Crl.A. 46/2005 BEFORE THE HON’BLE MR. JUSTICE C.R. SARMA This appeal, from Jail, is directed against the judgment and ord er, dated 30-3-2005, passed by the learned Sessions Judge, Morigaon in Sessions case No.74 of 2001 (arising out of GR case No.495 of 2001) under Section 363 IPC . 2. The prosecution case, as revealed at the trial may, in brief, be stated as follows :- On 9-1-01, at about 9/9-30 am when the victim girl was proceedin g to her school, the accused person who was standing on the road putting her in fear of death by showing a dagger forcefully took her away, in a Bus, to a place called Hahchara and thereafter she was taken to village Bhurgaon. Md. Harez Ali , the father of the victim girl lodged an FIR with the Officer-in-Charge, Moirab ari police station on 10-9-01 informing about the kidnapping of his said minor daughter. On receipt of the FIR, police registered a case, being Moirabari PS ca se No.45 of 2001 under Section 366 A IPC and launched investigation into the mat ter. During the investigation, police arrested the accused person and recovered the victim girl, at the instance of the accused person, from the house situated at Bhurgaon. After the recovery of the victim girl,police sent her for medical e xamination and to the court for recording her statement under Section 164 CrPC. After investigation, police submitted chargesheet under Section 366 A IPC agains t the accused. The offence being exclusively triable by the Court of Sessions, the lear ned Sessions Judge, Morigaon framed charge under Section 363 IPC against the acc used person. The charge was explained and read over to the accused to which he p leaded not guilty and claimed to be tried. 3. In order to establish its case, the prosecution examined as many as seven witnesses including Medical officer (PW 6) and the Investigating offic er (PW 7). At the close of the evidence for the prosecution, the accused person was examined under Section 313 CrPC. He denied the allegation, brought against h im, and declined to adduce any evidence. Considering the evidence on record, the learned Sessions Judge found the accused person guilty of the offence under Sec tion 363 IPC. Accordingly, the learned Sessions Judge convicted the accused unde r Section 363 IPC and sentenced him to undergo rigorous imprisonment for a perio d of seven years and pay fine of Rs.7,000/-, in default, suffer rigorous impriso nment for another period of three years for his conviction under Section 363 IPC . 4. Aggrieved by the said conviction and sentence, the appellant, fr om the Jail, submitted an appeal through the Superintendent, Special Jail, Nagao n. Accordingly, the appeal, under Section 374 CrPC, preferred by the appellant w as admitted for hearing and Sri Utpal Das, Advocate was appointed as Amicus Curi ae. As Sri Utpal Das, who was engaged as Amicus Curiae, was not found available at the time of taking up this matter for hearing and the appeal being filed from the Jail, Sri J. C. Gour, Advocate was requested by this court to represent the appellant as Amicus Curiae, to which the learned counsel readily agreed. 5. I have heard Mr. J. C. Gour, learned Amicus Curiae appearing for the appellant and Mr. K. Munir, learned Addl. Public Prosecutor appearing for t he State. 6. Mr. Gour, learned Amicus Curiae taking me through the evidence o n record has submitted that there is no sufficient cogent and reliable evidence against the accused appellant and that the impugned conviction and sentence is l iable to be set aside and quashed. It is also submitted that, except the evidenc e of the victim girl, there is no eye witness to the occurrence and as such the learned trial Judge committed error by convicting the accused person, without su fficient corroborative evidence. Learned Amicus Curiae has also submitted that c onsidering the nature of the alleged offence, the imposition of the punishment o f seven years of rigorous imprisonment is in the higher side and that in view of the socio-economic status of the appellant (labourer), fine of Rs.7,000/- is qu ite high and that the said sentence is liable to be set aside or modified. 7. Mr. K. Munir, learned Addl. Public Prosecutor appearing for the State, supporting the impugned conviction and sentence, has submitted that consi dering the facts and circumstances of the case, as there was no eye witness at t he time of occurrence, the statement of the victim girl, supported by the circum stantial evidence, was sufficient to base the conviction and that the learned tr ial Judge committed no error by recording the conviction and sentence as indicat ed above. 8. In order to appreciate the arguments, advanced by the learned co unsel appearing for the parties and to examine the correctness of the impugned c onviction and sentence, I feel it appropriate to briefly scan the evidence on re cord as follows :- 9. The victim girl, who deposed as PW 3, in her evidence clearly st ated that, at the time of occurrence, she was reading in Class-VI in Moirabari M .E Senior Madrasa and that about 9/9-30 am when she was proceeding to her schoo l, the accused person, who was standing on the road, asked her to accompany him, but on her refusal to do so, the accused person put her in fear by showing a da gger compelled her to obey him and that the accused person took here to a place called Hahchara, in a Bus. She further stated that the accused person kept her i n the said place for about two days and thereafter shifted her to another house, situated at Bhurgaon. According to the said victim girl, police had recovered h er from Bhurgaon at the instance of the accused person. The victim girl was cros s-examined on behalf of the evidence, but no contradiction could be elicited to render her evidence disbelievable. 10. Md. Harez Ali, the father of the victim girl, deposing as PW 1, stated that he came to know about kidnapping of his daughter from his wife and t hat at the relevant time, his daughter was reading in Class-VI. He further state d that, at the time of occurrence, the age of his daughter was 13 years. He exhi bited the FIR, lodged by him, as Exbt.1 and his signature thereon as Exbt.1(1). He further stated that police had arrested the accused person and recovered his daughter at the instance of the said accused person. In his cross-examination, he stated that his daughter was recovered from village Bhurgaon. Though this wit ness was cross-examined on behalf of the defence, no contradiction could be brou ght out to demolish his evidence regarding recovery of his daughter from Bhurgao n. 11. Mr. Abdul Hai who deposed as PW 2 stated that he had no personal knowledge about the kidnapping of the victim girl. According to this witness, h e came to know from the mother of the victim girl that her daughter was taken aw ay by the accused person. He further stated that the victim girl was aged about 13/14 years at the time of occurrence and that she was a student of Class-VI. 12. Smt. Sahera Khatoon, the mother of the victim girl was examined as PW 4. PW 4 supporting the evidence of victim girl and the evidence of PW 1 st ated that, on the relevant day, her daughter went to the school at about 9 am an d that she did not return till the evening. She further stated that from other s tudents she came to know that her daughter did not attend school on that day. Sh e further stated that the accused person, who was also a resident of the same vi llage, was also not available in his hour after the disappearance of his daughte r and that after about four days, the accused person was handed over to the poli ce by the villagers. Supporting the evidence of the victim girl, she stated that , police, on being led by the accused person, recovered her daughter from a hous e situated in the village Bhurgaon. In her cross-examination, she denied the sug gestion, put to her on behalf of the defence, that her daughter was not taken aw ay by the accused person. She further stated that she initially suspected the ac cused person and that the accused also stated that he had kept the victim girl a t hahchara. 13. Mr. Abdul Mazid, who was examined as PW 5 stated that the wife o f the informant had informed him that here daughter was taken away by Jakir and that the said girl was recovered after four to five days. 14. The Medical officer who examined the victim girl, after her reco very, was examined as PW 6. The Medical officer, without the aid of radiology, o pined that the age of the victim girl could be in between 16 to 17 years. He exh ibited his report as Exbt.2. 15. Sri Abdul Aziz, who was examined as CW 1, stated that the accuse d person was apprehended by the villagers and handed over to the police. He furt her stated that after the arrest of the accused person, he accompanied the polic e and that the police had recovered the victim girl at the instance of the accus ed person from a village. This witness was cross-examined on behalf of the defen ce. In his cross-examination, he stated that he did not know the name of the per son from whose house the victim girl was recovered. Though this witness was cros s-examined on behalf of the defence, no contradiction could be elicited to make his evidence disbelievable with regard to recovery of the victim girl at the ins tance of the accused person. 16. The Investigating officer who was examined as PW 7, in his evide nce stated that he had recovered the victim girl from a village called Bhurgaon and that, finding a case under Section 366 IPC, he submitted the chargesheet aga inst the accused person. The Investigating officer was cross-examined on behalf of the defence, but no contradiction could be elicited to demolish the evidence, given by the prosecution witnesses. 17. From the above discussed evidence, it has been clearly establish ed that the victim girl was recovered from a house situated at Bhurgaon by polic e, at the instance of the accused person. The victim girl who deposed as PW 3, i n her evidence clearly stated that she was forcefully taken by the accused perso n and was kept in different houses situated at Hahchara and Bhurgaon. According to the victim girl she was recovered by police at the instance of the accused pe rson from the house situated at Bhurgaon. 18. It is settled law that the solitary evidence of a victim can be the basis for conviction, if the same is found to be reliable and trustworthy. A careful examination of evidence on record, more particularly, the evidence of v ictim girl inspires sufficient confidence to believe her evidence. The prosecuti on evidence, more particularly, CW 1, who appears to be an independent witness, clearly stated that the victim girl was recovered at the instance of the accused person. The recovery of the victim girl at the instance of the accused person a lso supports the contention of the victim girl that she was taken away by the ac cused person and kept in the said places. Though the Medical officer opined that the age of the victim girl was in between 16 to 17 years, the said opinion is n ot based on radiological examination. There is no dispute that the victim girl w as a student of Class-VI at the relevant time. That apart, the father of the vic tim girl in his evidence, given as PW 1, clearly stated that the age of here dau ghter was 13 years. His said evidence, regarding the age, has not been disputed. Even no suggestion was put to the father of the victim girl contradicting his e vidence regarding the age of the victim girl. 19. In view of the above evidence, I am of the considered opinion th at the learned trial Judge committed no error by holding that the accused person was guilty of committing the offence under Section 363 IPC and thereby convicti ng him for the offence under Section 363 IPC. 20. The learned Amicus Curiae, referring to the age of the accused p erson (28 years) and his socio-economic status (labourer) submitted that the sen tence imposed on the accused person was on the higher side, more particularly, t he imposition of fine of Rs.7,000/- which needs to be sympathetically considered to enable the accused to pay a reasonable amount as per his capacity. The maxim um punishment provided for the offence under Section 363 IPC is seven years. Of course, there is no ceiling in respect of fine. 21. In the present case, the learned Sessions Judge has sentenced th e accused person to suffer maximum prescribed period i.e seven years and pay fin e of Rs.7,000/-, in default, suffer imprisonment for another period of three yea rs. Considering the entire aspect of the matter, I am of the considered opinion that this is a fit case to reduce the fine amount. Accordingly, the sentence of fine is modified requiring the accused person to pay fine of Rs.5,000/- (rupees five thousand) only, in default, suffer rigorous imprisonment for another period of one year instead of three years. No interference is made in respect of the s ubstantive sentence of seven years under Section 363 IPC aforesaid. 22. With the above modification in respect of the sentence with rega rd to payment of fine and the imprisonment required to undergo in default of pay ment of fine, the appeal is dismissed. Return the lower court records. 23. Before I part with this judgment, I would like to record with ap preciation the service and assistance rendered by Mr. J. C. Gour, Advocate, lear ned Amicus Curiae. Mr. Gour has politely submitted that he is not willing to tak e any remuneration for assisting the court.