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2004 DIGILAW 499 (GAU)

Samsul Haque @ Samsul Alam v. State of Assam

2004-08-30

P.G.AGARWAL

body2004
JUDGMENT P.G. Agarwal, J. 1. Heard Mr. A.M. Mazumdar, learned senior Counsel for the Appellant and Mr. F.H. Laskar, learned Public Prosecutor. 2. This appeal is directed against the judgment and order dated 10.3.2003 passed by the learned Addl. Sessions Judge, (Ad-hoc), Barpeta in Sessions case No. 218/2000 whereby the accused Appellant was convicted and sentenced. 3. In Sessions case No. 218/2000 the Appellant before us Samsul Haque @ Samsul Alam was tried for commission of the offence under Section 366A and 376 IPC on the allegation that on 20.8.1997, the Appellant induced Smt. Saniyara Khanom P.W. 6 to leave the custody of her parents with the intention to force her to illicit intercourse and thereafter committed rape on her. During trial, prosecution examined as many as 7 witnesses and on conclusion of the trial, the learned trial court of the Addl. Sessions Judge (Fast Track Court) convicted and sentenced the accused Appellant and hence the present appeal. 4. P.W. 6 is the alleged victim Saniyara Khanom and she has deposed that on the night of occurrence at about 11.30 P.M. she went out to obey nature's call and her mother and sister-in-law accompanied her and while she was there the accused persons who were waiting there forcibly kidnapped her. She was taken to Barakum Char where the accused person proposed to marry her but she declined and while she was staying then the police recovered her. Thus from the statement of P.W. 6 and P.W. 1 Taslima Khatun we find that this is a case of forcible abduction by 10/12 persons including the accused Appellant. 5. The learned Counsel for the accused Appellant has submitted that the entire prosecution case is baseless as the incident had taken place in the house of the informant and that too at around 11.30 P.M. at night and surprisingly enough 10/12 persons were waiting there in the hope that P.W. 6 will be coming out at that point of time to obey nature's call. 6. In this case we find that the victim P.W. 6 in her examination in chief has not uttered a single word about the commission of rape on her by the accused person and the accused stands convicted for the offence under Section 376 IPC. 6. In this case we find that the victim P.W. 6 in her examination in chief has not uttered a single word about the commission of rape on her by the accused person and the accused stands convicted for the offence under Section 376 IPC. The prosecution, in order to show that there was an incident of rap also brought on record the earlier statement of P.W. 6 recorded under Section 164 Code of Criminal Procedure Ext. 3 is the said statement. We have perused he said statement wherein we find that P.W. 6 has given altogether a different story. According to her she had a love affair with the accused Samsul Haque and pursuant to the said affair, she eloped with the accused at night and thereafter she got married with the accused and they lived as husband and wife for more than one month and thereafter she was recovered by the police. The statement of P.W. 6 recorded under Section 161 Code of Criminal Procedure was in the same vein and the matter has been brought out by the defence through the Investigating Officer. Further from the order sheet we find that PW6 had refused to go with her parents and filed an application but the said application was rejected. 7. In view of the nature of evidence on record, we have no hesitation whatsoever, to hold that this is not a case of forcible kidnapping as stated by the witnesses but this is a case of voluntary elopement. 8. The learned Public prosecutor has submitted that considering the age of the victim the said act shall amount to an offence at least under Section 366 IPC. 9. In view of the above, the age of the victim becomes more relevant factor. From the oral evidence on record P.W. 6 was studying in class IX at the relevant time. As held by the Apex Court that birth certificate and the school certificate are the best evidence as regards age. But admittedly no birth certificate nor the school certificate or the school register has been produced to show the actual age of P.W. 6. P.W. 6 claimed to be 23 years of age when she deposed before the court on 10.9.2002. But admittedly no birth certificate nor the school certificate or the school register has been produced to show the actual age of P.W. 6. P.W. 6 claimed to be 23 years of age when she deposed before 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 the other witnesses, prosecution also examined the Doctor who held the ossification test and opined that the age of the victim is above 16 years and below 18 years. In the case of Jaya Mala v. Home Secy. J and K AIR 1982 SC 1297 , the Apex Court 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 elopement and not forcible kidnapping, the benefit of this must go to the accused and therefore, we hold that PW 6 was not a minor and she voluntarily went with the accused and we find that no case for kidnapping or rape is made out. 10. In the result, the appeal is allowed. The sentence is set aside. The accused Appellant is acquitted and set at liberty forthwith. The accused person shall be released from jail forth with. Appeal allowed.