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2016 DIGILAW 43 (GAU)

Mokesh Ali S/o Meharuddin Ali v. State of Assam

2016-01-21

PARAN KUMAR PHUKAN

body2016
JUDGMENT AND ORDER : Paran Kumar Phukan, J. 1. The judgment of conviction dated 30.06.2007 recorded by the learned Additional Sessions Judge (FTC) No.1, Kamrup, Guwahati in Sessions Case No.129(K)/2005 and sentencing the accused appellant to Rigorous Imprisonment for 3 (three) years and to pay fine of Rs.500/-, in default, to Simple Imprisonment for 1 (one) month is the subject matter of challenge in this appeal. 2. The sum and substance of the prosecution case is that on 02.10.1999, the informant Abdul Matlib lodged an FIR with the O/C, Hajo Police Station alleging therein that on 30.09.1999 at about 10 am, his niece Nurjahan Begum was forcefully taken by the appellant and one Rupjahan Bibi from her school. The accused persons were caught by the family members of the victim at Jalukbari, near Saraighat Bridge, on the following day. On the strength of that FIR, Hajo P.S. Case No. 163/1999 was registered and on completion of investigation Charge-Sheet was submitted against the accused appellant Mokesh Ali and the co-accused Rupjahan Bibi under Sections 366(A)/34 IPC. 3. The case was committed to the Court of sessions. Trial commenced before the learned Additional Sessions Judge (FTC) No.1, Kamrup, Guwahati. In order to prove the charge under Section 366(A)/34 IPC which has been framed against the accused, the prosecution examined as many as 8 witnesses including the Medical Officer and the Investigating Officer. On conclusion of the trial, the learned Additional Sessions Judge convicted the accused appellant Mokesh Ali and the accused Rupjahan Bibi under Sections 366(A)/34 IPC and convicted and sentenced them as stated above. Hence, this appeal which has been preferred by the accused appellant Mokesh Ali. 4. Mr. DR Gogoi, learned counsel appearing on behalf of the accused appellant submitted that the story given by the prosecution is totally false and fabricated and it was not possible on the part of the appellant to kidnap a girl from school in broad day light in presence of the other persons. It is next contended that due to some family dispute, this false case has been foisted against the accused appellant. Further submission of the learned counsel is that the learned Court below has failed to properly appreciate the evidence on record and the alleged victim girl herself went with the accused appellant and she was a consenting party. 5. Controverting the submissions, Mr. Further submission of the learned counsel is that the learned Court below has failed to properly appreciate the evidence on record and the alleged victim girl herself went with the accused appellant and she was a consenting party. 5. Controverting the submissions, Mr. BJ Dutta, learned Additional Public Prosecutor, Assam submitted that the evidence of the victim girl coupled with the evidence of the other witnesses proved beyond doubt that the accused appellant had kidnapped her after administering sleep inducing drugs to her. She was in a state of confusion due to the drugs given to her and taking advantage of her mental state, she was taken away by the accused. The learned Court below, on proper appreciation of the evidence convicted the accused appellant and the charge has been proved against him beyond all reasonable doubt. The finding of the trial Court calls for no interference in this appeal. 6. In the backdrop of the aforesaid contentions, let me now turn to the evidence on record to ensure whether she was a consenting party or she was forced by the accused appellant to go with him. 7. In a case of the instant nature, the evidence of the victim is of utmost importance for the prosecution and as such, her evidence needs to be discussed first before discussing the other evidence on record. The evidence of the victim PW3 is that on 30.09.1999 while she was in Damdama Higher Secondary School in her class room, the accused Rupjahan Bibi, who is her aunt, called her and took her to a hotel situated at Damdama Chowk and offered her tea and sweets and also pan, after consumption of which, she felt unwell and she became confused and she could not say what happened to her thereafter. In the evening only, she regained her sense and saw the accused Rupjahan Bibi and Mokesh Ali near her. When she started crying, she was assured by them that they would sent her home on the next morning. At night, the accused Rupjahan Bibi allowed Mokesh Ali to sleep with her and she was raped by him. On the next morning, both the accused took her in an auto rickshaw and while crossing the Saraighat Bridge, she noticed her brothers Mohsen Ali and Painur Ali proceeding in a bus. At night, the accused Rupjahan Bibi allowed Mokesh Ali to sleep with her and she was raped by him. On the next morning, both the accused took her in an auto rickshaw and while crossing the Saraighat Bridge, she noticed her brothers Mohsen Ali and Painur Ali proceeding in a bus. She raised alarm and hearing her cries, her bothers came down from the bus and rescued her from the clutches of the accused and all of them were taken to their house and then village "mel" was held but no decision could be taken and as such, the accused persons were handed over to police and written FIR was filed. 8. Now the evidence of the victim girl is to be considered on the touchstone of reliability. Admittedly, the occurrence took place in the broad day light and there were many persons present in the Damdama Chowk at that time and in the tea stall also, there were persons including the owner of the tea stall. If the victim girl felt unwell after taking the pan as claimed by her, it would have been noticed by the other persons present in the tea stall. There is no evidence that she raised any protest while she was taken in the auto rickshaw by the accused appellant nor did she tried to attract the attention of the other persons present there which she could have done easily. Her conduct is indicative that she was a consenting party and she appears to have gone with the accused on her own. 9. Now the pertinent question is whether she was a minor and not capable of giving consent. Although, it was stated that she was aged about 17 years but according to the doctor PW5, who examined her on being produced by police, she was aged above 18 years and below 19 years. The oral evidence coupled with the evidence of the doctor established that she was around 18 years of age and was capable of giving consent. Before the doctor also she stated that while she was coming to school, the accused Rupjahan Bibi took her to Azara to her house and kept her there for one night where she met the accused appellant Mokesh Ali. Before the doctor also she stated that while she was coming to school, the accused Rupjahan Bibi took her to Azara to her house and kept her there for one night where she met the accused appellant Mokesh Ali. On the next day, while they were coming to North bank in a maruti van, they met her brother and her brother took her to his house. The doctor clearly stated in his evidence that while giving the story, the girl had stated before him that Rupjahan Bibi had taken her to her house. There is nothing to show that she raised any alarm or protest while she was taken by the accused Rupjahan Bibi. She claims to have met Mokesh Ali in her house but no protest was raised. 10. The other witnesses examined by the prosecution are all reported witnesses and they came to know about the occurrence from the girl and her brothers. From the evidence of the victim, it appears that she met the accused appellant Mokesh Ali for the first time in the house of Rupjahan Bibi and he was not involved in her kidnapping or abduction. 11. The statement of the girl has been recorded under Section 164 Cr.P.C by the Magistrate, but it appears from the statement that it was recorded after several days of the occurrence. In the intervening period, she got ample opportunity to discuss the entire matters with her family members and the probability of giving a concocted story before the Magistrate cannot be ruled out. 12. Evidence on record further reveals that the accused Rupjahan Bibi was asked by the family members of the victim girl to arrange a groom for the girl. This might have prompted her to take her to her house to facilitate the girl to see the boy who she had arranged for her. 13. Having heard the learned counsel appearing for both the parties and having regard to the facts and circumstances of the case and the evidence on record, I am of the considered view that the learned Additional Sessions Judge while appreciating the evidence failed to consider the fact that the victim girl might have been a consenting party. He appears to have jumped to the conclusion on the basis of her evidence that she was being kidnapped by the accused appellant. 14. He appears to have jumped to the conclusion on the basis of her evidence that she was being kidnapped by the accused appellant. 14. Consequently, the judgment of conviction recorded by the learned Additional Sessions Judge, (FTC) No.1, Kamrup, Guwahati is liable to be set aside which I accordingly do. The accused appellant is acquitted and set at liberty forthwith. The bail stands discharged. Send down the LCR along with a copy of the judgment for information and necessary action.