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2015 DIGILAW 382 (GAU)

Aminul Islam v. State of Assam

2015-03-27

RUMI KUMARI PHUKAN

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JUDGMENT Rumi Kumari Phukan, J. 1. I have heard Mr. Z. Hussain, learned amicus curiae, for the appellant and Mr. D. Das, learned Addl. P.P., Assam. 2. This is an appeal under Section 374(2) of the Code of Criminal Procedure, 1973, preferred against the judgment & order dated 26.08.2014 passed by the learned Sessions Judge, Dhemaji, in Sessions Case No. 96(DH)2013, convicting the accused Aminul Islam, u/s. 366(A) IPC and sentencing him to undergo rigorous imprisonment for 7 years, with a fine of Rs. 5,000/-, and in default of payment of fine, further simple imprisonment for another 6 months. 3. The accused faced the trial, from behind the bar and has also preferred the appeal from inside the jail and accordingly, the appeal was registered. The prosecution case, in nut-shell, is that, on 04.08.2013, the victim girl namely X(name withhold) aged about 14 years, went out from her house situated at Deogharia, Dhemaji, met the accused person on the road, and proceeded with him to Lakhimpur but at Gogamukh, both of them were apprehended by the police. In the meantime, father of the victim also lodged an FIR before the police on the very same day. The police who already recovered the girl, and submitted her to her guardian. On the basis of the FIR so filed by the informant, police registered a case and after due investigation, submitted charge sheet against the accused person under Section 366(A) IPC. 4. The accused was arrested and he faced the trial from behind the bar. The learned court below committed the case to the Court of Sessions, after complying the provision of Section 207 of the Code of Criminal Procedure, 1973, and on receipt of the case, on committal, the learned Sessions Judge after considering the matters on record, framed charge under Section 366 IPC which was explained to the accused person to which he pleaded not guilty. To bring home the charge, prosecution examined as many as 9 witnesses including the Medical Officer and the Investigating Officer. At the conclusion of the trial, the accused was held guilty for the offence charged and convicted him under Section 366 IPC and sentenced to rigorous imprisonment for 7 years and also to pay a fine of Rs. 5,000/- and in default, simple imprisonment for another 6 months. 5. At the conclusion of the trial, the accused was held guilty for the offence charged and convicted him under Section 366 IPC and sentenced to rigorous imprisonment for 7 years and also to pay a fine of Rs. 5,000/- and in default, simple imprisonment for another 6 months. 5. Being aggrieved with the aforesaid judgment of conviction and sentence, the present appeal has been preferred by the accused appellant. 6. Mr. Z. Hussain, learned counsel, who was engaged as the amicus curiae to conduct the hearing, has submitted that the victim was a consenting party to the occurrence, which reveals of her conduct and there was no inducement on the part of the accused person, so the order of conviction and sentence is bad in law and is liable to be set aside. 7. On the other hand, the brief submission of learned Addl. P.P., Mr. Das, is that, the victim was minor at the time of occurrence and as such, minor consent is no consent in the eye of law. In the given circumstances, the conduct of minor victim girl cannot be taken into account to relieve the accused person from the liability of taking the minor girl from the lawful guardianship of her parents. 8. Basing upon the submission of both parties and after careful examination of evidence on record, it is to be noted that according to the informant, as well as the statement of the victim coupled with the birth certificate produced and proved in this case, one thing remained certain that the victim was minor at the time of occurrence. According to the birth certificate, Ext. 1, the date of birth of the victim girl is 01.02.1999 and the occurrence took place on 04.08.2013, i.e. on the day of occurrence, the victim was aged about 14 years, 6 months and 3 days. The defence, however, failed to rebut the evidence of the prosecution in this regard. The M.O./PW-6, though has examined the victim, on the day of occurrence, has not given any findings as regards the age of the victim girl and has given opinion that there was no forceful sexual intercourse on the person of the victim girl. So it can be safely held that the victim girl was minor on the day of occurrence and victim was not subjected to any sexual assault by the accused. 9. So it can be safely held that the victim girl was minor on the day of occurrence and victim was not subjected to any sexual assault by the accused. 9. On appreciation of the evidence on record as well as other facts and circumstances of the case, we will find that there is no any allegation of forceful abduction of the victim girl by the accused appellant. The informant as well as the father of the victim girl has also stated that he never meant that the accused took the victim girl by way of force. Similarly, the victim girl has narrated the fact that she had good acquaintance with the accused appellant and as discussed by both of them, she herself went out to meet the accused and she voluntarily accompanied the accused appellant, at first, in a rickshaw, thereafter, in a Winger, towards Lakhimpur, without any force on the part of the accused appellant nor she made any complaint to any person, prior to her apprehension by the police. From the medical evidence, also, it is found that the victim was not subjected to any sexual assault. In the given facts and circumstances of the case, it can be inferred that due to having affairs between the parties, both of them indulged in such activities without knowing the legal consequences. The victim girl by virtue of her age, was certainly had the idea that she has eloped with the accused without informing her parents. 10. The legal position is that if a girl who is at the verge of majority, walks out from her house, with a man, then it could not be a case of kidnapping as the same could not be said to be an act of taking away or enticing a woman below 18 years of age. It would be a mere case of elopement. The said proposition was laid down by the Hon'ble Apex Court in Jaya Mala v. Home Secretary, AIR 1982 SC 1297 ; S. Varadarajan v. State of Madras, AIR 1965 962. 11. In the given case, though the victim girl went out voluntarily with the accused but the fact remains that she was a minor at the time of occurrence, which has been duly proved by the prosecution. 11. In the given case, though the victim girl went out voluntarily with the accused but the fact remains that she was a minor at the time of occurrence, which has been duly proved by the prosecution. She was not at the verge of majority to consider the case in other way but the fact remains that the incident occurred due to the affairs between the parties and there was no other overt act on the part of the accused appellant which may indicate evil intention of the accused for any forceful sexual conduct or that he made attempt to marry her against her will or that he has used any sort of force or inducement upon the victim girl to achieve any other criminal intent. However, in view of the legal proposition that the victim girl was minor at the time of occurrence while taking the victim from her lawful custody of her parents, the ingredient of the offence under section 361 IPC is made out against the accused appellant. According to Section 361 IPC, whoever takes or entices any minor under 18 years of age, if a female... out of the keeping of lawful guardian of such minor, without the consent of such guardian, is said to kidnap such minor from the lawful guardianship. On plain reading of section, the consent of the minor who is taken or enticed, is wholly immaterial. It is only the guardian's consent which takes the case out of its purview. 12. After giving my anxious consideration to the facts and circumstances of the case as well as the legal proposition, there is no escape that the learned court below has arrived at the guilt of the accused in a proper perspective of law, so the order of conviction is upheld. However, it is found that the age of the accused (who was 20 years at the time of arrest) also deserve consideration who might have indulged in such act, out of impulse of love and affection and there was no any other previous criminal record of the accused, keeping in view of all above, I am of the considered opinion that the sentence imposed by the learned court below is on the higher side than the nature of the offence. Further, it is also noted that the accused appellant is behind the bar since the day of arrest, i.e. on 05.08.2013, which is almost like double punishment as he is already under confinement. I find it proper if the accused appellant is sentenced to the period already undergone by him. Accordingly, the appeal is partly allowed and the period of sentence is reduced to the period already undergone by the accused appellant inside the jail. The impugned judgment is interfered with and modified to the extent as indicated above. Inform jail authority forthwith. 13. Before parting with the case record, I appreciate the assistance rendered to the Court by Mr. Z. Hussain, learned Amicus Curiae and I direct the Gauhati High Court Legal Aid Cell to remunerate him to the extent of Rs. 5,000/-. 14. Return the LCRs along with a copy of this judgment. Appeal Partly Allowed.