Judgment · High Court · 2012

Both these appeals have arisen out of the judgment and order, dated 17.01.2003, passed, in Sessions Case No.62/2002, by the learned Sessions Judge, Morigaon, co nvicting the accused-appellant under Section 366 IPC and sentencing him to suffe r rigorous imprisonment for seven years with fine of Rs.2,000/- and, in default of payment of fine, suffer rigorous imprisonment for a further period of three m onths, both the appeals having been preferred by one and the same convicted pers on, namely, Mahat Chandra Nath. While Criminal Appeal 1(J)/2003 was preferred by the accused-appellant from jail, Criminal Appeal No.206/2005 has been preferred separately by the accused-appellant along with an application, which gave rise to Misc. Case No.3062/2005, where an order has been passed allowing the accused- appellant to go on bail. The appellant is accordingly on bail. 2. Heard Mr. R. Sharma, learned counsel, for the accused-appellant, in Crim inal Appeal No.206/2005, and Ms. A. Devi, learned Amicus Curiae. Heard also Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam. 3. The case of the prosecution, as unfolded at the trial, may, in brief, be described thus: On 05.03.2002, at about 8 pm, when MB (PW1), aged about 15 year s, was studying in a room of her house, accused-appellant, accompanied by some o thers, entered into the said room, tied her face and carried her to the house of Jitu Pator. An Ejahar, on being lodged on the following day, i.e., on 06.03.200 2, at Mikirbheta Police Station, Mikirbheta Police Station Case No.17/2002, unde r Section 366A IPC, was registered. During investigation, police recovered PW1 a long with the accused from the house of said Jitu Pator. During the course of in vestigation, police visited the place of occurrence, got the alleged victim, MB, medically examined and, on completion of investigation, laid charge-sheet, unde r Section 366A IPC, against the accused-appellant. 4. At the trial, when a charge, under Section 366 IPC, was framed and read over to the accused-appellant, he pleaded not guilty thereto. In support of their case, prosecution examined altogether five witnesses 5. . The accused was, then, examined under Section 313 Cr.PC and, in his examinatio n aforementioned, he denied that he had committed the offence, which he was alle ged to have committed, his case being that when he took MB (PW1) to his house, h is parents rebuked him and so, he went to Dhoasap village with PW1. Thus, in his examination aforementioned, the accused-appellant admitted to have taken PW1 fr om the house of her parents to his own house. 6. The question, however, remains, if by taking PW1 from the house of her p arents, the accused-appellant committed the offence, which he stands convicted o f?

#7. While dealing with the question above, it needs to be borne in mind that in her evidence, PW1 has deposed that when she was studying in a room of her ho use, the accused, accompanied by some others, came, tied her face and carried he r away. PW1 has projected that she had been taken away by the accused without he r consent; rather, it was against her will that she had been carried away from h er parental house to the house of the accused. 8. What is, however, important to note is that it is in the evidence of PW1 herself that her parents were present in the next room and her sisters were pre sent in another room of their house. In these circumstances, it is difficult to readily believe the evidence of PW1 that the accused, accompanied by others, ent ered into the room, where PW1 claims to have been present, and forcibly taken he r away in the manner as described by her. 9. The impression that the evidence of PW1 cannot be readily believed is re inforced by her cross-examination and the cross-examination of the investigating officer inasmuch as the investigating officer has confirmed that PW1 had stated before him, during the course of investigation, that she had been in love with the accused and when she went to a marriage ceremony, she discussed with the acc used and, in consequence thereof, fled away. The previous statement, which PW1 h ad made during the course of investigation, clearly shows that she had willingly gone away with the accused-appellant. In the circumstances indicated above, the accused-appellant could have b 10. een held guilty of the offence under Section 366 IPC if the prosecution succeede d in proving that she was a minor at the time, when the accused-appellant had ta ken her away, for, it was immaterial as to whether PW1 had gone with the accused -appellant willingly or unwillingly if she was a minor at the time of the occurr ence. 11. With regard to the above, it may be noted that though the informant (PW2 ), who is father of PW1, has described PW1 as 16 years old at the time of the oc currence, his cross-examination shows that he got married at the age of 25 years and PW1 is his third daughter, his first daughter having been born after two ye ars of his marriage. That is to say, the first daughter of PW2 was born, when PW 2 was aged about 27 years and his first daughter’s age, when PW1 gave evidence, would be 23 years. PW1 goes to state, in his evidence, that after two years, his second daughter was born and two years, thereafter, his third daughter, i.e., P W1, was born. Calculated properly, it logically follows that at the time of the occurrence, the age of PW1 was, even in the light of the evidence of her father (PW2), 19 years. This aspect appears to have escaped attention of the learned tr ial Court inasmuch as the learned trial Court has observed, in the impugned judg ment and order, to the effect that while cross-examining the father of PW1, the defence did not ask him anything as regards the age of PW1. 12. In the light of the evidence, given by none other than the father of PW1 , it was incorrect, on the part of the learned trial Court, to hold that PW1 was minor at the time of the alleged occurrence.

#13. What follows from the above discussion is that PW1 had left her parental house on her own volition and since she was not a minor at the time, when she h ad left her parental house, the accused-appellant could not have been held guilt y of the offence under Section 366 IPC nor could he been convicted under Section 366 IPC.

#14. Because of what have been discussed and pointed out above, these appeals succeed. The conviction of the accused-appellant and the sentence, passed by th e learned trial Court, by the impugned judgment and order under appeal, are here by set aside. The accused-appellant is held not guilty of the offence, which he stood charged with, and he is acquitted of the same. 15. discharged. 16. le assistance rendered to the Court. 17. Let the learned amicus curiae be paid a sum of Rs.5,000/- for her valuab The bail bond of the accused is hereby cancelled and his sureties stand Send back the LCR.