High Court
Case Details
Crl.A. 135/2011 BEFORE THE HON’BLE MR. JUSTICE B.D.AGARWAL The appellant, herein, has been convicted under Section 366 read with Section 34, and Section 376, read with Section 506 of the Indian Penal Cod e, 1860 (in short, ’the IPC’), vide impugned judgment dated 30.06.2011, passed b y the learned Assistant Sessions Judge, Hailakandi, in Sessions Case No. 50 of 2 009. The co-accused, Sharif Uddin Laskar was convicted only under Section 366/34 IPC. However, the co-accused has not preferred any appeal. Hence, I am concerne d only with the conviction of the accused Kamrul Uddin Laskar. He has been sente nced to undergo different sentences for the aforesaid offences. Being aggrieved with the conviction and sentence, one of the two convicts has preferred this app eal. 2.
Legal Reasoning
I have heard Sri I H Laskar, learned counsel appearing on behalf of the appellant as well as Sri N J Dutta, learned Additional Public Prosecutor for the State of Assam. I have also gone through the impugned Judgment and the prosecution evidence tendered in the trial Court. The gist of the prosecution case is that in the night of 13.04.2 3. 008, when the victim girl went out of her home to answer the nature’s call, four persons had abducted her. One of the four persons was the appellant herein. The FIR was lodged by the father on 24.02.2008, alleging kidnapping of his minor da ughter and subjecting her to illicit sexual intercourse by the appellant. It may be mentioned here that the FIR was lodged after recovery of the victim girl. 4. der Sections 366 and 376 IPC and he has been convicted accordingly. After the charge sheet the accused was tried for the offences un 5. To establish the aforesaid offences, the prosecution examined on ly 7 (seven) witnesses. PW-1 is the father of the victim girl; PW-2 is the victi m girl herself; PWs-3 and 6 are the co-villagers; PW-4 is the mother; PW-5 is th e Medical Officer and PW-7 is the Investigating Officer. 6. ce was tendered. The accused took a plea of total denial and no evidence in defen 7. To establish the offence of kidnapping, the age of the victim gi rl is an essential ingredient. It also helps to decide the offence of rape. In t he case before me, though the victim girl and her father have deposed that the v ictim girl was a 14-years-old girl at the relevant time no documentary evidence was produced in this regard. Hence, the trial Court had to rely upon the medical evidence wherein the doctor has certified that the victim was a girl of more th an 18 years. 8. Now, the issue to be examined by me is as to whether the victim girl had voluntarily eloped with the accused and entered into physical relations hip with him. 8.1 As could be gathered from the FIR and the evidence of the witnes ses, the accused was the immediate neighbour of the victim’s family, intervened by one house. Even then, the father of the victim girl did not go in search of t he victim girl in the house of the accused. Though PW-3 has deposed that he went in search of the victim girl in and around the village but he is also stoically silent as to why he did not go to the house of the accused, though the accused was identified by the victim’s mother. This apart, the victim girl stayed in the house of the appellant for 9 (nine) days and there is no categorical statement of the victim girl that she made any sincere effort to flee away from the custod y of the appellant. The victim girl has also not made any serious allegation tha t she was kept confined under lock and key throughout her detention period of 9 (nine) days. It is also not humanly possible in a family consisting of parents, brothers and sister of the accused. Besides this, the informant and the victim’s mother have admitted that after 9 (nine) days, the victim’s daughter first retu rned to her aunt’s house wherefrom she was brought home. The victim girl has als o not explained as to why she had taken shelter in her aunt’s house instead of r eturning home. Hence, a presumption can be drawn that the victim girl had eloped with the appellant voluntarily. 9. With regard to the allegation of sexual assault, the victim girl has deposed that on the very first night of her kidnapping she was once subject ed to sexual intercourse. However, the victim girl is silent about any repeated sexual assault. The fact of sexual intercourse has not been corroborated by the doctor (PW-5) in the cross-examination. The doctor has further clarified that if a woman is subjected to rape for about a week there would be certainly some evi dence of violence on her private parts. However, during medical examination the doctor did not find any swelling or abrasion in the genitals of the victim girl. In this way, the medical evidence is also not corroborating the allegation of r ape. Even for a moment, if it is presumed that the victim girl (PW-2) was subjec ted to sexual intercourse, then, it must be with her consent.
Decision
10. For the foregoing reasons, the impugned judgment is hereby set a side. The appellant is acquitted from the offences under Section 366/34/376/506 IPC and he is set at liberty forthwith. 11. As noted earlier, the co-accused Sharif Uddin Laskar was convict ed only for the offence of kidnapping under Section 366 IPC and he was sentenced to undergo RI for 2 years. Since I have held that the prosecution has failed to prove the offence of kidnapping the co-accused is also entitled to be acquitted even without filing any appeal. In the case of Dandu Lakshmi Reddy -Vs- State o f Andhra Pradesh; (1999) 7 SCC 69, the Hon’ble Supreme Court has held that if a Court reaches a conclusion that no conviction of any accused is possible, the be nefit of acquittal shall also be granted to the co-accused even if the co-accuse d has not challenged the judgment. As per Their Lordships it would avert the mis carriage of justice. 12. In view of the Apex Court’s judgment, the conviction of the co-a ccused, Sharif Uddin Laskar under Sections 366/34 IPC, is hereby set aside and h e is also directed to be set at liberty. 13. dgment. Return the LCRs to the trial Court, along with a copy of this ju