High Court · 2012

An FIR to that effect on being lodged with the O/c River P.S. Go alpara, police registered a case and ordered an Officer competent to take up the investigation to do the same. On being, so ordered, the I.O. visited the place of occurrence, examined the witnesses who are well acquainted with the case, arr ested the persons involved in the aforesaid offence and on the conclusion of inv estigation, I.O. submitted charge sheet under Section 147/366 IPC against the ac cused persons along with few others such as, Majibur Rahman, Ajibar Rahman and B hajon Ali After the commitment of the case to the Court of Session 6. s by the Magistrate concerned, the learned Sessions Judge framed charge U/s 366/ 34 IPC against the accused persons on hearing the arguments advanced by the lear ned counsel of the parties. However, he framed charge against 6(six) accused per sons namely; Md Hazrat Ali, Md. Jahirul Islam, Md Saker Ali, Md Majom Ali, Md. A bdus Salam and Md. Jahanuddin.

7. Charge, so framed, on being read over and explained to the accus ed persons, they pleaded not guilty and claimed trial. During the trial, prosecu tion examined 6(six) witnesses including the victim and I.O. who conducted the c ase under consideration. The statements of the accused persons U/s. 313 CrPc wer e recorded. Accused plea was of total denial. They, however, on being required d eclined to adduce any evidence on their own. 8. On hearing the arguments, advanced by the learned counsel for the parties, learned Trial Court convicted all the accused persons under Section 363 /34 IPC and sentenced punishment as aforesaid. It is that judgment which has bee n assailed in the present appeal citing several infirmities therein. 9. The learned counsel for the appellants Mr. R Mazumdar submit ted that the Judgment of the Trial Court is unsustainable in law for several rea sons. They are; (i) There was delay in lodging the case and such delay has not b een properly explained, (ii) Testimony of principal witnesses are inconsistence and it raises serious doubt about the authenticity of their claim. (iii) Doctor who reportedly examined the girl was not examined thereby depriving the accused from ascertaining certain doubt pertaining to the age of the girl.

10. In the context of above allegations, it has been pointed out tha t the learned Trial Court basing on the statement rendered by the victim’s paren ts came to the conclusion that the victim is about 13(thirteen) years of age whe n incident in question occurred which is highly illegal and unsustainable in law . It has also been pointed out that inconsistencies of enormous proportion on ce rtain fundamental aspects of the prosecution case have afflicted the evidence re ndered by victim and her mother between the testimony rendered by the victim and the mother. It has again been submitted that accused namely Hazrat Ali intended to marry the victim which was however rejected by the parents of the victim gir l and for such reasons, the parents of the victim lodged the case under consider ation against the accused persons falsely.

11. On the other hand, the Learned Addl. Public Prosecutor appearing on behalf of the state respondent contends that the judgment of the Trial Court is based on well established facts on record and the learned Trial Court has ren dered the same on those facts having regard to the law which holds the field in question. The learned Addl. P.P. therefore, submits this court to dismiss thi s appeal. 12. I have given my anxious consideration to the evidence on record having regard to the arguments advanced by the learned counsel for the parties. In order to appreciate the arguments advanced by the learned counsel for the par ties in proper perspective, I find it necessary to have a brief review of eviden ce on record. In that connection, evidence of the victim is first taken up for c onsideration. The victim is examined as PW3.

13. According to her, on the night in question, she along with he r mother were in their house. On that night, her father was away from home. At about 9/10 PM, she came out of her house to answer to call of nature. As she ca me out of her house, suddenly she encountered 4 to 5 persons in their courtyard who immediately captured her and physically lifted her from her house to the hou se of one Abdus Salam of Noon Khowa Para and forcibly kept her there till she go t an opportunity to retrieve herself from such state of confinement. It is also in her evidence that as soon as those persons took charge of her, they gagged he r mouth which prevented her from making any hue and cry. 14. Next day in the morning she found herself not being guarded by t he accused persons. So, she immediately fled there from taking advantage of her being left unguarded. Once she retrieved herself from the house of accused Abdus Salam, she came home and reported her parents what had occurred to her previous night in her own house and at other places. Her father Md. Jahar Ali lodged an FIR with O/c River P.S. Goalpara on 21.5.99. 15. Thereafter she was taken to doctor who medically examined her. In due course, her statement was also recorded by Magistrate which was proved as Ext.2. In her cross examination, she admitted that the distance between her hou se and the place where she was kept on the night in question is about one and a half k.m. The suggestion that she was not a girl of 13 years of age at the t ime relevant was denied by PW 3. 16. Mother of the girl was examined as PW1. According to her, on th e night in question, she was in her house along with her daughter and her husban d was not there at that time. When she was sleeping in their house, the victim w as reading in her room. After some time, she heard hue and cry from the side of her house where the victim was reading on that night. As she came to such place, she found her daughter missing from their house. 17. She immediately made a search for her but in vain. In the meantim e, her husband returned home and she narrated what had occurred to their daughte r. Her husband also made a search for her daughter but without any success.Howe ver, next day in the morning at about 10 AM, her daughter returned home. She tol d them that previous night 4 to 5 persons captured her when she came out of her house to answer the call of nature and they physically lifted her to the house o f one Abdus Salam.

18. According to PW 1, her daughter told her that the accused Hazrat A li, Jahirul Islam, Saker Ali, Jahauddin and Majom Ali came to their house on tha t night and forcibly took her to the residence of aforesaid Abdus Salam. In her cross examination, she admitted that she did not witness the accused capturing h er daughter in their court yard or accused persons lifting her there from. PW2 is the father of the victim. According to him, on that fate 19. ful night, he was not at his house at the time relevant. When he returned home a t about 11 P.M., his wife told him that her daughter was kidnapped by some perso ns when she was coming out of their house to attend the call of nature .Being so informed, he started searching his daughter but in vain. Next day in the mornin g at about 9 AM, his daughter returned home and reported to them about the incid ent in question.

20. She also told them that on the night in question, the accused per sons took her to the residence of one Abdus Salam and kept her confined there. H owever, when she got an opportunity to flee from such place, she took it to her advantage and return home and reported them about the incident in question. Bein g so informed, he lodged an FIR vide Ext. 1. In his cross examination, he admitt ed that he did not furnish any age certificate pertaining to the girl to police at the time of investigation. PW4 is the neighbour of the victim. According to him, he came t 21. o the house of the victim when she returned home next day. The victim girl told them that previous night when she was coming out of her house, the accused per sons namely, Hazrat Ali, Jahanuddin, Jahirul Islam, Sekar Ali and Majom Ali came to their court yard, forcibly lifted her there from and she was taken to the re sidence of Abdus Salam.

22. The Investigating Officer who conducted the investigation was SI of Police and he was examined as PW6. According to him, 0n 21.05.99, he was pos ed as Officer In charge and on receiving the FIR, he registered a case and he hi mself took up the investigation. During the course of investigation, he visited the place of occurrence, examined the witnesses connected the crime and got the girl examined by doctor, also have her statement recorded by Magistrate as per p rovision 164 CrPC. It is also his evidence that on conclusion of investigation, he 23. submitted charge sheet under Section 366/34 IPC as many as 9 persons and forward ed them to the court to stand trial there. This is his specific case though he tried to collect the medical certificate in respect of examination done on the v ictim girl same could not be collected and as such, he submitted the charge s heet without the medical certificate. In his cross examination, he confirmed tha t witness PW1 and PW2 did not disclose her age at the time relevant. 24. Above being the evidence on records, let us see how far such evi dence establishes the charge under Section 363/34 IPC against the accused person s. On a very careful perusal of evidence of PWs, more particularly, PW3, I have found that she has stated that on the night in question, she was taken to the re sidence of Abdus Salam, yet, there is no evidence on record to show that Abdus S alam was in some way or the other involved in the crime alleged. 25. Even in her statement, she rendered before the Magistrate during the course of the investigation vide Exhibit-2, she did not utter any word abo ut accused Abdus Salam being involved in any way whatsoever with the crime und er consideration. Being so, I am of the clear opinion that prosecution could not make out the charge under Section 363 IPC or under any other section of law aga inst the accused Abdus Salam. 26. So situated, let us see if materials on record other accused pe rsons can be held guilty of offence under Section 363/34 IPC or any other offenc e(s) whatsoever. Perusing the evidence of PW3, I have found that she claims that on the night in question when she was reading in her room, she came out of her house to attend to call of nature. But the moment she came out of her house, ac cused persons namely, (i) Jahirul Islam (ii) Hazrat Ali (iii) Saker Ali (iv) Maj om Ali (v) Jahanuddin captured and took her to the residence of Abdus Salam wher e she was kept in confinement until she freed herself from such confinement.

27. This evidence of the PW3 stands echoed in the testimony rendered by PW1, PW2, PW4 & PW5. Though PWs aforesaid were crossed examined, yet nothing did emerge from to entertain an opinion that i) Jahirul Islam (ii) Hazrat Ali ( iii) Saker Ali (iv) Majom Ali (v) Jahanuddin did not come to the house of PW1 on the night aforesaid or that they did not capture PW3 in their courtyard or tha t they did not took her to the residence of one Abdus Salam. Here, it is also worth noting that though the accused persons su 28. ggested that the father of the victim lodged the case under consideration agains t the former falsely due to some previous enmity yet evidence on record do not j ustify such a plea raised from the side of accused persons. The evidence on reco rd which remained far from being shaken only shows that PWs particularly PW1, PW 2 & PW3 stated before the court truth and truth only. Now, the question is whether the victim on her own accompanied a 29. ccused persons or whether she was compelled to accompany them up to the house of Abdus Salam against her will. I have found that PW3 quite categorically claim t hat on the night in question, all the accused persons aforesaid captured the vic tim, the moment she came out of her house and she was quickly lifted to the res idence of Abdus Salam. 30. This evidence of PW3 is confirmation from the testimony rendered by PW1, PW2, PW4 & PW5. Even the narration made in the Exhibit-1 (FIR) supports such a claim. As stated above, I have found nothing on record to disbelieve abo ve claim PW1, PW2, PW3. Thus I am of the opinion that on the night aforesaid, th e accused persons compelled the victim to go to the residence of one Abdus Salam and that too against her will. The fact that she returned home the moment she g ot an opportunity to do so is, in my consider opinion, affirms the fact that acc used persons took her to the house of Abdus Salam against her will. 31. In this connection, it may be stated that the victim in her stat ement claims that as the accused persons gagged her mouth the moment she came ou t of her house, she could not make any hue and cry. She also claims that she did not make any hue and cry also for the reason that the accused persons threatene d her not to make any hulla while being carried away from her residence. 32. However, according to PW1,the mother of the victim, on the nig ht, above, she came out of her house hearing hue and cry being raised by her da ughter. Thus, apparently there are inconsistencies between the evidence of PW1 a nd PW3 on the point of victims making hue and cry when alleged incident occurred in their house. However, when one reads the evidence of PWs above, together wit h other attending fact and circumstances, he would find that those evidence are in fact not evidence in contradictions. 33. It is found well apparent from the evidence of PW3 that the mome nt she came out of her house she found 4 to 5 persons waiting outside her house. It is also in here evidence that they captured her the moment she came out of h er house. In such a scenario, it is quite but natural for a young girl to be sur prised by such development which happened all of a sudden and with electrifying speed and in that process, she might make some commotion spontaneously but witho ut her knowledge which may ultimately drew the attention of her mother who was a lso in her house on the night aforesaid. Being so, I find it difficult to consid er above testimony, rendered by PW1 & PW3 to be the evidence in contradictions. 34. Now, the question is whether the victim was a major girl at the time relevant. I have found that PW2 & PW3 claim that at the time of incident, s he was 13 years of age only. This claim was seriously disputed by the accused pe rsons who maintain that she was a major girl at the time of incident. Though the victim and her parents maintain that at the time of relevant, she was 13 years, yet, they admitted that they have no idea of the date of birth of the victim. S uch evidence, coupled with the fact that they hail from a society which is burde ned with illiteracy, poverty and above all acute lack of knowledge make their c laim that the victim was a girl of 13 years at the time relevant extremely doubt ful. 35. In that connection, it may be stated that the ascertainment of t he age of the victim could have been easily settled had the school certificate b een produced before the Court during trial. In fact, the prosecution was duty bo und to do the same since there is evidence to show that victim had attended the school. But same was not done which cast a grave doubt about the claim of the pr osecution that during the time under consideration the victim was a girl of 13 y ears of age. 36. This suspicion gather more and more strength in view of the fact that the PWs, particularly the PW2, in his evidence has stated that during the course of investigation , police collected the school certificate from him altho ugh same was not found in the record. Though this claim of PW2 was contradicted by the I.O. yet fact remains that there was a contradiction on a very vital poin t touching a dispute over the age of victim girl. 37. In this context, it may also be stated that the age of the victi m girl could have been resolved to a great extent with the aid of evidence of Me dical Officer. Once again, the medical certificate is not there in the record wh ich again casts a doubt on the prosecution case as far as age of victim girl is concerned. Situations being such, I find it difficult to come to a conclusion th at the victim was a minor girl at the time, relevant.

38. The learned Trail Court also rendered its opinion on the age of the girl. I find it necessary to refer to opinion and finding to the lea rned Trial Court on the age of the girl. For ready reference the relevant part i s reproduced below. Although to PW1 & PW2, being parents of Delwara Khatun, Delwara was aged 13 years at the time was aged 13 years at the time of occurrenc e and PW3 Delwara has also stated that she was aged of 13 years when she was kid napped by the accused persons forcibly, but no medical certificate has been prod uced by the prosection. According to PW6, Delwara was medically examined by the Doctor after her recovery, but the medical report could not be procured. In the FIR (Ext.1) also, the age of Delwara Khatun has also been stated to be 13 years at the time of occurrence. The evidence of PW3 goes to show that after kidnappin g and keeping her in the house of Abdus Salam, nothing was done upon her by the accused and she was only confined after kidnapping. Thus, kidnapping and detain ing her forcibly in the house of Abdus Salam is the main offence committed by th e accused persons and accordingly, they have been charged u/s 366/34 IPC. Althou gh the prosecution could not adduce any medical evidence as regard the age of th e victim (PW3), but PW1 & PW2, being parents of the victim girl appears to be th e best persons to say about the age of the victim. Whatever it may be, even if m inority of PW3 at the time of occurrence has not been established beyond doubt, but the evidence on record clearly establishes the fact t hat she was forcibly b odily lifted from the compound of her house when she came out to attend the call of nature and the accused persons took her in such a manner to the house of Abd us Salam where she was detained in the night. According to PW3, dagger was shown to her and prevented her from raising hue and cry by the accused persons and th at is the reason for which she could not shout attracting the interference of th e neighbouring people. She was only freed in the house of Abdus Salam, but resis ted her from shouting there also. The evidence on record that only on getting so me scope, she fled away and reached her house on the following morning and the e verything was narrated to her parents and that is what has been described in the Ext. 1 also.( Emphasis supplied by me)

39. A bare perusal of above finding reveals that the learned Trial C ourt was not sure about the age of the victim girl at the time relevant. To put it differently, it was not sure if victim was a minor girl on the date of incide nt. It is a settled law that when two views are possible, the view favourable to the accused person needs to be accepted in normal circumstances.

40. But in the instant case, despite being two views being possible on the question of the age of the victim girl at the time relevant, even accordi ng to the learned Trial Court, the later did not accept the view which favours a ccused persons and convicted the accused persons under Section 363 IPC thereby h olding that the time relevant the victim was a minor girl. The above conclusion, arrived at by the Trial Court, in my opinion, is not tenable in law.

41. We have already found that the Trial Court has refused, and quit e rightly, to convict the accused persons under Section 366 IPC on the ground th at there was absolutely no evidence to show that the victim was taken out from h er house and was confined at the residence of one Abdus Salam for any of the pur poses as specified in Section 366 IPC. In my view, on the materials on record a different view is not possible.

42. Now, the question is what offence if any, accused persons can be held guilty of on the basis of materials on record. We have already found that the accused Hazrat Ali, Jahirul Islam, Saker Ali, Majom Ali, and Jahanuddin forc ibly took the victim from her house against her will and confined her at the res idence of one Abdus Salam until the victim freed herself from such confinement n ext day in the morning. In my opinion, such relevations clearly demonstrate that all acc 43. used persons save and except Md Abdus Salam are equally responsible for wrongful confinement of victim girl as they all took active part in wrongfully confining girl aforesaid and are, therefore, liable to be convicted under Section 342 IPC . Accordingly, all those accused are convicted of offence under section 342 IPC. 44. I have perused the materials on records and come to the conclus ion that if those accused persons are asked to suffer RI for 6 months for offenc e under section 342 IPC, it would meet the ends of the justice. Accordingly, eac h of the accused is sentenced to suffer RI 6 months for the offences 342 IPC. Th e period which they had already spent in jail would be set off against the sente nce, imposed upon them However, the accused, Abdus Salam as stated above is acquitted o

45. f offence under Section 363 IPC and is set at liberty forthwith. 46. We appreciate the assistance rendered by learned Amicus Curiae. It is, therefore, ordered that he be given an amount to the tune of Rs. 5,000/- as being his professional fee.