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2016 DIGILAW 1079 (GAU)

Nekibur Rohman @ Nekib Khan v. State of Assam

2016-12-01

RUMI KUMARI PHUKAN

body2016
JUDGMENT : 1. Heard Mr. S. Islam, learned amicus curiae appearing on behalf of the petitioner and Mr. M. Sarma, learned Additional Public Prosecutor, Assam appearing on behalf of the State respondent. 2. The appellant was convicted under sections 366A and 376 of the Indian Penal Code by the learned Sessions Judge, Morigaon by judgment and order dated 15.11.2014 passed in Sessions Case No. 87/2011 and sentenced him to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 5,000, in default to suffer rigorous imprisonment for six months more. 3. The brief facts of the case is that one Muslemuddin lodged an F.I.R. on 11.9.2011 alleging that his sister Samsun Nehar was missing from their house since 5.9.2011 when she went to the house of their maternal uncle at Datialbori gaon at about 9.00 a.m. After enquiry he came to know that the accused-appellant kidnapped the victim girl from the road and accordingly he filed the F.I.R. On receipt of the ejahar Lahorighat Police Station Case No. 112/2011 under section 366A/34 of the Indian Penal Code was registered and after completion of the investigation charge sheet was submitted against the accused-appellant under section 366A/376 of the Indian Penal Code and filed F.I.R. against the remaining accused persons. 4. The accused-appellant entered his appearance before the trial court and the case was committed accordingly to the Court of Sessions the offence being triable by the Court of Sessions. On receipt of the case on committal the learned Sessions Judge framed charges under sections 366A and 376 of the Indian Penal Code as against the accused-appellant to which he pleaded not guilty and claimed to be tried. 5. To bring home the charge the prosecution has examined seven witnesses including the medical officer and the investigating officer. The statement of the accused-appellant was thereafter recorded under section 313 of the Code of Criminal Procedure. The defence examined none and the plea of defence is a total denial. At the conclusion of the trial the learned trial court though found the accused-appellant guilty under both the sections of law, i.e., under sections 366A and 376 of the Indian Penal Code but convicted him under section 376, IPC and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 5,000, in default, to suffer further rigorous imprisonment for six months. 6. 5,000, in default, to suffer further rigorous imprisonment for six months. 6. Being aggrieved with the aforesaid judgment and order the present appeal has been preferred. 7. Initiating the argument Mr. S. Islam, learned amicus curiae, has pointed towards the evidence of the informant given before the Investigating Officer as well as the statement of the victim girl recorded under section 164, Cr.PC and in course of trial and has made a submission that her evidence is inconsistent at every stage which indicates the falsity of allegation. It has also been contended that the victim girl was found missing since 5.9.2011 and thereafter she remained with the accused-appellant for about 20 days thereafter she returned and immediately after her recovery she made a statement under section 164, Cr.PC which is totally silent about the allegation that has been made in course of trial, which also indicates the falsity of the allegation on the part of the informant. Referring to the conduct of the victim girl it has been submitted that she made no protest while she was taken away by the accused and her conduct itself demonstrates that she was a consenting party to all the affairs that has happened to her. The evidence of the witnesses who have been examined by prosecution is also not at all convincing to support the case of the prosecution. 8. On the other hand, learned counsel for the State respondent has also submitted that the victim being a minor one, her consent is immaterial and there is nothing to interfere with the order of conviction as such. 9. The above submission is duly considered and I have also gone through the evidence on record. From the totality of the evidence it is found that the victim was found missing from the house of the informant since 5.9.2011 but he never filed such F.I.R. immediately after such missing. Rather, he filed the F.I.R. after six days of the occurrence, i.e., on 11.9.2011 without any plausible explanation. Unexplained delay in filing the F.I.R. is always fatal to prosecution. Rather, he filed the F.I.R. after six days of the occurrence, i.e., on 11.9.2011 without any plausible explanation. Unexplained delay in filing the F.I.R. is always fatal to prosecution. On the other hand, there is no eye-witness to the occurrence and although the PW 2, Nabi Hussain and PW 4, Moinul Haque tried to project themselves as eye-witnesses to the occurrence but their evidence could not be taken into confidence for a simple reason that had they are eye-witness to the occurrence then they could have immediately informed the informant as well as the police about such kidnapping by the accused-appellant but as has been indicated above no such F.I.R. was filed immediately after the occurrence. According to the aforesaid witnesses, i.e., PWs 2 and 4, the victim girl was crying while she was forcibly taken away in a Magic vehicle but the same was not reported to the informant. On the other hand, PW 6 the victim girl in her cross-examination has clearly stated that she did not make any hue and cry while she was taken to Dimapur by the accused and she remained with the accused for around 20 days at different places. Such evidence of PW 2 and PW 4 is devoid of merit and cannot be accepted. 10. As the whole case centers round the evidence of the victim girl, so, let us appreciate her evidence separately. Though she has denied having love affairs with the accused-appellant but she has categorically stated that the accused-appellant tried to love her but she refused. So possibility of having earlier love affairs between the parties cannot be denied. On the other hand, her conduct is also not worthy of credit, as, while she was carried by the accused-appellant from one place to other in a public vehicle and at some times she went on foot but she never made any cry nor resisted the accused-appellant from doing so. 11. It is to be noted that the victim girl is stated to be 17 years but no such positive evidence has been adduced to prove her age by producing birth certificate/school certificate, etc., to prove the exact age of the victim girl. Such a contention on such disputed fact cannot be accepted only on mere submission of the victim herself as well as the guardian/informant to conclusively hold that at the time of occurrence she was minor. Such a contention on such disputed fact cannot be accepted only on mere submission of the victim herself as well as the guardian/informant to conclusively hold that at the time of occurrence she was minor. It can also be construed that she was on the verge of majority, if not already attained majority, and have sufficient maturity to gauge the consequence of her conduct at the time of occurrence. She remained silently along with the accused-appellant for 20 days and never bothered to inform her guardian as such. The medical opinion also not conclusive to hold that she was minor at the time of occurrence as the evidence of the medical officer reveals that her age may be between 16 and 17 and it is simply an opinion. The medical evidence always varies two years on either side. 12. It has also been pointed out that the said victim girl at the time of making statement before police did not disclose about such forcible sexual intercourse by the accused nor about forcible kidnapping on the part of the accused-appellant. The defence could not prove the said statement from the mouth of the investigating officer. However, it can be safely arrived at that the conduct of victim girl itself depicts that she was a consenting party perhaps because of her love affairs with the accused-appellant. Further the evidence of the victim girl cannot inspire confidence in the mind of the court because of her contradictory statement given at different stages. As we found her statement given under section 164, Cr.PC is tally silent about such commission of rape by the accused-appellant vide Exhibit 3. She has stated in her statement under section 164, Cr.PC as follows: “While she was returning from her uncle's house Nabi Hussain and then about 5/6 boys picked up her from the road towards Lahorighat market in a magic vehicle red in colour. She does not know where she was taken. She was kept in the house of some unidentified persons wherein the accused persons kicked her and confined for 20 days and later on she was left in the police station.” The above statement given by the witness recorded immediately after the occurrence is suffice to show that her subsequent evidence given in course of trial is much developed and cooked up story. Such statements were given under section 164, Cr.P.C on 26.11.2011 and in course of trial on 24.6.2014. The evidence of the victim girl being not reliable cannot be the basis for conviction in any manner. The whole prosecution case not based upon the legal evidence at all and cannot be sustained upon such evidence the credibility of which is at stake and not inspiring confidence. Accordingly, this court is of the opinion that prosecution has not been able to prove the charges under sections 366A and 376 of the Indian Penal Code against the accused-appellant and he deserves acquittal. 13. In the result, the impugned judgment of conviction dated 15.11.2014 passed in Sessions Case No. 87/2011 under section 366A/376 of the Indian Penal Code is hereby set aside and the accused is acquitted from charge. The appeal stands allowed. 14. To appreciate the assistance rendered by Mr. S. Islam, learned amicus curiae, the Legal Services Authority is directed to pay a sum of Rs. 7,500 to the learned amicus curiae. Return the LCR forthwith.