High Court · 2012

This is an appeal against the judgment and order, dated 21.9.2004 passed , in Sessions Case No. 73 (S-C) 2003, by the learned 1st Addl. Sessions Judge (A d-hoc), Sibsagar, convicting the accused-appellant under Section 366 IPC and sen tencing him to suffer rigorous imprisonment for 5 (five) years and to pay fine o f Rs. 1000/- and, in default, to undergo rigorous imprisonment for another 6 mon ths. 2. The prosecution’s case may, in brief, be described thus: on 24.7.2001, at about 12 noon, when PW 3, a minor girl aged about 15 years 8 months, was ret urning from her school, accused Rakesh Bora and Sazid Rahman, accompanied by so me other boys, kidnapped her by putting her in a Maruti Van and, then, compelle d her to marry accused Rakesh Bora by swearing an affidavit before an Executive Magistrate, Charaideo, Sonari, and also by executing, in this regard, a Kabinnam a in the office of Kazi, Sonari. On being reported about the occurrence by his daughter (PW3), PW1 lodged an Ejahar. A case was accordingly registered under Se ctions 366/34 IPC against the accused aforementioned and, on completion of inves tigation, police laid charge sheet, under Sections 366/34 IPC, against the two a ccused aforementioned. During trial, charge under Sections 366 read with Section 34 IPC was fra 3. med against the accused-appellants. To the charge, so framed, the accused pleade d not guilty thereto. 4. In support of their case, prosecution examined as many as 6 (six) witnes ses. The two accused aforementioned were, then, examined under Section 313 Cr.P. C. and, in their examinations aforementioned, they denied that they had committe d the offences alleged to have been committed by them, the case of the defence b eing that of total denial. No evidence was, however, adduced by the defence. Having come to the conclusion that the charge, which had been framed und 5. er Sections 366/34 IPC against accused Sazid Rahman, could not be proved, the le arned trial Court acquitted him accordingly. However, the learned trial Court c oncluded that the charge against accused Rakesh Bora stood proved. While, there fore, convicting accused Rakesh Bora under Section 366 IPC, the learned trial Co urt passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence passed against him, the convicted person has preferred this app eal. 6. nd Mr. D. Das, learned Additional Public Prosecutor, Assam. 7. While considering the present appeal, it needs to be noted that PW3, who is the alleged victim, has deposed that on the day of the occurrence, she was a student of Class VIII and her age was about 16 years and on that day, at about 1 PM, when she was returning from school to her home, she found accused Rakesh B ora, whom she was in love with, standing by the side of a Maruti Van and at that time, accused Rakesh Bora was accompanied by three or four more boys, whereupo n accused Rakesh Bora took her in the Maruti Van to the office of the SDO, where an affidavit was sworn by them solemnizing their marriage, and, later on, in th e office of the Kazi at Sonari, they solemnized their marriage by executing a Ka binnama. 8. It is the specific evidence of PW3 that she was agreeable to the marriag e and her marriage with accused Rakesh Bora was solemnized by her willingly, the accused allowed her to go to her home and when her father came to know about th e marriage, which had been solemnized, he lodged a case against the accused. In I have heard Mr. A.K.Dutta, learned counsel for the accused-appellant, a her cross-examination, PW3 has, in no uncertain words, deposed that her parents are not willing to give her in marriage with the accused. What is also importa nt to note is that in her cross-examination, PW3 has deposed that on the day of the occurrence, she was in love with accused Rakesh Bora.

9. From a dispassionate analysis of the evidence of PW3, it becomes clear t hat as far PW3 is concerned, she went with accused Rakesh Bora, in the said vehi cle, willingly and irrespective of the fact as to what legal effect of swearing of the affidavit by her and accused Rakesh Bora would be, the fact remains that the affidavit was sworn by her willingly as she had been in love with the accuse d and that the execution of the Kabinnama aforementioned, too, was with her will ingness and consent. 10. If, therefore, PW3 was not a minor, the accused-appellant could not have been held, and cannot be held, to have committed any offence under Section 366 IPC, when he took away PW3 in the said vehicle and got the said affidavit sworn and the said Kabinnama executed. 11. The question, therefore, which arose for determination, in the present c ase, was: Whether on the alleged day of the occurrence, PW3 was a minor, for, if she was a minor, her consent or willingness to go with the accused-appellant co uld not have absolved the accused-appellant of the offence of kidnapping PW3 fro m the custody of her lawful guardian. Bearing in mind what is indicated above, let me, first, come to the evid 12. ence of PW4, whose evidence has remained unchallenged by the prosecution as well as the defence. According to his evidence, on examination of PW3, he found as f Height 5 feet. Weight 40 K.G. Teeth 14/14 nos. Public & Auxiliary hair coarse. Breast- well developed Areola -Pink, No injury seen on the breast. Valva & vagina, well developed . No injury seen. Hymen-absent without any injury. Uterus - Anteverted and normal size ollows: (cid:28)General Examination 1. 2. 3. 4. 5. 6. 7. 8. 9. Report of microscopic examination of vaginal smear- No spermatozoa seen X Ray- epiphyseal plate around left elbow joint are completely fused with the co rresponding shaft, epiphyseal plate at the distant end of left radices and that of left ulna remains open. (cid:29) 13. as below the age of 18 years, on 02-10-2001, when she was medically examined. 14. In his cross-examination, PW4 has, however, clarified that though he has given his opinion that PW3 was below the age of 18 years, it would mean that sh e was in the age group of 16 to 18 years. The medical evidence on record does no t, therefore, rule out the possibility of PW3 having attained on the age of 18 y ears on the alleged day of occurrence and, in such a case, PW3 could have been r egarded as major and not a minor. 15. The above discussion of the evidence on record brings me to the evidence of the informant (PW1), who has, I find, deposed that on 24-07-2001 (i.e., the date of the alleged occurrence), PW3 was in Class-VIII. In his cross-examination , PW1 has deposed that he does not know if PW3 was born in the year 1983. What i s, however, crucial to note, in the evidence of PW1, is that he has conceded, in his cross-examination, that at the time of getting PW3 admitted into the school On the basis of the above findings, PW4 has given his opinion that PW3 w , her age was reduced. Keeping in view, therefore, the fact that the age of PW3 had been reduce 16. d at the time of her admission into the school, when I come to the evidence of P W6, who is the Principal of the school, where PW3 studied, what attracts the eye s, most prominently, is that according to this witness’s evidence, the official records, maintained by the school, show that it was on 19-01-1996 that PW3 was a dmitted into the school in Class-V and at that time, her age was 10 years. The f act that the school record reveals that on 31-12-1995, PW3 was aged about 10 yea rs has not been disputed by the defence. What cannot, however, be ignored is the admission made by PW3’s father, namely, PW1, that at the time of admission of P W3 into the school, her age was reduced. In the face of this admission made by P W1, no reliance could have been placed on the records maintained by the school a s regards the age of PW3. This aspect of the matter appears to have escaped the notice of the learned trial Court. Neither, therefore, PW1 knows as to when PW3 was born nor can the school records be of any help in this regard. For the same reason, as indicated hereinbefore, even the evidence of PW3 cannot be relied upo n for the purpose of ascertaining her age on the date of the alleged occurrence.

17. In the backdrop of what have been indicated above, one has no option, bu t to fall back on the evidence of the doctor (PW4), whose evidence clearly shows that PW3 could have been as old as 18 years at the time of the alleged occurren ce. The possibility, therefore, that PW3 was not a minor, but major on the day of the alleged occurrence, cannot be confidently ruled out. When the possibilit y of PW3 being major cannot be ruled out, the question, as to whether PW 3 was o r was not minor on the alleged day of the occurrence, has to be answered in favo ur of the defence inasmuch as a piece of evidence, when gives rise two possible views, the view, which goes in support of the defence, needs to be adopted by a Court exercising criminal jurisdiction. Seen in this light, it becomes clear th at PW3 could not have been treated to be minor in the facts and attending circum stances of the present case and since she had, according to her own evidence, go ne with the accused- appellant willingly and solemnized her marriage with him, no offence of kidnapping of PW3 from the custody of her lawful guardians could h ave said to have been committed by the accused-appellant and when the offence of kidnapping and/or abduction had not been proved, the question of convicting the accused-appellant of offence under Section 366 IPC does not arise.

18. Because of what have been discussed and pointed out above, the finding o f guilt, reached against the accused-appellant, cannot be sustained and needs to be interferred with.

19. arge, which had been framed against the accused-appellant under Section 366 IPC This Court, therefore, holds that the prosecution failed to prove the ch

20. In the result and for the foregoing reasons, this appeal succeeds. The i mpugned judgment and order convicting the accused-appellant shall accordingly st and set aside and the accused-appellant shall stand acquitted of the charge fram ed against him.

21. of.

22. With the above observations and directions, this appeal stands disposed Send back the LCR.