Crl.A. 136/2006 BEFORE HON’BLE MR. JUSTICE AK GOSWAMI This appeal is directed against the judgement and order dated 18.2.2006 passed b y the learned Asstt. Sessions Judge, Morigaon in Sessions Case No.66/2005 convic ting the accused appellant under Section 366 IPC and sentencing him to suffer ri gorous imprisonment for 8 years and also to pay a fine of Rs.10,000/-, in defaul t of payment of fine, further rigorous imprisonment for 2 years. 2. The prosecution case, briefly, is that one Md. Mozibur Rahman, lodged an ejahar before the Officer In-Charge of the Mikirbheta Police Station stating th at in the evening, at around 7 PM of 25.9.2004, the present appellant, by promis ing his sister Mustt.Akiban Nessa that he will marry her, kidnapped her and afte r he had taken her to the residence of the accused appellant, the accused Md. Sa rupuna, who is the brother of the present appellant, assaulted her and outraged her modesty and drove her out of the house. On receipt of the aforesaid ejahar, Mikirbheta PS Case No.97/2004 under Sections 366/354/323 IPC was registered. 3. On 27.9.2004, the statement of the recovered victim girl, namely, Mustt. Akiban Nessa was recorded under Section 164 Cr.PC. After the investigations we re completed, finding materials against the accused appellant and Md. Sarupuna, the police submitted charge sheet on 15.2.2005 under Sections 366/354/323/34 IPC . 4. Thereafter, charge under Section 366 IPC was framed against the appellan t. Charges under Sections 354/323 IPC were framed against Md. Sarupuna. Charges having been explained, the accused appellant as well as Md. Sarupuna pleaded not guilty and claimed to be tried. 5. During trial, prosecution examined as many as 6 witnesses including the victim girl as PW 2 as well as the Medical Officer who had examined the victim o n 27.9.2004 as PW 5. The informant was examined as PW 1, the mother of the victi m girl as PW 3, one Md. Mukibur Rahman, an independent witness, as PW 4. The Inv estigating Officer of the case, who had conducted part of the investigation, was examined as PW 6. 6. In his evidence, PW 1, Md. Mozibur Rahman stated that after returning ho me at around 7 PM, he came to learn that his 16 years old sister Mustt. Akiban N essa was enticed away by Md. Sahidur Rahman and had taken her to his home. It is also stated in the evidence that, thereafter, accused Md. Sarupuna and his moth er assaulted Mustt. Akiban Nessa and had driven her out of the house and that sh e was on the road for the whole night. Next day, at around 10 AM, he made enqui ries by sending some people, namely, Md. Mukshed Ali, Ajmat Police, Fani Master to the house of Sahidur Rahman ( the appellant) to ascertain as to whether the a ccused persons would keep the victim girl and in response thereto, it was inform ed that they were not agreeable to keep the victim girl in their place. In cross examination, it is stated that he had seen his sister Mustt. Akiban Nessa at ar ound 7 PM on the road and that he had not witnessed the occurrence. It was also stated in his deposition that the entire village people had assembled at the pla ce of occurrence. PW 1 also admits of there being a love affair between the vict im girl and the accused. 7. PW 2, Mustt. Akiban Nessa is the victim girl who had deposed that she wa s aged about 16 years and she stated that in the month of Ramzan of the previous year at around 7 PM while she was cooking, the accused appellant came to their house and by brandishing a knife had forcibly kidnapped her and in the process, her wearing apparels were torn. Though she had shouted, nobody had heard her scr eams. The accused dragged her through the road and after taking her inside his h ouse, he fled away abandoning her in the house. She had deposed that, thereafter , she was assaulted by his mother and brother Md. Sarupuna, Jamir, Mustafa and R okid as a result of which she suffered injuries. It is also in her evidence that the incident was witnessed by many villagers of the village and she spent the n ight on the road from where she was recovered by the police. In cross examinatio n, she also stated that while she spent the night on the road, there are quite a few boys of the village with her. She admitted that she was in love with the ac cused appellant for the last three years and that she had attempted to go inside the house of accused Md. Sahidur Rahman in the night. However, her attempts wer e thwarted by the family members of accused Sahidur Rahman. She also admitted th at she did not shout while being dragged through the road though she had seen m any people around. 8. PW 3, Mustt. Alekjan Begum deposed that while she was at home, her 16 ye ars old daughter Akiban Nessa was cooking and suddenly she found that her daught er was not there. When her son came back she informed him about the same who the n went out looking for the girl. Her son found accused Sahidur Rahman and one Ha sen Ali moving around on the road and on enquiries being made with the wife of H asen Ali it was informed that the victim girl was in a particular place. She dep oses that at around 8 PM, the mother of Sahidur assaulted the victim girl and ha d driven her out from the house and this information was given to her by a boy c alled Bablu. She also stated that at the time of occurrence, her married daughte r Anowara was also present at home. She also stated that she was harbouring a do ubt that her daughter might elope on the particular date. In her cross examinati on, she had stated that if the accused had taken the girl, she would have had no objection. 9. PW 4, Md. Mokibur Rahman had deposed that hearing a commotion near the h ouse of Mozibur, he came there and heard that Akiban Nessa had fled away and he accompanied Mozibur to trace out the girl and then he saw that Md. Sarupuna had dragged her to the road. As Sahidur, with whom Akiban Nessa was having a love a ffair, was not present in the house, she stayed on the street and he and Mozibur guarded her throughout the night. On the night, at around 3 PM, when Md. Sahidu r, Md. Sarupuna and others came chasing towards them with lathi, spear etc. in t heir hands, they went away leaving behind the girl on the road. The girl also st arted running after them but she was prevented from going away and she was made to wait in front of the house of Sahidur. In his cross examination, he admitted that he did not see who had taken away Akiban Nessa from her house. It also came out from his evidence that around 50/60 people had gathered in front of the hou se of Sahidur. 10. PW 5 is the doctor who had examined the victim girl on 27.9.2004 and acc ording to his opinion, clinically the victim girl was about 16 years old. He had also stated that according to his opinion, there was no symptom and sign of rec ent sexual intercourse. No mark of violence also was seen in her private parts a nd that pregnancy was also not detected at the time of examination. In cross exa mination, he asserted that he did not find any external injury in the private pa rts of the victim girl. 11. The evidence of the Investigating Officer (PW 6) does not throw much li ght save and except that he had recorded the statement of the witnesses and late r on, on 10.11.2004, had handed over the charge of investigation to one Sri Thag it Kalita. In cross examination, PW 6 had stated that PW 2 had not stated to hi m that accused Sahidur had dragged her by showing a knife and that she had screa med. He also deposed in his cross examination that PW 4 also had not told him th at he had witnessed Md. Sarupuna dragging the victim girl by hair and that at ar ound 3 PM, the accused persons, armed with lathi and spears etc. chased them as a result of which they had fled away. 12. The defence did not adduce any evidence. In his examination under Sectio n 313 Cr.PC, the accused appellant had stated that while it is true that he was having a love affair with PW 2, he had not kidnapped her and on the contrary, he r family members had conspired to put her inside his house so as to get her marr ied to him. He also stated that on the date of occurrence, he was not present at the place of occurrence. 13. On consideration of the evidence on record, the learned trial Court had convicted the accused appellant as has been noted hereinabove. However the other accused person, namely, Md. Sarupuna was found to be innocent and not guilty an d as such, he was acquitted of the charges framed against him. 14. I have heard Mr. Utpal Dutta, learned counsel for the appellant as well as Mr. K Munir, learned Addl. Public Prosecutor, Assam. 15. Mr. Dutta, learned counsel for the appellant has submitted that the lear ned Trial Court committed manifest error in law in convicting the accused appell ant under Section 366 IPC in view of the fact that the evidence on record does n ot in any manner satisfy the ingredients of Section 366 IPC. Learned counsel sub mits that in her statement made under Section 164 Cr.PC, the victim girl had por trayed a story which is totally different from her deposition in Court. He, acco rdingly, submits that PW 2 is not a reliable witness and therefore, the convicti on of the accused appellant on the basis of her testimony is wholly impermissibl e in law. Learned counsel submits that the evidence on record would indicate tha t the victim girl had made an attempt to get into the house of the accused appel lant and in the process, there was some sort of scuffle. The allegation of kidna pping is an afterthought and not borne by materials on record, he submits. 16. Mr. K. Munir, learned Addl. Public Prosecutor, Assam, admits that there are material contradictions in the evidence of PW 2 made before the Court with t he statements made under Section 164 Cr.PC, which cannot be reconciled. He has a lso hinted that, in all probability, the charge under Section 366 IPC is not est ablished in the fact and circumstances of the case. 17. The picture that emerges from the evidence on record indoubtedly points out that the accused Sahidur Rahman and Akiban Nessa were having a close relatio nship. The evidence of PW 3 would also suggest that if the family of the accused would have accepted Akiban Nessa, PW 3 would have had no objection. 18. In order to establish a charge under Section 366 IPC, the prosecution mu st prove that a woman is kidnapped or abducted with intent that she may be compe lled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit inte rcourse, or knowing it to be likely that she will be forced or seduced to illici t intercourse or that there was criminal intimidation or of abuse of authority o r any other method of compulsion, inducing any woman to go from any place with i ntent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person. 19. Though PW 2 in her evidence stated that the accused had entered her prem ises holding a knife and had forcefully dragged her out, it is important to note that PW 6 in his cross examination had categorically asserted that PW 2 had not made any such statement while he had recorded her statement. If that be so, fro m the evidence of PW 2, no other incriminating circumstances have emerged. It is noticeable that in her own evidence she had stated that she had encountered man y people in the street but she had not even sought to attract the attention of o nlookers by some overt action like screaming. It is also noticeable that none of the alleged witnesses had adduced evidence with regard to the aforesaid draggin g of PW 2. The mother, PW 3, had also a lurking suspicion that the victim girl m ight elope on the fateful day though she had not come out with a version why she harboured such suspicion. However, it will not be unreasonable to assume that s he was aware of the kind of relationship her daughter had with the accused. The cross examination of PW 3 will indicate that she was not opposed to the match. T here is also material contradiction in the evidence of PW 1, PW 2 and PW 4 relat ing to the manner in which the PW 2 had spent the night on the road. 20. It is seen that PW 2 in her statement under Section 164 Cr.PC had indic ated that she had gone out with the accused appellant as the accused appellant h ad told her that if she was not willing to come with him, he may commit suicide. She had stated in her statement that the accused had taken her to his residence promising to marry her. 21. In Baij Nath Sah v. State of Bihar, (2010) 6 SCC 736, the Apex Court had stated that statement under Section 164 Cr.PC is not substantive evidence and c an be used only to corroborate or contradict the witness vis-à-vis statement mad e in Court. To put it differently, it can be used only as a previous statement. Therefore, in the facts and circumstances of the case, Ext. 2 i.e., the statemen t under Section 164 Cr.PC of the PW 2, is of no avail to the prosecution case. 22. In view of the aforesaid discussion, I am of the considered opinion that the prosecution has failed to prove the guilt of the accused appellant beyond r easonable doubt and as such, the accused appellant is entitled to be acquitted o f the charges framed against him. Accordingly, the conviction and sentence dated 18.2.2006 passed by the learned Asstt. Sessions Judge, Morigaon in Sessions Cas e No.66/2005 is hereby set aside and quashed. 23. In the result, the appeal is allowed. 24. Send back the LCRs immediately.