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2012 DIGILAW 686 (GAU)

Ratul Dutta v. State of Assam

2012-06-05

INDIRA SHAH

body2012
JUDGMENT I. Shah, J. 1. This appeal is directed against the judgment and order dated 24-01-2005 passed by the learned Sessions Judge, Dhemaji in Sessions Case No. 51 (DH)/2004 convicting the accused appellant under Section 366 IPC and sentencing him thereby to suffer rigorous imprisonment for 4 years and to pay fine of Rs. 5000/- in default, further imprisonment for 6 months. I have heard Mr. H.G. Baruah, learned counsel for the appellant and Ms. B. Saikia, learned Addl. Public Prosecutor appearing on behalf of the State of Assam. 2. The prosecution case, in brief, is that: On 02-04-2004, the accused appellant kidnapped the victim, who was then aged about 12 years. When the parent of the victim came to know that the victim was kidnapped by the accused-appellant, they went to the house of the accused but the accused and his family members did not allow the victim to meet her parent and the father of the victim was also assaulted by the accused. The mother of the victim lodged an FIR on 08-04-2004 with the police of Silapathar Police Station. On the basis of the FIR, the police registered a case under Section 366 (A) of the IPC and started investigation. On 08-04-2004, the victim was recovered from the house of the accused with the help of police. Her statement under Section 164 Cr.P.C was recorded by the Judicial Magistrate, Dhemaji where she stated that she went with the accused on her own accord. She was examined by the doctor and as per the medical report, her age was below 18 years. 3. The accused-appellant pleaded not guilty to the charge framed against him under Section 366 IPC and claimed to be tried. 4. Altogether 8 witnesses were examined on behalf of the prosecution. The accused in his statement recorded under Section 313 Cr.P.C stated that the victim voluntarily came to his house. He also stated that he has married with the victim and they are residing together as husband and wife. The learned trial Court after scrutinizing the evidence on record held that the victim appears to be a consenting party and she came to the house of the accused on her own accord. But the victim was below the age of 18 years, she was not capable of giving consent and therefore the accused is liable to be convicted under Section 366 IPC. 5. But the victim was below the age of 18 years, she was not capable of giving consent and therefore the accused is liable to be convicted under Section 366 IPC. 5. The learned counsel for the appellant, Mr. Baruah has submitted that the learned trial Court wrongly assessed the age of the victim below 18 years at the relevant time. The victim, in her statement recorded under Section 164 Cr.P.C. disclosed that she was about 18 years of age. In the FIR, the age of the victim, at the relevant point of time, has been stated as 12 years. 6. PW-2, the mother of the victim, who gave her evidence in the same year i.e. 2004, stated that the age of the victim is 14 years. PW-7, Dr. G.K. Taid, who examined the victim, opined that the victim was below 18 years of age. Also it appears from the evidence of record, PW-2 (mother of the victim) during the evidence produced one photocopy of the birth certificate, the original birth certificate was submitted in the court subsequently. However, it was not exhibited. Relying on the same, the learned trial Court held that the victim was below the 18 years of age. As per the birth certificate, the date of birth of the victim was 11-10-1993 and if the birth certificate is relied on, her age would be below 12 years at the time of occurrence. Whereas, the mother of the victim stated that the victim was about 14 years of age at the time of occurrence. The birth certificate of the victim was not exhibited during trial. The birth certificate does not bear any signature of the issuing authority. 7. In the cited case of Raunki Saroop Vs. State, reported in AIR 1970 P&H 450 , it was held that the oral evidence in support of the date of birth as given in the school certificate cannot be relied upon with implicit faith, especially when doubt has been cast upon the correctness of that age by the medical evidence adduced in the case. In the case of Ram Murti Vs. State of Haryana, 1970(3) SCC 21 , it was held that un-proved and un-exhibited school certificate could not be treated as evidence in the case. Herein this case also the birth certificate was not exhibited by the prosecution. 8. In the case of Ram Murti Vs. State of Haryana, 1970(3) SCC 21 , it was held that un-proved and un-exhibited school certificate could not be treated as evidence in the case. Herein this case also the birth certificate was not exhibited by the prosecution. 8. Inconsistence version of the witnesses regarding age of the victim and when there is inconsistent version, the benefit goes to the accused. It is submitted by the learned counsel for the appellant that the victim still has been residing with the accused as his wife. 9. Considering all aspects, I find the victim being a consenting party and the prosecution being failed to prove that the victim did not attain the age of consent. Therefore, the accused appellant is liable to be acquitted on the benefit of doubt. 10. In the result, the impugned judgment and order dated 24-01-2005 passed by the learned Sessions Judge, Dhemaji in Sessions Case No. 51 (DH)/2004 convicting the accused appellant under Section 366 IPC and sentencing him thereby to suffer rigorous imprisonment for 4 years and to pay fine of Rs. 5000/- in default, further imprisonment for 6 months are set aside. The accused-appellant be set at liberty forthwith. The appeal stands allowed. Send down the LCR along with a copy of this judgment and order to the court below. Appeal allowed.