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2016 DIGILAW 184 (GAU)

Sanoi Uddin@ Salam @ Abdul v. State of Assam

2016-03-11

INDIRA SHAH

body2016
JUDGMENT AND ORDER : Indira Shah, J. The judgment and order dated 12.11.2014 passed by learned Sessions Judge, Karimganj in Sessions Case No. 63 of 2012 is under Challenged. 2. The appellant and two others were prosecuted for the offences under Section 366/34 IPC. The appellant further faced the trial for the offence alleged to be committed by him under Section 376(1) IPC. While the other two accused were acquitted of the charge framed against them under Section 366 read with Section 34 IPC., the appellant was held guilty and accordingly convicted for the offence under Section 366 as well as 376(1) IPC and he sentenced to undergo R/I for 7 years with fine of Rs.2,000/-, in default, further R/I for 2 months for his conviction under Section 366 IPC. He was further sentenced to undergo R/I for 10 years and to pay a fine of Rs.5,000/-, in default of payment of fine further R/I for 6 months for his conviction under Section 376 IPC. Both the sentence were said to run currently. 3. The prosecution case, in brief, is that on 22.04.2000 at about 07.00 AM., the victim 13 years of age accompanied by her younger brother went to attend private tuition in the house of one Bhola Deb Choudhury. They were supposed to go to their school after the tuition but after tuition the victim told her brother that she would not go to school. Victim's brother saw her talking with the accused. He, however, leaving her, went to his school. The victim did not return home. Mother of the victim lodged the FIR against the appellant Abdul Salam and Riaz Ali. The accused Abdul Salam along with the victim was apprehended by Patherkandi Police on 07.05.2000. Accused Riaz Ali was arrested on 25.04.2000 and then accused Babul surrendered himself before the Police. During the investigation, the victim was medically examined and her statement under Section 164 Cr.P.C., was also recorded. On completion of investigation police submitted Charge-Sheet under Section 366(A)/376 IPC against the accused persons. 4. During the trial prosecution examined 8 witnesses. The accused were then examined under Section 313 Cr.P.C. They denied the allegations levelled against them and pleaded that due to land dispute between the accused Raizuddin and father of the victim, they have been roped in a false case. They also disputed the age of the victim. 5. Heard Mr. 4. During the trial prosecution examined 8 witnesses. The accused were then examined under Section 313 Cr.P.C. They denied the allegations levelled against them and pleaded that due to land dispute between the accused Raizuddin and father of the victim, they have been roped in a false case. They also disputed the age of the victim. 5. Heard Mr. HRA Choudhury, learned counsel for the petitioner and Mr. K.I. Munir, learned Addl. Public Prosecutor. 6. It is submitted by the learned counsel for the appellant that in spite of clear cut evidence that the victim was a consenting party, the learned Trial Court erroneously concluded that she was forcibly taken away by the accused. Moreover, the evidence of Medical Officer is not positive with regard to rape as well as the age of the victim. The Medical Officer opined the age on the basis of X-Ray report, though, he was not a radiologist. 7. Learned Addl. PP, per contra has submitted that even if the victim may be a consenting party she was a minor and therefore her consent is of no value. The ocular as well as Medical evidence clearly established that the victim was minor and therefore conviction of the accused under Section 366 as well as 376(1) is proper and needs no interference. 8. P.W. 1, Nishit Kr. Das, is the younger brother of the victim. He deposed that the victim was reading in Class-VIII at the relevant time, while he was student of Class-VI, they were in the same school. On the date of the occurrence at about 06.30 AM they went to attend tuition in the house of their tutor. After proceeding some distance P.W. 1 leaving his sister went alone to the house of his Teacher, however, both of them attended the tuition class till 08.45 AM. Thereafter, they were supposed to go to their school. The victim asked him to go to school. P.W. 1 noticed that she was talking with the accused Abdul Salam @ Sanoi @ Shan Uddin. Leaving his sister P.W. 1 went to school and when he returned home at about 03.30 PM he came to know that his sister did not return. Thereafter, their mother started searching the victim and after that her mother lodged the FIR. After 17 days, the victim was recovered from Achimgang under Patherkandi Police Station. Leaving his sister P.W. 1 went to school and when he returned home at about 03.30 PM he came to know that his sister did not return. Thereafter, their mother started searching the victim and after that her mother lodged the FIR. After 17 days, the victim was recovered from Achimgang under Patherkandi Police Station. In cross examination, he stated that after his tuition his sister told him that she would not go to school. 9. P.W. 2, Hussain Ahmed, saw the victim and her younger brother proceeding towards Kadamtala. He also saw the accused following them. In the evening, he came to know that the victim was missing and the accused was also not available in the village. 10. P.W. 3, Archana Das, Mother of the victim, deposed that the victim was a student of Class-VIII at the time of occurrence. The victim went with her brother Nishit Kr. Das to attend the tuition class. Both of them attended tuition and they were supposed to go school from tuition class. In the evening, her son Nishit Kr. Das return home alone. On querry, Nishit told that on the way to school after tuition he saw his sister talking with the accused. P.W. 3 went out in search of the victim but she failed to trace her out. Then she lodged the FIR. After 17 days, Police recovered victim from the custody of the accused. The victim told her that she was taken by the accused but she could not say that how she was taken because she was almost unconscious. 11. P.W. 4 Alai Mia @ Ala uddin was a Rickshaw puller. He deposed that on the date of occurrence while he was at the Rickshaw stand with his Rickshaw one person came asked him a lift to R.K. Nagar. After proceeding towards forest gate the passenger asked him to stop and at that moment one school young girl came there and she also boarded the Rickshaw. Both of them got down at R.K. Nagar Motor Stand. 12. P.W. 5, is the victim Girl. She deposed that she was a student of Class-VIII at the time of occurrence. On the date of occurrence at about 06.00 AM. She along with her younger brother Nishit Kr. Das went to the house of their private tutor Bhola Chakraborty. Both of them got down at R.K. Nagar Motor Stand. 12. P.W. 5, is the victim Girl. She deposed that she was a student of Class-VIII at the time of occurrence. On the date of occurrence at about 06.00 AM. She along with her younger brother Nishit Kr. Das went to the house of their private tutor Bhola Chakraborty. After tuition they came out from his house and her brother went towards his school. While she was proceeding towards her house the accused appeared on a Rickshaw and asked her to board the Rickshaw and on his insistence she boarded the Rickshaw. She stated that after 3/4 hours she could realise that she has been taken to Dohalia in one house. She asked the accused why he has brought her there and requested him to release her. The accused kept her there for 2 days and forced her to wear "Burkha" . After 2 days, he took her forcibly to Tripura for about 7 to 8 days. During that period, the accused appellant forcibly raped her against her will. She, further deposed that after 7/8 days she was brought again to Achimgang and was kept at a tea stall. From the tea stall, the accused was apprehended by the Police and she was also rescued. She stated that at the relevant time she was under "Burkha". Thereafter, she was brought to Police Station, she was examined by the Doctor and her statement was also recorded by a Magistrate. In reply to the querry by the Court, she stated that at the time of incident her age was 12/13 years. In cross examination, she stated that she did not raise any alarm, when she was insisted to board the Rickshaw. She did not raise any alarm or report the matter to anyone on the way. No birth certificate or school certificate was submitted to the Investigating Officer. She, further, stated that she had nail injury and she showed the injury to the Doctor. While she was cross examined she denied that she did not state before the Investigating Officer that she requested the accused to release her or she was forced to wear "Burkha" or that she was forcibly raped by the accused. She also denied that at the material time she was more than 18 years of age. 12-A. P.W. 6, is the Investigating Officer. She also denied that at the material time she was more than 18 years of age. 12-A. P.W. 6, is the Investigating Officer. He deposed that the accused Abdul Salam was apprehended by Patherkandi Police along with the victim. The victim disclosed her age as 14 years and she was student of Class-VIII. P.W. 7 Ashim Kr. Dey completed the investigation and submitted the Charge-Sheet. 13. P.W. 8, Dr. Shibnath Paul is the Doctor who exhibited the Medical report of the victim. The victim was examined by the Dr. S. K. Sen. As per the Medical report Exhibit-4, the findings are as follows:- "Average Bengali girl, voice normal, behaviour normal, teeth 14/14 public and auxiliary hair present, secondary sex character-not fully developed. On laboratory examination of vaginal swab-no spermatozoa seen. Injuries-2 Inch X 1 inch abrasion on the right anterior knee. (b) 2½ inch X 1½ inch abrasion on the right posterior knee. (c) Human teeth bit like abrasion on both maxillary area of face. (d) Hymen- absent. On X-Ray examination of elbow joint, wrist joint, knee joint, iliac crest-ossification not completed. Age-below 18 years between 13 to 14 years. Victim girl may be raped according to examination". 14. In cross examination P.W. 8 stated that the age of injury is not mention in the Medical Report. The X-Ray plate attached to the Medical Report does not reveal the name of the victim or the date of the examination. 15. It transpires from the aforesaid evidence that the victim was not forcibly taken in the Rickshaw. She stated that she was insisted by the accused to board the Rickshaw. The Rickshaw puller deposed that the victim boarded the Rickshaw voluntarily. She was taken to different places. She never raised any alarm or reported the matter to any body. While she was apprehended by the Police along with the accused appellant, she was wearing "Burkha". Thus, from the evidence, it appears that the victim run away with the accused on her own accord. Now, the question arises whether the victim was minor at the relevant time. P.W. 8, who exhibited the Medical report of the victim did not examine the victim himself. No birth certificate or school certificate was exhibited during the trial. As per the Medical report, the victim was below 18 years and was between 14 to 15 years of age. Now, the question arises whether the victim was minor at the relevant time. P.W. 8, who exhibited the Medical report of the victim did not examine the victim himself. No birth certificate or school certificate was exhibited during the trial. As per the Medical report, the victim was below 18 years and was between 14 to 15 years of age. The age of the victim was opined on the basis of X-Ray report. P.W. 8 stated that X-Ray plate do not reveal the name of the victim or date of examination. The mother of the victim says nothing about the age of the victim in her evidence. 16. In the case of Mahadeo Vs. State of Maharashtra and Another reported in (2013) 14 SCC 637, it was held as under:- "12.... We can also in this connection make reference to a statutory provision contained in the Juvenile (care and Protection of children) Rules, 2007, where under Rule 12, the procedure to be followed in determining the age of a juvenile has been set out. We can usefully refer to the said provision in this context, inasmuch as under Rule 12(3) of the said Rules, it is stated that: "12.(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, by the Committee by seeking evidence by (a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (Other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a Panchayat. Under Rule 12(3)(b), it is specifically provided that only in the absence of alternative methods described under Rules 12(3)(a)(i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of a juvenile, in our considered opinion, the same yardstick can be rightly followed by the Courts for the purpose of ascertaining the age of a victim as well". 17. In the case of Sunil Vs. State of Haryana reported in (2010) 1 SCC 742 , it was held as under:- "25.... 17. In the case of Sunil Vs. State of Haryana reported in (2010) 1 SCC 742 , it was held as under:- "25.... The prosecution also failed to produce any admission form of the school which would have been primary evidence regarding the age of the prosecutrix. The school leaving certificate produced by the prosecution was also produced on 12.09.1996, six days after the incident and three days after the arrest of the appellant. As per that certificate also, she joined the school in the middle of the session and left the school in the middle of the session. The attendance in the school of 100 days is also not reliable. The prosecutrix was admitted in the school by Ashok Kumar, her brother. The said Ashok Kumar was not examined. The alleged school leaving certificate on the basis of which the age was entered in the school was not produced. 26....... Bishan, PW 8, the father of the prosecutrix has also not been able to give correct date of birth of the prosecutrix. In his statement he clearly stated that he is giving an approximate date without any basis or record. In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date". 18. In the case of Narender Kumar Vs. State (NCT of Delhi) reported in (2012) 7 SCC 171 , it was observed as under:- "29........ However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witnesses have falsely implicated the accused. The prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the Court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. However great the suspicion against the accused and however strong the moral belief and conviction of the Court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt". 19. In the instant case only the victim girl stated that she was aged about 12/13 years of age at the relevant time, no School certificate or birth certificate was produced to corroborate her contention. The Doctor or the radiologist we examined the victim were not examined only the Medical report was exhibited by a Doctor. It is a settled law that mere production and marking of a document as exhibit by the Court cannot be held to be a proof of its contents. Thus, the burden to prove has not been discharged by the prosecution. That apart, the Medical examination can only point out the age approximately with a variation of 2 years. The margin of error in age has been judicially recognised in Jaya Mala Vs. Govt. of J & K reported in (1982) 2 SCC 538 . 20. In view of the aforesaid, this Court is of the considered opinion that the prosecution has failed to prove its case beyond the reasonable doubt, therefore the appellant is entitled to get the benefit of doubt. 21. Appeal is accordingly allowed. 22. The accused appellant is acquitted. He be set at liberty forthwith. 23. Return the LCRS.