High Court
Case Details
Crl.A. 195/2006 BEFORE HON’BLE MR JUSTICE P.K.MUSAHARY JUDGMENT AND ORDER (ORAL)
Legal Reasoning
therefore, before this Court in appeal. 7. I have carefully gone through the evidence on record, particular ly, the evidence of the victim girl. She was examined as PW 2. From her evidence it appears that the distance between her house and the School is only 1 k.m. A s per her own evidence, the appellant met her on the way. She accompanied him as she was told that her mother was ill and she should return home. But the appell ant proceeded with her to a different direction. They had even crossed a river b y a boat and came to Guwahati. Although she stated that the appellant on threat brought her to Guwahat, from her conduct it does not appear that she was under threat and forced to accompany him to Guwahati. On her way, she even met some villagers but she did not bother to tell any of the persons that she was forcibl y eloped by the appellant. For reaching Guwahati they might have boarded some ve hicles or trains. 8. There is nothing on record that while staying at Guwahati she re sisted the appellant or cried for help to save herself. From the manner in which she accompanied the appellant and reached Guwahati, clearly found that she was a consenting party. At Guwahati as per her own evidence, stayed in the house of the appellant’s maternal aunt. She stated that while she was sleeping, the ap pellant came into her room and attempted to have sexual intercourse with her. But when she made hulla, the appellant’s maternal aunt came inside and saved her . Thus, it is found that no physical harm could be done to her by the appellant . As regards the age of the victim girl, the evidence of PW 3, Med 9. ical Officer, may be referred to. As per his evidence based on medical examinati on, she was at the age between 16 to 17 years at the time of occurrence. The X-r ay report has been proved and exhibited as Ext. Kha. D.W.1, Dr.R.P.Bora also st ated that the age of the victim girl in between 16 to 17 years. The prosecution attempted to prove the victim girl as minor and for that purpose produced the Sc hool Certificate from Headmaster of the School concerned . 10. The President of Telahi Chariali Junior Madrassa was summoned by the Court and he appeared before the Court along with the School Register. He w as examined as CW 1. Although the said certificate is claimed to have been issu ed on the basis of record, it is not free from doubt, inasmuch as, it was obtain ed after the date of occurrence. There is no conclusive proof that the victim gi rl was actually minor at the time of alleged occurrence. The Medical Officers me ntioned above have determined her age by means of scientific/ medical test and it is safe to hold that the age of the victim girl was between 16 to 17 years and it would be more proper for the Court to accept the opinion of the two medi cal officers. 11. As discussed earlier, the victim girl conducted herself as a mat ure girl and voluntarily accompanied the appellant. No other evidence has been a dduced by the prosecution that she was forcibly kidnapped or eloped by the appel lant. In the aforesaid facts and circumstances of the case and evidence on reco rd, the Court can safely hold that the victim girl was a consenting party and sh e accompanied the appellant willingly and voluntarily without use of force or co mpulsion. The appellant in my considered view, is not liable to be convicted U/s . 366 IPC. 12. At the time of hearing Mr. B.Islam, learned counsel for the appe llant submits that the victim girl has already got married and in support of hi s said submission, he has produced a certificate issued by the President of Teh ahi Gaon Panchayat, Morigaon, Assam dated 22.12.06.
Arguments
1. Heard Mr. B.Islam, learned counsel appearing for the appellant a s well as Mrs. B.Saikia, learned Additional Public Prosecutor, Assam, for the St ate respondent. 2. This appeal is directed against the judgment dated 18.08.06 pa ssed by the learned Sessions Judge, Morigaon in Sessions Case No. 47/2005 convi cting and sentencing the appellant to suffer R.I. for 7(seven) years and also to pay a fine of Rs. 5,000/- , in default, to suffer R.I. for another 6(six) month s U/s. 366 IPC. 3. The prosecution case, in nutshell, is that on 07.01 at about 9.3 0 a.m. Miss Y was kidnapped by the appellant with the help of some friends while she was proceeding to School at Dharamtul. On the date of occurrence, Miss Y wa s reading at Telahi Chariali Junior Madrassa in Class VIII. While She was going to School, the appellant informed her that her mother is seriously ill and she should return home with him. Hearing the illness of her mother, Miss Y was retur ning home with the appellant but on the way the appellant, under threat, took h er in a different direction and brought to Guwahati. The brother of the victim girl lodged an ejahar and on the basis of which the Dharamtul P.S.Case No.39/0 4 U/s 366/34 IPC was registered. The formal investigation commenced and complete d. 4. During investigation, the I.O. besides examining several persons , recorded the statement of the victim girl. She was produced before a Magistrat e for recording her statement U/s.164 Crpc and also produced before a Medical O fficer for medical examination. After collection of the medical report, charge sheet was laid U/s.366/34 IPC against five persons including the present appell ant. 5. The learned Magistrate concerned committed the case to the Court of Sessions, Morigaon, who registered the Sessions Case and framed charge under the aforesaid section of law against all the accused persons including the pres ent appellant. All the accused persons pleaded not guilty and claimed to be tri ed. They accordingly faced the trial. The prosecution examined as many as 8(eigh t) witnesses including the victim girl and the Medical Officer. The accused pers ons also examined 2(two) witnesses in their defence. 6. The learned trial court on consideration of the materials and ev idence on record and upon hearing the learned counsel for the parties, passed th e aforesaid impugned judgment acquitting four accused persons and convicting an d sentencing the present appellant as mentioned above. The present appellant, is
Decision
13. In view of the above, it is held that the charge U/s. 366IPC aga inst the appellant could not be proved and the appellant is entitled to acquitta l. Accordingly, the impugned judgment convicting him is hereby set aside and qua shed. The appellant stands acquitted. The appeal succeeds. The bail bond stands discharged. 14. Send down the LCR forthwith.