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2014 DIGILAW 976 (GAU)

Ayub Ali v. State of Assam

2014-11-11

C.R.SARMA

body2014
JUDGMENT C.R. Sarma, J. 1. Heard Mr. A.M. Choudhury, learned counsel appearing for the appellants. Also heard Mr. K.A. Mazumdar, learned Addl. P.P., Assam, appearing for the respondent State. This appeal is directed against the judgment and order, dated 19.12.2005, passed by the learned Sessions Judge, Dhubri in Sessions Case No. 157/2004 arising out of G.R. Case No. DBB 457/2003. 2. By the impugned judgment and order, the learned Sessions Judge convicted the appellants under Section 366A IPC and sentenced each of them to suffer rigorous imprisonment for 4 years and pay fine of Rs. 1,000/- each in default suffer rigorous imprisonment for three months. 3. Aggrieved by the said judgment and order, the convicted persons, as appellants, have come up with this appeal. The prosecution case, in brief, is that, on the night of 18.11.2003 at about 6-30 p.m., the appellants forcefully took the minor sister of the informant, namely, Mr. Manik Ali and took her to the house of Mr. Abdul Hamid Sarkar (PW-1) for performing her marriage with Mr. Ayub Ali, but the said PW-1 refused to solemnize their marriage. Thereafter, the guardians of the victim girl recovered her from the house of PW-1. Mr. Manik Ali lodged the FIR with the police and on receipt of the FIR, police registered a case under Section 366(A) IPC. During the investigation, police examined the witnesses, got the victim girl medically examined and arrested the accused persons. At the close of the investigation police submitted charge-sheet under Section 366(A)/34 IPC. The learned CJM, Dhubri, committed the case to the Court of Sessions and the learned Sessions Judge framed charge against both the appellants under Sections 366(A)/34 IPC and separate charge under Section 376 IPC against Md. Ayub Ali @ Zamader. The charges were read over and explained to the appellants, to which they pleaded not guilty and claimed to be tried. To prove their case, the prosecution examined as many as 9 witnesses including the medical officer and the Investigating Officer (PW-9). At the close of the evidence for the prosecution, the accused persons were examined under Section 313 Cr.P.C. They denied the allegations, brought against them and declined to adduce the defence evidence. Their plea was complete denial one. To prove their case, the prosecution examined as many as 9 witnesses including the medical officer and the Investigating Officer (PW-9). At the close of the evidence for the prosecution, the accused persons were examined under Section 313 Cr.P.C. They denied the allegations, brought against them and declined to adduce the defence evidence. Their plea was complete denial one. Considering the evidence, on record, the learned Sessions Judge held the accused persons guilty of the offence under Sections 366(A)/34 IPC and accordingly convicted and sentenced them as indicated above. The accused Mr. Ayub Ali was acquitted from the liability of offence under Section 376 IPC. Hence, this appeal. 4. Mr. A.M. Choudhury, learned counsel, appearing for the appellants, taking this Court through the evidence, on record, as well as the FIR, has submitted, that the victim girl, at her own will, had eloped with the said appellants and that there is no substantive evidence to show that the victim girl was forcefully taken by the appellants. It is submitted that the learned trial court committed error by convicting the appellants under Section 366(A)/34 IPC. It is also submitted, by the learned counsel for the appellants, that the alleged occurrence took place on 18.11.2003 and that the appellants, who have already undergone imprisonment for more than one year, have suffered much both mentally and physically during the last few years i.e. during the pendency of the appeal period. In view of above, the learned counsel, appearing for the appellants, has submitted that the impugned conviction and sentence are not maintainable and that the appellants are entitled to be acquitted. 5. Controverting the said arguments, advanced by the learned counsel for the appellants, Mr. K.A. Mazumder learned Addl. P.P., appearing for the State respondent, has submitted that there are sufficient materials, on record, to show the involvement of the appellants with the alleged offence and that the learned trial Judge committed no error by recording the conviction and the sentence as stated above. 6. Having heard the learned counsel appearing for both the parties, I have carefully perused the evidence, on record. The victim girl in her evidence, given as PW-8, clearly stated that her age, on the date of examination i.e. on 8th June, 2005 was 14 years and that, on the fateful evening, she was forcefully taken by the appellants from her house. The victim girl in her evidence, given as PW-8, clearly stated that her age, on the date of examination i.e. on 8th June, 2005 was 14 years and that, on the fateful evening, she was forcefully taken by the appellants from her house. She further stated that the appellants took her across the Godadhar river by using a boat and that they committed rape on her. She further stated that she was taken to the house of one Mr. Abdul Hamid Sarkar (PW-1) and that her brother and other members of her family rescued her from the said house. Though this witness was cross examined, on behalf of the defence, no major contradiction could be elicited to discredit her said evidence. 7. The mother of the victim, Smti. Sakina Bibi, deposing as PW-6 stated that the age of her daughter was 13 to 14 years and that she was taken to the house of Mr. Hamid by the accused persons. She further stated that Mr. Hamid PW-1 had informed that her daughter was taken by some persons of her village. From her evidence, it appears that the victim girl was taken by the appellants and she was recovered from the house of Mr. Hamid i.e. PW-1. Mr. Abdul Hamid Sarkar, deposing as PW-1, stated that the accused persons had taken the victim girl to his house and that the appellant Mr. Ayub Ali wanted to marry her. This witness further stated that the appellants had admitted that they had forcefully taken the victim girl for the purpose of marriage. According to PW-1 he asked the appellants to inform the guardian of the victim girl, making it clear that, in the absence of her guardian, it would not be possible to perform her marriage. PW-1 further stated that he had informed one person, namely, Mr. Abdur Rahman about the taking of the victim by the appellants and asked him to inform her guardian. Accordingly, getting such information, the father and the brother of the victim girl had recovered her from his house. He further stated that as per her physical appearance the victim girl was aged about 12 to 13 years. Supporting the evidence of PW-1, Mr. Hasen Ali (PW-2) stated that the victim girl was missing from her house and that she was recovered from the house of the PW-1. In tune with the evidence of PW-2, Mr. He further stated that as per her physical appearance the victim girl was aged about 12 to 13 years. Supporting the evidence of PW-1, Mr. Hasen Ali (PW-2) stated that the victim girl was missing from her house and that she was recovered from the house of the PW-1. In tune with the evidence of PW-2, Mr. Abdur Rahman (PW-3), stated that he came to know that the victim girl was kept in the house of PW-1. According to this witness he, accompanied by Mr. Hasen Ali and Mr. Awal Haque and the brother of the victim girl, recovered her from the house of PW-1. Cross examination of PW Nos. 2 and 3 was declined by the defence. In view of above, the evidence given by the PW Nos. 2 and 3 remained undemolished. 8. Mr. Awal Haque, deposing as PW-4, stated that the victim girl was missing from her house and she was found in the house of PW-1. Mr. Firdos Ali (PW-5), who wrote the FIR, at the instruction of the brother of the victim girl i.e. Mr. Manik Ali, exhibited the same as ext. 1. He further stated, in his cross examination, that Mr. Manik Ali i.e. the brother of the victim girl told him that the age of the victim was 13 to 14 years. The medical officer, who examined the victim girl, after her recovery, deposed as PW-7. He opined that the age of the victim girl was below 18 years. From the above discussed evidence it is clearly found that the victim was a minor at the relevant time. From the evidence of the victim girl, which remained undemolished, it is clearly found that the victim, was taken by the appellants to the house of the PW-1 for the purpose of performing her marriage with Mr. Ayub Ali. The victim girl, in her statement, stated that she was forcefully taken by the appellants. 9. The learned counsel, for the appellants, has submitted that the victim girl had developed love affairs with Mr. Ayub Ali and that she at her own will had eloped with the appellants for entering into marriage with Mr. Ayub Ali. The victims evidence that she was forcefully taken by the appellants negates the said contention. That apart, the victim being a minor her consent, even if it was there, cannot help the appellants. Ayub Ali and that she at her own will had eloped with the appellants for entering into marriage with Mr. Ayub Ali. The victims evidence that she was forcefully taken by the appellants negates the said contention. That apart, the victim being a minor her consent, even if it was there, cannot help the appellants. In view of above, considering the evidence, on record, I find that the prosecution could prove that the appellants had forcefully taken the said minor, for solemnizing her marriage with Mr. Ayub Ali @ Zamadar. In the light of the above evidence, I have no hesitation in holding that the prosecution could establish the case, under Section 366(A)/34 IPC, against the appellants. Therefore, I am of the considered opinion that the learned Sessions Judge committed no error by recording conviction under Section 366(A)/34 IPC. The learned Sessions Judge has sentenced the appellants to suffer rigorous imprisonment for 4 (four) years and pay fine of Rs. 1,000/- each. It is submitted that the appellants have already suffered imprisonment for more than one year. The occurrence took place in 2003 and the said conviction and sentence were recorded, on 19.12.2005. There can be no doubt that the appellants have already suffered much hardship mentally, economically and physically, during pendency of the appeal. 10. In view of above, considering entire aspect of the matter I am of the considered opinion that no purpose would be served by sending the appellants to the jail for the remaining period of 3 (three) years at this belated stage i.e. after a gap of 11 years. Therefore, I find it to be a fit case to take lenient view in respect of the sentence for imprisonment. In my considered opinion, ends of justice demands modification of the period of sentence awarded against the appellants. Therefore, while upholding the conviction, the sentence is modified to one already undergone by the appellants, directing each of them to pay fine of Rs. 3,000/-. in default suffer R.I. for 6 (six) months each. In the event of realization of the fine amount, the same shall be given to the victim girl as compensation. With the above modification this appeal is partly allowed. Return the LCR. Appeal Partly allowed.