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2019 DIGILAW 1019 (GAU)

Debajit Baruah v. State Of Assam

2019-09-10

RUMI KUMARI PHUKAN

body2019
JUDGMENT : Rumi Kumari Phukan, J. Heard Mr. R. Phukan, learned counsel appearing for the appellant/accused as well as Mr. D. Das, learned Addl. P.P., Assam appearing for the State respondent. 2. This appeal has been preferred against the judgment and order, passed by the learned Addl. Sessions Judge, Jorhat, in Sessions Case No.171/2014, whereby the accused/appellant has been convicted u/s.366/376 IPC and sentenced him to undergo rigorous imprisonment for 5 years and to pay fine of Rs.3,000/-, in default simple imprisonment for one month u/s.366 IPC and rigorous imprisonment for 7 years and to pay fine of Rs.5,000/-, in default simple imprisonment for two months, u/s.376 IPC. 3. The prosecution case in a nutshell is that the mother of the victim lodged an FIR on 17.12.2012, before the O.C., Titabor P.S. to the effect that her minor daughter has been kidnapped by the accused person along with another, named in the FIR. It is submitted in the FIR that the girl has been kept forcefully in the house of the accused and only on her return, the FIR was filed. 4. On the basis of the FIR, the Titabor P.S. Case No.203/2012, u/s.366(A)/341/ 323/379/34 of the IPC was registered and the statement of the victim was recorded u/s.164 CrPC and her medical examination was also done and at the conclusion of the investigation, charge sheet was submitted against the accused/appellant u/s.366/376 IPC. The accused person stood the trial and denied the charge framed under the said sections of law and claimed to be tried. 5. The prosecution examined seven witnesses in support of the case and the defence examined none. The plea of the defence is of total denial. At the conclusion of the trial, the learned trial Court found and hold the accused guilty and convicted him as aforesaid. Hence the appeal. 6. The learned counsel for the appellant has submitted that the evidence of the victim girl as well as the entire case is doubtful, as the FIR was filed after a long delay of the occurrence and the conduct of the victim reveals that she was a consenting party and there is no conclusive proof that the victim was a minor one and the Medical Officer also found no mark of injury including the sexual assault upon her. Accordingly it has been contended that the learned trial Court has erroneously found and held the accused guilty whereas there is no legal evidence to implead the accused with the offence alleged. 7. Also heard the learned counsel for the State, who has submitted that the victim being the minor, she may not be aware of the consequences of her long stay in the house of the accused and there is also allegation of forceful confinement of the victim girl. 8. Due consideration is given to the submission of learned counsel for both the parties and also gone through the evidence on record. 9. On scrutiny of the evidence on record, it is to be noted that save and except the victim herself, there is no other eye witness to the occurrence as regards the kidnapping and so far as the matter of sexual assault, the Medical Officer (PW.5) has stated in his evidence that there was no mark of injury on the person of the victim and there is no sign of sexual intercourse. According to the Medical Officer, the age of the victim girl is above 16 years and below 18 years. 10. The only independent witness i.e. PW.4 turns hostile and in her evidence (admitted portion), she has stated that while she was staying as a tenant near the house of the victim, she heard from the mother of the victim that the victim fled away with the accused but she has not seen the occurrence. 11. The parents of the victim girl (PW.1 and PW.2) in their evidence have stated that on the day of occurrence while they went to the market, leaving behind the victim girl (PW.3) in the evening hours, on their return they found that the victim was missing from the house and on search, they came to know after three days that the victim was in the house of the accused and accordingly they went to bring her back but the accused did not allow them to take her. It is their evidence that although they want to file the FIR to the Titabor P.S., but the O.C. of the Police Station did not registered the FIR. However, they filed the FIR thereafter vide Ext.1. It is further stated that after 16/17 days of the incident, their daughter returned home and thereafter they filed the FIR. 12. It is their evidence that although they want to file the FIR to the Titabor P.S., but the O.C. of the Police Station did not registered the FIR. However, they filed the FIR thereafter vide Ext.1. It is further stated that after 16/17 days of the incident, their daughter returned home and thereafter they filed the FIR. 12. As regards the age of the victim girl, they are not certain as regards the actual age of the victim girl, as according to the PW.1, the victim was about 15 years old and the PW.2 do not know the age of his daughter. So the age of the victim cannot be conclusively be proved by the parents of the victim girl. The medical evidence is of course an opinion and the same can be varied with two years on either side. According to the Medical Officer, the age of the victim girl is above 16 years and below 18 years and if we adds two years to the higher side, she will be found to be major. 13. From the evidence of the parents as well as the victim also, it reveals that the house of the accused person is nearby their house leaving one house in between. The same aspect has been more clearly stated by the victim herself/PW.3. In her evidence, she has stated that on the fateful day, while she was standing in front of the courtyard in the evening hours, the accused person suddenly came and forcefully took away her in a four wheeler vehicle and kept her in the house of someone for one night and thereafter he brought her to his home, which is situated hear her house and kept her in his house for 17 days. It is stated that during the period, the accused person prevented her to come out from his house and also threatened her for which she remained in his house. During that period, the accused also committed sexual intercourse with her but however after 17 days, she managed to fled away from his house and thereafter she informed her mother that the accused forcefully took away her and then her mother filed the FIR. During that period, the accused also committed sexual intercourse with her but however after 17 days, she managed to fled away from his house and thereafter she informed her mother that the accused forcefully took away her and then her mother filed the FIR. It is stated that at the time of incident, she was studying in Class-VIII and was 15 years old but no any school certificate/age certificate has been produced in support of her age, while she was a school-going student. 14. On bare comparison of statement of the parents of the victim and the testimony of the victim herself, it will appear that their statements are materially contradictory with each other. According to the parents, three days after the occurrence, they found the victim in the house of the accused and they were not allowed to take their daughter, whereas such episode is not narrated by the victim. According to the victim, after 17 days of her stay in the house of the accused, she returned back to her home and narrated the incident to her parents and thereafter only the FIR was filed. Such inconsistent statement of the victim as well as her parents coupled with the delay in lodging the FIR raises serious doubt upon the authenticity of the allegation. 15. As has been discussed above, it is not proved that the victim was a minor at the time of occurrence and her long stay in the house of the accused without any protest coupled with the fact that there was no mark of injury on her person (as per the report of the Medical Officer), it can be held that she was a consenting party in the entire incident. The house of the victim was situated nearby the house of the accused and despite that she made no any attempt to fled away from the house of the accused and her deposition that she herself fled away from the house of the accused appears to be not at all convincing, as her house was nearby and even her simple cry would have been heard by her parents or by the neighbouring people. The conduct of the victim as well as the entire evidence on record does not inspire confidence as regard the authenticity of the allegation. Moreover, the delay which is not properly explained is fatal to the prosecution. 16. The conduct of the victim as well as the entire evidence on record does not inspire confidence as regard the authenticity of the allegation. Moreover, the delay which is not properly explained is fatal to the prosecution. 16. The evidence of the I.O. being formal in nature who has stated all bout receipt of the FIR, conducting the investigation and filing of the charge sheet. 17. Taking into account, all the above, it can be held that the prosecution measurably failed to prove the charge against the accused person beyond all reasonable doubt but the learned trial Court has failed to appreciate the entire evidence in proper perspective of law and facts and has acted upon the evidence of the victim, which is not at all supported by her own conduct and the other evidence on record. 18. In the circumstances, it can be held that the impugned judgment and order is not sustainable in law and accordingly the same is quashed and set aside. The accused person is acquitted from the offence charged and set at liberty forthwith. 19. Return the LCR with a copy of the judgment.