Hiran Biswas And Ors vs State Of Tripura

[1] These appeals arise out of the common judgment of the learned Session Judge, Sepahijala, Tripura rendered in Case No. Sessions Trial (Type-II) 10 of 2017. According to the prosecution version as emerging in the First Information Report lodged by complainant Smt. Jhulan Das her daughter (hereinafter to be referred to as a victim) was aged about 16 years on the date of incident i.e. 07.01.2017. Accused No.1, Jutan Biswas used to misbehave with the lady. On the date of incident which happened to be a Saturday, the victim was returning home on a bicycle from school. She however, did not reach home. Upon search made by the family members her bicycle was found abandoned on the roadside. Further inquiries revealed that the accused No.1 Jhutan Biswas had forcibly taken away the minor daughter of the complainant on his motorcycle forcing her to sit behind him. It was later on revealed that the said accused No.1 was aided by accused Nos. 2 to 4 namely his father, mother and relative respectively. An FIR was lodged with a nearby police station who rescued the victim girl from Bishramganj and handed over the custody to the complainant. Similar incidence of misbehaviour had also taken place in the past. On the ground that her previous complained dated 8.1.2017 was not traceable, according to the complainant a fresh written complained was made on 9.1.2017 before a concerned police station. It appears that since no further steps were taken by the police, the complainant filed a private complained before the concerned Judicial Magistrate on 3.2.2017 alleging commission of offences punishable under Section 366A, Section 109 read with Section 34 of IPC.

[2] A charge was framed by the learned Additional Sessions Judge, Sonamura alleging that all the accused in furtherance of their common intention had forcibly kidnapped the victim girl aged about 16 years with an intent to marry such girl or will be forced or seduced to illicit intercourse with accused No.1 and thereby all the accused had committed offence punishable under Section 366A read with Section 34 of IPC. By the impugned judgment, the learned Sessions Judge convicted all accused for offence under Section 366A read with Section 34 IPC. He sentenced the accused No.1 Jhutan Biswas to rigorous imprisonment of five years and order to pay fine of Rs.10,000/-. The rest of the accused were sentenced to rigorous imprisonment of three years and order to pay fine of Rs.5,000/-. The accused No.1 has filed Criminal Appeal (j) No. 63 of 2019 to challenge the said judgment whereas the remaining accused had challenged the said judgment in Criminal Appeal No. 41 of 2019.

[3] We may record the gist of evidence. The complainant was examined as PW-1. She deposed that on 22.4.2015 her daughter returned from the school at about 2 O'clock in the afternoon told her and her father that on her way back Jhutan Biswas (accused No.1) had caught her and tried to restrain her. She somehow managed to escape. Her husband immediately took up the issue with the members of the Panchayet. During a meeting all the accused in presence of the local residence had assured that such incident shall not occur in future. Accused No.1 had confessed and apologized for his behaviour. For about one year there were no further incidences. Her daughter was admitted in Class-X of the nearby school. She would travel to the school on bicycle. On 07.01.2017 which happened to be a Saturday her daughter did not return home from school till about 3 O'clock which was her usual time. She went out looking for her. She found her bicycle lying by the side of the road. She rushed to home and informed this to her husband. They approached the Melaghar Police Station. The station officer assured them of making proper inquires. Along with the police they also went to the house of accused No.4, a relative of the accused No.1 but did not find either the victim girl or the accused No.1 or 4. Next day again she went to the police station in the morning and found that the police had detained the accused Nos. 1 and 2 but her daughter was not there. On Monday again her husband went to the police station where he was informed that the daughter was traced at Barjala, Bishramganj. Her husband along with the police went to the site and brought her daughter back. On Sunday itself she had lodged a complained against the accused which complained was not traceable she had therefore, filed a fresh complained also.

[4] In the cross-examination, she was confronted with certain improvements she made in her deposition as compared to her complained. She was also asked about the road on which her daughter would travel from school to home. She could not state the distance between the two places. She was also challenged on having lodged a police complained soon after her daughter went missing.

[5] Victim girl was examined as PW-2. She stated that on 07.01.2017 she was returning home from school at about 2.30 in the afternoon on her bicycle. Near Khas tilla, Jhutan Biswas, the accused No.1 and another boy was standing on the road. Jhutan asked her to stop. Though she did not want to with the help of the other boy he caught her, covering her with a cloth she was forced to sit on the motorcycle. The unknown boy accompanying the accused No. 1 was riding the bike; she was made to sit on the middle. Jhutan sat behind her. She was taken to the house of Nitai Das, accused No.4 where the parents of Jhutan i.e. accused Nos. 2 and 3 were also present. She was forced to wear Sangkha which I am informed is the sign of a married woman and Jhutan put Sindoor on her head. She was assaulted by accused Nos.2 and 4 also. She pleaded with them to take her home but they would not. Next day she was blindfolded. She was put on a vehicle but at Bishramganj the vehicle was intercepted by the police and she was released. Her father was present then. She was brought back to Melaghar. Previously, when she was in Class-VIII and when was returning from school accused No.1 had held her hand but she managed to escape. The matter was taken up by her parents with the accused and his family members.

[6] In the cross-examination, she stated that while returning from school on 07.01.2017 she was wearing a school uniform and was carrying a school bag. However, when she was found by the police she was wearing a Sari. She could not state the distance between Khas tilla and the house of Nitan Das. She tried to raise alarm, when she was on the motorbike. She agreed that there were some distance between the place where she got off the motorbike and the house of Nitai Das which distance she covered on foot, at that time she however, did not raise any alarm. She clarified that as the parents of Jhutan were present, she did not raise alarm. The house of Nitai Das is situated on a tilla land. She would have walked about three minutes to cover the distance. In the vehicle when she was being shifted also she had not raised any alarm. In her statement which was recorded with the Magistrate she had not said anything about her school uniform and school bag, since no such question was asked to her. She denied that on 07.01.2017 she had eloped with the accused No.1 as per their plan and it was because of this that she was neither wearing a school uniform nor carrying the school bag.

[7] Sri Shyamal Das, father of the victim girl was examined as PW-3. He gave the similar version of the events of her daughter being harassed previously on 22.04.2015, when the matters were resolved through a meeting and subsequently the disappearance of her daughter on 07.01.2017 and her search ending in being recovered through the aid of the police couple of days later.

[8] In the cross examination he was confronted with certain improvements made in his deposition.

[9] Smt. Rina Das, PW-4 was the resident of the same village and was acquainted with the accused as well as the complainant and her family. She had helped the family search for the victim girl and had also gone along with the father of the victim to the house of Nitai Das.

[10] PW-5, Sri Jagabandu Das was also the resident of the village. He referred to a meeting held in the year 2015 when Jhutan had apologized for his misbehaviour with the victim girl. He was present during such meeting. This in the nutshell is the evidence on record. The statements of the accused under Section 313 of Cr. P.C were recorded in which they took the stand of total denial.

[11] On the basis of such evidence on record, the learned Sessions Judge believed that the victim girl who was below 16 years of age and therefore a minor, was forcibly taken away by the accused No.1 and detained against her will in which the accused Nos. 2 to 4 had abated.

[12] Section 366A of Indian Penal Code provides for punishment to one who induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person. The punishment prescribed is of imprisonment which may extent to ten years and with fine. The first ingredient of the said offence is that the victim girl should be below 18 years of age. In the present case, no evidence whatsoever was brought on record to establish the age of the girl. By merely stating she was studying in Class-X, would not ipso facto prove that she was below 18 years of age. When the victim girl was studying in a school, her school records would reveal her date of birth and thus established her correct age. No attempt was made by the prosecution to bring any such document on record. No other evidence estimating her age with a degree of accuracy was produced. In absence of birth certificate, in absence of school certificate and in absence of medical opinion assessing the age of the girl, it was simply not open for trial Court to jump to the conclusion that she was a minor. Offence under Section 366A of the Indian Penal Code was thus not made out.

[13] Question still remains if the girl was forcibly taken away against her wish and kept confined. In this context we may appreciate the evidence on record. The complainant and her husband have given the versions regarding the victim girl not returning home after the school hours as usual and their search initially yielded no result till couple of days later with the aid of the police the victim girl was found from the custody of the accused persons. Their version is broadly inconformity with each other and there is nothing on the record to doubt it. However, it is the victim girl alone who can state authentically what actually transpired from the time when she was allegedly intercepted by the accused No.1 in the afternoon of 07.01.2017 till she was found by the police two days later. We may recall that in her deposition the victim girl, PW-2 had stated that while she was returning from school on 07.01.2017 at about 2.30 in the afternoon on a bicycle near Khas tilla Jhutan and another boy was standing. They forced her to stop. She was covered with a piece of cloth. She was made to sit between the accomplish of accused No.1 and accused No.1 himself on the motorcycle. She was taken to the house of Nitai Das, accused No.4 where she was made to wear Sangkha and Jhutan had put Sindoor on her head. Later when she was being shifted in a vehicle the police intercepted and she was brought to the police station. In the cross examination she agreed that while returning from the school she was wearing a school uniform and also carrying a school bag. When she was brought to the police station two days later she was wearing a sari. While on the motorcycle she tried to raise alarm after getting down from the motorcycle she walked over to the house of Nitai Das which was about three minute walked. During such time she raised no alarm. To the Magistrate she had not stated that at the time of kidnapping she was wearing a school uniform and carrying a school bag. She denied that she was neither wearing school uniform nor carrying the school bag since she herself had eloped with the accused No.1 as per their plan.

[14] The conduct of the victim girl and the attendant facts and circumstances would convince me that a clear possibility of the consensual behavior on part of the victim girl cannot be ruled out. The incident occurred in broad day light between the school and the house of the victim girl. Her theory that she was covered with a piece of cloth forced to sit on a motorcycle between the friend and the accused No.1 and wished away does not sound probable. In the broad day light when such incident takes place, it would undoubtedly attract the attention of the people present in the nearby area. Even if they are unable to stop the attempt of the abductors, nevertheless the incident would come to light and be brought to the notice of the relative of the girl soon enough. Not a single witness of the nearby locality has been examined to suggest the forcible taking away of the girl by the accused and his accomplice. Who this boy was, is not revealed. Further even while the victim was made to walk for a fair distance after getting down from the motorcycle till she reached the house of Nitai Das, she made no hue and cry. If as stated by the victim girl she was being forcibly taken, once again there would be witnesses who either would have helped her or at least reported the incident to the relatives or to the authorities. Significantly, she had no explanation for being found in a Sari when the police rescued her from her original dress of the school uniform. She had no explanation about what happened to a school baggage she was carrying at the time of the incident. Neither the school uniform nor the school bag was recovered. The defence version that she was not wearing the school uniform nor carrying the school bag and this would show her voluntarily joining the accused No.1 is highly probable.

[15] In the result, I find that the learned trial Judge has committed serious error in convicting all the accused for the offence under Section 366A read with Section 34 IPC. The conviction and sentences are set aside. Appeals are allowed and disposed of accordingly. Bail bonds are cancelled. Pending application(s), if any, also stands disposed of.