THE (HIGH COURT OF ; ; ; ; ; AND )

CRL.APPEAL No. 132/2004

Shri Neelakanta Roy …………Appellant

-Vs.-

State of Assam

…………Respondent

BEFORE HON’BLE DR.(MRS) JUSTICE INDIRA SHAH

For the Appellant : Mr.S.C.Biswas

For the Respondent : Mr.D.Das, Addl.Public Prosecutor, Assam. Date of Hearing & Judgment : 28.5.2012

JUDGMENT & ORDER(ORAL)

Heard Mr.S.C.Biswas, learned counsel for the appellant and Mr.D.Das, learned Addl.P.P. appearing on behalf of the State respondent.

2. The conviction and sentence of the appellant under Section 366 IPC imposed by learned Sessions Judge, Sonitpur at Tezpur by his judgment dated 31.3.2004 in Sessions Case No. 153/02 has been challenged in this Criminal Appeal.

3. The facts in brief, as projected by the prosecution, are that P.W.1 Promode Deka , lodged an FIR with Tezpur Police Station on 3.10.2003 alleging that his daughter, aged about 16 years, was missing from the 2

evening of 3.10.2003. She went to her school but she did not return. It was alleged that the appellant kidnapped his daughter. On the basis of the FIR police registered a case under Section 366 IPC and took up the investigation. During the investigation the father of the victim and P.W. 5 Padum Boruah went to Kawaimari where from she was recovered alongwith the accused. However, the accused managed to escape. On completion of investigation police submitted the charge-sheet against the accused under Section 366 IPC.

4. The accused pleaded not guilty to the charge framed against him under Section 366 IPC and claimed to be tried.

5. During the trial, prosecution examined as many as 7 witnesses including the doctor , PW 4 and the investigating officer PW 7.

6. On appreciation of the evidence on record and upon hearing the learned counsel for the parties, the learned Sessions Judge convicted the appellant under Section 366 IPC and sentenced him to undergo R.I. for 3 years and also to pay a fine of Rs. 500/- in default to undergo R.I. for another one month. The learned Judge, in arriving at the finding aforesaid, basically relied on the evidence of doctor, P.W.1, the father, P.W.2 mother, P.W.5.

7. As per medical evidence, as deposed by PW 4, the doctor according to radiological, pathological and clinical report of the victim, the age of the victim was below 18 years, though the doctor admitted that the variation of age might be two years on either side.

8. From the clear scrutiny of the deposition of the witnesses, it appears that when the victim was taken in the vehicle, she did not resist such action of the appellant. That apart, during her entire stay of one week with the accused, she herself admitted that she had the occasion to meet people but she did not raised any hue and cry. 3

9. The victim in her evidence stated that she came to her school alongwith her sister. The accused called her to the temple nearby and offered ‘Prasad’. After having ‘Prasad’ she lost her sense and then the accused took her in the vehicle. P.W 6 sister of the victim stated that she alongwith victim came to the school and they both entered into their respective classes. After school when she was looking for her sister she was informed by the class mates of the victim that the victim has left school as she had abdomenal pain. Thus, the evidence of victim is not corroborated by the evidence of PW of her own sister. It also appears from the evidence that the parents of the victim suspected that the victim has been taken away by the accused. They must be aware that the victim and accused had some intimacy.

10. In view of the evidence on record, the evidence of victim cannot be accepted as trustworthy and reliable. The victim was appearing to be willing party to go with the appellant on her own. It also appears that the victim was found to be below 18 years as per ossification test with the variation of two years of age on either side. Hence on the basis of such evidence, the impugned conviction of the appellant cannot be sustained.

11. In result the appeal is allowed. The impugned conviction and sentence of the appellant is hereby set aside. It is stated that the appellant has been on bail and as such, the bail bond so furnished by him stand discharged.

JUDGE

Pb/-