under sections
366/149 of the IPC and Rigorous Imprisonment for 1 year each for
offence under section 148 of the IPC, Simple Imprisonment for 1 year for
offence under section 147 of the IPC and Simple Imprisonment for 1
months for offence under Sections 448/149 of IPC. The appellant Nos. 1,
5 and 6 were further sentenced to undergo Simple Imprisonment for 3
years each and a fine of Rs. 500/- each in default Simple Imprisonment
for 15 days for committing offence under Sections 380/34 of IPC.
3. THE FACTUAL BACKGROUND:
A. The prosecution case in a nutshell is that one complaint
petition had been lodged by complainant Rahima Khatoon before the
learned S.D.J.M. Hojai, Sankardev Nagar alleging that on 19.11.2002
at about 02:00 A.M. accused persons namely Rafiqul, Habibur
Rahman, Rustam Ali, Abdul Matalib, Rahul Uddin, Idrish Ali and
Siddiqur Rahman @ Abu Bakkar Siddique on being armed with dao
and lathi forcibly entered into her house by breaking the door of the
house and thereafter assaulting her, kidnapped her minor daughter
aged 11 years and also looted Rs. 5,070/- by breaking the box
where it was kept. It was further alleged that though she lodged one
ejahar on 20.11.2002 at Nakhuti O.P., the police did not take any
action. It was alleged that the accused Rafiqul raped the girl for one
month by wrongfully confining her, under the advice of the other
accused persons. It was alleged further that while she went to bring
the girl back the accused persons threatened her with dire
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consequence and on 27.12.2002, the accused persons chased the
girl from the house by assaulting her.
B. In pursuance of the complaint petition, the learned S.D.J.M,
to whose court the complaint was transferred recorded the
statement of the complainant under section 200 of Cr.P.C. and also
of the witnesses. After recording the statement of the complainant
and the witnesses, the learned Court on being satisfied that there is
material under sections 448/380/427/366-A/376/342 of IPC against
the accused issued process against the accused persons namely
Rafiqul Islam, Habibur Rahman, Rustam Ali,, Abdul Matalib, Rahul
Uddin, Idrish Ali and Siddiqur Rahman @ Abu Bakkar Siddique. Case
against accused Rafiqul Islam was filed on the strength of P/A. The
learned Magistrate after appearance of the rest of the accused
person and after furnishing them copy to them committed the case
to the learned Court of Sessions.
C. Thereafter, the learned Court of Sessions framed charges
under sections 147/148/448/366-A/380/506/149 of IPC and read
over to the accused persons to which the accused persons pleaded
not guilty and claimed to be tried.
D. To bring home the charge, the prosecution had examined as
many as 7 witnesses including the victim and the informant. The
defence did not adduce any evidence.
4. SUBMISSIONS MADE ON BEHALF OF THE APPELLANTS:
The learned counsel for the appellants argues the followings:
I. The deposition of PW1 and PW6 are having serious
contradictions and inconsistencies in their deposition and therefore
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the learned trial court could not have convicted the appellants on the
basis of such evidence.
II. The PW1 and PW6 are interested witnesses and the evidences
of other witnesses are hearsay evidences and there are also many
contradictions amongst the witnesses as regards the mode and
manner of commission of the offence.
III. The evidence of PW 1 is not at all trustworthy inasmuch as she
deposed that she became unconscious due to injury sustained by
her and she could not identify the appellants on dark night of the
incident. There is no medical evidence to sustain any such
deposition.
IV. There is no evidence of any overt act attributable to the
appellants and there is also no evidence to show the presence of the
appellants at the place of occurrence, the learned court below
committed grave error of law in holding the appellants guilty.
V. It is also contended that the incident took place on
19.11.2002 and the CR case was filed on 31.12.2002. Therefore,
there is substantial delay in lodging the FIR and there is no
explanation as regards such delay. Therefore, on this count alone,
the appellants could not have been convicted.
VI. Though there are allegation of injury upon both the PW1 and
PW6, however, there were no medical evidence to suggest any injury
inasmuch as admittedly the victims were not medically examined.
Thus, the same had created a dent on the prosecution story and
therefore the appellants are liable to be granted benefits of doubt.
5. SUBMISSIONS MADE ON BEHALF OF THE STATE:
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Mr. D Das, learned Additional Public Prosecutor, Assam while defending the
judgment impugned in the present appeal contends the followings:
I. No error could be said to have been committed by the learned
court below in holding the appellants/ convict guilty of the offence
with which they were charged.
II. The strong motive of the appellant/ convict to commit the crime
has been established beyond reasonable doubt through the evidence
of PW1 and PW6. The evidence as regards the commission of the
offence of kidnapping has been reaffirmed during the cross-
examination.
III. There cannot be any reason to discard the oral evidence of PW2,
PW3, PW4 and PW5 who are the neighbour and reached the place of
occurrence after the incident of kidnapping and they corroborated
the factum of state of mind of the PW1 at that point of time.
IV. The delay has duly been explained in the statement made in the
complaint case as well as during the evidence. Therefore such delay
shall not be fatal in the given facts of the present case. Accordingly,
the learned Additional Public Prosecutor prayed that there being no
merit in the present appeal, the same be dismissed and the sentence
awarded may be upheld.
6. The learned Amicus Curiae submits that the deposition of the
PW1 as regards the place of occurrence and the identification of the
accused by her has remained unshaken. Her state of mind and the
ransacking of house was also corroborated by PW2, PW3, PW4 and PW5.
However, the evidence of PW6 creates a doubt whether it was an act of
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kidnapping or not. Mr. Talukdar, learned counsel further submits that it
cannot also be said that delay was properly explained. It cannot also be
said that the victim is unaware of legal proceeding. According to the PW1,
though they went to the police station to lodge an FIR, such FIR was not
registered, however, the complaint case was also filed before the learned
Magistrate after more than a month. Only reason explained for such delay
is the re-appearance of the victim girl. Further, the concerned police officer
denied that any FIR was lodged.
7. Before dealing with the arguments advanced by the learned
counsel for the parties, let this court first look into the depositions and
testimonies of the witnesses.
I. PW-1 Rahima Khatoon was the informant and
mother of the victim. It was testified by her that on the night of
occurrence at about 02:00 A.M. the accused persons breaking
open the wooden door of her house entered into her house and
assaulted her by means of lathi, kick and looted Rs. 5070/- from a
wooden box. It was further alleged that the accused persons also
kidnapped her minor daughter aged 11 years. It was divulged that
she could identify the accused persons in the light of the torch
brought by them and also identified them as she could know them
from their voices. According to this witness accused Rafiqul,
Habibur Rahman, Siddique and Idrish Ali entered into her house
and the other 3 accused persons namely Rustam Ali, Abdul Matalib
and Rahul Amin were standing at the door step of her house.
Later on she stated that Rustam was in his own house. It was
revealed by her that, while she raised hue and cry her neighbor
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PW-8 came and at that moment she lost her sense. While she
regained her sense, she found PW-3, PW-2 and PW-5 etc. at her
house and she informed about the occurrence to the said persons.
It was disclosed by her that she visited the house of accused
Rustam Ali and requested him to return back the girl but Rustam
abused her in filthy languages and chased her. Getting no other
alternative she lodged ejahar at Nakhuti O.P., but no case was
registered by the P.S. It was disclosed by her that she along with
her brother Abdul Rahman visited the house of Rustam at Nakhuti
Sarkay Basti and her daughter informing her that she was
assaulted by accused Rustam, Rafiqul etc., thereafter, she left the
house of Rustam and came back with her daughter. It was
divulged by her further that after one month, her daughter was
found and while she enquired Dilwara about the occurrence
Dilwara revealed before her that Rafiqul, Habibur kept her one
night in the jungle and Rafiqul raped her and that on the next day
she was brought to the house of Rafiqul, there he raped her and
that on the next day she was brought to Rafiqul's uncle house at
Nagaon and kept there for one month and then Rafiqul brought
her to his own house at Nakhuti Sarkey Basti. On the next day she
went to Sankardev Nagar Court along with the victim Dilwar and
lodged the case.
During cross-examination, she deposed that Rustam Ali was also
present with Rafiqul at the time of occurrence and on the next day
he was in his own house and that through mistake she in
examination in chief stated that Rustam did not accompany the
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accused. She admitted that after 10/12 days after the occurrence
she left her village and went to her brother's house at Kaliabor
and thereafter about one month back again went to Circle Basti
along with her brother Abdul Rahman. It was revealed by her that
her daughter returned back with her. It was revealed by her
during cross that her daughter was a student of Class III at the
time of occurrence. It was admitted by her that though she lodged
the case on 31.12.2002 but the occurrence happened on
19.11.2002 and she did not mention in the complaint petition
regarding delay in lodging the case. She reiterated that
immediately after the occurrence she lodged ejahar at Nakhuti P.S.
It was admitted by her that the accused persons also lodged
ejahar at Nakhuti P.S. It was admitted by her that the accused
persons also lodged one police case against them. It was denied
by her that the victim herself went along with absconder accused
Rafiqul and that she herself got married with Rafiqul as per her
own will. It was denied by her that the victim herself eloped with
the accused Rafiqul due to her love affairs with Rafiqul. It was
denied by her that she forced the accused persons to mutate land
in the name of the victim and as they refused to do so, so out of
grudge lodged the case.
II. PW-2 Siddique Ali deposed that about 6/7 years ago
one night while he was sleeping at about 02:00 A.M., hearing
noise, rushed towards the house of PW-1 and found that PW-1
was in unconscious state in her house. He also noticed that
wearing apparel of PW-1 was also in torned condition and that the
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door of the house and box of the house was in broken condition.
When PW-1 regained sense, she divulged before him that
Rustam's son Idrish, Rafiqul and Bahibur, Siddique by breaking
open the door looted Rs. 5070/- and also kidnapped her daughter.
He disclosed that he also met PW-3, PW-4, PW-7 and some other
persons at the place of occurrence. It was testified by this witness
that getting information about the occurrence he along with some
other persons of the village and informant PW-1, went to the
house of accused Rustam on the next date and while they
enquired about the victim, accused Rustam abused them.
Thereafter PW-1 left the village and resided in the house of her
brother at Kaliabor. After elapse of 1 month, PW-1 found the
victim in the house of Rustam and the victim returned back along
with her mother. It was revealed by him that on enquiry, the
victim divulged before them that accused Rafiqul, Habibur,
Siddique and Idrish facibly kidnapped her.
During cross-examination, he deposed that his house is just
adjacent to the boundary of the house of the accused persons and
that he had terms with the accused persons. It was also revealed
that complainant's house was also adjacent to his house. It was
denied by him that Dilwara had love affairs with Rafiqul and she
herself eloped with the accused at the day time. It was admitted
by him that though Rustam's house was just adjacent yet, they did
not visit the house of Rustam in search of victim on that very
night. It was denied by him that he did not state before the
Magistrate about witnessing PW-1's cloths in torn condition. It was
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denied by him that he did not state before the Magistrate
regarding recovery of Dilwara about one month back by her
mother at Rustam's house. This witness showed ignorance about
the fact, if marriage was performed between the victim and
accused at Bhuragaon, Morigaon, at the house of Rafiqul's uncle.
It was denied by him that in the statement before Magistrate, he
did not disclose the name of Habibur.
III. PW-3 Abdul Goni who was the neighbor of PW-1,
deposed that about 7 years ago one night at about 02:00 A.M.
hearing the hue and cry of PW-1, he immediately rushed to the
house of PW-1 and on his arrival found that door of PW-1's house
was in broken condition and PW-1 was lying on the ground inside
her house. It was disclosed that the box of the house was also
found in broken condition. It was also disclosed that he called the
neighbours and sometimes later PW-2, PW-5 and PW-7 and some
other persons arrived at Rahima's house. It was divulged that PW-
2 poured water in the face of PW-1 and PW-1 regained sense. It
was disclosed that Rahima informed that Rustam Ali, Idrish Ali,
Siddique, Habibur Rahman and Rafiqul, forcibly kidnapped her
daughter and also looted Rs. 5070/- from the box. It was
disclosed that he along with some persons searched the victim but
could not trace out her. It was also disclosed that in the morning
he witness, PW-2, Rahim and some others went to the house of
Rustam Ali and enquired about the matter but he replied that he
had no knowledge about the occurrence. Thereafter PW-1 lodged
ejahar at P.S. It was divulged that in spite of vigorous search the
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victim could not be traced out, so PW-1 went to the house of her
brother at Kaliabor. It was disclosed that after a month, Rafiqul
brought the victim to the house of his father Rustam Ali. It was
disclosed further that during that period PW-1 also came back to
her village and noticed her daughter in the house of Rustam Ali
and the victim Dilwara came back to her mother's house and both
of them returned back to Kaliabor.
During cross-examination, he deposed that his house was just
adjacent to the house of the PW-1. It was revealed that he had no
relationship with accused, PW-1. According to him, he had no
quarrel with the accused Rustam and suggestion forwarded by
defence side that due to quarrel with accused Rustam he had
deposed falsely is straightway denied by this witness. He admitted
that he never heard earlier that accused Motalib was also involved
in the case. It was denied by him that he did not disclose before
Magistrate that one month later Rafiqul brought the victim to the
house of Rustam and that later the victim returned back to the
house of her mother.
IV. PW-4 Intaj Ali, during his examination-in-chief
deposed that on the night of occurrence at about 02:00 AM, he
hearing the noise from PW-1's house rushed to the house of
Rahima and found Rahima lying in unconscious state and that
witness PW-3 and PW-2 were pouring water in the face of Rahima
after which she regained sense. It was disclosed that while
Siddique, Goni etc. enquired Rahima then Rahima informed that
Rustam Ali, Idrish Ali, Siddique, Habibur Rahman and Rafiqul,
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Raful and Motalib breaking the door of the house looted Rs.
5,070/- from the box and also kidnapped her daughter Dilwara.
During his cross-examination, he deposed that after reaching the
house of PW-1, he found her lying outside her house. He also
stated that iron kabza of the door was found in broken condition.
As his house was 150 nols away, so he could not hear any
screaming sound from the house of PW-1. He also deposed that
he had no personal knowledge about the occurrence.
V. PW-5 Abdul Hamid deposed in his evidence that on
the date of occurrence at 02:00 A.M., hearing the noise from the
house of PW-1, he went to the house of PW-1 and found that door
of PW-1's house was in broken condition and the box was also in
broken condition. It was disclosed that the daughter of PW-1 was
not found in the house. It is also disclosed that he witnessed PW-
1's wearing cloths in torn condition and while he enquired PW-1,
PW-1 informed that Rustam Ali, Idrish Ali, Siddique, Habibur
Rahman and Rafiqul entered into the house of PW-1 by breaking
the door and looted Rs. 5,070/- and also kidnapped her daughter
Dilwara. During cross-examination, he deposed that his house
was 100 nols away from the house of the PW-1. It was denied by
him that Rafiqul helped PW-1 in her cultivation. It was also
disclosed by him that while he came to the house of PW-1, he
found 15/16 persons at the place of occurrence.
VI. PW-6 is the victim. She disclosed that during her
statement disclosed that at the time of occurrence she and her
mother resided at Nakhuti Sarkay Basti. It was disclosed that her
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father already expired 4 months prior to the date of occurrence. It
was disclosed that she was sleeping with her mother on the night
of occurrence at their house at Sarkay Basti and at about 02:00
AM, by breaking the door of their house 7 persons entered into
the house and assaulted her mother and looted Rs. 5070/- from
the box. It was revealed that she could identify the persons who
entered into the room as Rafiqul, Habibur, Siddique and Idrish in
the light of the torch, which was lightened by the accused
persons. According to her accused Rafiqul gagged her mouth with
his hand and taking her into his lap brought her to the jungle and
at that time Habibur, Siddique and Idrish were also along with
them. It was disclosed by her that at the time of incident, accused
Rustam, Rahul and Motalib were present outside their house and
she also met them in the jungle. It was revealed that from the
jungle, except Rafiqul and Habibur, all the other accused left the
place and accused Rafiqul caused forcible sexual intercourse with
her inspite of restraint made by her. It was disclosed that in the
next morning she was brought to the Rafiqul's uncle house and in
the said house she was kept confined for about one month and
the accused also used threat. Allegation was also brought that
Rafiqul also assaulted her. It was revealed by her that after some
days, one day she noticed her mother and immediately left the
house of the accused and accompanied her mother to the house
of her maternal uncle at Kaliabor. It was also divulged by her that
she revealed before PW-3, PW-4, Idrish, PW-5 etc. regarding the
whole incident and also gave statement before Magistrate which
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she exhibited as Ext.2. She disclosed that her age was 11 years at
the time of occurrence and at that time she was reading at class-
III. During cross-examination, she deposed that the year of her
birth as 1991. It was revealed by her that at the time while she
was kidnapped, the lamp of the house was not burning and while
she was taken away there was fog. It was revealed that there was
torch light in the hand of Rafiqul. It was admitted by her that it
was dark outside on the date of occurrence and Rafiqul alone
carried a torch and he lighted the torch at some interval. It was
revealed by her that while she was brought to house of Rustam's
brother from the jungle, she was brought in a small motor vehicle
at about 12 noon and they got into the said vehicle from the
nearby road of the jungle. It was revealed that thereafter, they
arrived at Bhuragaon. It was admitted that at Bhuragaon there
were female members in the house, where she was kept and
Rafiqul's aunt served meal to her. It was revealed that except the
family members of Rafiqul's uncle house, she was not allowed to
meet any other persons and while she had to bath and to go to
latrine Rafiqul accompanied her. It was denied by her that at
Bhuragaon marriage was solemnized between Rafiqul and herself
and that Giasuddin was the Ukil of the marriage. It was revealed
by her that while she was brought to Sarkay Basti from
Bhuragaon, she was brought in a hired vehicle and at day time
she was brought to Rafiqul's house and though the neighbouring
persons like Siddique etc. saw her while she was brought to
Rafiqul's house, yet nothing was done by them and she also did
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not reveal anything to them. It was revealed by her that except
witness PW-5 the other witnesses PW-3 and PW-4 were not
related to her.
VII. PW-7 Faizur Rahman @ Faizul, during his
examination-in-chief deposed that on the date of occurrence at
about 02:00 AM, hearing noise he went to the house of PW-1 and
found that PW-1 was in a senseless condition and on enquiry PW-
1 revealed before her that Habibur Rahman, Rustam Ali, Abdul
Matalib, Rahul Uddin, Idrish Ali and Abu Bakkar Siddique
assaulting her, kidnapped her daughter Dilwara and also looted Rs.
5,070/- by breaking the box. It was revealed by him further that
he witnessed the door of PW-1's house in broken condition and
one wooden box of the house of PW-1 was found in broken
condition. It was divulged by her that while he and the village
people went to the house of Rustam, they did not find anybody in
the house. It was revealed that about one month later, PW-1
informed him that she noticed her daughter in the house of
Rustam and the victim was brought by her mother.
During cross-examination, he deposed that his house was ½ KM
away from PW-1's house. It was denied by him that he did not
state before the Magistrate regarding observing the door of PW-1
and the box inside the house in broken condition and regarding
looting of money amounting to Rs. 5,070/- and about the fact
stated by PW-1 that her daughter was found in the house of
Rustam and PW-1 brought her back.
8. As discussed hereinabove, from the evidence of PW1, it is
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gathered that the occurrence took place on the night of 19.11.2002 at
about 2 a.m. She could identify accused Rafiqul, Habibur Rahman, Siddik
and Idrish, who entered the house and accused Rustam Ali, Abdul Matlib
and Rahul Amin were standing at the door step of her house and later on
she stated that Rustam Ali was in her house. According to her, she visited
the house of accused Rustam Ali to bring back the girl. When she failed,
she went to lodge the ejahar at Nakhuti OP. Admittedly, she filed the FIR
one month after recovery of her daughter. She was conspicuously silent in
her evidence-in-chief when she recovered her daughter. In her evidence,
she even did not depose the date of occurrence. During her cross, she
deposed that after 10/12 days of the incident, she left the village, where
the incident took place to her brother's place at Kaliabor and after one
month, she again came back to the village, where the incident took place
and tried to visit the house of accused Rustam Ali and she saw her
daughter in the house of accused Rustam Ali. During cross, she also
deposed that her daughter voluntarily came back with her and then they
went to the house of her brother at Kaliabor and filed the case.
9. In view of the aforesaid testimonies, in the considered opinion of
this court, a doubt has been created as regards whether the incident was
an incident of kidnapping or it was a voluntary act on the part of the
victim. Such doubt further fortifies through the evidence of PW6 (the
victim). The victim, in her deposition, though stated that she was
forcefully taken by the accused initially to a jungle and there she was
raped by accused Rafiqul, her statement including her cross-examination,
if read as a whole, disclose that on the next morning of the date of
occurrence she was brought to the house of Rafiqul and was kept in that
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house for a month. According to her, after some days, she saw her mother
and immediately left the house of the accused and accompanied her
mother to the house of her maternal uncle at Kaliabor. She also stated
that she was brought to the house of accused Rustam's brother from
jungle in a small motor vehicle at about 12 noon. Thereafter, they reached
a place called Bhurgaon and at Bhurgaon there were female members in
the house where accused Rafiqul's aunt served milk to her. She also
deposed that she was brought Nakhuti Sarkay Basti from Bhurgaon in a
hired vehicle and it was a day time the neighbouring person like Siddik
(PW2) also saw her while she was brought to Rafiqul's house and she also
did not reveal anything to him.
10. In view of the aforesaid, a further doubt is created more
particularly for the reason that according to her own testimony she was
being moved from one place to another through public places in the day
time and in vehicles and finally she was brought to the residence of
Rafiqul, which is situated in the village where the alleged incident took
place. Therefore, aforesaid deposition has also created a doubt as regards
the factum of kidnapping.
11. Chapter XVI of IPC contains offences against human body. Section
366 is included in this chapter. Kidnapping / abduction simpliciter is
defined under Section 359 IPC. However, if kidnapping is done with an
intention of committing murder or for ransom or to induce/ seduce a
woman to marry or to have illicit intercourse, stringent punishments are
provided under Section 363 A to Section 369. Section 366 IPC stipulates
that whoever kidnaps/ abducts any woman with the intent that she may
be compelled or knowing that she will be compelled, to either get her
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married or forced / seduced to have illicit intercourse, they shall be
punished with imprisonment up to 10 years and fine.
12. From the text of the aforesaid Section, it is clear that to establish
commission of an offence under Section 366, the prosecution requires not
only to lead evidence to prove kidnapping simpliciter but also requires to
lead evidence to portrait the specific intention as mentioned hereinabove
of the kidnapper. Therefore, in order to constitute an offence under
Section 366 IPC besides proving the factum of the abduction, the
prosecution has to prove that said abduction was for one of the purposes
mentioned and as discussed hereinabove.
13. From the evidence as discussed hereinabove, a doubt has been
created whether the victim has voluntarily joined or voluntarily continued
to stay with the accused. Though she has stated that it was a forceful rape
and forceful kidnapping, in view of the facts disclosed during the cross-
examination, this court is unable to treat her evidence to be of sterling
quality and/or unimpeachable. Therefore, some corroboration should be
required which lacks in this case. There was no medical evidence as there
was no investigation by police, rather it was a complaint case. In fact the
complaint was lodged after more than one month from the alleged date of
the commission of the offence.
14. Thus, it was not proved beyond reasonable doubt that the
appellants had intentionally kidnapped PW6 to perform marriage. Thus,
from the overall assessment of the materials on record, this court is
having unhesitant conclusion that the evidence of PW1 and PW6 do not
inspire any confidence to convict the accused of the offence charged.
15. The law is well settled that it is the duty of the prosecution to
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establish the charge against the accused beyond reasonable doubt and
that the benefit of doubt must always go in favour of the accused. It is
true that in an offence against woman more particularly sexual offence a
person can be convicted on the basis of sole testimony of the victim
provided it is of unimpeachable quality and deposition is truthful.
16. By now it is well settled that the evidence of a prosecutrix in a case of
rape is of the same value as that of an injured witness. It is also equally well
settled that conviction can be made on the basis of the sole testimony of the
prosecutrix. However, when a conviction is based on sole testimony of the
prosecutrix, the Court are to be extremely careful in examining the testimony.
(Ref: Manakchand @ Moni Vs State of Haryana reported in 2023 SCC
Online SC 1397).
17. It is not enough for the court that the accused is named by victim
in the commission of the offence in her statement but such evidence must
create a confidence upon the court to be unimpeachable. The Hon'ble
Apex Court in the case of Sujit Biswas vs State of Assam reported in
(2013) 12 SCC 406 while dealing with the concept of proof beyond
reasonable doubt and suspicion, held that such suspicion, however grave
it may be, cannot take the place of proof. It was further held that in a
criminal case, the court has a duty to ensure that mere conjecture or
suspicion does not take the place of legal proof. Clear, cogent and
unimpeachable evidence is necessary before an accused is condemned as
a convict and the basic and golden rule of criminal jurisprudence must be
applied. However, in the case in hand, the learned trial court convicted the
accused persons in ignorance of the settled proposition of law and ignored
the material contradiction in the evidence of the PW1 and PW6.
18. The evidence of PW2, PW3, PW4, PW5 and PW7 are the evidence
Page No.# 21/22
in the nature of res gestae inasmuch as they were not eye witnesses to
the incident and they reached the place of occurrence after the alleged
incident took place. Therefore, in view of the nature of evidence of PW1
and PW6, evidences of PW2, PW3, PW4, PW5 and PW7 lost its force.
19. Yet another aspect of the matter is that since there was no police
investigation, the complaint was lodged long after the date of incident,
there was no medical examination of the victim immediately after the date
of occurrence, no material evidences were collected from the place of
occurrence and the conviction was imposed on the basis of a private
complaint. Such factum has also dented the case of the prosecution
inasmuch as material evidences were not available before the court.
20. In the present case, this court has noticed that the incident took
place on 19.11.2002 at about 2 a.m. and the complaint was admittedly
filed on 31.12.2002. In between the victim (PW6) was in the company of
accused Rafiqul and she was travelling from one place to another and was
present in public places. Though crime was stated to be reported to the
police and was alleged that the police refused to register the FIR, no
complaint case was filed immediately and as finally the complaint case
was filed, it cannot also be presumed said that the PW1 is unaware of
such right of filing a case before the Magistrate in the event the FIR is not
registered by the police. Upon considering the aforesaid circumstances,
belated filing of the private complaint would bear relevance. If we look
into the statement of PW1 (the complainant) and the explanation given for
delay in the touchstone of factum of the present case, is not worthy of
acceptance inasmuch as it is her statement that in between she saw her
daughter (PW6) in the residence of accused Rafiqul and the PW6 also
Page No.# 22/22
deposed that while she saw her mother i.e. PW1, she came with her
mother. Thus, explanation given for filing the complaint after more than
one month in the light of the evidence of PW1 and PW6, does not appear
to this court to be reliable and acceptable.
21. Accordingly, in view of the discussion, reason and determination
made hereinabove, this court is of the unhesitant view that the appellants
are entitled for benefit of doubt and accordingly they are acquitted from
the charges granting them benefits of doubt. Accordingly, the impugned
judgement 29.11.2010 passed by the learned Additional Sessions Judge
(FTC), Nagaon in Sessions Case No. 154(N)/2006 is set aside and quashed
so far same relates to the present appellants.
JUDGE
Comparing Assistant
