High Court
Case Details
Crl.A. 96/2011 PRESENT HON’BLE MR JUSTICE A. C. UPADHYAY This appeal is directed against the judgment and order dated 28th September, 201 0 passed by the learned Assistant sessions Judge, Tezpur, Sonitpur in Sessions c ase no. 48/2009 acquitting the accused of the charge u/s 366/376 of the IPC. The facts leading to filing the appeal may be stated as follows: 1. On 25.3.2008, the victim lodged an FIR with the Dhekiajuli police statio n stating that on 5.3.2008 at about 7 PM the accused kidnapped her in front of h er house to a standing Maruti vehicle. When the victim tried to protest, the acc used promised to marry her and took her to the house of his maternal uncle by a deceitful means and after keeping the victim there for some time, he took her to Diphu and kept her in the house of his maternal uncle. It is also alleged in th e FIR that the accused was having sexual intercourse with the victim for about 2 0 days. On the basis of FIR, an investigation was launched and on conclusion the reof, a charge-sheet was submitted alleging commission of offence u/s 366 of the IPC against the accused.
Legal Reasoning
On committal of the case for trial, the case was transferred to the lear 2. ned Assistant Sessions Judge, Sonitpur at Tezpur for a trial. The learned Assist ant Sessions Judge framed a formal charge u/s 366/376 of the IPC against the acc used. On reading over and explaining the charge, the accused pleaded innocent an d demanded a trial. During the trial, the prosecution examined as many as 13 wit nesses to establish the charge. On conclusion of the recording of the evidence o f prosecution witnesses, statement of the accused was recorded as per the provis ion of section 313 of the CrPC. The accused, in his statement u/s 313 of the CrP C, opted a state of denial and did not come forward to adduce any evidence in de fence. On conclusion of hearings of the case, the learned trial court acquitted the accused of the aforesaid charges and set him at liberty. As against the afor esaid order of acquittal, this appeal has been preferred by the victim.
Legal Reasoning
3. Learned counsel for the appellant, referring to the evidence of the witn esses, submitted that the prosecution witnesses clearly established the offence alleged against the accused, and therefore the learned trial court ought to have convicted the accused for commission of the offence u/s 366/376 of the IPC. Non e appeared on behalf of the respondent, despite service of notice. 4. Mr S Das, learned Additional PP, present in court, assisted the court in hearing of the appeal. 5. ike to discuss the prosecution evidence in a nutshell. To appreciate the submissions made on behalf of the appellant, I would l 6. PW1, Md Raful Amin deposed that in the month of March, 2008, the accused Sahidul Islam came to his house and after 17 days of the date of his arrival, t he victim Anowara Begum called on him and on being asked, she told that she came there in search of the accused person 7. PW2, Manikjan Begum deposed that on 5.3.2008, accused Mahidul Islam came to her house and after staying there for about 16-17 days he left and then came the victim. On being asked, she told PW2 that she came there in search of the a ccused person. 8. ictim girl as well, and he knew nothing about the occurrence. PW3, Md Hajar Ali stated that he knew both the accused persons and the v 9. victim girl as well, and he was aware of the occurrence. PW4, Md Jalaluddin stated that he knew both the accused persons and the 10. PW5, the informant/victim girl deposed that on 5.3.2008 at about 7 PM wh en she came out of her home to fetch water, the accused person dragged her to a Maruti car and accelerated to his maternal aunt’s house at Borsola and confined thereat for 3 days. She also stated that during the said period, the accused per son was having sexual intercourse with her forcefully for 2 days and that after staying there for 3 days, she was shifted to Diphu and kept there at the house o f the son of his maternal aunt for 5 days and again to his maternal aunt’s house at Borsola and after confining her there, he fled. PW5 deposed that after the a ccused left her in Borsola, the son of the maternal aunt of the accused took her to Silbori and the brother-in-law of the accused handed over her before police at Silbori outpost and thereafter she was again handed over to police of Dhekiaj uli P.S. and Dhekiajuli police handed over her to her. This PW5 again deposed th at at the time of occurrence her age was about 14 years. 11. PW6, Md Sahar Ali, and PW7, Md Suraj Ali were declared hostile as per pr ayer of the prosecution, since both of them have not supported the prosecution a llegation. 12. PW8, Md Riajuddin, who is the brother of the victim girl, deposed before the court that the occurrence took place on 5.3.2008. According to PW8, the vic tim girl was missing from home and later he could know that both the victim girl and the accused had been in the house of the brother in law of the accused and subsequently they were handed over to police. 13. PW9, the M.O. Dr Ranjan Kr Das, deposed that on 22.3.2008, when he was w orking as Medical & Health Officer-1 at Kanaklata Civil Hospital, the victim wom an was brought before him in reference to Dhekiajuli PS case no. 84/87 u/s 341/3 66/344/376 of the IPC on police requisition being escorted and identified by W.H .G. Lili Das and upon examination he found the following: (cid:28)Her height -150 cm, weight 35 kg, teeth 14/14. She was average built. Her secondary sexual character are well developed . Vulva, vagina healthy and intact, breast, pubic and axillary hair well develop ed. Hymen absent. There are no marks of violence on the private as well as other parts of body. Vaginal smear for spermatozoa absent. X-ray of wrist joint, elbow joint and iliac crest done. X-ray plate no. 1520/21/22 dated 27.3.2008. Epiphyseal plate of iliac crests are yet to be fused with the correspond ing bones. Epiphyseal plates of distal ends of left radius and ulna are fused with corresponding shafts. Epiphyseal plate around left elbow joints are completely fused with the corresponding shafts. 1. 2. Opinion: There are no sign that suggest rape. There are no marks of injuries on her private as well as the other parts of her body. 3. Age of the girl is 18 years. (cid:29) 14. PW10, Sri Mehendra Nath Borah is the I/O. PW10 deposed that on 25.3.2008 , while he was attached to Dhekiajuli PS, on that day the O/C of the police stat ion after receiving the FIR lodged by the victim registered a case and entrusted him to investigate the same. He further deposed that in course of investigation he visited the place of occurrence, prepared the sketch map thereof, examined t he witnesses, recorded the statements of all the witnesses u/s 161 of the CrPC, except the witnesses Raful Islam, Suraj Ali and Manekjan Begum, whose statements u/s 164 of the CrPC. PW10 further stated that after completion of the investiga tion having found sufficient material u/s 366 of the IPC against the accused fil ed the charge-sheet against him under the said section of law in the case. This PW also exhibited the charge-sheet under Ext.7. PW11 Md Azad Ali deposed that on the date of occurrence, when he returne 15. d home after finishing his job he came to know that accused person kidnapped his sister i.e. the victim girl at about 7 PM of that day after 25 days of occurren ce the police of Dhekiajuly PS handed over the victim girl to her family members . 16. PW12, Jahbur Ali, also deposed that on the date of occurrence at about 8 PM he came to know that the victim disappeared from her house at 7 PM of the d ay and after 4/5 days back he again came to know that the accused was also absen t in his house and after 20 days of occurrence the police of Dhekiajuli PS broug ht the victim from Silvory police outpost and handed over her to her family memb ers. PW13, ASI Sri Naren Deka deposed that on 22.3.2008 he was the ASI of Sil 17. bori police outpost under Dalgaon PS of Mangaldai district and on that day one R aful Amin verbally informed before the O/C of the police station that on 20.3.20 08 the accused person Mahibul Islam, who is his brother in law brought a girl na mely (cid:28)X (cid:29) to his house and kept her there and accordingly this PW sent to the hou se of said Raful Amin, recorded the statement of witnesses Raful Islam, Suraj Al i and Manekjan Begum and also brought the victim girl and the accused person to the outpost and subsequently handed over them to the police of Dhekiajuli police station of Sonitpur district. 18. The accused person, who was also examined u/s 313 of the CrPC. In his st atement u/s 313 of the CrPC, denied the prosecution case in toto and took the pl ea that he was falsely implicated with the alleged offence by the victim out of grouse. 19. The accused person declined to adduce any evidence of his own. In so fa r as the oral testimony of the material witnesses is concerned, it is seen that PW3, PW4, PW6 and PW7 did not support the prosecution allegation. PW8, PW11 & PW 12 are admittedly not the eye witness of the alleged abduction and rape and are only the reported witnesses of the occurrence. Other witnesses namely PW9 is the M.O., while PW10 & PW13 are the IOs in the case. The PW1 & PW2 on the other han d deposed in their evidence that the victim girl herself came to their house for searching the accused person. The victim who was allegedly living with the acc used for a long period of time without being noticed by any body. The victim did not put up any resistance anywhere, whatsoever. 20. Therefore, it is seen that the entire prosecution story rests on the sol e testimony of the victim girl. The victim in her deposition stated that on the day of occurrence at about 7 PM, while she came out of her home to the roadside for fetching water, the accused person dragged her to a Maruti car and thereafte r took her to Borsola and kept her there in the house of the maternal aunt of th e accused person for 3 days and forcefully had sexual intercourse with her for 2 days and after 3 days, the accused person again took her away from Barsola to D iphu and kept her in the house of the son of the maternal aunt for 5 days and fr om Diphu, the accused again brought her to Borsola and kept her in his maternal aunt’s house where he kept her formerly and after keeping her there the accused himself fled there-from to Silbori and later on Jilai the son of the maternal au nt of the accused brought her to Silbori and the brother-in-law of the accused p erson handed over her before police at Silbori outpost. 21. On a careful scrutiny of the evidence adduced by the prosecution witness es, it appears that there are two stories: first, the accused forcefully abducte d the victim and then raped her; and second, the victim voluntarily fled with th e accused of her own volition and stayed with him comfortably. PW5 described how the accused took away her of the road, kept her at different places and had sex ual intercourse with her. The evidence of the victim girl is apparently unbeliev able, as her cross-examination revealed that she voluntarily eloped with the acc used and the medical evidence also did not corroborate the victim’s oral testimo ny, inasmuch as the victim girl during her cross-examination alleged that she re ceived injuries in her body and private parts during the alleged rape, while the medial evidence indicates no injury or mark of violence on the body of the vic tim girl at the time of examination and the MO also rules out any symptom of rap e or sexual assault to the victim. The evidence of a victim of kidnapping or rape is concerned, the Hon’ble Apex Co urt in a number of judgments have consistently observed that a victim of an offe nce u/s 366 or u/s 376 of the IPC needs no corroboration from any kind of eviden ce, if the court is satisfied that the victim’s testimony has withstood the test of cross-examination and inspires confidence of the court. It is seen that though the victim girl deposed in her evidence that she 22. was kidnapped by the accused person forcefully from the road which is nearby her residence, there was no other eyewitnesses to vouchsafe her statement. Further, after kidnapping the victim was kept at different places by the accused person and she was also taken from place to place, but the cross-examination of the vic tim girl as PW5, it appears that the victim while being been taken from place to place by the said accused, got ample opportunity to flee from the chops of the accused. On the tope of it, cross-examination of PW10, i.e. the I.O. of the case , reveal that the victim girl in her evidence before the said I.O. stated that s he voluntarily eloped with the accused. Therefore, the above circumstances, as o bserved, belied her testimony that she was kidnapped by the accused forcefully f rom the road and kept her confined at different places. Obviously, the victim was not a child that it would surrender itself to the accu sed without any resistance. Further, medical evidence also did not corroborate t he victim’s oral testimony. From the above discussion, it appears that on the da y of occurrence the victim was not forcefully abducted from the custody of her n atural guardian by the accused and later raped her. But the fact remains that sh e voluntarily eloped with the accused. The victim’s testimony could not inspire the confidence of the court. 23. The age of a victim in case of section 366 of section 376 of IPC, this c ourt, in Samsul Haque @ Samsul Alam vs. State of Assam, reported in (2005) 3 GLT 105, while relying on the decision of Jaya Mala v. Home Secretary J&K reported in AIR 1982 SC 1297, observed as follows:- (cid:28)9)
Decision
In view of the above, the age of the victim becomes more releva nt factor. From the oral evidence on record PW6 was studying in class IX at the relevant time. AS held by the apex court that birth certificate and the school c ertificate are the best evidence as regards age. But admittedly no birth certifi cate nor the school certificate or the school register has been produced to show the actual age of PW6. PW6 claimed to be 23 years of age when she deposed befor e the court on 10.9.2002. The incident had taken place on 20.8.1997 i.e. about 5 years prior to her deposition before the court and hence from the oral evidence we find that the victim was 18 years old at the time of the incident. Besides t he other witnesses, prosecution also examined the doctor who held the ossificati on test and opined that the age of the victim is above 16 years and below 18 yea rs. In the case of Jaya Mala v. Home Secy, J and K, AIR 1982 SC 1297, the apex c ourt has held that ossification test is no doubt a surer test but the margin of error is two years on either side. Hence, this being a case of voluntary elopeme nt and not forcible kidnapping, the benefit of this must go to the accused and t herefore, we hold that PW6 was not minor and she voluntarily went with the accu sed and we find that no case for kidnapping or rape is made out’. 24. As held by the Apex Court that the birth certificate and the school cert ificate are the best evidence as regards age, but in this case, admittedly, no b irth certificate or horoscope of the victim girl has been produced by the prosec ution to show the actual age of PW5, the victim girl and the alleged school cert ificate Ext. 3 is also not admissible, as none of the issuing authorities or the Headmaster of Panbari High School came forward to depose in court that the said certificate was issued from the authority of Panbari High School and the prosec ution has failed to examine any other person to support such facts. Besides, the cross-examination of PW10 i.e. the IO of the case reveals that the victim girl in her evidence before the IO stated that she voluntarily eloped with the accuse d person and she was 18 years at that time. MO also gave opinion that the age of the victim girl was 18 years at the time of examination and he based his opinio n on radiological examination of the victim girl. 25. On a careful perusal of the materials on record I do not find sufficient materials to interfere with the findings of the learned trial court and accordi ngly the appeal is dismissed. Send back LCR.