Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 1183 (GAU)

Omar Ali v. State of Assam

2012-10-04

P.K.MUSAHARY

body2012
JUDGMENT P.K. Musahary, J. 1. This appeal is from jail by convict Md. Omar Ali, who was convicted and sentenced to undergo rigorous imprisonment for 7 (seven) years and to pay fine of Rs. 10,000/-, in default simple imprisonment for another 6 (six) months for each count under Section 366/ 376(1) IPC directing the sentences would run concurrently challenging the judgment dated 19.7.2011 rendered by the learned Sessions Judge, Dhemaji in Sessions Case No. 8 (DH)/2011. The prosecution story is very short which reveals from the written FIR lodged by one Smti Gula Konch. Therein it was stated that informant's daughter Miss 'B' aged about 17 years was kidnapped by an unknown boy on 19.10.2010 and confined in the house of one Chacha of Bijni Mahripara. The police registered a case being Dhemaji P.S. Case No. 317/10 under Section 366/ 376(1) IPC, started investigation and recovered the victim girl from the house of the aforesaid person known as Chacha and arrested the accused appellant. Both the victim and the accused were brought to Dhemaji and were produced before the Magistrate. The statement of the victim girl was recorded by the Magistrate under Section 164 Cr.P.C. and was sent for medical examination in the Dhemaji Civil Hospital. 2. On completion of investigation and after collection of medical report, the I.O. submitted charge-sheet against the appellant under Section 366A IPC. The crime being exclusively triable by the court of Sessions, the learned Magistrate committed the case to the court of Sessions at Dhemaji for trial. A case being Sessions Case No. 8(DH)2011 was registered and after furnishing the necessary police documents to the appellant and providing opportunity of being heard, the learned Sessions Judge framed charge under Section 3667376(1) IPC against the appellant, who on being read over and explained, pleaded not guilty and demanded trial. The appellant however examined no witness in his defence. The prosecution, to bring home the charges mentioned above, examined six witnesses including the victim girl, medical officer and the I.O. The prosecution proved the written Ejahar (Ext. 1), the statement of the victim under Section 164 Cr.P.C. (Ext. 2), Admit Card issued by the Board of Secondary Education, Assam (Ext. 3), School Leaving Certificate (Ext. 4), Medical Examination Report (Ext. 5) and Charge-sheet (Ext. 6). 1), the statement of the victim under Section 164 Cr.P.C. (Ext. 2), Admit Card issued by the Board of Secondary Education, Assam (Ext. 3), School Leaving Certificate (Ext. 4), Medical Examination Report (Ext. 5) and Charge-sheet (Ext. 6). The learned trial court on the basis of the oral evidence and documentary evidence on record and upon hearing the learned counsel for the parties, rendered the impugned judgment convicting and sentencing the appellant as stated above. 3. As per allegation in the FIR, Miss 'B' was a minor girl at the time of occurrence and she was kidnapped by an unknown person. The case was registered under Section 366 AIPC and the prosecution, after investigation found prima facie case under Section 366A IPC against the appellant and accordingly charge was laid under the said Section. The learned trial court however framed charge under Section 366 and 376(1) IPC and convicted and sentenced the appellant thereunder. The question is whether the prosecution has been able to prove that Miss 'B' was a minor girl under the age of 16 years to attract offence under Section 376(1) IPC and above 18 years so as to bring the offence under Section 366 IPC. 4. The informant, P.W. 2, is the mother of the victim girl. She deposed that her daughter Miss 'B', after passing Matric, took admission in the Higher Secondary Class but she does not remember the date of birth of her daughter. P.W. 1, Bhaba Konch, father of the victim girl stated in his evidence that at the time of occurrence his daughter was studying in Higher Secondary 1st year at Manchkhowa College and she was below 18 years of age. He also stated in re-examination that his daughter passed the matric and her date of birth is recorded in the Admit Card. In cross-examination he said that he has not obtained any birth certificate. No horoscope was prepared and her date of birth has not been recorded by him. However, he stated that the date of birth as recorded in the school was furnished by him. 5. Medical officer, Dr. Debajit Doloi was examined as P.W. 5. In his opinion, as per the X-ray report, the victim girl was above 16 but below 18 years of age. The evidence of P.W. 1, 2, 3 and 5 is to be read with or considered along with Ext. 5. Medical officer, Dr. Debajit Doloi was examined as P.W. 5. In his opinion, as per the X-ray report, the victim girl was above 16 but below 18 years of age. The evidence of P.W. 1, 2, 3 and 5 is to be read with or considered along with Ext. 3, admit card issued by the Board of Secondary Education, Assam. In the said admit card the date of birth of Miss 'B' has been recorded as 1.2.1995. This admit card was proved and exhibited without any objection from the defence side and it can, therefore, be relied upon as a piece of valid documentary evidence. The occurrence took place on 19.10.2010 and if the age of the victim girl is counted from her date of birth i.e. 1.2.95, her age would be 15 years and 8 months only. As per the existing practice, in the matter of calculation of age of the girl, the Court can reasonably add to or substract one year from the age determined by the medical test. In the present case if the age of the girl is raised by one year she would be only 16 years 8 months or say 17 years. In any case, her age is not above 17 years but clearly under 18 years. The Court can reasonably and justifiably come to a conclusion that the victim girl was major within the meaning of Section 376 IPC. 6. For the purpose of establishing the charge under Section 376(1) IPC, the prosecution has to prove that the victim girl was raped against her will and without her consent. In the present case, as discussed earlier it has already been proved that victim girl was above 16 years and below 18 years of age. From the above evidence on record it may be concluded that Miss 'B' was at the consenting age and therefore the circumstance sixthly described in Section 375 IPC would not be attracted. In that case the prosecution has to prove that the appellant committed rape on her against her will or without her consent or her consent was obtained by putting her in fear of death or of hurt. Before coming to a conclusion in this regard it is an absolute necessity to review the evidence of the victim girl. She was examined as PW-3. Before coming to a conclusion in this regard it is an absolute necessity to review the evidence of the victim girl. She was examined as PW-3. Her evidence is that she had a telephonic contact with the appellant who introduced himself as Parimal Deka and proposed to marry her. He instructed her to meet him at Lily Cinema Hall and accordingly she came and met the accused. When she met, he introduced himself as Omar Ali and he was sent by Parimal Deka to produce her before Parimal Deka who was awaiting at Lakhimpur. Believing him that Parimal Deka was awaiting at Lakhimpur she accompanied the accused and boarded a bus to Lakhimpur. On way she was told by accused that Parimal was waiting in a hotel situated near the railway station. But after arrival at Lakhimpur the accused told her that Parimal Deka was not present in the hotel and he would contact them over phone only at 8 p.m. Then the accused took her to a house of a Muslim family near the railway station where she had to stay over night. The accused shared a bed with her and committed mischief on her indulging in sexual intercourse as husband and wife. In the next morning they boarded a train for coming to Bijni and in the train the accused told her that he himself is Parimal Deka and believing him she accompanied him to Bijni. The accused took her to a house of an old man whom he called Chacha. In the meantime, the accused had taken over possession of her mobile phone. The said Chacha had two wives and from one of them she came to know that the accused is named Omar Ali and he is a married person. Having come to know about this with the help of the wife of Chacha, the victim made a contact over mobile phone with one Raju Chetri, who in turn informed her parents about her confinement at Bijni. Thereafter, the Dhemaji police, with the help of Binji Police recovered and saved her. She also stated that she protested when the accused indulged in sexual intercourse with her but he did not respond. In her cross examination she stated that she would have married to the accused if he was not a married person. 7. Thereafter, the Dhemaji police, with the help of Binji Police recovered and saved her. She also stated that she protested when the accused indulged in sexual intercourse with her but he did not respond. In her cross examination she stated that she would have married to the accused if he was not a married person. 7. From the above evidence of Miss 'B' it can easily be understood that being a girl of consenting age, for some reason, accompanied the accused voluntarily from her place of residence Dhemaji to Lakhimpur, stayed overnight in a house of Muslim family near the Lakhimpur railway station, shared bed and slept as husband and wife. It may also be noted that Miss 'B' travelled to Lakhimpur in a bus along with accused without any objection. If it is to be believed that she accompanied the accused with intention to meet Parimal Deka and when the said Parimal Deka was not found at Lakhimpur, she should have protested to stay overnight in a house of an unknown person with the accused who is also not known to her. There is, atleast, no evidence from her side that she even protested to proceed and stay overnight in the house of a Muslim family near the railway station. In absence of such evidence the victim's story is bound to turn as most unbelievable inasmuch as it is just unthinkable that she could sleep with the accused only on the hope of meeting Parimal Deka through the accused. It is also in evidence that she did not know the said Parimal Deka as she had only telephonic conversation with him. It is beyond anybody's comprehension that a young girl would accompany an unknown young man like the accused to meet an unknown person called Parimal Deka, The evidence of Miss 'B' is as much unbelievable as absurd. Her evidence simply leads the Court to come to a conclusion that she accompanied the accused voluntarily and she was a consenting party to the act of sexual intercourse during their overnight stay in the house of a Muslim family near the Lakhimpur railway station. In my considered view the offence under Section 376(1) IPC is not attracted and the accused is not liable to conviction under the aforesaid Section of law. In my considered view the offence under Section 376(1) IPC is not attracted and the accused is not liable to conviction under the aforesaid Section of law. I do not agree with the findings and conclusion arrived at by the learned trial court in so far as it relates to charge under Section 376(1) IPC. The appellant is entitled to discharge from the charge under Section 376(1) IPC. It is so ordered hereby. 8. In regard to conviction under Section 366 IPC the age of the victim is not the prime consideration. As discussed earlier the victim girl has been found above 16 years but below 18 years of age. She is a minor girl within the meaning of Section 366A IPC under which the FIR was registered originally. Since the learned trial court has framed charge under Section 366 IPC, instead of 366A IPC, I confine the discussion to charge under Section 366 IPC. Unlike offence under Sections 376 and 366A IPC there is no age prescription for constitution of an offence under Section 366 IPC. This section refers to punishment for committing offence of kidnapping, abduction or inducing woman to compel her marriage etc. It is an exclusive provision for dealing with a particular crime against woman. As defined under Section 10 of the IPC, 'woman' denotes a female human being of any age. So the court is not concerned with the age of the victim woman. The court should rather be concerned with the commission of alleged offence and find out whether essential ingredients of offence under Section 366 IPC are present. For the purpose of discussion and giving a finding in this regard, it is felt necessary to reproduce section 366 IPC below : 366. The court should rather be concerned with the commission of alleged offence and find out whether essential ingredients of offence under Section 366 IPC are present. For the purpose of discussion and giving a finding in this regard, it is felt necessary to reproduce section 366 IPC below : 366. Kidnapping, abducting or inducing woman to compel her marriage, etc.-Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid]. 9. Broadly speaking, essential ingredients are kidnapping or abducting any woman. Such kidnapping or abducting must be– (i) with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or (ii) in order that she may be forced or seduced to illicit intercourse, or knowing that it is likely that she will be, forced or seduced to illicit intercourse. The other part of this section requires two things : (a) Criminal intimidation or abuse of authority or compulsion inducing any woman to go from any place, (b) Such going must be with intent that she may be, or with knowledge that, it is likely that she will be, forced or seduced to illicit intercourse with some person. The present position of law is that a girl of 18 or above could not be kidnapped, she could be abducted only; but if she is under 18 she could be kidnapped as well as abducted if the taking was by force or the taking or enticing was by deceitful means. The present position of law is that a girl of 18 or above could not be kidnapped, she could be abducted only; but if she is under 18 she could be kidnapped as well as abducted if the taking was by force or the taking or enticing was by deceitful means. The instant case relates to a girl of below 18 years of age and as such she could be kidnapped and abducted as well. From the prosecution case it is found that the appellant used no force or criminal intimidation or abuse of authority in kidnapping and abducting, the victim. The appellant, as per the evidence on record, seduced the victim by deceitful means and took her away from her house with intent to commit illicit intercourse. Further the intention of the appellant was to marry the victim himself inducing and making her believe that he was a bachelor and not a married person. The appellant did not disclose his marital status and induced her to indulge in illicit sexual intercourse after taking her to Lakhimpur and then to Bijni deceitfully with intent to marry her. The offence under Section 366 IPC commenced soon after the appellant deceitfully abducted and took her off from her place of residence and the said offence completed when he deceitfully committed illegal sexual intercourse on her at Lakhimpur during overnight stay in a house of Muslim person near the railway station. The evidence on record has established that the accused misrepresented before the victim girl as one Sri Parimal Deka, a Hindu boy and he induced and convinced the victim girl to take her to said Parimal Deka and in fact he brought her to Lakhimpur convincing her that Parimal Deka was awaiting in a hotel at Lakhimpur. It was proved false and then the accused took the victim girl to a house of a Muslim family. After committing the rape he again tried to convince her that he himself was Parimal Deka and in fact he succeeded in convincing her to accompany him to Bijni. She was not taken to his house but kept in the house of Chacha because he knew that the victim would not accept once she came to know that he is a married person. It exactly happened so when she came to know from Chacha's wife that the accused is a married person. 10. She was not taken to his house but kept in the house of Chacha because he knew that the victim would not accept once she came to know that he is a married person. It exactly happened so when she came to know from Chacha's wife that the accused is a married person. 10. In the present case the victim who was below 18 was seduced by the appellant. He seduced Miss 'B' by assuring to take her to Parimal Deka with whom she wanted to get married but the accused himself seduced her to illicit intercourse. Further he induced Miss 'B' by telling her that he himself is Parimal Deka and took her to Binji with intent to marry although he was already a married person. 11. The act of inducement and seduction with victim with bad intention has been established and indeed the appellant committed sexual intercourse by playing fraud. From the very beginning the appellant told the victim that he came to meet the victim as directed by Shri Parimal Deka who intended to marry her. The fact that the appellant misrepresented before the victim girl has been established and his intention to take her from the lawful guardianship or custody of her parents was also found established. His intention was not to marry her but to indulge in sexual intercourse with her and then hand over to Parimal Deka or any other person for marriage or some other unlawful purpose. The conduct and act of the appellant sufficiently demonstrate the essential ingredients for constituting the offence under Section 366 IPC. 12. The word 'seduce' has been used in Section 366 IPC. In Ramesh Vs. State of Maharashtra; AIR 1962 SC 1908 the Apex Court has explained the meaning and purport of the word 'seduce". The verb 'seduce' is used in two senses. It is used in its ordinary and narrow sense as inducing a woman to stray from path of virtue for the first time; it is also used in wider sense of inducing a woman to submit to illicit intercourse at any time or on any occasion. It is in the latter sense that the expression has been used in Sections 366 and 366A; which section partially overlap. It is in the latter sense that the expression has been used in Sections 366 and 366A; which section partially overlap. Seduction implies surrender of her body by woman who is otherwise reluctant or unwilling to submit herself to illicit intercourse in consequence of pursuance, flattery, blandishment or importunity, whether such surrender is for the first time or is preceded by similar surrender on earlier occasions. But where an woman offers herself for intercourse in money, not casually but in the course of her profession as a prostitute, there are no scruples nor reluctance to be overcome, and surrender by her is not seduction within the code. The case at hand is a case of a young girl below 18 years against whom there is no allegation of indulging herself in sexual intercourse for money. Nor is there any allegation against her that she follows the profession of a prostitute or is a bad character. But for the inducement and act of seduction by making herself belief that she would be taken to a man known as Parimal Deka with whom she had regular telephonic conversation, she would not have accompanied the appellant to Lakhimpur and then to Bijni taking the risk of being outraged or sexually exploited on the way. And indeed she was so outraged and exploited sexually by the appellant 13. I have carefully perused the questions put by the learned trial court and the answers given by the appellant during examination under Section 313 Cr.P.C. In question No. 13 he was asked whether the appellant took the victim to North Lakhimpur by bus and then to the railway station. He answered in the positive. In question No. 14 he was asked why he took the victim to the house of Muslim person near the railway station and stayed there for the night. In his answer the appellant admitted the said fact. In question No. 17 the appellant was asked whether he took the victim to the house of Chacha at Bijni. He admitted the fact of taking the victim to Chacha's house. Yet in question No. 21 the appellant was asked whether he took the victim intending to marry her against her will and to compel her to have sexual intercourse. In question No. 17 the appellant was asked whether he took the victim to the house of Chacha at Bijni. He admitted the fact of taking the victim to Chacha's house. Yet in question No. 21 the appellant was asked whether he took the victim intending to marry her against her will and to compel her to have sexual intercourse. In his reply he admitted the fact that victim was taken away by him with intention to many but he denied the fact that he took her with intention to have illicit intercourse against her will. He was then asked by the learned trial court whether he had anything more to say. He replied as under :- In the morning hour on 1.2.2010 I received one call from the victim. The victim continuously called me over phone three days. I developed 'phone' in 'prem' with Miss 'B' (victim's name withheld). We introduced over telephone and on request of me victim I came to Dhemaji from Bilasipara. I met the victim near cinema Hall (Lily Cinema Hall Dhemaji). The victim eloped with me on her own will. 14. Although he was offered chance to adduce evidence he declined to examine any witness in his defence. From the statement of the appellant during examination under Section 313 Cr.P.C. he admitted the material facts of taking away the victim by applying fraud, inducement and seduction. The evidence of the victim girl is corroborated by the statement of the appellant himself and it has been proved that the evidence of prosecutrix is unambiguous, clear and cogent. In the case of Sri Sushanta @ Tutan Chakraborty @ Bhattacharjee Vs. State of Tripura; reported in 2002 Cri. L.J. 195, a Division Bench of this court held if the evidence of prosecutrix is fully corroborated by statement of the accused recorded under Section 313 Cr.P.C. the accused can be held liable and convicted under Section 366A IPC if the victim is under the age of 18 years. The same law, in my considered view, may also be applied to the instant case for conviction under Section 366 IPC. 15. The same law, in my considered view, may also be applied to the instant case for conviction under Section 366 IPC. 15. In view of the above discussion, appreciation of evidence on record, I have no doubt in my mind that the prosecution has been able to prove the charge under Section 366 IPC against the appellant beyond all reasonable doubt and the learned trial court rightly convicted the appellant under section 366 IPC. The sentence imposed by the learned trial court against the appellant relating to established charge under Section 366 IPC is also justified and calls for no interference or modification. The conviction and sentence as awarded under Section 366 IPC by the learned trial court is hereby upheld. The appeal stands partly allowed acquitting him of the charge under Section 376(1) IPC and upholding the conviction and sentence under Section 366 IPC. The appellant shall serve the sentence as awarded by the learned trial court. Acknowledging the legal assistance rendered by Mrs. Rita Boro Bora, learned counsel as Amicus Curiae for the appellant, I direct the State Legal Services Authority to pay an amount of Rs. 5000/- (Rupees Five Thousand) only to her as legal fee. Send down the LCR forthwith. Appeal allowed.