High Court
Case Details
Crl.A. 23/2007 BEFORE THE HON’BLE DR.(MRS.) JUSTICE I. SHAH JUDGMENT & ORDER (ORAL)
Legal Reasoning
The judgment and order dated 29-11-2006 passed by the learned Sessions J udge, Mangaldoi in Sessions Case No.15 (DM) 2005 convicting the accused-appellan t under Sections 266 & 376 IPC and sentencing him thereby to under rigorous impr isonment for 5 years with fine of Rs.3,000/- in default 6 months rigorous impris onment for the offence committed under section 366 and further rigorous imprison ment for 10 years for the conviction under section 376 IPC have been challenged in this appeal.
Legal Reasoning
2]. I have heard Mr. A. Goswami, learned counsel for the appellant as well a s Ms. B. Bhuyan, learned Addl. Public Prosecutor, appearing on behalf of the Sta te of Assam. The prosecution case, in brief, is that the victim was a resident of Ali 3]. singa village under Dalgaon Police Station. She was residing along with her pare nts. On 16-04-2001, while her father was away from the house, she was alone with her mother. When she came out of the house at night to answer the nature’s call , the accused appellant gagged her mouth with a cloth and took away to Kalaigaon where she was kept in the house of a person. There accused appellant committed rape on her against her will. Thereafter, the father of the accused and his elde r brother brought the accused and the victim from Kalaigaon and kept in the hous e of one Tamu ali, which is situated at a distance of 1 (one) kilometre from the parental house of the victim. The father of the victim lodged the complaint in the Court on 08-10-2001. The complaint so lodged was forwarded to the officer-in -charge of Dalgaon Police Station to register a case and to submit report after the investigation. The Officer-in-charge of Dalgaon Police Station registered th e case on 19-05-2002 being Dalgaon P.S. Case No. 126 of 2002 under Section 344/3 23/365/109/506/34 IPC. During trial, the learned trial Court framed charge under Sections 366/376 IPC against the accused appellant. A separate charge under sec tion 344 IPC was framed against Md. Samir Ali, who is father of the accused app ellant. 4]. Altogether 7 witnesses were examined by the prosecution to prove its cas e. The accused persons were then examined under Section 313 Cr. P.C. and they de nied the allegations levelled against them and pleaded that they are innocent. T he defence case was of total denial. 5]. The victim (PW-5), in her evidence, stated that on the day and time of incident, she was alone in her parental house with her mother. While she was cleaning her legs nearby a tube well, the accused Hamidur gagged her mouth and took away to Kakaigaon. The accused kept her in the house of a person at Kalaig aon where he committed raped on her, against her will. While kidnapping, she all eged that her mouth was gagged with a cloth. The accused’s father and his elder brother brought her and the accused from Kalaigaon and kept in the house of one Tom Ali. The house of Tom Ali is situated at a distance of 1 kilometre from he r parental house. She was kept there for about 10 months in the house of Tom Ali . 6] She further deposed that Hamidur (Accused) wanted to marry her b ut his father was against the marriage. According to her, she along with the ac cused were earning their livelihood as daily wage labourer. In her cross-examin ation, she deposed that father of the accused proposed her father that he will g ive money to him to marry her with any other person. When her father asked Samir (father of the accused) to give money, he did not pay to him. As the accused f ather did not pay money, the case was filed. She also stated that Kalaigaon is s ituated at a distance of 20-25 miles from her parental house. She reached there along with the accused at about 12.00 A.M. She was kept at Kalaigaon for about 1 and ‰ months. She used to work along with the accused appellant together as da ily basis worker. While she was kept at Tom Ali’s house, there also she was work ing as maidservant in other houses. 7]. She admitted that she did not complaint anybody against the accused. How ever, she stated that accused obstructed her. She also admitted that the cloth u sed for gagging her mouth was released while travelling to Kalaigaon but she did not raised any alarm as the accused threatened her to kill. She disclosed her age as 16 years when her deposition in the Court was recorded on 30-03-2006. But her statement under Section 164 Cr.P.C. was recorded on 23-05-2002 wherein, she stated her age as 14 years. In the FIR, the age of the victim has been mention ed as 13 years 7 months. 8]. The mother of the victim was examined as PW.2. She disclosed that at the time of occurrence, the victim was around 15 to 16 years of age. As per PW.3, t he doctor, who examined the victim on 20-05-2002, approximate age of the victim was between 17-19 years as per radiologist. The doctor could not give opinion r egarding the recent sexual intercourse. In the FIR, it is stated that immediatel y on the next day of occurrence, the father of the victim lodged information to the police. The said information was not proved during trial. The father of the victim did not state that he lodged any information or FIR to the police on the very next day of the incident. From the above evidence, it appears that the victim and the accu 9]. sed resided together for about 11 months. The vic tim has specifically mentione d in her statement that she was working along with the accused as daily basis wo rker while she was at Kalaigaon. When she along with the accused were brought to one Tom’s house, she engaged herself as maidservant in the houses of some of th e families. While she was abducted by the accused, she did not raise any alarm. While she was working out, she did not report to the incident to anybody nearby nor she sought seeking any help from anybody. It is admitted by the witnesses t hat the house of Tom Ali, where she was kept for about 10 months, is situated on ly at a distance of 1 kilometre from her parental house. 10]. It is also in the evidence of the victim that the father of the accused told her father that he will give money to him if her marriage will be solemnize d with any other person. Her father demanded money and when the father of the ac cused did not pay money, the FIR was lodged. Therefore, the conduct of the vict im as well as her parents shows that the victim was a consenting party. So far as the age of the victim is concerned, the victim herself and her parents have n arrated different age. The medical report says the victim might have attained th e age of majority when the occurrence took place.
Decision
11]. In view of the above discussions, I find and hold that the accused is en titled to get at least the benefit of doubt. Accordingly, the judgment and order dated 29-11-2006 passed by the learned Sessions Judge, Mangaldoi in Sessions Ca se No.15 (DM) 2005 convicting the accused-appellant under Sections 366 & 376 IPC is hereby set aside. The accused appellant is set at liberty forthwith. 12]. ent and order to the court below. The appeal is allowed. Send down the LCR along with a copy of this judgm JUDGE