High Court
Case Details
Crl.A. 1/2007 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY This appeal is presented against the judgment dated 23.11.2006 in the Sessions C ase No.130/2005 rendered by the learned Sessions Judge, Kokrajhar, whereby the a ccused/appellant No.1 Hamidul Islam @ Hoque was found guilty under Section 366(A )/376 IPC. The accused appellant Nos.2 & 3, Asrab Ali and Naltu Sk were also con victed under Section 109/366(A) IPC. For his conviction under Section 366(A) IPC , accused Hamidul Islam @ Hoque was sentenced to R.I. for 4 years and fine of Rs .2,000/- and in default of fine, S.I. for another 6 months. He was further sente nced to R.I. for 7 years and fine of Rs.5,000/- and in default of fine, S.I. for another 1 year for the conviction under Section 376 IPC. The accused Asrab Ali and Naltu Sk for their conviction under Section 109/366(A) IPC were sentenced to R.I. for 3 years and fine of Rs.2,000/- and in default of fine, S.I. for anothe r 6 months each. 2.
Legal Reasoning
I have heard Mr. B. B. Narzari, the learned senior counsel appearing for the accused/appellants. The State is represented by Mr. K A Mozumdar, the learn ed Addl. Public Prosecutor. 3. According to the prosecution case, on 19.2.2005, at about 2 A.M. (night) , the accused entered into the house of the informant Jabed Ali and kidnapped th e informant’s minor daughter (hereinafter referred to as ’the victim’) and confi ned her in the house of the accused/appellant Naltu Sk. After the informant lear nt about the place of confinement from the village Gaonburha, an FIR was filed o n 23.2.2005 and the Fakiragram P.S. Case No.10/2005 was registered under Section 366A/109 IPC. The police recovered the victim on 16.3.2005 from the road in fro nt of the house of one Babul Sk of Rabantari Village. After the investigation wa s completed, the accused were charged and the case was committed to the Sessions Court. Formal charge under Section 366A/109 of IPC was framed against the accus ed Asrab Ali, Naltu Sk and Ukila Bibi. The accused/appellant No.1 Hamidul Islam was charged also under Section 376 IPC. As the accused pleaded not guilty, trial was started and 8 witnesses were presented by the prosecution, but no defence e vidence was cited by the accused. PW.1 is Md. Jabed Ali is the father of the victim and the informant of t 4. he case. In his testimony, PW.1 stated that he was away at Salakati on the night of the occurrence. He was told by Sahera Gaonburha that accused Hamidul Islam a long with the other accused persons had kidnapped his minor daughter. In his cross-examination, the witness stated about the attempt made by t he village Gaonburha to get the victim and the accused Hamidul Islam married. 5. PW.2 Mst. Sahida Bibi is the mother of the victim and was sleeping in th e adjacent room when the incident occurred at night. At about 3/4 A.M. the witne ss realized that the victim was not in the house and found the house door open a nd in broken condition. She immediately informed her neighbours and her husband, who was at Salakati, about the missing daughter. The Sahera Gaonburha also told the PW.2 about getting the victim recovered through his own effort. 5. PW.3 Md. Saidul Rahman is the maternal uncle of the victim and stated th ere was love affair between the victim and Hamidul Islam and that the parents of the victim rejected Hamidul Islam’s marriage proposal as he is a poor man. As t he witness did not support the prosecution case, he was declared hostile and was subjected to cross-examination by the prosecution. PW.4 is the victim herself. In her testimony, the witness stated that th 7. e accused person kidnapped her by gagging her mouth. She was kept at Rabantari V illage for 27 days and during this period, the accused Hamidul sexually assaulte d her on 2 days. The victim was taken to Dhubri for solemnizing marriage with Ha midul and was brought back again to Rabantari Village. In her cross-examination, the prosecutrix admitted that she could not recognize the persons who abducted her. She could not also name the person in whose house at Rabantari Village, she was confined for about 20/21 days. Although the witnes s stated that she informed the neighbours as well as the driver, who drove the v ehicle to Dhubri and back, none come to her assistance, as a kidnapped victim. S he stated that she was a minor at the time of occurrence. 8. PW.5 is Md. Sahajuddin Sk is the paternal grandfather of the victim. Thi s witness was also told by the Sahera Gaonburha not to go to the police as the m atter will be compromised in the Village Salisha. But when the village Headman f ailed to settle the matter, the victim’s father filed the case a few days after the occurrence. In his cross-examination, the PW.5 stated that he visited the house of t he accused/appellant Naltu Sk but did not see the victim in Naltu Sk’s house. PW.6 Md. Gappar Ali is not a material witness of the case. 9. 10. PW.7 Sri Durlav Narayan Sarma is the I.O. of the case. After the case wa s registered on 23.2.2005, the I.O. made attempts to recover the girl but only o n 16.3.2005 when he learnt that the victim and the accused are at the Rabantari Village, he went to that village and found the victim and the accused on the roa d in front of the house of Babul Sk. Thereafter the accused was arrested and the victim was sent for medical examination. In his statement recorded under Section 313 of the CrPC, the accused tot 11. PW.8 is Dr. S. Hoque who examined the victim on 16.3.2005 at the Fakirag ram Sub-Health Center. Although the Doctor did not see any sign of forceful assa ult, he opined that the victim is below 18 years on the date of examination. 12. ally denied his involvement in the case. 13. Assailing the conviction of the two accused Asrab Ali and Naltu Sk, the senior counsel argues that there is no evidence to connect these two accused wit h abduction and confinement of the victim. Referring to the testimony of the pro secutrix herself, the senior counsel argues that the victim did not identify the two accused as her abductors. It is also submitted that evidence couldn’t be pr esented to show that the victim was confined in the house of the accused Naltu S k. 14. By referring to the evidence of PW.3, Mr. Narzari argues that there was love affair between the accused and the victim and since no forced house entry w as noticed and no injury marks were seen on the victim by the Doctor, the convic tion under Section 366(A) or 376 IPC is contended to be unsustainable against th e accused Hamidul Islam. 15. The evidence of the prosecutrix and the Doctor (PW.8) confirms that the victim was a minor girl, when she was kidnapped. The evidence of the I.O. shows that the victim was recovered from Rabantari Village on 16.3.2005, after she was forcibly lifted from her house on 19.2.2005. The prosecutrix couldn’t however i dentify the father and uncle of the accused Hamidul Islam, as the persons, who g agged her or took her away on the night of 19.2.2005. The evidence of PW.5 and t he I.O. (PW.7) show that the victim was neither confined nor was recovered from the house of accused Naltu Sk, as was suggested by the prosecution. Therefore I am of the considered opinion that the conviction of the accused Asrab Ali and Na ltu Sk under Section 366A/109 IPC can’t be sustained and accordingly their convi ction is held to be unsustainable and is quashed accordingly. 16. But in so far as the conviction of accused Hamidul Islam is concerned, t he evidence of prosecutrix clearly shows that this accused abducted her and kept her confined for several days in Rabantari Village. The victim being subjected to sexual assault on two days, during the days of her confinement, is also testi fied by the victim. In this context, the absence of any sign of forcible sexual assault on the victim is immaterial in my view, since the examination of the vic tim was belatedly done only on 16.3.2005, while the abduction and sexual assault took place several weeks earlier on or about 23.2.2005. Although love affair be tween the victim and the accused No.1 is suggested by the appellants’ lawyer, si nce the victim was minor at the relevant time, her consent has no material beari ng and accordingly, I see no scope to interfere with the conviction of the accus ed No.1 Hamidul Islam, under Section 366A/376 IPC 17. In view of above, the conviction of accused Asrab Ali and Naltu Sk are q uashed. As they are on bail, their bail bonds are discharged. However the convic tion of the accused/appellant No.1 Hamidul Islam is sustained. Since he is on ba il, he will surrender within 2 weeks in the Court of the learned Chief Judicial Magistrate, Kokrajhar to serve out the remainder of his sentence. Accordingly th e appeal is partially allowed. 18. Registry to send down the L.C.R. immediately.