SESSIONS CASE No. 48 of 2002 · Gauhati High Court
Case at a glance
Outcome
Set aside
Accordingly, the judgment impugned is set aside and quashed and the ac
Provisions considered
- Indian Penal Code, 1860 s. 366
- Code of Criminal Procedure, 1973 ss. 164, 313
Key paragraphs
- Para 2020. It is worth noting here that the prosecution side pointed out that the v ictim was a school student and she read up to Class VIII. Being so, the school c ertificate could have thrown sufficient light viz-a-viz age of the girl at the…
- Para 3030. PW 8 Md. Kalia Ali deposes that one day, in the evening, the accused and the victim came to their house and spent that night in his house. Next day, the y went to the house of a relative at Titabar. Sometime thereafter, Police…
- Para 3434. Accordingly, he visited the place of occurrence and examined the witness es and on 08.02.01, he recovered the girl, alleged to be kidnapped, from the res idence of a person who lives in Titabar. He got her statement recorded by a Magi strate and…
Judgment
The facts necessary for due disposal of this appeal, in short are that o n the evening of 31.01.01, one Rekharani Das, a girl of about 15 years of age, h ad gone missing from her house. The Informant and father of the missing girl, Sr i Monasha Das and his family member made a search for the missing girl but in va in.
Not being able to trace out the girl, the Informant Sri Das lodged an FI R. with Najira PS on the same day suspecting appellant Md. Nazim Ali being the m an behind the missing of the girl aforesaid. It is worth noting on earlier occas ion too, the girl was kidnapped by the same accused person. On the receipt of wr itten FIR from Sri Das, O/C concerned registered a case and ordered an officer, subordinate to him to investigate the case..
During the course of investigation, the Investigating Officer (in short I.O.) examined the witnesses, recovered the girl allegedly kidnapped and subject ed her to medical examination .Her statement under Section 164 Cr.P.C was also r ecorded. On the completion of investigation, the I.O.submitted charge sheet unde r Section 366 A/34 IPC against as many as three accused persons including appellant herein and laid the same before the concerned Chief Judicial Magistr ate for taking action thereon in accordance with law. Learned Sub-Divisional Magistrate to whom the case was transferred, comm 6. itted the case to the Court of Sessions at Sibsagar as the offence under Section 366 A IPC is exclusively triable by the Court of Sessions. The learned Session s Judge Sibsagar on receipt of the case on commitment transferred the case to th e file of 1st Additional Sessions Judge (Adhoc) Sibsagar for disposal in accorda nce with law.. 7. The learned 1st Additional Sessions Judge (Adhoc) Sibsagar on the receip t of the case on transfer, on hearing the parties and after perusal of the recor d, framed charge under Section 366 IPC against all the accused persons. Charge, so framed, on being read over and explained to the accused persons, they pleaded not guilty and claimed to be tried.
In order to make out the charge, brought against the accused persons, th e prosecution has examined ten witnesses including the victim girl. The statemen t of accused Md. Nazim Ali was recorded as per provisions of Section 313 Cr.P.C. In his statement under Section 313 Cr.P.C., the accused had claimed that he nev er kidnapped the girl aforesaid. To make out his claim of innocence, he examined one defence witness. On the conclusion of trial and on hearing the argument advanced by the l 9. earned counsel for the parties, the learned Trial Court convicted the accused/ap pellant as aforesaid and sentenced him to suffer imprisonment as stated above. I t is that judgment which has been challenged in this appeal. Opening up the argument on behalf of the appellant, it has been submitte 10. d by his counsel Sri M.R.Pathak that the judgment of the Trial Court suffers fro m several infirmities of extremely serious nature and as such, this Court is du ty bound to set aside the judgment , appealed against , on acquitting the accus ed/appellant of the offence, he was held guilty, convicted of and punished as af oresaid by the Trial Court.
11. It has been contended that materials on record unmistakably shows that a t the time relevant, (a) the victim girl was not a minor girl and as such, the f inding of the Trial Court that the victim was a minor girl is unsustainable in l aw and (b) the victim on her own sweet will accompanied the accused/appellant an d moved from place to place without being influenced, coerced or tempted by the accused/appellant. The materials on record make us position more than clear. 12. It has further been submitted that the testimonies of the witnesses, mo re particularly star campaigners, are contradictory inconsistent and defective on materials particular which raise serious doubt the authenticity of the evide nce of those witnesses including the victim. But learned Trial Court ignored all those serious infirmities in the prosecution case and came to the finding that accused/appellant was guilty of offence, he was charged with.
The judgment of th e trial court is, therefore, unsustainable in law. 13. On the other hand, learned PP appearing for the State contends that the judgment under challenge in this appeal is based on facts on record. More import ant, learned Trial Court marshalled the evidence on record in proper prospective and came to the conclusion that it is the accused/appellant who alone is respon sible for kidnapping the minor girl and as such, he is liable to be convicted and punished . The judgment of the Trial Court therefore invites no interfere nce from this Court of appeal and as such, he submits this Court to affirm the j udgment of the Trial Court instead.. I have heard the arguments advanced by the learned counsel for the parti 14. es having regard to the materials on record. On the perusal of evidence on recor d, I find it necessary to briefly reproduce the evidence of the witnesses and th e evidence of Doctor is first taken up for consideration.
Dr Hemanta Kumar Barua h was examined as PW 5. According to him, on 8.2.2001 he was attached at Sibsagar Civil H ospital as M & H.O.1. On that day at 12 noon he medically examined the victim an d found the following :- General examination--- The girl is of average built. Height 5’ feets, we ight 31 kg teeth total 28 Nos. Breast-well developed, pubic & Axilliary hairs-well developed. Examination General Part. Velva and vegina-well developed. Hymen-absent No external and internal injury was found. Wherus---normal size and sha pe. Investigation-Radiological findings reveal that epiphysis plat around le ft elbow joint were completely fused with the corresponding shaft, epiphyscal pl ate at the distal end of the left radius remains open. Vaginal smear-No spermatozoa seen. Opinion-He opines that the girl was below 18 years of age and no sign of recent rape of violence was found. He proves the medical report as Ext.4.
In hi s cross examination, he states that number of the teeth suggest that the girl is above 18 years of age. The Doctor, I find, opines that at the time relevant, the age of the gir 15. l was less than 18 years of age. However, such a finding is riddled with enormou s contradiction which emerged from the testimony of Doctor himself (PW 5). In hi s cross examination, the Doctor (PW 5) has admitted that the number of teeth, wh ich the victim had on the date of his examination, suggests that the victim was above 18 years of age. Being so, his opinion that the victim was less than 18 ye ars of age when the incident occurred becomes highly un-reliable 16. The above conclusion of mine finds further support from the evidence ren dered by some other PWs, more particularly, PW 2 Mancha Das (father of the girl) , Smti Parbati Das (PW 4 mother of the girl), PW 7 Shri Pranab Gogoi (brother-in -law of the victim ).
It is also an admitted position that on 11.04.99, too, t he accused/appellant allegedly kidnapped the victim for which a case was institu ted against him. In that case, PW 4, Smti Parbati Das is said to have stated tha t the victim is one of her daughters. 17. She is also stated to have claimed therein that the age of her eldest d aughter at that point of time was 24 years and that the present victim was thre Such revelation coming from a wi e years junior to her eldest daughter. tness none other than the mother of the victim girl suggests that on the date of the incident i.e. 31.01.01, the victim was certainly above 18 years of age.
However, more specific evidence on the point of age of the victim came f rom her brother-in-law (PW 7). Rendering evidence before the court Shri Pranab G ogoi, (PW 7) says that he married the eldest sister of the victim sometime durin g 1992. At that point of time, the victim was a girl of about 8 years of age. Th is strongly suggests that at the time of incident, under consideration, the vict im was a girl of about 18 years of age.
The evidence of PW 2 is equally interesting. In the earlier round of cas e, he deposed that on or around 11.04.99, the victim was a girl of 16 years of a ge. On the other hand, in the case under consideration, he again deposes that on 31.01.01 too, his daughter was a girl of 16 years of age. This only shows that at the time, relevant, the victim was certainly a girl well above 16 years of ag e.
It is worth noting here that the prosecution side pointed out that the v ictim was a school student and she read up to Class VIII. Being so, the school c ertificate could have thrown sufficient light viz-a-viz age of the girl at the t ime in question. The production of such a document became indispensable for the reason that the victim was alleged to be a major girl on the date on which the i ncident in question occurred. But unfortunately, the prosecution did not produc e such a vital document and that too without assigning any reasons whatsoever. Withholding of such a vital document without assigning any reason whatso 21. ever, only left this Court to conclude that if such a document was produced it w ould not have supported the prosecution claim that the victim was a minor girl o n the date in question . In view of the above, I am of the opinion that the vict im was a girl above 18 years of age on 31.01.01.
21(A). DW 1 Dr. Tayabur Rahman was examined as DW 1. According to him, he to o examined the victim herein in connection with Nazira P.S.Case No. 42/99 and fo und the victim to be a girl below 18 years of age on 12.4.1999. The incident in question occurred almost one year from such time. It also serves to show that aq t the time relevant , the victim attained the age of maturity. It further stre ngthens the plea of accused on the age of the victim girl. 22. So situated, let us reproduce the evidence of the other witnesses and th e evidence of the victim is reproduced before reproducing the evidence of other PWs. The victim was examined as PW 3. She states that on the fateful day, in th e evening at about 7 pm, she came to the market. When she reached the place of o ccurrence on way to market, she found an ambassador car being parked there. She also noticed Fulmai Begum and Hazina Begum in that vehicle.
The driv 23. er of the vehicle was also with them. As she came near the vehicle, she noticed the accused Nazim Ali inside the vehicle. Nazim Ali requested her to get into th e vehicle. She obliged him by boarding the car. But the moment, she entered into the vehicle, the accused gagged her mouth. Thereafter, she was taken to Teok in the District of Jorhat where she wa 24. s forced to reside in the residence of a person for about 5(five) days. During h er stay at such a place, accused Nazim Ali insisted her to marry him but she did not yield to such desire of the accused person. In her cross examination, she h ad stated that at first, she was kept at Teok. She was, thereafter, taken to ano ther place by public transport. 25. In his evidence, PW 2 states that her daughter had gone missing from the evening of 31.01.01. On that day, in the evening, his daughter along with her mother went to the market.
However, sometime later his wife returned home and t old him that his daughter disappeared all of a sudden when they were proceeding to the market. As his daughter eloped with the accused person on an earlier occa sion too, so he lodged an FIR alleging that the accused/appellant might have kid napped his daughter. 26. Next day, he came to know that on evening of 31.01.01, his daughter wa s forced to embark upon an ambassador at the PO and taking his daughter in that vehicle, the miscreant (s) left for some unknown destination. Registration numbe r of the vehicle was 9576. On 02.02.01, Police recovered his daughter from the s tate of confinement from the residence of a person of Teok area few days thereaf ter..
In his cross examination, he denied the suggestion that he told the Poli ce that his daughter got disappeared from his house itself. However, while being cross-examined by defence, on being queried by defence, I/O confirms that PW2 d id state to him that his daughter got disappeared from his house itself.
PW 4 Smti Prabatirani Das deposes that on the fateful evening at about 6 :30 pm, she along with her daughter went to the market and after crossing some d istance, they started proceeding in a different directions.. After doing the mar ket, she was waiting for her daughter to come to her. However, her daughter did not return for a long time for which she returned home and reported the matter t o her family members.
Her husband lodged an FIR with the Police. A few days thereafter, her da ughter was recovered from Teok area. In her cross examination, she had stated th at she could not remember if she has stated before the Police that the victim go t disappeared from her house itself. However, in her cross-examination, Smti Pra batirani Das (PW 4) admitted that on earlier occasion too, she eloped with the a ccused person.
PW 8 Md. Kalia Ali deposes that one day, in the evening, the accused and the victim came to their house and spent that night in his house. Next day, the y went to the house of a relative at Titabar. Sometime thereafter, Police came t o their house and enquired about the whereabouts of the accused and the victim. As he furnished the said information to the Police, the later requested 31. him to lead the Police to the aforesaid place. Accordingly, he took the Police t o Titabar and helped the later to recover the victim from the house of his relat ive. In his cross examination, he has stated that when the prosecutrix left his house next day in the morning, she took leave of all the inmates of his house.
PW 6 is Md. Nakib Ali. According to him, one day accused Nazim Ali came to his house taking a girl with him. The accused introduced the girl to him as h is sister. Sometime thereafter, Police came to his house and arrested the accuse d person and also recovered the girl there from. In his cross examination, he ha s stated that while being in his house, the girl was quite in jovial mood.
PW 1 Nazir Rehman, PW 7 Pranab Gogoi and PW 9 are only reported witnesse s. They could not throw much light on the matter under consideration. PW 10, Shr i Umakanta Das, ASI of Police, deposes that on 31.01.01, he was at Nazira PS. On that day, the O/C, Nazira PS received an FIR from one Mancha Das. Having receiv ed the FIR, O/C registered a case and ordered him to investigate the same.
Accordingly, he visited the place of occurrence and examined the witness es and on 08.02.01, he recovered the girl, alleged to be kidnapped, from the res idence of a person who lives in Titabar. He got her statement recorded by a Magi strate and also had her examined by Doctor. On the completion of the investigati on, he submitted charge- sheet which was proved as Ext.6.
In his cross-examination, PW 10 states that PW 2 Mancha Das has told him that on the fateful evening, his daughter got disappeared from his house itself . But he denied the claim of the victim that she told him that she was forcefull y taken away from the place of occurrence by the accused person on the evening a foresaid. He also admitted that the victim told him that the accused person lure d her to flee from her house.
Above being the evidence of the witnesses, let us see how far such evide nce makes out the allegation brought against the accused person. In her evidenc e, PW 3, the star campaigner, has stated that on the fateful evening, she went t o the market to procure some house hold articles. When she arrived at the PO, sh e also noticed a stationary car at such a place. The accused and three other per sons including the driver were there in the car. On being requested by accused Nazim Ali, she boarded the vehicle. But the moment, she embarked upon the vehicle, the accused gagged her mo 37. uth and took her to some unknown destinations. She could not make any hue and cr y since she found her mouth being gagged. The above claim of PW 1, however, sou nds pretty hallow. A girl, in normal circumstances, would not board a car mere ly on the asking of someone whom she does not know or whom she does not like, un less she has some understanding with such person since before.
This only shows that the victim, on her own, boarded the car on the even ing aforesaid at a place near the Station Chariali and volunteered to accompany later to some destinations which they agreed to since before. The fact that she admittedly eloped with the accused on earlier occasion too and stayed with him for sometime before being recovered by police makes such a conclusion inevitable .
Even if we believe for a moment that she boarded the vehicle without a s econd thought on the request of the accused person, still then she must have rai sed in revolt, the moment the accused tried to gag her mouth and tried to take h er to some unknown destination and that too against her will. In that event, sho pkeepers and owners other establishments nearby must have come to know of such a n incident. In such an eventuality, the vehicle, above, could not have escaped from 40. such place without being caught and detained by the people from the surrounding area. However , nothing of that sort did occur at the PO on the evening in quest ion which, in my opinion, speaks loud and clear that the victim was a consenting party to all those episodes which occurred at Station chariali , Nazira on the evening of 31 st January 2001. 41. Some other factors too throw their weight behind the above conclusion of mine.
According to PW6 and PW 8, while staying in their residences at Teak and Titabor, the victim enjoyed every moment of her stay in those places. More im portant, she left Teok on her trip to Titabor in a jovial mood. All these demons trate with enormous amount certainty that the victim on her own volition accompa nied the accused in his journey to the places aforesaid. Such evidence also show s that the girl stayed in those places voluntarily. The above claim of victim or for that matter, her parents cannot be acce 42. pted as truthful one for other reason as well. The victim claims that on the fat eful evening, she left for market alone and when she reached the place of occurr ence, the accused forcibly took her to Teok at the first instance and then to Ti tabar next day. On the other hand, PW 4(mother of the victim) deposes that on th e fateful evening, she along with her daughter went to the market but after cove ring some distance, they started proceeding in different directions.
43. But her daughter thereafter disappeared only to be recovered few days th ereafter from Titabar. The testimony of PW 2 in this regard was quite interestin g since he states before the Police that the victim disappeared from their house only. The events, as stated in the FIR on the point of place where-from the vi ctim allegedly disappeared, corroborated the claim of the PW2 only. Thus, the mo de of disappearance and place of disappearance of the victim have been different ly described by different witnesses. This only makes the prosecution case profou ndly doubtful. 44. The accused, as stated before, took her to Teok in a car. However, she w as taken to Titabar in a public bus. In that connection, she deposes that once she boarded the bus, she lost her control over herself and followed the accused up to the house of the persons aforesaid. However, when she got back the control over her, she demanded the accused to take her back to her residence.
The above evidence of the victim (PW 3) is found wholly unreliable and u nbelievable for reasons more than one. This is because of the reason that there was absolutely nothing on record to show that the accused administered some medi cation to the victim to deprive her of her intellectual ability. There is no ev idence either to show that due to some other reasons as well, the victim had h er intellectual ability impaired.
In the teeth of above revelations, there cannot be any escape fr om the conclusion that the victim went to the residence of second person at Ti tabor on her own volition, more so, when there is absolutely no evidence on r ecord to show that the victim had ever made any complaint to any person while p erforming journey by bus from Teok to the residence of second person at Titabor.
I have already found that at the time relevant the victim was a major gi rl. I have already found that the victim left her home in the company of the acc used person on her own volition. On these facts, it would be difficult to come t o the conclusion that the accused forcibly took away the victim to compel her t o marry her against her will or that she might be forced or seduced her to ill Being so, in my considered opinion, the prosecution could not make out t icit sexual intercourse. 48. he charge, leveled against the accused person. In the face of above, revelations, I find no other alternative but to ho 49. ld that the judgment of the trial court convicting the accused U/s 366 IPC and s entencing him to punishment as aforesaid is unsustainable in law and the same is liable to be set aside .
Operative part
Accordingly, the judgment impugned is set aside and quashed and the ac cused is acquitted of offence U/s. 366 IPC. He be set at liberty forthwith if he is not required in connection with any other case. 51 Let the LCR be returned forthwith \\
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: Accordingly, the judgment impugned is set aside and quashed and the ac
Which statutory provisions did this judgment involve?
Indian Penal Code, 1860 — s. 366; Code of Criminal Procedure, 1973 — ss. 164, 313.
Which court decided this case, and when?
Gauhati High Court, on 19 Nov 2012. The bench was P K SAIKIA.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.