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2019 DIGILAW 661 (GAU)

Hazrat Ali v. State of Assam

2019-05-28

RUMI KUMARI PHUKAN

body2019
JUDGMENT : 1. Heard Mr. AR Sikdar, learned counsel for and on behalf of the petitioner and Mr. D. Das, learned Additional Public Prosecutor, Assam, for the respondent State as well as Mr. H. Das, learned counsel for the respondent No.2. 2. The present revision petition is preferred against the judgment and order dated 23.11.2009 passed by the learned Assistant Sessions Judge, Goalpara in Sessions Case No. 05/2009 whereby the accused has been acquitted from the charge under Sections 366(A)/376 IPC. 3. The petitioner is the informant in the present case and it may be noted that State has not come forward to challenge the order of acquittal against the accused by challenging the impugned judgment of acquittal. 4. The necessary facts, in brief, is that on 1.11.2017, niece of the informant went to the school but she did not returned and the informant came to know that the accused, Abdul Malek has kidnapped his niece. Accordingly, an FIR was lodged and on the very next day, victim was recovered from the house of one Piyara Khatun along with the accused with the help of police. 5. On the basis of the FIR, Lakhipur PS Case No. 144/2007 was registered under Section 366(A)/34 IPC and after recovery of the victim girl, her statement was also recorded under Section 164 CrPC. 6. At the conclusion of the investigation, police submitted charge-sheet against the present accused and other two accused persons, namely, Monowar Hussain and Nazima Ahmed. The accused persons faced the trial and denied the charge. Whereas the learned trial court discharged other two accused persons, namely, Monowar Hussain and Nazima Ahmed finding no material against them. 7. The prosecution examined as many as 8 witnesses in support of the case and defence examined none. The plea of defence was of total denial. 8. On conclusion of the trial, the learned trial court held the accused, Abdul Malek not guilty of the offence and acquitted him from the charge. Challenging the legality and validity of the order of acquittal, present revision petition has been preferred by the petitioner as the victim girl was stated to be minor at the relevant point of time. 9. On conclusion of the trial, the learned trial court held the accused, Abdul Malek not guilty of the offence and acquitted him from the charge. Challenging the legality and validity of the order of acquittal, present revision petition has been preferred by the petitioner as the victim girl was stated to be minor at the relevant point of time. 9. I have heard submissions of the learned counsel for the petitioner, who has vehemently objected to the findings of the trial court that the trial court has failed to appreciate the evidence in its proper perspective and arrived at a perverse finding. According to him, when the victim was stated to be minor as per the statements of her parents, the learned trial court discarded their evidence and acquitted the accused person simply relying upon the evidence of medical officer, who opined that the age of the victim girl is above 18 years. It is contended that the opinion of the medical officer to the effect that teeth of the victim girl is 14/14 and thus she cannot be said to be a minor, such medical evidence is liable to be discarded and accused is liable to be convicted as the victim was minor, reading in class-IX, at the relevant point of time and she was recovered from the possession of the accused person where he confined her and also committed rape on her. 10. Learned counsel for the accused/respondent No.2 has contended that there is no basis of contentions made by the present petitioner inasmuch as the parents of the victim have failed to prove the age of the victim girl before the trial court by producing cogent and clear evidence, not to speak about any documentary evidence. That apart, it has submitted that the statement of the victim girl is inconsistent which was made during her cross-examination with her statement recorded under Section 164 CrPC. Her statement in cross-examination also bears an impact on the entire facts of the case. 11. That apart, it has submitted that the statement of the victim girl is inconsistent which was made during her cross-examination with her statement recorded under Section 164 CrPC. Her statement in cross-examination also bears an impact on the entire facts of the case. 11. Relying upon the decision rendered in the case of Sayed Ahmed Laskar vs. State of Assam and others reported in 2010 (3) GLT 182, it has been submitted that in absence of specific allegation of ignoring material evidence by the trial court, the findings of the trial court cannot be interfered into by a revisional court by relying on the evidence on record, to set aside the order of acquittal or for an order of re-trial. It has been held that order of acquittal not to be interfered with for the reason merely on the ground of error in appreciation of the evidence. Only in some exceptional circumstances, the revisional jurisdiction can be invoked to correct the manifest illegality or to prevent gross miscarriage of justice. 12. Decision rendered in Venkatesan vs. Rani and another ( (2013) 14 SCC 207 , has also been referred by the learned counsel for the accused/respondent No.2 wherein it has been held that revisional jurisdiction of the court while examining an order of acquittal is extremely narrow and ought to be exercised only in cases where trial court had committed a manifest error of law or procedure or had overlooked and ignored relevant and material evidence thereby causing miscarriage of justice. Re-appreciation of evidence is an exercise that the High Court must refrain from while examining an order of acquittal in the exercise of its revisional jurisdiction. 13. The learned counsel for the State/respondent has submitted that State has not come forward to challenge the order of acquittal of the accused as in the materials on record, there is no convincing proof about the age of the victim girl that she was minor at the relevant point of time and further submitted that the learned trial court has appreciated the evidence in proper perspective of law and there is no room for interference with the order of acquittal. 14. 14. Keeping in mind the scope and ambit of revisional jurisdiction of the High Court and the fact that revisional court cannot re-appreciate the evidence and come to a different finding from the appreciation of the trial court, on examination of the evidence on record carefully, it is found that although the victim herself and her guardian/informant and her mother as stated that the victim was minor and aged about 14 years at the relevant point of time, but no birth certificate or school certificate has been produced in support of their contention that the victim is minor. As the victim was school student, at least they could have produced the school certificate in support of such contention. 15. Again, the guardian of the victim, as mentioned above, have failed to reveal the date of birth of the victim girl and also could not ascertain the actual age of the victim. Merely one line statement that the victim is 14 years old will not be sufficient, while the victim was school student. The mother of the victim also could not say the date of birth of victim and simply stated that the victim was a student of Class-IX at the relevant time and in that case it also cannot be denied that she may be at the verge of majority at that time. The learned trial court at the given background had no option but to accept the evidence of medical officer that the age of the victim was above 18 years. Thus, there appears no wrong in appreciation of the evidence on the part of the trial court, there being no convincing proof as regards the age of the victim. 16. On the next, it is to be noted that the evidence of the victim is not at all consistent. In her statement recorded under Section 164 CrPC, she has stated that it was the accused who took her away in a vehicle and kept her in the house of his aunt and committed rape upon her by grabbing her mouth. But, during trial in cross examination, she has stated that two persons took her away from the road in a auto and she was kept confined in a house. But, during trial in cross examination, she has stated that two persons took her away from the road in a auto and she was kept confined in a house. She has categorically stated that she did not know those two persons who caught hold of her and took her away and as she did not see their face and she could not identify, who has committed rape upon her. 17. The other two witnesses that has been examined as PW.1 & PW.2 have stated that on the fateful day the accused along with a girl came to their house and introduced the girl as his wife and on their request they were allowed to stay in the house. 18. Thus, the evidence of the victim herself does not inspire confidence as to the complicity of the accused/petitioner with the offence alleged. Her changing versions indicates the falsity of her statement and in that pretext the suggestion of defence side that there was a love affair between the parties also cannot be denied. Further, it is to be noted that the victim girl offered no resistance and fled away from the class with the accused person and she was thereafter recovered by her guardian/informant (DW.3). 19. Although the learned counsel for the petitioner has projected the case that the victim was minor at the relevant point of time and a minor consent is not a consent but, in view of discrepancies on record perhaps no such exclusive reliance can be given on the version of the victim girl by the trial court whereas it was not exclusively proved that the victim was minor at the relevant point of time. Although medical evidence is an evidence of opinion but the same has to be relied upon by the court in absence of any cogent evidence. The learned trial court has meticulously appreciated all the materials on record and the grounds assigned in the present revision petition is not sufficient enough to prove that the trial court has failed to appreciate the matter in its proper perspective and on facts. No illegality or irregularity detected in the impugned judgment and order of acquittal of the accused. 20. Consequently, the revision petition stands dismissed. 21. Return the LCR.