High Court of Tripura heard appeals against conviction for kidnaping a minor. The court upheld conviction under IPC Section 366A but modified the sentence to one year rigorous imprisonment and fine, noting absence of criminal antecedents.
Appeal partly allowed. Sentence modified to one year rigorous imprisonment each with a fine of Rs. 10,000.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HIGH COURT OF TRIPURA AGARTALA
CRL. A. 08 of 2013
1. Sri Sujit Sarkar , son of Kanai Sarkar,resident of village- Kamalnagar, P.O. Kamalnagar, P.S. Kalyanpur, District- Khowai, Tripura
2. Sri Sujit Sarkar , son of Sri Nirode Sarkar,resident of village- Kamalnagar, P.O. Kamalnagar, P.S. Kalyanpur, District- Khowai, Tripura
3. Sri Nirmal Biswas , son of Sri Madhab Biswas,resident of Moharcherra, P.O. Moharcherra,P.S. Teliamura, District- Khowai, Tripura
… Appellants
The State of Tripura , (Notice to be served upon the learned Public Prosecutor, Tripura)
… Respondent
CRL. A. 09 of 2013
Sri Prasenjit Das , son of Sri Amulya Das,resident of Moharcherra, P.O. Moharcherra,P.S. Teliamura, District- Khowai, Tripura
… Appellant - Versus –
The State of Tripura , represented by the learned Public Prosecutor, High Court of Tripura, Agartala
… Respondent
BEFORE
THE HON’BLE MR. JUSTICE S. TALAPATRA
For the appellants : Mr. S. Deb, Sr. Advocate Mr. S. Ghosh, Advocate Mr. S. Datta, Advocate For the respondent : Mr. RC Debnath, Addl. PP Date of hearing & delivery : 28.03.2017
Date of delivery of judgment and Order : 30.05.2017 Whether fit for reporting : YES / NO
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JUDGEMENT AND ORDER
Both the appeals being CRL. A. 08 of 2013 [ Sri Sujit Sarkar and 2 others vs. State of Tripura] and CRL. A 09 of 2013 [ Sri Prasenjit Das vs. State of Tripura] are combined for disposal by a common judgment since those appeals arose from the judgment and order of conviction and sentence dated 29.04.2013 delivered in case No. S.T. 29 (WT/K) of 2011 by the Additional Sessions Judge, West Tripura Judicial District, Khowai. The said judgment dated 29.04.2013 and the consequential order of sentence therefrom are under challenge in these appeals.
2. The genesis of the prosecution is rooted in the written ejahar filed by one Babulal Sarkar (PW-1) revealing that on 15.09.2011 at about 10.30 a.m. his daughter (name withheld for purpose of withholding the identity) proceeded towards her school namely Teliamura Class XII school, when the appellants herein by applying force took his daughter into a maruti vehicle bearing No. TR-01-T-0603 and started proceeding towards Amlighat, Srinagar under Belonia police station. The complainant received a phone-call informing him that his daughter with some persons had been detained by the local people, but finally he could see his daughter in Belonia police station. On 16.09.2010, the complainant brought his daughter to his house.
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3. On the basis of the said written ejahar, Teliamura police station case No. 93 of 2010 under Section 366(A)/34 of the IPC was registered and taken up for investigation. After completing the investigation, the final report charge sheeting the appellants were submitted by the police. On taking cognizance of the offence punishable under Section 366 A of the IPC, the charge against the appellants was framed under Section 366 A read with Section 34 of the IPC and under Section 342 read with Section 34 of the IPC. The appellants denied the charges and claimed to face the trial.
4. To substantiate the charge, the prosecution adduced as many as 11 (eleven) witnesses including the victim (PW-2), the complainant (PW-1), the mother of the victim (PW-3) and one Assistant Sub Inspector of police namely Bikash Debnath (PW-9) who received the information from the Duty Officer of Belonia police station that along the Indo-Bangladesh Border (ICP) at Muhurighat four boys with one girl had been detained with one vehicle by the ICP staffs. After recording the evidence, both documentary and oral, as led by the prosecution, the accused were examined under Section 313 of the Cr.P.C to have their response in respect of the incriminating materials those surfaced from the prosecution evidence.
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5. The trial court having appreciated the evidence, passed the judgment of conviction holding inter alia that it has been clearly established that the accused persons had forcefully taken away the victim and took her to Belonia against her will. It has also been deduced that from the evidence it is clearly evident that the victim was below 16 years of age. Even if it is presumed that the victim consented to go with the accused then also the accused persons would be liable for taking away her without consent of her parents. It has also been categorically observed by the trial court that all the accused persons had forcibly kidnapped the victim and took her to Belonia by means of a maruti vehicle where they were detained and ultimately they were handed over to the police and thus the victim was recovered. So, the prosecution evidence was sufficient enough to prove the offence of kidnapping of a minor girl. Thus, the appellants have been convicted under Section 366 A of the IPC for committing an offence of kidnapping.
6. Mr. S. Deb, learned senior counsel and Mr. S. Ghosh, learned counsel appearing for the appellants have submitted that the trial court has mechanically appreciated the evidence and left out the incongruous materials as surfaced in the testimonies of the prosecution witnesses. They have further submitted that such incoherence between
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the testimonies of PW-1 (the complainant) and PW-2 (the victim) are manifest on the face of the record of evidence. Mr. Deb, learned senior counsel has submitted that these are very vital dislocating factors in the process of corroboration which had been brushed aside by the trial court. Mr. Deb, learned senior counsel has further submitted that it is quite unbelievable that from the front of a shop at a crowded place a girl could be kidnapped in the manner, as projected by the prosecution. It can only happen when the girl was in tandem with the appellants.
7. Mr. S. Ghosh, learned counsel appearing for the appellant in Criminal Appeal 09 of 2013 has simply adopted the submission advanced by Mr. S. Deb, learned senior counsel.
8. From the other side, Mr. RC Debnath, learned Additional Public Prosecutor appearing for the State has submitted that there is no incongruity in the testimonies of PW-1 and PW-2 as indicated by Mr. Deb, learned senior counsel. If the testimony of PW-1 is read keenly with the written ejahar (Exhibit-1), it would be apparent that nowhere PW-1 has stated that the girl was not given to him on the previous night. He had only stated that he returned home on the following day. That apart, Mr. Debnath, learned Additional Public Prosecutor has succinctly placed emphasis
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that PW-1 and PW-3 being the parents of PW-2 have categorically made statement on her age and such statements have fully been corroborated by the certificate issued by the School, where PW-2 was reading (Exhibit-5). That apart, it would be apparent from the statement of PW-2 recorded under Section 164(5) of the Cr.P.C that she had categorically stated that one of the appellants namely Sujit Sarkar initially requested her to board the vehicle but when she disagreed he had pressed her mouth and pushed her into the vehicle and they forcibly proceeded towards Sonamura. There were 3(three) other persons with him including the driver. All of them have threatened her to remain silent else they would throw her out from the running vehicle. Within a short-while they forced her to consume some drinks and she became unconscious. When she regained sense she found that they had taken her to Belonia. Some persons detained them and later on they were taken to Belonia police station. The police personnel informed her father. She expressed her confidence to identify them. Mr. Debnath, learned Additional Public Prosecutor has emphatically stated further that the victim (PW-2) identified the appellants in the dock. She had categorically stated that she had no affair with anyone of the accused. Mr. Debnath, learned Additional Public Prosecutor has further submitted that PW-9 who was informed by the Duty Officer of Belonia
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police station to visit where the victim and the accused persons were detained by the local people has also identified the accused persons whom he saw in detention in that place. After bringing the accused persons and the victim in the police station he entered the abstract of the incidence in the GDE vide Belonia P.S. GD Entry No. 802 dated 15.09.2010 (Exhibit-4). Mr. Debnath, learned Additional Public Prosecutor therefore has submitted that on overall assessment of the evidence led by the prosecution, the minor and insignificant incoherence here and there would be of no use for the defence as the evidence overwhelmingly proved the case of the prosecution that all the appellants having the common intention kidnapped the victim. Therefore, there is no basis on which this court may interfere with the judgment of conviction and order of sentence.
9. For purpose of appreciating the rival contentions as projected by the learned counsel for the parties, it would be apposite to appreciate the evidence to examine the following points:
(i) Whether PW-2 was minor at the time of the alleged occurrence? (ii) Whether PW-2 was kidnapped by all the appellants from the lawful custody? and
(iii) Whether from the evidence it has been established beyond reasonable doubt that all the appellants and none other than them, kidnapped the victim (PW-2) from the
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lawful custody and thereby committed the offence of kidnapping?
10. As stated, PW-1 lodged the complaint (Exhibit-1) and he had graphically stated how his daughter (PW-2) was kidnapped from the front of Teliamura Class XII school situated at Karoilong by aid of the vehicle bearing No. TR-01T-0603 and his daughter was taken to a place in Belonia. The local people detained the vehicle and ultimately he met with his daughter at Belonia police station having received the information. He was accompanied by Sri Pradip Das, Sri Krishna Das and Sri Sudhir Sarkar.
PW-2, is the most vital witness for the prosecution case. She has categorically stated that when requested by one of the appellants (Sujit Sarkar S/O Kanai Sarkar) she approached closer to the vehicle, she was forcibly dragged into the maruti vehicle where the other appellants including the appellant in CRL. A. 09 of 2013, was inside the vehicle. She identified all the appellants as the perpetrator of the crime. According to her, they started proceeding towards Teliamura hospital. They threatened her that if she raised alarm she would be killed. When they reached Belonia, one person stopped that vehicle and other persons rushed. She informed them that she had been forcibly brought by those persons. They handed over the victim and others with the vehicle to the Belonia police station. At about 7.30 / 8.00 p.m.
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she noticed her father at Belonia police station. She has stated that at night she was handed over to her father. However, she denied the knowledge when her father lodged the FIR. She has categorically stated that she did not lodge any complaint either in Belonia police station or Teliamura police station. She denied the suggestions made by the defence.
Both, PW-1, Sri Babulal Sarkar and PW-3, Smt. Anjana Sarkar stated that the victim was aged about 14 years 9 months when they deposed in the trial.
PW-4, Sri Priyatosh Sarkar has stated that when he heard that the victim did not return from the school after examination till 2.00 p.m. they all went out for searching her then they came to know that the victim did not go to the school for examination. His statement is not that of material importance. PW-4, Sri Priyatosh Sarkar was also reexamined. During re-examination he stated that he lodged the missing information with the Teliamura police station.
PW-5, Sri Pradip Das has clearly stated that PW-1 informed him that his daughter (the victim) was missing. Later on she was traced at Belonia. PW-5 accompanied PW-1 to the Belonia police station along with Krishna Das and Sudhir Sarkar. He met the victim at Belonia police station. At about 5.00 p.m. the victim was handed over to PW-1 as per the order of the court and on 16.09.2010 they returned at
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Teliamura. The defence could not make any dent into their testimony.
PW-6, Smt. Usharani Paul had prepared the school certificate being the Lower Division Clerk of the Teliamura HS School and she had identified that certificate as Exhibit-3.
PW-7, Sri Krishna Das has stated that he was informed by PW-1 that his daughter was missing. Finally they reached to Belonia police station and found the daughter of PW-1. His statement could also not be dented by the defence.
PW-8, Sri Bishnupada Ghosh has stated that on 08.12.2010 he was working as the UDC in Teliamura HS School and on that day as per the direction of the Head Master, Sri Pallav Kanti Saha, PW-6 he prepared the school certificate in respect of the victim on consulting the Admission Register of the school. He had identified his signature on the seizure list by which Exhibit-3 was seized by the Investigating Officer.
PW-9, ASI Bikash Debnath has stated that as per the instruction of the Duty Officer of Belonia police station he reached the place where the victim and the appellants were detained by the local people and he brought them to the police station and recorded the abstract in the GD Book
(Exhibit-4). He has also stated that as per direction of the Officer-in-Charge he prepared the case diary.
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PW-10, Sri Manik Deb, a Sub-Inspector of police has narrated how he had investigated the case. He seized the school certificate and arranged recording of the statement of the victim under Section 164(5) of the Cr.P.C. He had arrested all the accused persons and seized the vehicle on 26.12.2010 on production by the appellant in CRL. A. 09 of 2013. However, in course of time, the vehicle was released on submission of the bond. After completion of the investigation he filed the charge sheet being the charge sheet No. 02 of 2011 of Teliamura police station dated 18.01.2011. In the cross-examination by the defence, he did not deviate a little bit and the defence has failed to dig out any serious incongruity or contradiction.
PW-11, Sri Ashish Chowdhury is the scribe who wrote the ejahar (Exhibit-1). He identified the ejahar.
11. Having appreciated the evidence in its entirety, this court does not have any hesitation to hold that the prosecution has successfully established that at the time of occurrence the victim was minor being aged around 13 years. The testimony of PW-1 and PW-3 and the school certificate corroborate the age of the victim as claimed by the prosecution. Thus, the consent or no consent is immaterial. From the sequence of the transaction, it has been
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clearly established that the victim was ‘forcibly’ kidnapped while she was proceeding towards her school and she was taken to a place along the Indo-Bangladesh border by the appellants. The victim and the police officer who detained them in the place where they were detained by the local people identified all the accused persons, the appellants herein. Though none of the local people who detained them were examined, but the evidence, as given by PW-2 and PW9 is adequate enough to establish the involvement of these accused persons in the offence punishable under Section 363 of the IPC. Moreover, the so called incongruity as identified by Mr. Deb, learned senior counsel is so insignificant inasmuch as those were post occurrence conduct and are hardly material for purpose of rebutting of the role of the accused persons in the said offence.
12. Thus, this court is satisfied that the prosecution has successfully established the charge beyond reasonable doubt and hence pursuasion to intervene with the finding of conviction remained wholly unsuccessful. However, in considering the age of the appellants and noticing absence of any criminal antecedent, this court is of the view that the sentence may be modified.
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13. Accordingly, the appellants are sentenced to suffer rigorous imprisonment for 1(one) year with fine of Rs.10,000/- each and in default of payment of fine, they shall suffer further rigorous imprisonment for 6 (six months).
14. Hence, this appeal is partly allowed to the extent as
indicated above.
Send down the LCRs forthwith .
JUDGE
Saikat
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3 issues framed by the court
Whether the prosecution successfully established that the victim was a minor and was forcibly kidnapped by the appellants.
Whether the trial court's finding of conviction is sustainable despite alleged inconsistencies in prosecution witness testimonies.
Whether the criminal appellants are entitled to a modification of the original sentence of conviction.
4 provisions across 1 enactments
Sujit Sarkar and 2 others
Prasenjit Das
State of Tripura
S. Talapatra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
