High Court · 2012

3. The brief facts necessary for disposal of the present appeal are that on 01.02.1998 at about 6:30 p.m. the victim, the daughter of one Jhulekha Begum of Dabong of Moran under Dharamtul Police Station was taken away by accused Abdul Rahim when she was staying in the residence of her uncle. Subsequently she came to know that Abdul Rahim, the accused, kept her daughter as his wife. It is stat ed that Abdul Rahim was a married men having children from his first wife at tha t time. 4. An F.I.R. to that effect on being lodged 1998 by mother of the victim gi rl with O/C, Dharamtul Police Station on 05.02.98 , Police registered a case vi de Dharamtul Case No. 5/98 under Section 366(A) I.P.C. and ordered investigatio n. 5. During the course of investigation, I.O. visited the place of occurrence , collected evidence and also recovered the girl from the house of the accused d uring the course of investigation. The victim girl was examined by doctor and ha d her statement recorded by the Magistrate. On completion of investigation, the I.O. submitted charge sheet under Section 366 (A) I.P.C. against the accused pe rson. 6. Since the offence under Section 366 (A) I.P.C. is exclusively triable by the Court of Sessions, the Masgistrate before whom the charge sheet was so lai d committed the case to the Court of Sessions for disposal in accordance with l aw. The learned Sessions Judge after the commitment of case and on hearing the p arties, framed charge under Section 366 (A) I.P.C. Charge so framed on being rea d over and explained to the accused person, he pleaded not guilty and claimed t rial. During trial, prosecution side examined as many as 6 (six) witnesses inc 7. luding the I.O. and informant. The statement of the accused person was recorded. The accused did not examine any witness from his side .After hearing the argume nts, offered by the learned counsel for the parties, learned Trial Court convict ed the accused of offence U/s. 366 IPC and sentenced him to punishment as afores aid. It is that Judgment which has been charged during this present appeal. 8. Learned counsel for the appellant opening up the argument has contended that in the case under consideration , the accused did not get the opportunity t o defended the case against him properly and that his examination U/s. 313 CrPc was not done properly depriving him to place his version before the court during trial, more particularly, his attention was not drawn to the incriminating cir cumstances appearing against him although same was used against him by the Trial Court in recording a verdict of guilt against him. It has also been contended that the age of the victim girl was not prope 9. rly ascertained to come to a clear conclusion as at the time relevant the victim was a minor girl. Ascertainment of the age of the victim girl was essential sin ce there is clear evidence to show that the victim came to the accused person on her own volition without being in any way influenced by the accused person. The fact that she claims to have an affair with the accused only confirms that the victim came to the accused person on her own sweet will. 10. On all those counts, the learned counsel for the appellant has urged thi s Court to acquit the accused person of offence U/s 366 IPC on setting aside the Judgment of the Trial Court which is impugned in this appeal.

11. I have heard the learned Additional Public Prosecutor on behalf of the s tate. According to learned Addl. P.P., the judgment of the Trial Court is founde d on the materials on record and as such same invites no interference from this court of appeal .I have perused the evidence on record having regard to the argu ments, advanced by the learned counsel for the parties. 12. In that connection. I first consider the testimony rendered by PW1, wh o is none but the victim of the alleged incident. According to her, on the fatef ul day at about 8:00 p.m. she went to Naramari where her uncle and aunt reside. The accused too resides at the same place. After visiting the house of the pate rnal uncle, she went to the house of the accused person on her own. 13 Thereafter she accompanied the accused to some other place and spent as many as seven days with him as husband and wife. After living for about seven mo nths as husband and wife she was taken back to the house of the accused Abdul Ra him. In the mean time, her mother filed a case. On the basis of such a case, lod ged by her mother, the accused was arrested. It is in her evidence that at the t ime of the incident, she was a girl of 14 years age. She was not cross examined. PW2 Md. Khursed Ali deposes that he resides at the same locality whe 14. re the accused resides. One day, he saw the victim coming to the house of the ac cused person and he also found both of them living there as husband and wife. So metime thereafter Police came to such place and retried the girl from the house of the accused person. 15. PW3, Musstt. Rohima Begum has stated that during the relevant time, her husband fled away with another girl and they returned home after a gap of six mo nths. After returning home, the girl started living with the accused person as h is second wife. Sometime thereafter Police came to their house but her husband f led away before being caught by Police. 16. PW4 Musstt. Abeda Begum also states that both accused and victim came to their house one day but they disappeared from their house all of a sudden. They did not know where they have gone after leaving her house. They however resurfa ced after a gap of several months. In the mean time, the mother of the victim ex pired. PW5 Sukur Ali, a neighbour of the accused person also deposes the same as PW4. PW6 is the I/O of this case. On the perusal of evidence on record, I have found that none of the witn 17. esses was cross examined by the defence suggesting thereby that either there was no lawyer, engaged, to defend the accused in the case aforesaid or the lawyer e ngaged did not do his duties as expected of him.

18. On a further perusal the evidence on record, I have also found that all the incriminating facts and circumstances which appear against the accused person w as not brought to his notice seeking his explanation thereto. It has repeatedly been held that examination under Section 313 CrPC is not an idle formality . 19. Quite contrary to it, such an examination is a great design to provide a n opportunity to the accused person to explain all the circumstances which stare at him and which are brought on record during trial. Depriving of such an oppor tunity to the accused is nothing but a denial of fair trial to such an accused p erson. However, in the case under consideration, all those incriminating facts 20. and circumstances were not brought to the notice of the accused person. What is worse learned Trial Court chose to utilise those facts and circumstances despite they being not brought to the notice of the accused person.

21. I have also found that the age of the girl is an area where matter needs more scrutiny since the evidence on record does not clearly project any picture as to the age of victim girl during the time under consideration, more so when there is no medical evidence or other authentic document to throw any light on t he age of girl above at the time under consideration. 22. In view of above, I am of the opinion that this is a case where the Judg ment impugned, needs to set aside in order to afford an opportunity to the accus ed/ appellant to place his case before the Trial Court properly and for that pur pose the accused may be given a chance to cross examine the witness already exam ined from the side of prosecution and to adduce his evidence before the Trial Co urt if so advised.

23. Accordingly the Judgment of the Trial Court is set aside with a directio n to the court below to resume the trial from the stage of cross examination and thereafter to proceed with the case in accordance with law. It is needless to s ay that the learned Trial Court would afford opportunity to both the parties to adduce evidence of course in accordance with the prescription of law. 24. As the incident under consideration took place on 01.02.1998, I find it necessary to direct the Trial Court to dispose of the case at the earliest but a t any rate not beyond six months from the date of receipt of the case record. 25. 26. The appeal is allowed. L.C.R. be returned forthwith.