Jyotish Das and anr. Vs. State of Tripura - Court Judgment

SooperKanoon Citationsooperkanoon.com/894399
SubjectCriminal
CourtGuwahati High Court
Decided OnJun-12-2009
JudgeC.R. Sarma, J.
Reported in2009CriLJ3553
AppellantJyotish Das and anr.
RespondentState of Tripura
DispositionAppeal allowed
Excerpt:
- c.r. sarma, j.1. this appeal is directed against the judgment and order dated 14-11-2003 passed by the learned asstt. sessions judge, south tripura. by the impugned judgment aforesaid the accused-appellants were convicted and sentenced to undergo rigorous imprisonment for 10 years under sections 364/34 of indian penal code (hereinafter called ipc).2. the prosecution case, in brief, may be stated as follows:smt. shakti deb, daughter of the informant, was living in the house of the informant along with her minor daughter smt. silpi deb. sri jyotish das i.e. the appellant no. 1 who used to reside along with his wife smt. dipali das i.e. the appellant no. 2 near the house of the informant, maintained illicit relation with smt. shakti deb. according to the informant, on 14-3-2002 smt. shakti deb had gone to agartala to visit a doctor in connection with her headache and she was not traceable since then. the prosecution story further reveals that, the appellant jyotish das had taken away smt. shakti deb from her house on the plea that smt. dipali das was waiting for shakti at udaipur. the fir was lodged with the police on 1-5-2002. on receipt of the fir police registered a case, launched investigation into the matter and at the close of the investigation, submitted the charge-sheet against the appellants and sri jyotish das for the offences under sections 364/34, ipc. the offence being exclusively triable by the court of sessions the case was committed to the court of sessions and the learned sessions judge transferred the same to the file of the learned asstt. sessions judge. the learned asstt. sessions judge framed charge under sections 364/34, ipc against the appellants to which they pleaded not guilty and claimed to be tried. during the course of trial the prosecution examined as many as 9 witnesses including the investigating officer. at the close of the evidence the appellants were examined under section 313, cr. p.c. while denying the allegations, the appellants declined to adduce defence evidence. considering the evidence on record the learned asstt. sessions judge found the appellants guilty of offence under sections 364/34, ipc and accordingly convicted them for the said offence. the appellants were sentenced to suffer rigorous imprisonment for 10 years. the third accused sri prantosh das was not found guilty of the offence under sections 364/34, ipc and accordingly, he was acquitted. being aggrieved by the said conviction and sentence the appellants have come up with this present appeal.3. heard mr. s. d. chowdhury, learned counsel for the appellants and mr. r. c. debnath, learned special pp for the state.4. the learned counsel appearing for the appellants has submitted that the learned asstt. sessions judge erred in law by holding the appellants guilty of the offence under sections 364/34, ipc without any substantive/legal evidence. it is submitted that the prosecution failed to prove that the appellants had in any manner induced smt. shakti deb to go from her house by force or by any deceitful means or that they had taken away the said woman from india or from keeping of her legal guardian. it is further submitted that no ingredients of sections 359 (kidnapping) and 362 (abduction), ipc were proved against the appellants and as such the conviction and sentence under sections 364, ipc was devoid of any legal evidence. on the other hand, the learned special pp, supporting the impugned conviction and sentence, submitted that there was sufficient evidence to show that the appellants, more particularly, the appellant no. 1 jyotish das had compelled smt. shakti deb to go with him and that the learned trial judge committed no illegality by holding the appellants guilty of the offence under sections 364/34, ipc.5. the appellants have been convicted for committing offence under section 364, ipc. section 364, ipc is the punishment prescribed for kidnapping or abducting any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered. in order to hold a person guilty for committing the offence under section 364, ipc it must be proved that either the person had abducted or kidnapped the victim for the purpose of murdering or for disposing of so as to put the victim in danger of being murdered. section 362, ipc defines abduction as follows:362. whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person. this section requires two ingredients:(1) forceful compulsion or inducement by deceitful means,(2) the object of such compulsion or inducement must be the going of a person from any place.to constitute abduction there must be absence of will on the part of the person abducted. for abduction it is not necessary that person abducted should be minor or that he should be removed from the lawful guardianship of anybody. a person commits the offence of abduction when, he by force, compels or by deceitful means induces one to go from one place to another place. such movement of the victim should be against his/her wish/will. if the victim moves at his/ her own will it cannot be said that the offence of abduction was committed.kidnapping, as defined in section 359, ipc is of two kinds. kidnapping from india (section 360, ipc) and kidnapping from the lawful guardian (section 361, ipc).taking of minor under 16 years of age if a male or under 18 years of age if a female, or any person of unsound mind from the keeping of the lawful guardian amounts to kidnapping. if any person, irrespective of age, is taken beyond the limit of india without the consent of the person or of some persons legally authorized to consent on behalf of that person then it will constitute the offence of kidnapping under section 360, ipc. abduction (under section 362, ipc) is committed in respect of a person of any age. in kidnapping under section 361, ipc the kidnapped person is removed out of the keeping of lawful guardianship. in kidnapping under section 360, ipc the person is taken beyond india. in abduction, force, compulsion or deceitful means are used. in abduction either force is applied or consent of the person is obtained by deceitful inducement. if the person voluntarily goes then the offence of abduction is not constituted.5a. admittedly, the missing woman i.e. shakti deb being a married person, was a major one. there is nothing on record to find that she was a minor. she was staying in her mother's house with her minor daughter. as revealed from the evidence her husband used to stay at agartala.6. in view of the above, we are required to examine whether smt. shakti deb was conveyed beyond the limits of india without her consent or whether she was forced or compelled by deceitful means to go from her house. in order to appreciate the argument advanced by both the parties, i would like to reproduce the evidence, in brief, as follows:smt. minati deb, mother of smt. shakti deb deposing as pw 1 stated that when she went to market she had instructed her said daughter to get treatment for her headache at agartala and that she saw the appellant jyotish coming to her house. on her return from market she was informed by silpi, minor daughter of smt. shakti deb, that sri jyotish insisted upon shakti to go with him on the plea that dipali was waiting at udaipur. this witness further stated that silpi informed her that, though shakti refused to go on the ground of illness, she was compelled to go, on being threatened by jyotish. according to this witness, as her daughter was not traceable; she informed the panchayat. she further stated that sri jyotish had taken rs. 200/r from her for going to agartala to find out shakti, but he came back to inform that shakti was not traceable. from her deposition, it appears that pw 1 had no personal knowledge regarding threat or inducement, if any, applied by the appellants. the pw 1,'s grand daughter silpi was a student of class-ii at the relevant time and she did not go to school that day. smt. silpi deb deposing as pw 2 stated that at about 9 a.m. jyotish went to their house to inform her mother that dipali was waiting at udaipur. this witness further stated that her grand mother had asked her mother not to go away with anybody and she also requested her mother not to go. but according to the pw 2, her mother went by another way, while sri jyotish had gone ahead of her mother. she further stated that when she resisted her mother saying that she would disclose it to her sister, then sri jyotish had threatened her saying that he would stab her. it appears that this minor daughter of smt. shakti deb was the only eye witness, who saw her mother leaving their house at about 9 a.m. from the evidence of this witness it is found that sri jyotish das, on the fateful morning went to their house and informed that dipali was waiting and on being so informed, in spite of resistance given by her daughter, smt. shakti deb went out by another way, while jyotish also left their house and he was a bit ahead of her mother. this evidence of the pw 2 clearly indicates that no force or inducement was applied by jyotish. what jyotish did was that he had informed smt. shakti that dipali was waiting for her. in view of the above there is no material to find, in the evidence of pw 2. that any inducement or force was applied to smt. shakti. rather, it appears that smt. shakti, at her own will, had gone away. admittedly, pw 2 was a student of class-ii and as stated by her grand-mother she used to study in the morning school. therefore, as usual, she should have gone to the school on the fateful morning instead of staying at home, but for obvious reason she did not go to school. in view of the above, it appears that her presence at the time of the leaving of their house by her mother was an accidental one. therefore, she, being a chance witness, does not inspire confidence' to rely on her evidence. pw 3 smt. jyostna deb, a relative of smt. shakti stated that shri jyotish and smt. shakti had illicit relation and she saw sri jyotish going to the house of pw 1 on the date of occurrence. she further stated that sri jyotish had taken rs. 200/- from the mother of smt. shakti to go to agartala for finding out smt. shakti. this evidence of pw 3 does not indicate that the appellants played any role in kidnapping or abducting the missing woman. pw 4 sri sajal das is one of the sons-in-law of the informant. he also stated that jyotish had taken rs. 200/ - from his mother-in-law for searching out shakti deb. in his cross-examination, this witness further stated that, on the day of occurrence, the appellant jyotish worked in his house from 9 a.m. to 4 p.m. the evidence of this witness, who was the son-in-law of the informant, indicates that the appellant jyotish was present in the house of pw 4 in between 9 a.m. to 4 p.m. therefore, the evidence of pw 2 i.e. the minor daughter of shakti deb that jyotish had gone to their house at 9 a.m. on the date of occurrence and that he had threatened her for putting resistance is doubtful. pw 4, the brother-in-law of smt. shakti deb stated that after the missing of smt. shakti, jyotish assured to bring back shakti. accordingly, on being asked by him rs. 200/- was given to him, but she could not be traced out. in view of the above evidence, given by pw 4, it cannot be concluded that the appellants had forcefully or by inducement taken away smt. shakti. sri biswanath dey, another brother-in-law of smt. shakti deb deposing as pw 5 stated that from smt. silpi deb (pw 2) he came to know that at about 8 to 8.30 a.m. on 29th day of phulguna he came to know that jyotish das had taken shakti from her residence and thereafter dipali das had taken her to hapania hospital for treatment of her headache. according to this witness, though jyotish das assured to bring back shakti, she could not be traced out. from the evidence of pw 5 also it cannot be held that smt. shakti deb was forcefully or by inducement compelled to go with the appellants. his evidence was nothing but hearsay evidence. smt. tapi dey, the elder sister of smt. shakti deb deposing as pw 6 stated that smt. dipali das, w/o sri jyotish das told her that dipali's husband maintained illicit relation with smt. shakti. she further stated that silpi had told her that jyotish had taken her mother using threat and that shakti had gone to agartala with dipali. the evidence of pw 6 is also nothing but hearsay evidence and her evidence does not implicate the accused persons with the alleged offence. though she stated that silpi had told her that jyotish had taken her mother using threat, smt. silpi in her evidence given as pw 2 did not state that jyotish had, in any manner, threatened her mother. but, she stated that jyotish had threatened her (pw 2) when she indicated that she would inform her sister about leaving of their house by her mother. pw 7, i.e. the o.c. of r. k. pur police station stated that he received a suo motu complaint on 6-5-2002 lodged by si shankar das in connection with this case. the investigating officer was examined as pw 8. he stated that on 5-7-2008 he searched the house of jyotish and found a chayya (petticoat), which was identified by smt. minati deb (pw 1) to be the petticoat of smt. shakti deb. in his cross-examination, the pw 8 stated that the seizure list was written on 7-5-2005. i do not understand as to why the investigating officer, who stated to have seized the petticoat on 5-7-2002 prepared the seizure list on 7-5-2002. that apart, smt. minati deb, who deposited as pw 1, did not state that she had identified the petticoat alleged to be recovered by the i.o. pw 9 was a police officer who submitted the charge-sheet under section 364/34, ipc. in view of the above, it appears that none except the pw 2 i.e. the minor daughter of shakti deb saw her mother leaving their house on the fateful day. as discussed earlier she appears to be a chance witness and she did not state that her mother was induced or threatened or compelled by the accused persons to go with them. rather, a careful perusal of the evidence indicates that her mother had left the house in spite of the resistance put by this witness. most of the witnesses stated that smt. shakti deb maintained illicit relationship with sri jyotish, who was the husband of smt. dipali (co-accused). the said evidence, that jyotish, in spite of having his married wife, used to maintain illicit relation with shakti deb, does not conclusively lead to believe that he had played any force, inducement compelling mrs. shakti to leave her house with him. the evidence that jyotish das took rs. 200/- from the mother of the missing woman for the purpose of bringing back shakti deb aforesaid is also not conclusive evidence to hold that he, by force or by inducement had taken away the missing woman. none of the witnesses adduced any evidence against smt. dipali. the evidence of pw 2 that jyotish had told shakti that dipali was waiting at udaipur is not sufficient to believe that dipali had played any role so as to holder guilty of the offence under section 364, ipc. there is nothing on record to show that smt. shakti deb was either taken against her will or that she was forced or compelled to go by any deceitful inducement by the appellants to go away.7. in view of the above evidence on record, i am of the considered opinion that the prosecution failed to establish by adducing cogent and substantial evidence to prove that the appellants had played any force or inducement by deceitful means, compelling smt. shakti deb to leave her residence. there is no legal evidence to substantiate that the appellants had kidnapped or abducted shakti deb in order to murder her or that she was so disposed of as to put in danger of being murdered. therefore, there is no legal evidence to hold that the accused persons committed the offence under sections 364/34, ipc.8. another aspect of the matter, which cannot be accepted without doubt is that the husband of the missing woman was alive. according to pw 2 her father's house was at sekerkote and due to their poverty she and her mother used to stay in her grandmother's house. she clearly stated that her mother had no quarrel with her father. therefore, it is surprising to note as to why the husband, who had good relations with his wife, did not come forward either by lodging fir or by adducing evidence. his silence in this regard is quite suspicious raising doubt about the veracity of the prosecution story itself. furthermore, the occurrence took place on 14-3-2002, but the fir was lodged on 1-5-2002 i.e. after a delay of about 45 days. it is settled law that in a criminal trial the first information is to be lodged immediately after the occurrence without any delay. in the event of any delay such delay is to be explained by giving reasonable grounds. unless the delay is explained by showing reasonable ground the delay itself raises doubt about the prosecution story. in the present case no explanation has been given for such inordinate delay. hence, the delay was fatal for the prosecution.9. in the light of the above discussion, i am inclined to hold that the prosecution failed to establish the case against the appellants beyond all reasonable doubt. therefore, in my considered view, the learned trial judge erred in law by holding the appellants guilty of the offence under section 364, ipc. the learned trial judge committed another illegality by failing to impose penalty of fine, which was mandatory in case of committing offence under section 364', ipc. in the light of the above, for want of cogent and reliable evidence i find sufficient merit in this appeal.10. accordingly, this appeal is allowed and the impugned judgment and order dated 14-11-2003 convicting and sentencing the appellants in st no. 17(st/u)/2003 is set aside. the accused-appellant no. 1 sri jyotish das, who is stated to be undergoing imprisonment be set at liberty forthwith, if not required in any other case and the bail bond of the accused-appellant no. 2 smt. dipali das who is stated to be on bail shall stand discharged. return the case records.
Judgment:

C.R. Sarma, J.

1. This appeal is directed against the judgment and order dated 14-11-2003 passed by the learned Asstt. Sessions Judge, South Tripura. By the impugned judgment aforesaid the accused-appellants were convicted and sentenced to undergo rigorous imprisonment for 10 years under Sections 364/34 of Indian Penal Code (hereinafter called IPC).

2. The prosecution case, in brief, may be stated as follows:

Smt. Shakti Deb, daughter of the informant, was living in the house of the informant along with her minor daughter Smt. Silpi Deb. Sri Jyotish Das i.e. the appellant No. 1 who used to reside along with his wife Smt. Dipali Das i.e. the appellant No. 2 near the house of the informant, maintained illicit relation with Smt. Shakti Deb. According to the informant, on 14-3-2002 Smt. Shakti Deb had gone to Agartala to visit a Doctor in connection with her headache and she was not traceable since then. The prosecution story further reveals that, the appellant Jyotish Das had taken away Smt. Shakti Deb from her house on the plea that Smt. Dipali Das was waiting for Shakti at Udaipur. The FIR was lodged with the Police on 1-5-2002. On receipt of the FIR Police registered a case, launched investigation into the matter and at the close of the investigation, submitted the charge-sheet against the appellants and Sri Jyotish Das for the offences under Sections 364/34, IPC. The offence being exclusively triable by the Court of Sessions the case was committed to the Court of Sessions and the learned Sessions Judge transferred the same to the file of the learned Asstt. Sessions Judge. The learned Asstt. Sessions Judge framed charge under Sections 364/34, IPC against the appellants to which they pleaded not guilty and claimed to be tried. During the course of trial the prosecution examined as many as 9 witnesses including the Investigating Officer. At the close of the evidence the appellants were examined under Section 313, Cr. P.C. While denying the allegations, the appellants declined to adduce defence evidence. Considering the evidence on record the learned Asstt. Sessions Judge found the appellants guilty of offence under Sections 364/34, IPC and accordingly convicted them for the said offence. The appellants were sentenced to suffer rigorous imprisonment for 10 years. The third accused Sri Prantosh Das was not found guilty of the offence under Sections 364/34, IPC and accordingly, he was acquitted. Being aggrieved by the said conviction and sentence the appellants have come up with this present appeal.

3. Heard Mr. S. D. Chowdhury, learned Counsel for the appellants and Mr. R. C. Debnath, learned Special PP for the State.

4. The learned Counsel appearing for the appellants has submitted that the learned Asstt. Sessions Judge erred in law by holding the appellants guilty of the offence under Sections 364/34, IPC without any substantive/legal evidence. It is submitted that the prosecution failed to prove that the appellants had in any manner induced Smt. Shakti Deb to go from her house by force or by any deceitful means or that they had taken away the said woman from India or from keeping of her legal guardian. It is further submitted that no ingredients of Sections 359 (kidnapping) and 362 (abduction), IPC were proved against the appellants and as such the conviction and sentence under Sections 364, IPC was devoid of any legal evidence. On the other hand, the learned Special PP, supporting the impugned conviction and sentence, submitted that there was sufficient evidence to show that the appellants, more particularly, the appellant No. 1 Jyotish Das had compelled Smt. Shakti Deb to go with him and that the learned trial Judge committed no illegality by holding the appellants guilty of the offence under Sections 364/34, IPC.

5. The appellants have been convicted for committing offence under Section 364, IPC. Section 364, IPC is the punishment prescribed for kidnapping or abducting any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered. In order to hold a person guilty for committing the offence under Section 364, IPC it must be proved that either the person had abducted or kidnapped the victim for the purpose of murdering or for disposing of so as to put the victim in danger of being murdered. Section 362, IPC defines abduction as follows:

362. Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person. This section requires two ingredients:

(1) Forceful compulsion or inducement by deceitful means,

(2) The object of such compulsion or inducement must be the going of a person from any place.

To constitute abduction there must be absence of will on the part of the person abducted. For abduction it is not necessary that person abducted should be minor or that he should be removed from the lawful guardianship of anybody. A person commits the offence of abduction when, he by force, compels or by deceitful means induces one to go from one place to another place. Such movement of the victim should be against his/her wish/will. If the victim moves at his/ her own will it cannot be said that the offence of abduction was committed.

Kidnapping, as defined in Section 359, IPC is of two kinds. Kidnapping from India (Section 360, IPC) and kidnapping from the lawful guardian (Section 361, IPC).

Taking of minor under 16 years of age if a male or under 18 years of age if a female, or any person of unsound mind from the keeping of the lawful guardian amounts to kidnapping. If any person, irrespective of age, is taken beyond the limit of India without the consent of the person or of some persons legally authorized to consent on behalf of that person then it will constitute the offence of kidnapping under Section 360, IPC. Abduction (under Section 362, IPC) is committed in respect of a person of any age. In kidnapping under Section 361, IPC the kidnapped person is removed out of the keeping of lawful guardianship. In kidnapping under Section 360, IPC the person is taken beyond India. In abduction, force, compulsion or deceitful means are used. In abduction either force is applied or consent of the person is obtained by deceitful inducement. If the person voluntarily goes then the offence of abduction is not constituted.

5A. Admittedly, the missing woman i.e. Shakti Deb being a married person, was a major one. There is nothing on record to find that she was a minor. She was staying in her mother's house with her minor daughter. As revealed from the evidence her husband used to stay at Agartala.

6. In view of the above, we are required to examine whether Smt. Shakti Deb was conveyed beyond the limits of India without her consent or whether she was forced or compelled by deceitful means to go from her house. In order to appreciate the argument advanced by both the parties, I would like to reproduce the evidence, in brief, as follows:

Smt. Minati Deb, mother of Smt. Shakti Deb deposing as PW 1 stated that when she went to market she had instructed her said daughter to get treatment for her headache at Agartala and that she saw the appellant Jyotish coming to her house. On her return from market she was informed by Silpi, minor daughter of Smt. Shakti Deb, that Sri Jyotish insisted upon Shakti to go with him on the plea that Dipali was waiting at Udaipur. This witness further stated that Silpi informed her that, though Shakti refused to go on the ground of illness, she was compelled to go, on being threatened by Jyotish. According to this witness, as her daughter was not traceable; she informed the Panchayat. She further stated that Sri Jyotish had taken Rs. 200/r from her for going to Agartala to find out Shakti, but he came back to inform that Shakti was not traceable. From her deposition, it appears that PW 1 had no personal knowledge regarding threat or inducement, if any, applied by the appellants. The PW 1,'s grand daughter Silpi was a student of Class-II at the relevant time and she did not go to school that day. Smt. Silpi Deb deposing as PW 2 stated that at about 9 a.m. Jyotish went to their house to inform her mother that Dipali was waiting at Udaipur. This witness further stated that her grand mother had asked her mother not to go away with anybody and she also requested her mother not to go. But according to the PW 2, her mother went by another way, while Sri Jyotish had gone ahead of her mother. She further stated that when she resisted her mother saying that she would disclose it to her sister, then Sri Jyotish had threatened her saying that he would stab her. It appears that this minor daughter of Smt. Shakti Deb was the only eye witness, who saw her mother leaving their house at about 9 a.m. From the evidence of this witness it is found that Sri Jyotish Das, on the fateful morning went to their house and informed that Dipali was waiting and on being so informed, in spite of resistance given by her daughter, Smt. Shakti Deb went out by another way, while Jyotish also left their house and he was a bit ahead of her mother. This evidence of the PW 2 clearly indicates that no force or inducement was applied by Jyotish. What Jyotish did was that he had informed Smt. Shakti that Dipali was waiting for her. In view of the above there is no material to find, in the evidence of PW 2. that any inducement or force was applied to Smt. Shakti. Rather, it appears that Smt. Shakti, at her own will, had gone away. Admittedly, PW 2 was a student of Class-II and as stated by her grand-mother she used to study in the morning school. Therefore, as usual, she should have gone to the school on the fateful morning instead of staying at home, but for obvious reason she did not go to school. In view of the above, it appears that her presence at the time of the leaving of their house by her mother was an accidental one. Therefore, she, being a chance witness, does not inspire confidence' to rely on her evidence. PW 3 Smt. Jyostna Deb, a relative of Smt. Shakti stated that Shri Jyotish and Smt. Shakti had illicit relation and she saw Sri Jyotish going to the house of PW 1 on the date of occurrence. She further stated that Sri Jyotish had taken Rs. 200/- from the mother of Smt. Shakti to go to Agartala for finding out Smt. Shakti. This evidence of PW 3 does not indicate that the appellants played any role in kidnapping or abducting the missing woman. PW 4 Sri Sajal Das is one of the sons-in-law of the informant. He also stated that Jyotish had taken Rs. 200/ - from his mother-in-law for searching out Shakti Deb. In his cross-examination, this witness further stated that, on the day of occurrence, the appellant Jyotish worked in his house from 9 a.m. to 4 p.m. The evidence of this witness, who was the son-in-law of the informant, indicates that the appellant Jyotish was present in the house of PW 4 in between 9 a.m. to 4 p.m. Therefore, the evidence of PW 2 i.e. the minor daughter of Shakti Deb that Jyotish had gone to their house at 9 a.m. on the date of occurrence and that he had threatened her for putting resistance is doubtful. PW 4, the brother-in-law of Smt. Shakti Deb stated that after the missing of Smt. Shakti, Jyotish assured to bring back Shakti. Accordingly, on being asked by him Rs. 200/- was given to him, but she could not be traced out. In view of the above evidence, given by PW 4, it cannot be concluded that the appellants had forcefully or by inducement taken away Smt. Shakti. Sri Biswanath Dey, another brother-in-law of Smt. Shakti Deb deposing as PW 5 stated that from Smt. Silpi Deb (PW 2) he came to know that at about 8 to 8.30 a.m. on 29th day of Phulguna he came to know that Jyotish Das had taken Shakti from her residence and thereafter Dipali Das had taken her to Hapania hospital for treatment of her headache. According to this witness, though Jyotish Das assured to bring back Shakti, she could not be traced out. From the evidence of PW 5 also it cannot be held that Smt. Shakti Deb was forcefully or by inducement compelled to go with the appellants. His evidence was nothing but hearsay evidence. Smt. Tapi Dey, the elder sister of Smt. Shakti Deb deposing as PW 6 stated that Smt. Dipali Das, w/o Sri Jyotish Das told her that Dipali's husband maintained illicit relation with Smt. Shakti. She further stated that Silpi had told her that Jyotish had taken her mother using threat and that Shakti had gone to Agartala with Dipali. The evidence of PW 6 is also nothing but hearsay evidence and her evidence does not implicate the accused persons with the alleged offence. Though she stated that Silpi had told her that Jyotish had taken her mother using threat, Smt. Silpi in her evidence given as PW 2 did not state that Jyotish had, in any manner, threatened her mother. But, she stated that Jyotish had threatened her (PW 2) when she indicated that she would inform her sister about leaving of their house by her mother. PW 7, i.e. the O.C. of R. K. Pur Police Station stated that he received a suo motu complaint on 6-5-2002 lodged by SI Shankar Das in connection with this case. The Investigating Officer was examined as PW 8. He stated that on 5-7-2008 he searched the house of Jyotish and found a chayya (petticoat), which was identified by Smt. Minati Deb (PW 1) to be the petticoat of Smt. Shakti Deb. In his cross-examination, the PW 8 stated that the seizure list was written on 7-5-2005. I do not understand as to why the Investigating Officer, who stated to have seized the petticoat on 5-7-2002 prepared the seizure list on 7-5-2002. That apart, Smt. Minati Deb, who deposited as PW 1, did not state that she had identified the petticoat alleged to be recovered by the I.O. PW 9 was a Police Officer who submitted the charge-sheet under Section 364/34, IPC. In view of the above, it appears that none except the PW 2 i.e. the minor daughter of Shakti Deb saw her mother leaving their house on the fateful day. As discussed earlier she appears to be a chance witness and she did not state that her mother was induced or threatened or compelled by the accused persons to go with them. Rather, a careful perusal of the evidence indicates that her mother had left the house in spite of the resistance put by this witness. Most of the witnesses stated that Smt. Shakti Deb maintained illicit relationship with Sri Jyotish, who was the husband of Smt. Dipali (co-accused). The said evidence, that Jyotish, in spite of having his married wife, used to maintain illicit relation with Shakti Deb, does not conclusively lead to believe that he had played any force, inducement Compelling Mrs. Shakti to leave her house with him. The evidence that Jyotish Das took Rs. 200/- from the mother of the missing woman for the purpose of bringing back Shakti Deb aforesaid is also not conclusive evidence to hold that he, by force or by inducement had taken away the missing woman. None of the witnesses adduced any evidence against Smt. Dipali. The evidence of PW 2 that Jyotish had told Shakti that Dipali was waiting at Udaipur is not sufficient to believe that Dipali had played any role so as to holder guilty of the offence under Section 364, IPC. There is nothing on record to show that Smt. Shakti Deb was either taken against her will or that she was forced or compelled to go by any deceitful inducement by the appellants to go away.

7. In view of the above evidence on record, I am of the considered opinion that the prosecution failed to establish by adducing cogent and substantial evidence to prove that the appellants had played any force or inducement by deceitful means, compelling Smt. Shakti Deb to leave her residence. There is no legal evidence to substantiate that the appellants had kidnapped or abducted Shakti Deb in order to murder her or that she was so disposed of as to put in danger of being murdered. Therefore, there is no legal evidence to hold that the accused persons committed the offence under Sections 364/34, IPC.

8. Another aspect of the matter, which cannot be accepted without doubt is that the husband of the missing woman was alive. According to PW 2 her father's house was at Sekerkote and due to their poverty she and her mother used to stay in her grandmother's house. She clearly stated that her mother had no quarrel with her father. Therefore, it is surprising to note as to why the husband, who had good relations with his wife, did not come forward either by lodging FIR or by adducing evidence. His silence in this regard is quite suspicious raising doubt about the veracity of the prosecution story itself. Furthermore, the occurrence took place on 14-3-2002, but the FIR was lodged on 1-5-2002 i.e. after a delay of about 45 days. It is settled law that in a criminal trial the first information is to be lodged immediately after the occurrence without any delay. In the event of any delay such delay is to be explained by giving reasonable grounds. Unless the delay is explained by showing reasonable ground the delay itself raises doubt about the prosecution story. In the present case no explanation has been given for such inordinate delay. Hence, the delay was fatal for the prosecution.

9. In the light of the above discussion, I am inclined to hold that the prosecution failed to establish the case against the appellants beyond all reasonable doubt. Therefore, in my considered view, the learned trial Judge erred in law by holding the appellants guilty of the offence under Section 364, IPC. The learned trial Judge committed another illegality by failing to impose penalty of fine, which was mandatory in case of committing offence under Section 364', IPC. In the light of the above, for want of cogent and reliable evidence I find sufficient merit in this appeal.

10. Accordingly, this appeal is allowed and the impugned judgment and order dated 14-11-2003 convicting and sentencing the appellants in ST No. 17(ST/U)/2003 is set aside. The accused-appellant No. 1 Sri Jyotish Das, who is stated to be undergoing imprisonment be set at liberty forthwith, if not required in any other case and the bail bond of the accused-appellant No. 2 Smt. Dipali Das who is stated to be on bail shall stand discharged. Return the case records.