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2016 DIGILAW 100 (GAU)

Samsuddin v. State of Assam

2016-02-11

INDIRA SHAH

body2016
JUDGMENT AND ORDER Indira Shah, J. This is an appeal against the judgment and order dated 17.11.2014 passed by learned Sessions Judge, Morigaon in Sessions Case No.88/2010 convicting the appellant under Section 120(B)/366(A)/372 IPC and sentencing him thereby to undergo rigorous imprisonment for 10 years with fine of with fine of Rs.10,000/- for his conviction under Section 120(B)/372 IPC, in default, rigorous imprisonment for six months; rigorous imprisonment for seven years with fine of Rs.5,000/-in default rigorous imprisonment for three months for the offence committed by him under Section 120(B)/366 IPC. 2. Heard Mr. A Mannaf, learned counsel for the petitioner and the learned Additional Public Prosecutor. 3. Prosecution story: The victim Sabnam (original name withheld) after her marriage with Mzaffar Ali sometime in later part of 2006 was taken to her matrimonial house. After a week of her marriage Muzaffar Ali left her and a week thereafter her father-in-law Samsuddin (appellant herein) asked her to go with Aijul Haque to Guwahati on the pretext that her husband Muzaffar has a Battery shop there. Safia, daughter of Samusddin joined her when she boarded the Guwahati bound train with Aijul. At Guwahati they offered her tea and on consuming tea she went on sleeping and reached Mumbai. Safia and Aijul took her to a hotel and she was sold to a brothel in exchange of huge money. She was then engaged in prostitution. She was in the brothel for about nine months, thereafter her mother getting information requested Aijul to bring her back on payment of Rs.30,000/- and Aijul brought her back to Guwahati and then to her parental house. Sabnam lodged the FIR on 16.08.2007 and Mikirbheta PS Case No. 98/2007 under Section 120(B)/366(A)/372 IPC was registered against the accused Md. Samsuddin, Mustt. Sufia Khatun, Md. Muzafar Ali and Md. Aizul Hoque. It is alleged in the FIR that the accused persons have sold 13 girls of the locality in the said brothel and they are still there. On completion of investigation charge-sheet against the accused persons aforementioned under Section 120(B)/ 366 IPC, showing the accused Sufia Khatun, Muzafar Ali and Aizul Haque absconder, was submitted. Accused Sufia, Mazafar Ali and Aizul Hoque were proclaimed absconders and the case against appellant Samsuddin was committed for trial. 4. On completion of investigation charge-sheet against the accused persons aforementioned under Section 120(B)/ 366 IPC, showing the accused Sufia Khatun, Muzafar Ali and Aizul Haque absconder, was submitted. Accused Sufia, Mazafar Ali and Aizul Hoque were proclaimed absconders and the case against appellant Samsuddin was committed for trial. 4. During the trial learned Sessions Judge framed the charges under Section 120(B)/366/372 IPC against the accused to which he pleaded not guilty and claimed to be tried. 5. The prosecution examined five witnesses, while the defence examined none. The accused in his statement, recorded under Section 313 Cr. P.C., denied the allegations levelled against him. He however admitted his relationship with other accused namely Muzafar, Sufia and Aijul. 6. PW-1, Md. Abdul Rasid stated that his sister-in-law Rahima Begum and his brother Jainal were taken to Mumbai by Muzafar, Sekander and Sufia Khatun with promise to provide them job. Later on Jainal came back and told that Muzafar married Rahima. In his cross-examinations he stated that Samsuddin, father of Mazafar is not involved with the incident. 7. PW-2, Abdul Hai in his evidence alleged that his daughters Fatema Khatun, Omehani and Musamat Bibi were taken to Mumbai by the accused Samsuddin Sufia, Majafar and Zekendar Ali with promise to provide them job. The victim Sabnam after being released from brothel informed PW-2 that his daughters were also engaged in the flash trade in a bar. PW-2 stated that he informed the police and police rescued his daughters and brought them home. PW-2 stated that accused Samsuddin is his neighbor and the victim Sabnam is his daughter-in-law. 8. PW-3, the prosecutrix in her deposition stated that Mazafar married her and his father Samsuddin handed her over to Aijul to take her Guwahati as Muzafar was there. Her sister-in-law also boarded the train and the accused persons offered her tea and thereby made her unconscious. She found herself reached at Mumbai. They took her to a hotel and thereafter she was taken to a woman, whom they introduced as her mother-in-law. The woman took her to a house and she came to know that it is the place where prostitution is carried on. She was sold to the woman and the woman engaged her in prostitution. She was there for nine months and she had to satisfy the customers of flash at night. The woman took her to a house and she came to know that it is the place where prostitution is carried on. She was sold to the woman and the woman engaged her in prostitution. She was there for nine months and she had to satisfy the customers of flash at night. She also alleged that Samsuddin's two daughter and daughter of PW-2 were also engaged in prostitution. Having came to know her mother requested Aijul to bring her back and for which she paid Rs.30,000/- to Aijul. Then Aijul took another woman to replace her and she came back Guwahati along with Sufia. Aijul took her to Sibsagar and handed her to her mother. She then lodged the FIR. 9. PW-4, Dr. Milan Kr. Lahkar examined the victim on 22.08.2007 and found her 14 to 15 years of age and that she was habituated to sexual intercourse. The doctor also examined one Khairun Nessa and Mamtaz Begum. 10. PW-5, S I Md Hamidul Hoque investigated the case. CW-1, Sri U Rajkhowa the then Judicial Magistrate, had recorded statement of PW-2, Abdul Hai under Section 164 Cr. P.C. 11. The allegation against the present accused is that he solemnised the marriage of his son with victim hatching conspiracy with other accused persons to sale the victim. 12. To establish a charge of criminal conspiracy, the prosecution must prove an agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means, provided that where the agreement is other than one to commit an offence, the prosecution must go further and prove that some act besides the agreement was done by one or more of the parties in pursuance of it. 13. In this case, the victim alleged that she was send to Guwahati with the accused Aijul and Sufia took her to Mumbai. PW-2 alleged that the accused/appellant along with the co-accused took his daughter to Mumbai where they were sold. They were rescued by the police. His daughters, who could have been the best witnesses, were not examined. There is nothing on record to show that the daughter PW-2 and any other girls were rescued from a brothel situated in Mumbai. 14. PW-2 alleged that the accused/appellant along with the co-accused took his daughter to Mumbai where they were sold. They were rescued by the police. His daughters, who could have been the best witnesses, were not examined. There is nothing on record to show that the daughter PW-2 and any other girls were rescued from a brothel situated in Mumbai. 14. The victim deposed that her mother paid Rs.30,000/- to Aijul and Aijul took an woman and replaced her and then she was brought and handed over to her mother. Mother of the victim was a material witness but for the reason best known to the prosecution, was not examined. 15. The doctor examined three women including the victim. The other two women were cited as witness but they were neither examined by the prosecution nor called as witness by the trial court. 16. The accused/appellant was convicted on the basis of circumstantial evidence. But the chain of circumstances as indicated herein above is not complete. Therefore, the accused is entitled to get the benefit of doubt. Therefore, judgment passed by the trial court against the accused/appellant is set aside. The accused is acquitted and set at liberty forthwith.