Date of hearing :

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1 1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) Sri Ajoy Das PRINCIPAL SEAT Crl. Appeal (J) No. 81/ Versus- State of Assam & Another.Appellant.Opposite Parties Advocate for the appellant: Ms. B. Sarma, Amicus Curiae Advocate for the Opposite Parties: Mr. P.S. Lahkar, Addl. Public Prosecutor, Assam. - B E F O R E HON BLE MR. JUSTICE PRASANTA KUMAR DEKA Date of hearing : Date of judgment & order : 24/07/2017 JUDGMENT & ORDER (CAV)

2 2 Heard Ms. B. Sarma, learned Amicus Curiae, appearing on behalf of the appellant and Mr. P.S. Lahkar, learned Additional Public Prosecutor, appearing for the State of Assam. 2] This appeal has been preferred from the jail by the accusedappellant Shri Ajoy Das, who was convicted and sentenced to undergo R.I for a period of 7 (seven) years and sentenced to pay fine of Rs. 2000/- (two thousand) only, in default R.I for 2 (two) months alongwith another accused Smti Rumi Bora in Sessions Case No. 343(N)/2010 under Sections 366/34 of the Indian Penal Code (in short, the IPC). 3] The case of the prosecution is that on , one Sri Sankar Roy lodged an ejahar in the Nagaon Police Station against three persons namely, Smti Rumi Bora, Sri Ajoy Das (present appellant) and Puja. It was alleged that the said three persons inducing his wife, Smti Rita Devi that they would provide her employment in a Company at Guwahati took her. After 1 or 1 and ½ months he went to the house of Smti Rumi Bora and asked as to when his wife would come back. But the said Smti Rumi Bora asked him not to worry as she would come. In this manner, he met Smti Rumi Bora 4/5 times. On , his wife informed

3 3 him over phone from Mumbai that the accused persons sold her at Thane, Mumbai and also informed that she was confined in a room. 4] Initially, Nagaon P.S. Case No. 355/2010 was registered under Sections 366/ 34 IPC and the same was entrusted to one Sri Pradip Kumar Baruah, S.I. to carryout investigation. The victim Smti Rita Devi on her own came back to Nagaon and appeared before the Investigating Officer (I.O.) whereafter, the I.O. examined her medically through doctor, recorded her statement under Section 164 Cr.P.C. and also recorded the statement of other witnesses and charge sheet was filed against the said Smti Rumi Bora and Sri Ajoy Das under Section 366/ 34 IPC. 5] Formal charge was framed under Section 366/34 IPC against the said two accused persons. The prosecution s side examined, in all, four witnesses including the I.O. The learned Sessions Judge, Nagaon vide impugned judgment and order convicted the said two accused persons and sentenced them as aforesaid. 6] Being aggrieved, one of the accused persons, Sri Ajoy Das has preferred this appeal from the jail.

4 4 7] Ms. B. Sarma, learned amicus curiae submits that the prosecution has failed to prove the required ingredients to convict a person under Section 366 of the IPC. It is submitted that the prosecution failed to prove beyond all reasonable doubt the purpose of abduction of the said victim as required under Section 366 IPC and in the absence of such proof, Ms. Sarma submits that the accused person is entitled for setting aside the conviction. 8] Mr. Lahkar, learned Additional Public Prosecutor supports the case of the prosecution and submits that the prosecution has been able to prove successfully the ingredients required under Section 366 IPC including the purpose for which the said victim was abducted. As such, submits Mr. Lahkar that no interference is required in the judgment and order of conviction and sentence. 9] Considered the submissions and examined the deposition of the various witnesses in order to examine the findings of the learned court below. PW 1, Smti Rita Devi deposed in her chief that Puja introduced her to Smti Rumi Bora, who proposed to take her to Delhi for giving employment in a Company. She did not agree to the said proposal. As Smti Purnima Das and Smti Aloka Das agreed, she also agreed to the proposal of

5 5 Smti Rumi Bora. But the present appellant Sri Ajoy Das took them to Mumbai from Guwahati Railway Station. At Mumbai, Sri Ajoy Das took her alongwith the other two women namely, Smti Purnima Das and Smti Aloka Das to a house wherein a person was staying with his wife. The said accused, Smti Rumi Bora and the present appellant talked to each other and Smti Rumi Bora asked the appellant to deposit the amount in the Bank account and the said conversation was made through mobile phone. All of them were sent to a house at a different place by one Sri Robi and in that place various unlawful activities were going on as observed by her. 10] PW 1 took part in the said activities and stayed with a man for a night. She stayed there for 6 months. On being informed by the husband to Haiborgaon Police Station, the In-charge of the Police Station contacted her over phone and visited Mumbai but could not locate her as Sri Robi hide her somewhere. Smti Rumi Bora contacted the said person Sri Robi and asked him to send her back alongwith other two ladies, but he refused only because money was not refunded. Thereafter, Sri Robi arranged railway tickets and put them in Guwahati bound train and after two days she reached Guwahati and therefrom Nagaon and she presented herself before the Police Station. She has deposed in her chief that she gave missed call to her husband and thereafter on the return call by her husband she informed

6 6 the address where she was kept. Thereafter her husband informed the police stating about her whereabouts. 11] In her cross-examination, PW 1 deposed that Smti Rumi Bora assured her to provide job in a Steel Factory. She informed about the discussion with Smti Rumi Bora to her husband. Her husband resisted her proposal to go in search of employment but when pressing hard she consented to the proposal of Smti Rumi Bora. 12] In her cross-examination she failed to name the girl from whom she took the mobile for calling her husband. She also deposed that her husband never came to see her off. There were 10/15 numbers of girls in the place where she resided at Mumbai. She never objected when she came to know that they were going to Mumbai instead of Delhi. 13] Sri Sankar Roy, PW 2 (husband of PW 1) in his chief deposed that Smti Rumi Bora used to visit their rented house and insisted his wife that she should accompany her for employment in a Steel Factory at Guwahati for 1 or 1 and ½ months and return back. He did not agree, but later on at the initiation of his wife he agreed on the condition that she would earn money and come back. But he never went to see her off. His

7 7 wife gave a call to him and informed that Smti Rumi Bora and Sri Ajoy Das sold her at Mumbai for a sum of Rs. 50, (Rupees fifty thousand) only. On receipt of the phone call, he lodged a complaint against Smti Rumi Bora and Sri Ajoy Das by filing an FIR. Thereafter, police visited Mumbai and rescued his wife and brought back her to Haibargaon Police Station. 14] In the cross-examination, he deposed that Smti Rumi Bora and Puja used to visit his house and only on such visit he knew about them. Puja visited his house to meet his wife prior to Rumi Bora s visit. He does not know about Puja and what her husband used to do. It was from PW 1 that he could come to know that Smti Rumi Bora asked her to go to Guwahati for working in a factory and 3/ 4 days thereafter his wife went away. During absence, for 6 (six) months of his wife, he did not lodge any written ejahar before the police. He could not say who was with PW 1 at the time when she called him from Mumbai. He asserted in his crossexamination that police rescued his wife and took her back from Mumbai. He also deposed that Sri Ajoy Das is well known to him. 15] PW 3 Rasima Begum, the landlord deposed in her chief that she saw Smti Rumi Bora and Sri Ajoy Das visited the house of PW

8 8 2. PW 1 told her that she was leaving with Smti Rumi Bora for work in a Embroidery Company. PW 1 left her daughter with her. PW 2 informed her after about 6 (six) months that Smti Rumi Bora had sold PW 1 at Mumbai. She saw PW 1 coming to her house alone. 16] In her cross-examination, she deposed that she does not know Puja. She met Smti Rumi Bora in the house of PW 2 and prior to that she did not meet Smti Rumi Bora. PW 1 never told her that she would go to work in a Company. After 2 (two) months, she could learn that PW 1 was staying at Mumbai. She cannot say as to how PW 1 was recovered. 17] PW 4 (I.O.) in his chief deposed that on , FIR was lodged and in his cross-examination, he deposed that the date of occurrence was and FIR was received on He examined PW 2 at the Police Station and at that time, he was not accompanied with his wife, PW 1. On , he went to Mumbai to rescue PW 1. On , the IGP, Assam accorded permission to proceed to Mumbai. He recorded the statement of PW 1 at Haiborgaon Police Station. PW 1 stated that she was accompanied by Smti Aloka Das and Smti Purnima Das. He did not visit the house of PW 1 and examined the neighbours of the house of PW 1.

9 9 18] From the records, the statement under Section 164 Cr.P.C. of PW 1 shows that the said Smti Rumi Bora met Smti Purnima Das and Smti Aloka Das in the house of PW 1 and they also agreed to go with Smti Rumi Bora. 19] The prosecution heavily relied on PW 1 i.e. the victim. She, however contradicted in her statement. In her cross-examination she stated that before going to Mumbai she never met Smti Aloka Das and Smti Purnima Das, but in her statement under Section 164 Cr.P.C. she stated that Purnima Das and Aloka Das were present at her house and in their presence she consented to go with Smti Rumi Bora as Smti Aloka Das and Smti Purnima Das also consented to go to Mumbai. PW 2, the husband of PW 1 deposed in his chief that Smti Rumi Bora asked PW 1 to go to Guwahati for employment in a factory. PW 2 deposed that the police rescued PW 1, but the PW 4, the I.O. deposed that on , he went to Mumbai to rescue PW 1 but could not locate her and came back and on he found PW 1 at the Police Station. 20] PW 1 could not say the name of the lady from whom she took the mobile phone for calling her husband. There was no verification with

10 10 respect to the said phone call to the husband, PW 2 by PW 1 from Mumbai in order to ascertain the proof of phone call from the mobile set of the lady, PW 1 called PW 2. No Railway tickets were verified in order to verify if PW 1, had come to Guwahati from Mumbai in order to prove her story. Neither the prosecution verified the bank transaction between the two accused persons as deposed by PW 1. The return Railway tickets were also not verified in order to prove that she was actually sent to Mumbai. There was no any endeavour on the part of the prosecution side or investigating authority to record the statement of Smti Aloka Das and Smti Purnima Das. Further, the statement of Puja is also relevant, which the prosecution has also failed to record. 21] From the materials on record, it cannot be concluded that PW 1 went on the basis of the inducement of Smti Rumi Bora as she deposed in her 164 Cr.P.C. statement that she consented as Smti Purnima Das and Smti Aloka Das also agreed to go as per the proposal of Smti Rumi Bora. She was not recovered from any brothel or any such place to show that she was subjected to illicit intercourse after the abduction. The learned court below merely on the statement of PW 1 had believed the prosecution story when there is no verification and proof as to her transportation to Mumbai

11 11 by accused persons. The Police visited Mumbai but failed to recover PW 1 from Mumbai. Accordingly, the required ingredients under Section 366 IPC are missing. 22] In Chote Lal and Anr. vs. State of Haryana, reported in 1979 CrlLJ 1126 (SC), it was held by the Hon ble Supreme Court that by merely finding that the accused abducted a woman, charge under Section 366 IPC could not be held to have proved. It is further necessary to find out that they abducted the woman for any of the purpose mentioned in Section 366 of the IPC and in the absence of such a finding, charge must fail. 23] Here in the present case in hand, even if it is presumed that the accused persons abducted the PW 1, but the prosecution failed to prove that the said abduction of the PW 1 was for any of the purposes mentioned in Section 366 of the IPC. Considering the same, this court finds that the accused-appellant is entitled for benefit of doubt and the conviction and sentence recorded under Section 366 of the IPC against the accused appellant in the judgment and order referred herein above, by the learned Sessions Judge, in Sessions Case No. 343(N)/2010 under Sections 366/34 of the IPC is set aside.

12 12 24] In the present case, it is observed that two accused persons were convicted by the court below. However, the appeal has been preferred by only one accused appellant, Sri Ajay Das. The other convict, Ms. Rumi Bora has not preferred any appeal. It is found from the record and evidence that the said accused, Ms, Rumi Bora stands on the same footing as that of the present appellant before this court. Accordingly, whether the benefit of the outcome of this appeal can be extended to the other acused, Smti Rumi Bora. 25] In Madhu Vs. State of Kerala, reported in (2012) 2 SCC 399 in a similar situation, the Hon ble Apex Court referring to Gurucharan Kumar Vs. State of Rajastha, reported in (2003) 2 SCC 698 and Pawan Kumar Vs. State of Haryana (2003) 11 SCC 241 came to the following findings: 77. In view of the ratio laid down in the two cases referred to above, we are satisfied, that to do complete justice, it would be just and appropriate to extend the same benefit as has been extended to the appellant-accused Madhu, also to Sibi Accused 2. Therefore, for exactly the same reason as have weighed with us in the instant appeal, to determine the acquittal of the appellant-accused Madhu, we hereby order the acquittal of Sibi Accused No. 2 as well, even

13 13 though he has not preferred an appeal so as to assail the impugned judgment whereby he stands convicted. 26] Similarly, in Mahibul Haque Vs. State of Assam, reported in 2007 (1) GLT, 413, a Division Bench of this court in a similar situation faced by this court held as follows: 16. In the present case, we find although the two accused persons were convicted by the Court below the appeal has been preferred by only one accused appellant Mahibul Haque. The other convict Makibur Rahman is not before us. However, from the evidence and materials on record we find that both the accused persons stand on the same footing and the evidence against them is identical. The question thus arises is whether the benefit accrued on to the appellant Mahibul Hoque can be extended to an accused person, who is not before us. The question was considered by the Apex Court in the case of Pawan Kumar Vs. State of Haryana (2003) 11 SCC 241 wherein one of the non-appellants Balwinder Singh was extended to the benefit which was granted in favour of the appellant. Admittedly, the illegality for the conviction of the accused appellant U/s 364 (A) IPC and in order to set the matter right

14 14 interference is called for in favour of non-appellant also otherwise the illegality will be allowed to be perpetuated. 27] Keeping in view the ratio laid down as aforesaid, this court set aside the conviction and sentence by the court below passed against other accused, Smti Rumi Bora for exactly the same reasons, this court has arrived in the instant appeal to determine the acquittal of the accused appellant, Sri Ajay Das. 28] This court appreciate the assistance rendered by the learned Amicus Curiae in disposing the appeal and accordingly an amount of Rs. 7, (Rupees seven thousand five hundred) only be paid to the learned Amicus Curiae as the professional fees from the legal service authority. 29] Accordingly, this appeal is disposed of. Send back the LCR. Eam JUDGE