High Court · 2012

The engaged counsel for the appellant Mr. B.J. Ghosh is not present when the matter was called upon for hearing. The said learned counse l was also not present on the last occasion i.e. on 12.11.2012. None has appeare d for the appellant. 2. In view of the above, for disposal of this appeal, this Court ap points Mr. R.C. Paul, learned counsel of this Bar as Amicus Curiae to appear for the convict-appellant, who has agreed to assist this Court.

3. I have heard Mr. R.C. Paul, learned counsel as Amicus Curiae for the convict-appellant and also heard Mr. K. Munir, learned Addl. P.P., Assam fo r the State-respondent. The appellant was convicted under Section 366 IPC and sentenced t 4. o undergo R.I. for 3 (three) years and to pay fine of Rs. 5,000/-, in default f or further rigorous imprisonment for 2 (two) months vide judgment and order date d 28.2.2005 rendered by the learned Ad hoc Addl. Sessions Judge, Bongaigaon in S essions Case No. 63(A) of 2004. The prosecution case is unfurled in a written Ej ahar lodged by Nurul Islam, father of the victim with the O.C., Abhayapuri polic e station, which was registered as Abhayapuri Police Station Case No. 182/2004 u nder Section 366(A)/34 IPC wherein it has been alleged that Musstt. Nur-E- Akht ar, daughter of the 1st informant was lifted by the appellant in a maruti car wh ile she was going to village Tengnamari by a rickshaw and kept her for three da ys with him in the house of his relative. The appellant was apprehended with the victim girl by Bhabanipur police. The case was investigated and the police subm itted the charge-sheet under Section 366 IPC. On committal, the learned trial co urt framed charge under Section 366 IPC. The accused -appellant, pleaded not gui lty and claimed to be tried. The prosecution examined six witnesses including th e victim girl and medical officer. After conclusion of recording of evidence of prosecution witnesses, the accused-appellant was examined under Section 313 CrPC . He denied the evidence of the prosecution witnesses taking the stand of compl ete denial of the charge. However, he declined to examine any witness in his def ence. Ultimately, the learned trial court on the basis of evidence and materials on record and also upon hearing the learned counsel for the parties concerned, convicted and sentenced the appellant, as stated earlier.

5. As stated earlier, the FIR was lodged by the father of the victi m girl. He was examined as PW 4. Maintaining the statements/ allegations made in the written Ejahar he deposed that on the day of occurrence at about 8.30 AM he and his daughter, Musstt. Nur-E- Akhtar came to Abhayapuri and from there he se nt his daughter to the house of his sister at village Tengnamari by a rickshaw a nd he himself went to Bongaigaon. His daughter did not return and although a ser ious search was made she could not be found. At last after 3/4 days she was reco vered by the police of Bhabanipur police station along with the accused-appellan t. As father of the victim, he stated that his daughter was 15 years of age at t he time of occurrence. PW 2 is the son of the informant whereas PW 5 is the neig hbour of the informant. Both these witnesses corroborated the evidence of PW 1.

6. The victim was examined as PW 3. Regarding her age she has also stated that at the time of occurrence she was 15 years old. She made statements before the Magistrate under Section 164 CrPC. According to her, she was reading in class X on the date of occurrence. In her deposition, she alleged that the ac cused induced and picked her in a maruti car. She was taken to Tamulpur and lodg ed in the house of relative of the accused and thereafter, she was taken to Path sala where they were apprehended by police and taken to Bhabanipur police statio n.

7. As per evidence of the victim girl she was medically examined by the Medical and Health Officer, Abhayapuri PHC. The said doctor has not been ex amined as prosecution witness but the medical certificate issued by the said Med ical Health Officer was obtained and produced. The I.O. was examined as PW 6. He has testified in his evidence that the victim girl was produced before the said medical officer and she was medically examined. He collected the medical certif icate and proved the said medical certificate marked as Ext. 4. As per the said medical report, there is no injury on the private part of the victim girl. In h is opinion her age was about 18 years.

8. The learned trial Court on the basis of the medical report held that Musstt. Nur-E- Akhtar was aged about 18 years on the date of occurrence and she was not a minor girl. The above finding of the learned trial court in regar d to the age of the girl does not warrant any interference and so the same is ac cepted. In view of the above, the victim girl was at the age of consent on the d ate of occurrence. The question of inducement does not arise in such a case. The Court is to find whether the victim girl was kidnapped or abducted to compel he r to go with the accused within the meaning of Section 366 IPC. It is to be note d that the victim girl in her statement under Section 164 CrPC as well as the ev idence before the learned trial court never stated that she made hue and cry or she resisted when the accused lifted her in the vehicle or while the accused was proceeding with her in the said vehicle. She accompanied the accused all the wa y to Tamulpur and stayed with him in the house of his relative. She spent 3/4 da ys with him. During her stay with the accused, if she was really taken away by t he accused against her will or by use of force, she could have objected or resis ted and she could have taken a chance somewhere at some moment to raise hulla at tracting any member of the public to save herself from the clutch of the appella nt. But she had never done so and she had been quietly enjoying the company of t he accused. The conduct of the victim girl shows that she was a willing party an d she accompanied him all those days voluntarily. It is also to be noted that sh e was moving freely with the accused until they were apprehended by police on th e way after lodging of the FIR by her father.

9. The doctor’s report, Ext. 4 has made it clear that the victim wa s not abused sexually inasmuch as no injury was found on her private part while she was examined by the doctor. She has never stated or complained before the po lice or the Magistrate who recorded her statement under Section 164 CrPC and eve n before the learned trial Court that the accused compelled, forced or attempted to commit illicit intercourse during her association with the accused. This be ing the position, as per the evidence on record and conduct of the victim, I do not find that the charge under Section 366 IPC has been established by the prose cution beyond reasonable doubt.

10. On appreciation of the evidence, particularly the evidence of the vic tim girl and also the medical certificate, I hold that the prosecution has fail ed to prove the charge under Section 366 IPC beyond all reasonable doubt and as such the appellant is entitled to acquittal on benefit of doubt. Accordingly, th e judgment and order convicting and sentencing the appellant, which is under cha llenge in this appeal, is, hereby quashed and set aside. The convict-appellant s tands acquitted on benefit of doubt.

11. bond, therefore, stands discharged. It is stated at the bar that the appellant is on bail. The bail

12. Acknowledging the legal assistance rendered by Mr. R.C. Paul, Am icus Curiae, this Court directs the State Legal Services Authority to pay an amo unt of Rs. 5,000/- to him as his legal fee.

13. Appeal stands allowed. Return the LCR forthwith.