High Court
Case Details
Crl.A. 147/2010 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY JUDGMENT AND ORDER (ORAL) This appeal is presented against the judgment dated 18.07.2010 in the Sessions C ase No.193/2009 rendered by the learned Addl. Sessions Judge (FTC), Biswanath Ch ariali, whereby the accused (appellant) is convicted U/s.366 of Indian Penal Cod e (hereafter referred to as the IPC) and was sentenced to rigorous imprisonment for 5(five) years and to pay fine of Rs.1,000/- and in default of fine, 60 days simple imprisonment. 2.
Legal Reasoning
I have heard Mr. S. Bharali, learned counsel for the appellant. The State is represented by Mr. Z. Kamar, the learned Public Prosecutor, Assam. 3. The prosecution story as revealed from the FIR lodged by Ghana D as, is that on 19.09.2009 at about 10 P.M., his minor daughter was enticed away with promise of marriage by the accused Abhi Hazarika and the victim was raped f or about one week by the accused. After the victim was enticed away, the father of the appellant, Ananta Hazarika did not allow the victim and the accused to e nter their house and on such refusal, they took shelter in the house of Prakash Hazarika. The FIR was filed on 29.08.2009 leading to registration of the Behali Police Station Case No.85/2009 U/s.366 (A)/493/506/34 IPC. After the case was committed to the Sessions Court, the accused was charged U/s .366 of the IPC. During trial, the prosecution presented 7(seven) witnesses, and the accused was examined U/s.313 Cr.P.C. However, no defence evidence was addu ced. PW-1 Ghana Das is the father of the victim. He stated that his 4. daughter aged about 14 years was kidnapped by the accused at about 10 P.M. on 19 .08.2009. A week after the occurrence, Prakash Hazarika informed the witness th at the accused fled away after leaving the victim in Prakash Hazarika’s residenc e. Thereafter, father recovered the girl from Prakash Hazarika’s house and lodg ed the FIR. In his cross-examination, PW-1 testified that the victim was stu dying in school when she was abducted. He also testified that he and his wife w ere away to attend an invitation in the house of Jayanta, when the incident took place. 5. PW-2 Jonali Das is the married elder sister of the victim. She was informed about the kidnapping of her sister by one of the village boy and ac cording to her, the victim was aged about 14, years when the incident occurred. 6. PW-3 Susmita Das was a neighbourhood witness. In her cross-exam ination the witness heard hulla at 10 P.M. from the house of the victim on the d ay of the incident. She heard the younger sister of the victim crying at that t ime. 7. PW-4 Smti Joitara Das, is the mother of the victim. She was tol d about the kidnapping by a boy called Jayanta. Later on, Prakash Hazarika info rmed that the accused fled away after leaving the victim in the residence of Pra kash Hazarika. e police about the love relationship between her daughter and the accused. In her cross-examination, the mother denied that she had told th 8. PW-5 is the victim herself, who testified that on the day of the incident her parents were not at home. According to the victim, at about 10 P. M., the accused along with one Jadav forcibly took her away to the house of the accused. She was kept by the accused in his uncle Prakash Hazarika’s house, whe re the victim was raped by the accused. In her cross-examination, the victim denied that she was in love with the accused and also denied the suggestion that she eloped of her own voil ation. 9. PW-6 Dr. Pulak Kalita was on duty at the Biswanath Chariali Civi l Hospital. He examined the victim on 30.08.2009 and opined that there was rece nt sign of sexual intercourse was not noticed on the victim and that she is aged about 15 years. 10. PW-7 Khagen Sonowal was the Investigating Officer. He arranged f or medical examination of the victim and arrested the accused and filed the char ge sheet in the case. In his deposition, the I/O stated that he was informed by the victim’s father ab out the frequent visiting terms of the accused with the victim. 11. Mr. S. Bharali, learned counsel argues that the FIR was belatedl y lodged 10 days after the incident and accordingly the version presented by the prosecution cannot be trustworthy. The appellant projects that the father and sister of the victim had stated before the police about the love relationship between the victim and the accused and accordingly the counsel argues that it cannot be treated as a ca se of kidnapping and should be treated as a case of consensual elopement. 12. In order to appreciate the argument of the appellant, it would b e necessary to take into account the age of the victim. The medical evidence sh ows that the victim is aged about 15 years and the victim herself stated that sh e was a student of Class-VIII, when the incident occurred. Having regard to the fact that the victim was a minor aged about 15 years, her consent in a case unde r 366 IPC is of no relevance and accordingly even if the love relationship betwe en the victim and the accused is accepted to be correct, the same in my view, ca nnot be the basis of exonerating the accused. 13. On the issue of the delayed FIR, the background of the informant must be borne in mind. The incident occurred in a rural setting and the incide nt might have been preceded by a love relationship of the accused and the victim . In such circumstances, there might be initial hesitation to lodge the FIR. I n any case belated FIR cannot by itself be fatal for the prosecution if sufficie nt evidence is available otherwise, to confirm the guilt conclusion of the trial court. 14. From the evidence of the victim herself, her parents and also th e neighbourhood witnesses as well as the testimony of PW-3, it is apparent that the accused enticed away the victim at night on 19.08.2009 from her residence fr om the lawful custody of her parents. At the time of the incident, she was a st udent of Class-VIII and was a minor as has been established from the medical evi dence. In these circumstances, to disturb the finding of conviction recorded by the trial Court, on the ground that the victim was a willing partner in the abd uction, cannot be justified. In the statement of the accused recorded U/s.313 Cr.P.C. he has 15. admitted about elopement with the victim. But he claimed that the victim was ag ed above 15 years and that he and the victim had a love relationship and she wil lingly came out of her own house to elope with the accused. Thus it is apparent the accused has admitted his role in taking away the victim from the lawful cust ody of her parents. Therefore, considering the fact that the victim was aged about 1 5 years at the time of incident, I see no scope to interfere with the conviction ordered by the trial Court. 16. But evidence in the case do suggest that there was a love relati onship between the victim and the accused and the age of the accused was about 1 9/20 years, when the incident occurred. Taking these factors into consideration , I feel that sentence inflicted by the trial court should be reduced to enable the accused to have a fresh start in life. Accordingly, his sentence is reduced to 2 ‰ years from 4 years. Since the accused is on bail he must surrender with in 1 month to serve out the reminder of sentence. The benefit of set off for th e period spent in custody should be given to the accused. 17. ence without disturbing the verdict of conviction. The appeal is accordingly partially allowed by reducing the sent 18. The L.C.R. be returned forthwith.