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2018 DIGILAW 1314 (GAU)

Birinchi Kumar Baruah v. State of Assam

2018-09-05

AJIT BORTHAKUR

body2018
JUDGMENT : Ajit Borthakur, J. 1. Heard Mr. G.P. Bhowmik, learned Sr. counsel appearing for the petitioner. Also heard Mr. B. Sharma, learned Addl. Public Prosecutor, Assam for the State respondent No. 1 as well as Mr. M.K. Das learned Amicus Curiae appearing for the accused respondent No. 2. The instant Criminal Revision petition was originally registered as Criminal Appeal No. 112/2010 under Section 378 of the Code of Criminal Procedure (for short 'Cr.P.C.'), on 02.08.2010 and in view of the order passed by this Court vide Order dated 25.11.2010 reregistered as Criminal Revision Petition No. 475/2010, whereby the informant/petitioner challenged the legality and correctness of the judgment and order, dated 08.06.2010, passed by the learned Assistant Sessions Judge, Jorhat in Sessions Case No. 42(JJ)/2009 acquitting the accused respondent No. 2 of the charges under Sections 366/376 of the Indian Penal Code (for short 'IPC'). 2. The petitioner's case, in a nutshell, is that he lodged an FIR on 29.11.2008, before the Officer-in-Charge of Pulibor Police Station alleging, inter-alia, that on 17.11.08, his daughter was kidnapped by the accused respondent No. 2, Shri Jibon Chandra Das forcefully on her way to College. 3. Based on the above FIR, Pulibor P.S. Case No. 136 of 2008, under Section 366 of the IPC, dated 29.11.2008 was registered and after completion of investigation submitted the charge-sheet against the respondent No. 2 under Section 366A of the IPC. As the aforesaid offence is exclusively triable by the Court of Sessions, the learned Judicial Magistrate, First Class, Jorhat committed the case under Section 209 Cr.P.C. to the Court of learned Sessions Judge, Jorhat. Thereafter, the learned Sessions Judge, Jorhat transferred the case to the Court of the learned Assistant Sessions Judge, Jorhat for trial. After consideration of the materials on the Case Diary and hearing the learned counsel of both the sides, the learned Assistant Sessions Judge framed charges, under Sections 366/376 of the IPC. In order to establish the charges, the prosecution examined five witnesses. The accused respondent No. 2 examined two witnesses in defence. After appreciation of the evidence of both the sides and hearing the learned counsel of both the sides, the learned trial Court acquitted the accused respondent No. 2 herein holding that the prosecution has failed to prove the case beyond all reasonable doubt. 4. The accused respondent No. 2 examined two witnesses in defence. After appreciation of the evidence of both the sides and hearing the learned counsel of both the sides, the learned trial Court acquitted the accused respondent No. 2 herein holding that the prosecution has failed to prove the case beyond all reasonable doubt. 4. The informant/revision petitioner herein has assailed the above impugned judgment and order of acquittal on the grounds, inter-alia, that at the relevant time of the occurrence his daughter/the victim girl was aged less than 18 years being 16 years 7 months 13 days and she was taken out of the custody of the lawful guardian by deceitful means, which are clearly proved by evidence in the case inasmuch as the consent of a minor is immaterial. It has been further contended that the evidence of P.W-1, PW-2 and DW-1 were not taken into consideration by the learned trial Court from proper perspective. It has also been contended that DW-1, who is the accused respondent No. 2 herein, in his evidence unequivocally stated that on 01.12.2008, he and the victim girl executed an affidavit regarding their marriage meaning thereby, that her marriage was executed by application of force. 5. Mr. G.P. Bhowmik, learned Sr. counsel appearing on behalf of the petitioner submitted that on the date of the occurrence i.e. on 17.11.2008, the age of the victim was being 16 years 7 months 13 days as per the HSLC Admit card, 2007, her consent to accompany the respondent No. 2 was immaterial, for she was a minor for the purpose of Section 361 of the IPC, the learned trial Court ought to have convicted him at least under Section 366A, if not under Section 376 of the IPC. Mr. Bhowmik submitted that the prosecution evidence is consistent and convincing leading to the only inference that the accused respondent No. 2 had kidnapped the informant's minor daughter from their lawful guardianship. 6. Mr. B. Sharma, learned Addl. Public Prosecutor Assam submitted that the victim girl, P.W-1 supported the contentions made in her statement recorded under Section 164 Cr.P.C. vide Ext. 1 showing that she, in spite of being a minor was taken away without the consent of her parents for the purpose of marrying her. On the other hand, Mr. 6. Mr. B. Sharma, learned Addl. Public Prosecutor Assam submitted that the victim girl, P.W-1 supported the contentions made in her statement recorded under Section 164 Cr.P.C. vide Ext. 1 showing that she, in spite of being a minor was taken away without the consent of her parents for the purpose of marrying her. On the other hand, Mr. Sharma further submitted that the accused respondent No. 2 subjected her to forcible sexual intercourse and marriage with him. Therefore, according to Mr. Sharma, the learned trial Court ought to have held the accused respondent No. 2 guilty under the charges aforementioned. 7. Per Contra, Mr. M.K. Das, the learned Amicus Curiae submitted that as per the FIR, dated 29.11.2008, the alleged occurrence had taken place on 17.11.2008, i.e. 12 days before without explaining the reason for the delay. Mr. Das further submitted that the document namely, one Admit card of HSLC examination of 2007 exhibited in the case as Ext. 1 was a photocopy of the original, which is not admissible in law and as such, in the absence of any legally admissible document, it cannot conclusively be said that on the day of the alleged occurrence, the victim was a minor or aged below 18 years. According to Mr. Das, the victim was not subjected to medical examination and therefore, there is even no iota of medical evidence to establish that the victim was a minor on the date of the alleged occurrence and she was subjected to sexual intercourse. Drawing attention to the Ext. 'KA' the affidavit sworn jointly by the accused respondent No. 2 and the victim girl on 01.12.2008, before the Court of learned Executive Magistrate, Majuli at Garamurh, which has come in the evidence of the accused respondent No. 2 as D. W-1, Mr. Das submitted that the victim declared herself as aged 19 years and the prosecution itself also elicited this fact in the affirmative in her cross examination. Mr. Das, therefore, submitted that appreciation of evidence available on record, if done from proper perspective, would go to show that the learned trial Court has rightly acquitted the accused respondent No. 2 of the charges and as such, the presumption of innocence is in favour of him, for which reason, perhaps, the prosecution did not prefer a revision against the impugned judgment and order. 8. 8. It may pertinently be mentioned that in the case of S. Abhoy Naidu Vs. R. Sundarajan, reported in (1994) CrLJ 641, the Hon'ble Supreme Court held that in the matter of revision by private person against acquittal in a police case, the revisional jurisdiction can be exercised only in the exceptional cases of manifest illegality, irregularity or gross miscarriage of justice and not on account of failure to appreciate evidence. When the trial Court reached the finding of acquittal on proper appreciation of evidence interference in revision is not called for. In other words, when the order of acquittal does not manifestly suffer from any procedural illegality or error of law or patent illegality or failure of proper appreciation of evidence or perversity, the revisional Court cannot take a contrary view to that of the trial Court. Therefore, the powers of the revisional Court in revision against the acquittal are very limited and if upon appraisal of evidence two views may be possible, no interference is permissible. 9. Perusal of the impugned judgment and order, dated 08.06.2010, passed in Sessions Case No. 42(JJ)/2009, by the learned Assistant Sessions Judge, Jorhat reveals that the said learned trial Court found that P.W-2, the father of the victim, claimed his daughter's age to be about 16 years 7 months 13 days at the time of the occurrence and in support of it exhibited M. Ext-1, the Admit card. The learned trial Court further found that P.W-1, the victim girl, was not subjected to medical examination during trial investigation. The learned Court presumed that as the victim girl was studying in college, she was above the age of 16 years. The learned Court also found that after alleged kidnapping, P.W-1, the victim, accompanied with the accused/respondent No. 2 herein from place to place and during this period he sexually abused her. However, in cross-examination, she deposed that on 27.11.2008, she filed an ejahar before the Officer-in-Charge of Pulibar P.S., Jorhat informing that she on her own accord fled away with the accused/respondent No. 2 and on 22.11.2008, she got married to him and in testimony thereof both of them sworn an affidavit on 01.12.2008 at Majuli. The learned trial Court observed that P.W-2, the father, visited the house of the accused/respondent No. 2, on 22.11.2008 and 23.11.2008 and requested his victim daughter to come back to his house. The learned trial Court observed that P.W-2, the father, visited the house of the accused/respondent No. 2, on 22.11.2008 and 23.11.2008 and requested his victim daughter to come back to his house. Further, the evidence of D.Ws-1 and 2 is that P.W-1, the victim, fled away with the accused/respondent No. 2, on her own volition. P.W-2, the father of the victim exhibited one letter written by him, on 18.11.2008, requesting his victim daughter to come back to his house, so that he could arrange her social marriage with the respondent No. 2. Thus, on appreciation of evidence, oral and documentary, adduced by both the sides, having found no incriminating evidence, beyond all reasonable doubts, the learned trial Court held the accused/respondent No. 2 not guilty of the charge and accordingly acquitted him. 10. The above factual findings of the learned trial Court that emerged from the evidence of both the sides show that the prosecution case is demolished by the inherent inconsistencies, contradictions and self revealing adverse conduct of both P.Ws-1 and 2, the victim and her father respectively over the whole episode. 11. The FIR, dated 29.11.2008, was lodged after inordinate delay of 12 (twelve) days of the alleged occurrence, without explaining any reason and alleged of kidnapping of the victim informant's daughter by the accused/respondent No. 2, when all efforts to bring her back failed as reflected in the impugned judgment. Therefore, the unexplained delay in filing the FIR, in the peculiar facts and circumstances of the case, is certainly fatal to the prosecution case. Further, M. Ext.-1, the Admit card of the HSLC Examination of 2007 issued in favour of the P.W-1, the victim girl, is a photocopy of the original, which cannot be accepted under Section 63 of the Evidence Act, without sufficient reason being given for non-production of the original. In Ram Suresh Singh Vs. Prabhat Singh, reported in (2009) 6 SCC 681 , the Hon'ble Supreme Court held that photocopy of document, in the absence of the original, is not admissible in evidence. Therefore, M. Ext.-1 is held to be an inadmissible document. This document is also contradicted by the defence document vide Ext. 'KA', the affidavit, dated 01.12.2008, wherein P.W-1, the victim, herself declared her age to be 19 (nineteen) years. Therefore, M. Ext.-1 is held to be an inadmissible document. This document is also contradicted by the defence document vide Ext. 'KA', the affidavit, dated 01.12.2008, wherein P.W-1, the victim, herself declared her age to be 19 (nineteen) years. On the other hand, there is no medical examination report showing the age of the victim at the relevant time of the occurrence. Thus, it is noticed that the prosecution failed to prove the age of the victim girl (P.W-1) by legally admissible evidence on the alleged date of the occurrence and as such, its benefit would go in favour of the accused/respondent No. 2, holding that she attained the age of maturity/majority as averred in the joint affidavit of the respondent No. 2 and P.W-1, the alleged victim girl, as well as that her consent was material in the facts and circumstances of the case. 12. Considered thus, this Revisional Court is of the considered opinion that the learned Court below committed no illegality while recording acquittal of the accused/respondent No. 2 warranting any interference in the impugned judgment and order. Accordingly, the revision stands dismissed. Send back the LCR along with a copy of this judgment and order.