Crl.A. 11/2003 BEFORE THE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard the learned Counsel appearing for the appellants. Also heard Mr. B.B. Gogo i, the Addl. P.P. representing the State. 2.1 These two appeals arose out of a common judgment dated 24.12.200 2 in Sessions Case No. 67/1999, rendered by the learned Addl. Sessions Judge, Ca char, Silchar, whereby the 2 accused appellants in Criminal Appeal No. 11/2003 w ere convicted under Section 376 of IPC and sentenced to undergo R.I. for 7 years each and to pay fine of Rs.500/- and in default, undergo R.I. for 3 months. For their 2nd conviction under Section 366 of IPC, the accused were sentenced to un dergo R.I. for 3 years each and pay fine of Rs.500/- and in default, further R.I . for 3 months. 2.2 The appellant in Criminal Appeal No. 14/2003 is however convicte d only under Section 366 of IPC for which, he was sentenced to R.I. for 3 years and fine of Rs.500/- and in default, further R.I. for 3 months. 3. In the First Information Report lodged by Fazley Haque on 30.8.1 996 in the Sonai Police Station, it was alleged that his daughter Ahsana Begum w ho went missing on 7.5.1996 returned back after few months and from his daughter , the informant could learn that on 7.5.1996 at about 8 p.m. when the victim cam e out of her house to attend to call of nature, the accused persons forcibly dra gged her away and confined her in their house and then forcibly got her married with the accused Shebul Ahmed Choudhury. Accordingly the Sonai P.S. Case No. 205 /1996 was registered under Section 366 A of the IPC. 4. The investigation was entrusted to P.W. 7 Md. Firoze Ali Talukda r who visited the place of occurrence, questioned the witnesses and the victim a nd arranged to have her statement recorded under Section 164 of Cr.P.C. and also got her medically examined. After completing the investigation, charge sheet un der Section 366 A of IPC was submitted and the case was committed for trial to t he learned Sessions Court. The learned Trial Court framed formal charge under Se ction 366/376/34 of the IPC and when the accused persons pleaded not guilty, the case was put to trial. In his statement given under Section 313 of Cr.P.C. the accused Shebul Ahmed Choudhury stated that because of a love affair, the victim voluntarily left her residence to get married to the accused appellant Shebul Ah med Choudhury. 5. Before dealing with the evidence of the witnesses, it must be no ted that the FIR in the instant case was filed belatedly three and half months a fter the daughter of the informant was abducted. The father stated that only af ter the victim returned to her parental home and reported about the abduction to her father, the FIR was lodged on 30.8.1996. 6.1 In her deposition, the victim P.W.2 stated that the accused Mohi m Uddin Mazumdar and Lipa Ahmed Laskar on the night of the abduction, had raped her under threat and then she was taken to the house of the 3rd accused, with wh om she was forcibly married by the other 2 accused. In her deposition she stated that she is 20 years old. She further stated that the accused Shebul Ahmed Chou dhury had not raped on the night of the occurrence. In her cross-examination, th e victim admitted that all the 3 accused persons are her co-villagers and that a fter she was married to Shebul Ahmed Choudhury, she was residing with him happil y as his wife. She also stated that the matter is amicably settled in the villag e Bichar and she is not interested to proceed with the case. 6.2. P.W.1 is the father of the victim who lodged the FIR in the case . According to him, the victim was kidnapped on 7.5.1996 and her whereabouts cou ld not be traced out although vigorous search was made by him and others. As the witness retracted from his statement given earlier to the police, he was declar ed a hostile witness and was subjected to cross-examination during the trial. Th e father admitted that the accused Shebul was a neighbour and a frequent visitor to their house. He also stated that after his daughter returned, a social marri age was performed between Shebul and his daughter and now they are living togeth er as husband and wife and a child is also born to them. He further stated that a village Bichar was held and he is satisfied with the decision taken by the co -villagers and he is not interested to proceed now, against the accused persons. 6.3 P.W.3 is the mother of the victim girl. According to the mother, all the 3 accused persons had raped the victim in a paddy field on the night sh e was abducted from her parental home. In her cross-examination, the witness sta ted that accused Shebul was residing 6/7 houses away in the same Mohalla and sh e could learn that a marriage was performed between Shebul and her daughter and that her daughter was residing in the house of Shebul, as his wife. The mother f urther stated that they wanted to lodge a case, but the village headman interven ed and assured that the matter would be settled. According to the victim’s mothe r, accused Shebul gave a proposal to marry the victim but was told to come with his guardian and a formal marriage proposal. 6.4 P.W.5 is Dr. Homeswar Sarmah, who was the Head of the Forensic M edicine at the Silchar Medical College Hospital. On 16.9.1996, he examined the v ictim and opined her age to be above 17 and below 18 years. He did not find any evidence of recent sexual intercourse on examination of the victim and no injury was also found through medical examination, except an old hymenal tear. 7.1 From the side of the defence, 2 witnesses were presented. 7.2 D.W.1 Moinul Hoque is a co-villager and stated that a village B ichar was held on the elopement of the daughter of the complainant with the accu sed Shebul. He stated that the victim Ahsana told in the gatherings of co-villag ers that, she voluntarily went with Shebul as she was love him and she didn’t im plicate the other 2 accused in the crime. According to the witness, the accused Shebul was made to pay Rs.8,500/- as compensation in the bichar. 7.3 D.W.2 Basir Uddin Choudhury was a near neighbour of all the 3 ac cused persons. He also stated that a village Bichar was held where the victim a long with her parents as well as the accused persons were present. The victim an d the accused Shebul Ahmed Choudhury had stated publicly before the co-villagers that, they were in love and eloped voluntarily and the victim had not implicate d the other 2 accused persons with the rape charge. 8. On scrutiny of the evidence in the case, it is found that the vi ctim and her father both stated that the victim is happily married with the accu sed Shebul Ahmed Choudhury and they are not interested to pursue the matter. In so far as the rape charge against the 2 accused appellants in Criminal Appeal No . 11/2003 is concerned, there are discrepancies in the evidence since the mother of the victim stated that all the 3 accused persons had committed rape but the victim had stated categorically that accused Shebul with whom she is now married , had not raped her on the night of the kidnap. P.W.1 the father of the victim w ho gathered information from the victim and lodged the FIR, had mentioned only a bout the abduction and rape was nowhere mentioned in the FIR. 9. The evidence of P.W.1 and P.W.3 shows that the accused Shebul wa s a frequent visitor to the victim’s house and in fact a formal marriage proposa l was also given earlier by the accused Shebal to marry the victim. Thus the lov e affair between the victim and the accused Shebul before the abduction is clear ly indicated by the evidence in the case. 10. It further appears from the evidence of P.W.3 that the victim af ter getting married with accused Shebul had returned to her house 15/16 days aft er the abduction and the house of Shebul was very near to the parental house of the victim. Yet no FIR was lodged before the police about the abduction or the r eturn of the daughter by the P.W.1 and the FIR was belatedly filed only on 30.8. 1996. In such circumstances, it is difficult to accept the prosecution version t hat the victim was forcibly abducted by all the 3 accused appellants on 7.5.1996 . 11. Considering the discrepancies in the statement of the victim and the testimony of her parents as well as the non-mentioning of rape in the FIR l odged by the father and taking into account that all the 3 accused persons are c o-villagers and friends of accused Shebul, it is difficult to belief that the vi ctim was raped by the close friends of the future husband of the victim, with wh om she was having a love affair. Accordingly the conviction of accused Mohim Udd ian and Lipa Ahmed Laskar under Section 376 of IPC is found to be unsustainable and the same is set aside and quashed. 12. In so far as the conviction of the accused appellants under Sect ion 366 of IPC, the evidence of the parents suggest of a pre-existing love affai r between the victim and the accused Shebul Ahemed Choudhury. In the village Bic har , the victim admitted the love affair and stated that she voluntarily eloped with her future husband. P.W.2 (victim). The victim and her parents have stated that the victim is now happily married with the accused Shebul Ahemed Choudhury and they are not interested to pursue this mater any further. 13. Considering the subsequent developments and the present circumst ances of the victim and the accused and looking at the amicable settlement of th e dispute through the village Bichar, as seen from the evidence of the 2 defenc e witnesses and noting that the incident took place on 7.5.1996, I feel that the re is no basis to sustain the conviction of the appellants under Section 366 of the IPC. The defence version that this is a case of voluntary elopement and is n ot a case of abduction appears to have an acceptable bais. Accordingly the convi ction of all the 3 accused persons under Section 366 of IPC is quashed. 14. Consequently, both the appeals are allowed and the impugned judg ment dated 24.12.2002 in Sessions Case No. 67/1999 is set aside. Bail bonds are discharged accordingly. 15. Registry to return the LCR.