Samaru Bhuyan vs State Of Assam

This appeal, under Section 374(2) of the Cr.P.C., is preferred against the judgment and order, dated 3.9.2010, passed by learned Sessions Judge,

Dibrugarh, in Sessions Case No. 98/2008, convicting and sentencing the accused-appellant, under Section 363 of the IPC, to undergo rigorous

imprisonment for 2 years and to pay a fine of Rs. 1,000/- and in default of payment of fine, rigorous imprisonment for 3 months.

The fact leading to the case is that, the victim, a girl of about 13 years of age, was kidnapped by the accused-appellant on 22.3.2008. The victim

could not be found out by the informant in spite of effort to that effect, and therefore, filed the FIR on 24.3.2008 with the Ghoramara Police Outpost,

and thereafter, on receipt of the FIR from the Ghoramara Police Outpost, the Lahowal Police Station, registered a case, investigated into it, collected

evidence, and finally, submitted charge-sheet against the accused-appellant under Section 366 of the Cr.PC.

After exhausting all the required legal formalities, the learned trial court, framed a formal charge against the accused-appellant under Section 366 of

the IPC, to which he pleaded not guilty and claimed to be tried. Therefore, the trial commenced.

To bring home the charge against the accused-appellant, the prosecution examined as many as 6 (six) witnesses including the Investigating Police

Officer and the Medical Officer.

The statement of the accused-appellant was recorded under Section 313 of the Cr.PC, and in his such statement he is heard denying the allegations

made against him. Defence did not adduce any evidence.

I have heard Mr. G.P. Bhowmik, learned senior counsel assisted by Mr. D. Kalita, learned counsel for the accused-appellant. Also heard Mr. B.J.

Dutta, learned Additional Public Prosecutor for the state respondent.

Now, let me scan the evidence on record.

PW5 is the doctor, who examined the victim. It has come out from his evidence that the age of the victim is between 14 to 16 years at the relevant

time of occurrence. That being so, if 2 years is added to her aforesaid age, yet she is within 18 years, and as such, a minor.

Now, let us find out whether there is any evidence to establish that this minor victim girl was kidnapped by the accused-appellant. The victim,

examined as PW1, deposed in her statement, recorded under Section 164 Cr.PC by the learned Magistrate, that she eloped with the accused-

appellant. The statement, under Section 164 of the Cr.PC, made by the victim, has been exhibited as Ext.1 by the prosecution. While admitting her

giving statement before the learned Magistrate, under Section 164 of the Cr.PC as well as her signature therein, she has disposed in her cross-

examination that she did not state that she had eloped with the accused-appellant in her such statement rather she deposed that she was forcibly taken

by the accused-appellant. The defence could not discredit her such evidence, during the cross-examination, to the effect that she was not taken

forcibly out of the possession of her lawful guardian by the accused-appellant. The mere suggestion that what she stated is not a fact cannot by itself

discredit the evidence of the victim/PW1 on the issue of taking her forcibly away from her lawful guardian by the accused-appellant.

PW2 is the informant and the father of the victim, lodged the FIR, vide Ext.2. According to his evidence, the accused-appellant and the victim

were found together in the house of their relatives after about 7/8 days from the date of occurrence. He has not state anything as to whether the

accused-appellant had kidnapped her or not. The evidence of other witnesses are not found implicating the accused-appellant.

The fact remains, and nowhere disputed that also, the accused-appellant and the victim were found together in the house of their relatives after

about 7/8 days. The victim is a minor as appears from the materials on record. The learned counsel for the appellant has submitted that in her

statement under Section 164 of the Cr.PC, she said to be 16 years of age. Such submission of the learned senior counsel for the appellant also shows

that victim was a minor at the time of occurrence.

The doctor’s evidence and the evidence of the victim in her statement under Section 164 of the Cr.PC, if taken together, then also, the victim

is a minor. When the victim has alleged in her evidence that she was forcibly taken by the accused-appellant and they were found together, there

cannot be an issue that it was none but the accused-appellant who had taken her away from her lawful guardian. That being so, the decision of the

learned trial court, recording conviction of the accused-appellant, appears to be correct on the basis of the evidence on record.

So far the sentence imposed upon the accused-appellant is concerned, he is sentenced to rigorous imprisonment for 2 years and to pay a fine of

Rs. 1,000/- with a default clause. The evidence on record makes it appear that both the accused-appellant and the victim were in love although the

victim did not attain the age of consent. The victim was found unhurt and unharmed after about 7/8 days kidnapping her. Therefore, considering such

background facts of the case, this court is of the view that the substantive punishment of the accused-appellant, if reduced to the period already

undergone during investigation and trial, would meet the ends of justice.

So far the fine amount and default clause for non-payment of fine is concerned, no interference by this court.

Accordingly, the substantive sentence is reduced to period already undergone by the accused-appellant.

Accordingly, the appeal is partly allowed.

The accused-appellant is directed to surrender before the learned trial court within 1 (one) month to serve out the sentence of fine or the default

clause therefor.

Send down the LCR along with a copy of this judgment.