Page No.# 1/11 GAHC010006082014 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./61/2014 PULEN DEKA, S/O SRI MANESWAR DEKA, R/O GANGAPUR VILL., KUMARIKATA, P.S.MUKALMUA, DIST. NALBARI, ASSAM. VERSUS THE STATE OF ASSAM and ANR 2:AKAN CH. HAZARIKA S/O LT. PURANI CH. HAZARIKA R/O JAYNAGAR P.O. KHARGHULI P.S LATASIL GHY- Advocate for the Petitioner : MR.R ISLAM, MR.P J SAIKIA,MS.A HUSSAIN Advocate for the Respondent : , ,PP, ASSAM BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : 15-10-2025 Heard Mr. R. Islam, learned counsel for the petitioner. Also heard Mr. M.P. Goswami, Page No.# 2/11 learned Addl. P.P. Assam appearing for the State. 2. The present appeal has been instituted assailing the judgment dated 27-08-2013 passed by the learned Sessions Judge, Kamrup at Guwahati in Sessions Case No. 318(K)/2012 convicting the appellant, herein, under Section 365 IPC and sentenced him to undergo rigorous imprisonment for 01 (one) year and also to pay a fine of Rs. 5000/-, in default to suffer rigorous imprisonment for another period of 03 (three) months. 3. The prosecution case, in brief, is that on 07-02-2009, one Akan Hazarika lodged an FIR alleging that on 07-02-2009, his daughter was kidnapped by the appellant, herein, from the road while she was going to attend her tuition classes. On receipt of the said FIR, police had registered a case being Latasil P.S. Case No. 15/2019 under Section 366 IPC against the appellant, herein. On conclusion of the investigation, the police laid charge-sheet against the present appellant under Section 366 IPC. The learned Trial Court on consideration of the materials, framed charge under Section 366 IPC against the appellant, herein. The charge being read over and explained and the appellant having pleaded not guilty and claimed to be tried, a trial ensued in the matter. The prosecution during the trial had examined 08 (eight) witnesses and thereafter, the appellant, herein, was examined under Section 313 Cr.P.C. The appellant during his examination under Section 313 Cr.P.C. had stated that the victim girl who was in love with him and she had eloped with him on the date of occurrence according to her freewill and thereafter, they lived together at his native home. It was also stated that the victim girl was a major at the time of the alleged occurrence. On conclusion of the trial, the learned Trial Court upon appreciation of the evidences Page No.# 3/11 coming on record was pleased vide judgment dated 27-08-2013 to convict the appellant, herein, under Section 365 IPC and sentenced him as noticed hereinabove. Being aggrieved, the appellant has instituted the present appeal. 4. I have heard the learned counsel for the parties and also perused the materials available on record. The learned Trial Court upon considering the evidences coming on record had drawn the following conclusions :- “The circumstance emanating from the evidence of victim Babita makes it known that the way in which the she was forcibly taken away by the accused after smashing her mobile phone on the road [apparently to cut off the communication of the victim], then subjecting her to physical assault and thereafter, forcibly taking her away in an auto-rickshaw to his native home, appears to have put the victim girl in a extremely frightening situation in which she might not have dare to raise any protest during her journey from Guwahati to the native village of the accused. In this regard, it is also to be noted that according to the testimony of Babita, during her stay in the residence of accused, no person came to visit their house and therefore, she could not report the incident to anybody. It is also to be kept in mind that simply because the victim did not raise any protest, it cannot be automatically presumed that the she was a willing partner. The next important question that arises for determination is as to whether the accused abducted the victim with intent that she might be compelled to marry him against her will or forced to illicit intercourse. In this connection, on a careful scrutiny of the evidence on record, it is found that none of the prosecution witnesses, including the victim girl, has said any thing that the accused kidnapped her with intent that she might be compelled to marry him against her will or forced to illicit intercourse. Though, in her statement before the Judicial Magistrate recorded U/S 164 of Cr.P.C., the victim girl alleged that after her abduction, she was forcibly married with the accused and that the accused also had sexual relationship with her against her will, she has not made any whisper about these accusations in her testimony before Court. However, the evidence on record has established beyond all reasonable doubt that after her abduction, she was confined for three days in the house of the accused till her recovery by police. Under the state of affairs narrated above, accused Pulen Deka is found to have committed the Page No.# 4/11 offence punishable under Section 365 of the Indian Penal Code and he is accordingly convicted for the said offence.” 5. Having perused the submission made by the learned counsel for the parties and also the conclusions drawn by the learned Trial Court in the matter, this Court would notice the deposition of the witnesses PW-1 Akan Chandra Hazarika, the father of the victim girl who had deposed that the victim girl at the time of the occurrence was around 18 years of age. He further deposed that his daughter had gone to attend tutorial classes at Malibagan, Kharghuli and having not returned upto 07:00 p.m., he had proceeded to search for her and thereafter lodged the FIR in the matter. He further deposed that after lodging of the FIR, the police had recovered his daughter and the accused from the house of the accused situated at village Bogorihati under Mukalmua Police Station and the girl was thereafter handed over in his custody. He further deposed that on being asked, his daughter had reported to him that while she was going to attend tuition, she was forcefully taken away by the accused in the auto rickshaw and the accused had also broken her mobile phone into pieces. During his cross, the PW-1 had deposed that the appellant, herein, had worked as a driver in his house and prior to the occurrence of the incident he was driving his vehicle. He further deposed that he had not seen the occurrence of the offence with his own eyes. He denied the suggestion that his daughter was having a love affair with the accused and the she had voluntarily eloped with him. 6. PW-2 Runuma Hazarika is the mother of the victim girl. She deposed that the appellant, herein, used to drive their vehicle. She also deposed that her daughter had gone to attend tuition classes at Malibagan at Kharghuli and she having not returned till Page No.# 5/11 around 07:00 p.m., they had searched for her. PW-2 also deposed that at the time of the commission of the offence, her daughter was around 17 years of age. She also deposed that the police had recovered her daughter and the accused from the residence of the accused and her daughter was handed over to them. She further deposed that on being asked her daughter had reported that while she was going to tuition she was forcefully taken away by the accused in an auto rickshaw and the accused also broken her mobile phone. During her cross-examination, she had deposed that the age of the victim girl was not above 18 years of age at the time of the incident. She further deposed of having known the accused for a period of 06 (six) months prior to the commission of the said offence by him. She also deposed that the appellant, herein, used to take her daughter to school sometime by their vehicle. She further deposed that she had not seen the commission of the offence and had denied that the accused had love affair with her daughter and that her daughter had gone voluntarily with the appellant, herein, out of love and affection. 7. PW-3 Moni Begum a friend of the accused, during her deposition, stated that while she and the victim girl were studying at the school, they used to take tuitions at Malibagan. She stated that at about 03 (three) years ago while she, the victim girl and one Riajul Ali were going on foot, to attend tuitions at about 03:30 p.m., at Kharghuli, the appellant, herein, suddenly appeared and forcefully put the victim girl in an auto rickshaw and took her to some unknown destination. She also deposed that before boarding the victim girl into the auto rickshaw, the appellant, herein, had broken her Page No.# 6/11 mobile handset and threw it into a nearby drain. PW-3 further deposed that thereafter, she and Riajul without loss of time went to tuition and attended their tutorial classes and after return from tuition they had informed the matter to the parents of the victim girl. During her cross, she deposed of having known the appellant, herein, before the occurrence of the incident, as he was working as a driver in the house of the victim girl. She denied knowledge of about love affair between the appellant and the victim girl. She further deposed that the police had not recorded her statement. 8. Riajur Rahman, PW-4 another friend of the victim girl, deposed that he along with the victim girl and one Sajida Begum were proceeding on foot to attend their tuition classes at Sivaram Bora Path at Kharghuli. He deposed that at the relevant point of time, the appellant, herein, appeared at the spot and tried to accost the victim girl on the road. Thereafter, he deposed that the accused/ appellant had snatched the mobile phone of the victim girl and smashed the phone by throwing it into the ground. He further deposed that the appellant slapped the victim girl several times and thereafter, forcefully took her away in an auto rickshaw and left the place. He deposed that he had informed about the incident to their tuition master who had informed them to inform their family members of the victim girl and accordingly, he deposed that after completion of their tuition, they informed the family members of the victim girl about the whole incident. During the cross, he deposed of having known the accused only from the date of occurrence of the incident and that he was not known to him earlier. He denied the suggestion that the accused had not taken the victim girl away forcefully in an auto rickshaw as alleged. He also denied the suggestion that the victim girl voluntarily Page No.# 7/11 proceeded with the appellant as she was in love with him. 9. The victim girl had deposed during the trial as PW-5, during her deposition, she deposed that she knew the appellant as he was engaged as a driver in her house. She further deposed that about 03 (three) years ago she along with Jintu Ali and Sajida Begum were proceeding to attend their tuition classes at Kharghuli. She further deposed that at the relevant point of time, the accused accosted her and tried to start a conversation, but as she did not pay any attention to the appellant, herein, the appellant had suddenly snatched away her mobile phone from her hand and threw it on the road. She deposed that the appellant had thereafter assaulted her and forcibly boarded her in an auto rickshaw and had taken her away to his native village at Kumarikata. She further deposed that she was confined in the house of the appellant, herein, for 03 (three) days and thereafter, was rescued by the police. During her cross-examination she deposed that she knew the accused for 5/6 months prior to the date of occurrence of the incident as he was employed as a driver in their house. She further deposed that on the date of the incident she was made to travel in the auto rickshaw for about 04 (four) hours from Guwahati to the native village of the appellant, herein. She further deposed that during the relevant point of time the vehicle did not stop on the road even for a minute. She denied of having gone with the appellant, herein, voluntarily and had deposed that she was forcefully kidnapped by the appellant. She denied the knowledge about her actual age at the time of the commission of the offence. She further deposed that during her stay in the house of the appellant, no person having come to visit the house, she could not report the incident to anybody. She also deposed that she had informed her mother Page No.# 8/11 that the accused had kidnapped her against her will and also denied that she was in love with the appellant and had, therefore, remained silent during her journey with the appellant from Guwahati to Kumarikata. 10. PW-6, ASI Amulya Deka is the Investigating Officer (I/O), PW-6 had deposed that he had carried out the investigation on being entrusted with the same by the Officer-in- Charge of the Latasil Police Station. He deposed that on getting information of the victim girl being confined in the house of the appellant, herein, situated at Kalakuchi village at Nalbari district, he visited the place and recovered both the accused and the victim girl there-from. He further deposed that he had thereafter, send the victim girl for medical examination and also recorded the statement under Section 164 IPC. He deposed of having arrested the accused and forwarded him to judicial custody. He further deposed that on completion of the investigation, he handed over the case diary to the Officer-in- Charge of the Latasil Police Station. During his cross-examination, he deposed that PW-4 had stated before him about the incident of having taken place when he was returning from his tuition classes. 11. PW-7 Haren Saikia deposed that on 13-03-2009 he was working as the Officer-in- Charge of the Latasil Police Station and having received the Case Diary from PW-6, he had submitted charge-sheet against the appellant, herein. 12. PW-8, Dr. Rituraj Chaliha deposed that on 13-02-2009 medical examination was carried out of the victim girl on a requisition by the police and that the examination was carried out by Dr. Nitu Kumar Gogoi a PG Trainee on duty in the department of Forensic Medicine at the GMCH under the supervision of Dr. Dipak Kumar Das, Demonstrator. He Page No.# 9/11 exhibited the medical report in the matter. PW-8 deposed that the victim girl was above 18 years but below 20 years at the time of medical examination. The accused, herein, was thereafter examined under Section 313 Cr.P.C. During his examination, the appellant, herein, deposed that the victim girl had eloped with him and he had not kidnapped her. He further deposed that the victim girl had eloped with him as per her own volition and he had not broken down her mobile phone. He admitted that he had worked as driver in the residence of the informant. He denied the allegations levelled against him. He further stated that the victim girl willingly stayed at his native home till her recovery by the police and that she was never kept confined in the house against her will. He also deposed that as he and the victim girl were in love and the matter having come to the knowledge of the parents of the victim girl, the victim girl had called him and requested him to take her with him as she was afraid to face her parents. 13. A perusal of the evidences coming on record would go to reveal that on 07-02- 2009, it is alleged that the appellant, herein, had kidnapped the victim girl forcibly and had taken her on an auto rickshaw to an unknown destination in the presence of PW-3 and PW-4 and the same having been deposed by the PW-3 and PW-4 to have been so done after the appellant had also assaulted the victim girl, it is seen that in spite of the said incident occasioning, the PW-3 and PW-4 had not raised any hue & cry in the matter nor reported the said aspect of the matter to any adult person till completion of their tuition classes. The PW-3 and PW-4 had also deposed that they had after completion of their tuition classes reported about the incident to the family members of the victim girl. The PW-3 and PW-4 having not raised any hue and cry upon the purported kidnapping of Page No.# 10/11 the victim girl by the appellant, herein, gives rise to a doubt that they were in knowledge of the appellant the victim girl of being in love and accordingly had not raised any hue and cry on the appellant taking away the victim girl in his auto rickshaw. Further the deposition of the victim girl as PW-4 would bring to the forefront that the victim girl while travelling in the auto rickshaw from Guwahati to the native place of the appellant had not raised any hue and cry. Her deposition would also brings to the forefront that while residing in the house of the appellant, herein, for around 3 to 4 days she had not raised any hue and cry in the matter, which also brings to the forefront the possibility of the victim girl of having proceeded with the appellant, herein, out of her own volition and also having stayed in the house of the appellant on her own volition. The said alternative view as arising in the matter was not considered by the learned Trial Court while proceeding to convict the appellant, herein, under Section 365 IPC. The said aspect of the matter when considered in the light of the statements made by the appellant, herein, under Section 313 Cr.P.C. of he being in love with victim girl and that she had proceeded with him in his auto rickshaw and had also stayed in his house out of her own volition, a doubt arises in the matter with regard to the commission of the offence by the appellant, herein. The said doubt having not been clarified by the prosecution, the benefit, thereof, has to be extended to the appellant, herein. The said aspect of the matter was not properly appreciated by the learned Trial Court in its judgment and order dated 27-08-2013. 14. In view of the above position, this Court is of the considered view that a doubt having arisen in the matter with regard to the manner in which the victim girl had proceeded with the appellant, herein, on 07-02-2009, the same must be answered in Page No.# 11/11 favour of the appellant, herein. Accordingly, in view of the above discussions, this Court is of the considered view that the conviction of the appellant under Section 365 IPC by the learned Trial Court would not be maintainable and he is required to be acquitted there- from, by extending the benefit of doubt as arising with regard to the manner in which the victim girl had proceeded with the appellant in the auto rickshaw and had stayed in his house for 3/4 days before being recovered by the police. 15. In view of the above position, the accused, herein, is extended with the benefit of doubt and acquitted of the charge levelled against him under Section 365 IPC. Accordingly, the present appeal stands allowed and the impugned judgment dated 27-08- 2013 stands set aside. 16. The bail bond of the petitioner, stands discharged. 17. Registry to send back the TCR along with a copy of this order for information and doing the needful. JUDGE Comparing Assistant