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2016 DIGILAW 186 (GAU)

Lachit Gogoi v. State of Assam

2016-03-14

RUMI KUMARI PHUKAN

body2016
JUDGMENT : This appeal has been preferred against the judgment and order dated 12.9.2012 of the learned Sessions Judge, Nagaon in Sessions Case no. 244/2007 under Section 363 of the IPC sentencing him to rigorous imprisonment for three years and also to pay a fine of Rs 5,000/- and in default to another six months’ rigorous imprisonment. 2. The prosecution case in a nutshell is that one Labanya Bora lodged an FIR at Kampur police station on 23.6.2007 complaining that on 21.5.2007 at around 8 AM the appellant came to their house and taking meal left the house when her daughter, Anupama Bora went to Kampur bazaar and did not return and they came to know that the accused/appellant had forcibly taken her daughter to some unknown location. Basing on the FIR Kampur PS case 57/2007 under Section 366(A) of the IPC was registered against the accused/appellant and later the victim girl had been recovered. Statement of the victim was recorded under Section 164 of the CrPC and she was also medically examined after her recovery and on completion of the investigation charge sheet was filed against the accused/appellant under Section 366(A) of the IPC. 3. The offence being triable by the Court of Sessions, the said case was committed to the Court of the learned Sessions Judge, Nagaon. On receipt of the case on commital the learned Sessions Judge framed charge under Sections 366 and 376 of the IPC and when the charge is explained to the accused/appellant he denied and demanded a trial. On conclusion of the trial by the impugned judgment and order the accused/appellant is convicted under Section 363 of the IPC and sentenced him as mentioned above. Hence this appeal. 4. Heard Mr BD Konwar, learned senior counsel for the appellant and Mr K Munir, learned Additional Public Prosecutor. 5. The learned counsel for the appellant challenged the impugned judgment and order on the ground of having various infirmities in the prosecution case and hence the conviction is not sustainable on the following grounds. (i) There is more than one month’s delay in filing the FIR. The delay is not at all explained by the prosecution. The case is fatal on the ground of delay alone. (ii) The age of the victim is not proved by the prosecution by producing any school certificate etc, whereas admittedly, the victim was a school-going girl. (i) There is more than one month’s delay in filing the FIR. The delay is not at all explained by the prosecution. The case is fatal on the ground of delay alone. (ii) The age of the victim is not proved by the prosecution by producing any school certificate etc, whereas admittedly, the victim was a school-going girl. (iii) In absence of the proof of age of the victim her conduct apparently speaks of her having consent in staying with the accused/ appellant for a long period being a major girl. The accused/appellant cannot be fastened with the offence as held by the learned court below. (iv) The medical opinion has also not supported the case of the prosecution that the victim was a minor at the relevant time, because the medical officer opined that her age was 16-17 years at the time of occurrence and that the exact age cannot be mentioned and there may be variation of age of two years on either side. 6. Learned additional public prosecution urged that in view of the verbal evidence the informant, who is guardian of the victim, and the testimony of the victim herself it can be inferred that the victim was a minor at the relevant time. However, no fruitful argument was made on the point of delay, the conduct of the victim and the findings of the medical officer as contended by the learned counsel for the appellant. 7. I have considered the submissions canvassed to this Court and also went through the evidence on record. In view of the evidence on record and the findings of the medical officer there can be no denial that the victim was recovered from the house of the accused/appellant and the medical examination was done thereafter. The medical officer, PW4) Dr M Islam in his report opined that there is no sign of sexual intercourse and there is no injury on her private parts and the age of the victim was 16-17 years, which may vary up to two years on either side. 8. The medical officer, PW4) Dr M Islam in his report opined that there is no sign of sexual intercourse and there is no injury on her private parts and the age of the victim was 16-17 years, which may vary up to two years on either side. 8. On examination of the evidence of the informant Smt Labanya Bora(PW1) and Sri Atul Bora(PW2), both are parents of the victim, it reveals that though they claimed to have filed the FIR after three days of the occurrence but the exhibit 1(FIR) reveals that the FIR was filed on 23.6.2007 more than one month from the date of the incident (21.5.2007). On that count there is enormous delay in filing the FIR which itself is fatal to the prosecution. 9. As regards the age of the victim, which is very crucial to decide the fate of the case, it appears that the parents of the victim failed to disclose even the date of birth of the victim in the evidence, nor they have filed any sort of school certificate, birth certificate etc to prove the age of the victim. In view of the finding the victim was a school-going girl so it is mandatory to prove the age of such girl by producing cogent evidence. Here(in this case), the parents as well as the victim herself failed to prove the date of birth and they have given a simple assertion that the victim is a minor, where there is no supporting evidence on record. 10. Learned counsel for the appellant has relied upon the decision of the Supreme Court in Bharosey v. State U.P. reported in 2010(1) SCC 722 where it is held that “in a criminal trial prosecution is bound to prove the age of the victim and said that in a criminal trial, conviction cannot be based on an approximate age which is not supported by any record. The failure to produce the admission form of the school which would have primary evidence regarding the age of the prosecutrix, is fatal”. 11. The failure to produce the admission form of the school which would have primary evidence regarding the age of the prosecutrix, is fatal”. 11. A similar view is also endorsed by the Hon’ble Supreme Court in State of Karnataka v. S. Pukraj reported in 1994(1) SCC 468 where it is held that when the age of the victim has not been satisfactorily proved and the evidence regarding the age is of doubtful and not very convincing, conviction of the accused under Section 366 is not maintainable. 12. Referring to the conduct of the victim it is submitted that the victim went with the accused voluntarily. Going by the evidence of the victim(PW3) it will reveal that though she stated about the forceful abduction by the accused/appellant in her evidence but her every conduct reveals that no force was applied on her. Admittedly PW3 was taken in a bus from the road to Golaghat district from Nagaon. She was kept in the house of his aunt and then in the house of the PW5 and the brother of the accused/appellant and in that process she remained with him since 21.5.2007 to 29.6.2007 and in the entire episode she made no protest nor she made any attempt to flee from the custody of the accused/appellant, which is sufficient to hold that she was a consenting party to the whole affairs. Considering that aspect the learned Sessions Judge has come to a finding that the charge under Sections 366 and 376 is not proved, but considering the evidence of the parents as well as the victim and the opinion of the medical officer the learned Sessions Judge held the victim a minor and consequently held the accused/appellant guilty under Section 363 of the IPC. 13. As discussed above the prosecution has failed to prove the actual age of the victim by way of any supporting documents and whereas they even failed to disclose the date of birth of the victim. Mere assertion that the victim is a minor it is not itself sufficient in the given background to hold that she is a minor. The medical opinion given by the PW4 also reveals that such age may vary up to 2 years on either side. Mere assertion that the victim is a minor it is not itself sufficient in the given background to hold that she is a minor. The medical opinion given by the PW4 also reveals that such age may vary up to 2 years on either side. Taking the evidence that the age of the victim was 16-17 years on the date of the incident, and if we add another two years then certainly the age of the victim will be more than 18 years at the time of incident. [The case law in Jaya Mala v. Home Secretary, Government of Jammu and Kashmir and others reported in (1982) 2 SCC 538 ] is referred) 14. In absence of such conclusive evidence as regards the age of the victim the order of conviction cannot be maintainable merely on assumption and presumption. A criminal trial always requires to be proved by way of cogent, positive evidence in respect of all the counts they have relied but in this case we found that the prosecution case suffers from so many infirmities like delay, non-giving of age proof, absence of forceful abduction, inducement on the part of the accused/appellant, this Court is of the opinion that the charge under Section 363 of the IPC is not proved beyond all reasonable doubt. Accordingly the order of conviction is liable to be interfered with. 15. In the result the appeal is allowed. The order of conviction and sentence passed by the learned Sessions Judge in Sessions Case no. 244/2007 under Section 363 of the IPC is set aside. Return the LCR.