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2019 DIGILAW 972 (GAU)

Hussain Ahmed Laskar v. State of Assam

2019-08-30

RUMI KUMARI PHUKAN

body2019
JUDGMENT : Rumi Kumari Phukan, J. 1. Heard Mr. N.S. Laskar, 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 is preferred against the judgment and order, dated 05.03.2011 passed by the learned Sessions Judge, Hailakandi in Sessions Case No. 40/2006 arising out of G.R. Case No. 228/2005 convicting the appellant under Section 315 of IPC and sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs. 25,000/- in default, to suffer simple imprisonment for six months. 3. Story of the prosecution case, in brief, is that accused by making promise of marriage, cohabitated with the minor daughter of the informant, as a result she became pregnant, then the accused forcefully administered medicine with a view to cause abortion. Informant lodged the complaint on 8.4.2005 which was registered on 13.0.4.2005 by the police u/s 376/315 IPC. After investigation, police submitted charge-sheet against the accused u/s 366(A)/376/315 of IPC against the accused person. The case being triable by the court of Sessions was committed to the court of Sessions. On commitment, learned Sessions Judge framed charge against the accused person u/s 366/315 IPC. The charges were read over and explained to the appellant to which he pleaded not guilty and claimed to be tried. 4. During trial, prosecution examined as many as seven witnesses while defense examined two witnesses. The plea of defense was of total denial and after conclusion of trial, the learned Sessions Judge convicted the appellant, as aforesaid. 5. Being aggrieved with the impugned judgment and order dated 5.3.2011, the present appeal has been preferred on the following grounds by the appellant that the learned court below erred in law as well as facts in convicting and sentencing the present appellant; that the appreciation of evidence is erroneous and the learned court below failed to take into consideration the material contradictions and discrepancies of the prosecution witnesses; that the impugned conviction and sentence are perverse and liable to be set aside inasmuch as there is no corroboration amongst the prosecution witnesses and also due to exaggerations, omissions etc. in the depositions of PWs. in the depositions of PWs. that the learned trial court below overlooked the unexplained delay of 17 days in lodging the complaint and as such, the instant case is fabricated and concocted being instituted out of grudge and enmity with the appellant's father; that the conviction was solely based on the testimony of PW-2 and PW-3 who are neither her relative nor the eye witnesses, so the ingredients necessary for convicting the appellant under Section 315 IPC is absent and that the evidence of defense was not at all considered and the material contradictions was overlooked as such the court below ought to have rejected the case in its entirety. 6. I have considered the submissions of the learned counsel for the appellant as well as learned Addl. P.P. who in his argument submitted that the grounds so taken by the appellant has been reiterated by the learned counsel for the appellant. However, learned State counsel has justified the order of conviction of the accused. 7. Let us now appreciate the evidence on record. The victim woman as PW-1, in her evidence has stated that the accused promised to marry her and by making such promise, he performed sexual intercourse on her 2 years before and she became pregnant and while she was carrying pregnancy of 5 months, she put pressure upon the accused to marry her. Then the accused took her to his house and the accused administered her some medicine to cause miscarriage of her pregnancy. On the next day of administration of medicine, she delivered a still born baby at the house of the accused and she became senseless after delivering the baby. Three days after delivery of the baby, the father of the accused Abdul Monir put pressure on her to leave the house but she refused to leave the house. She further states that for the refusal of the accused to keep her at their house as his wife, her father called a village bichar and in the said bichar, a date was fixed for solemnization of her marriage with the accused but before that, the father of the accused drove the accused from his house and concealed him somewhere else, as a result of which her marriage did not take place. During cross, examination, PW-1 stated that the accused is her cousin and she studied till Class-VIII in Azijur Rehaman M.E. School nearly 6 years back and she discontinued her study. As per school certificate, her date of birth is 16.03.1986. 8. Thus, according to the victim/PW-1, the occurrence of miscarriage took place in the house of the accused, after he took her with assurance of marriage and at that time she was carrying 5 months pregnancy. It is stated that due to administering medicine by the accused there was miscarriage on the very next day. Now, it is to be noted that five months pregnancy cannot be terminated only after administering some tablets unless intervene by the medical expert. No any relative like parents, sisters and other reliable persons of the locality has been examined in support of the contention. 9. Other witnesses examined by the prosecution, PW-2 (Tahibur Rahman) and PW-3 (Taj Uddin Laskar) are persons from the different locality and they have given different descriptions of the matter which indicates that they have no personal knowledge of the matter. Contrary to the statement of PW-1, PW-2 has stated that still born baby was delivered by PW-1 in her parent's house whereas PW-3 has stated that PW-1 delivered a baby in the house of the accused. There is no specific evidence that on the fateful day, the accused took the victim to his house and administered certain medicines so as to cause miscarriage. Non-examination of any of the family members like parents etc. of the victim appears to be fatal for prosecution. The aforesaid witnesses have stated that a village meeting was called for delivery of the child by unmarried PW-1, but they have not uttered anything about miscarriage. 10. The evidence of PW-4 is of no consequence as he stated nothing and turned hostile. PW-5 who remained 1 Km. away from the house of PW-1 has stated that he came to know from the PW-2 that the victim became pregnant and her pregnancy was terminated by the accused by applying some medicines. In his cross-examination, he stated that he had no personal knowledge of the matter. 11. PW-3 admitted that a dacoity case is pending against him as accused and PW-5 filed a criminal case against the father of the accused as stated in cross-examination and their credibility is not unimpeachable. 12. In his cross-examination, he stated that he had no personal knowledge of the matter. 11. PW-3 admitted that a dacoity case is pending against him as accused and PW-5 filed a criminal case against the father of the accused as stated in cross-examination and their credibility is not unimpeachable. 12. The Investigating Officer (PW-6) has contradicted the testimony of PW-2 and PW-3 that they did not stated before him that accused disclosed before the village meeting that he would marry the victim after delivery of the child, and that about the termination of pregnancy of the victim by the accused. 13. Although evidence of Medical Officer (PW-7) indicates that earlier the victim carried pregnancy but her evidence does not indicate any miscarriage that may have been taken place to the victim girl. She has specifically stated that upto 3 months pregnancy, such pregnancy can be terminated by medicine but after 3 months of pregnancy, the same can be done by D.M.C. 14. PW-1 in her cross-examination has stated that to decide the entire matter village bichar was held at L.P. School of their village and many people attended the meeting. But, according to the PW-2 and PW-3 such a bichar was held in the house of Abdul Zabbar (DW-1). The said Abdul Zabbar as DW-1 has stated that no such bichar was held in his house as alleged and he did not know anything about the matter whereas in their village he along with other elderly persons of the locality used to decide the matters, which is again belied the matter of holding meeting on the subject, as no other person attending such meeting has been examined by the prosecution. 15. PW-2 and PW-3 in their evidence has also stated the victim desires to stay with the accused and accused wants to keep her as his wife but due to the obstruction even by the father of the accused their marriage did not take place. 16. Thus, from the entire matters on record, it can be found that there is lack of evidence to prove the charge u/s 315 IPC and it can be found that the accused is also desirous of marrying the victim but due to obstruction by his father, marriage could not be solemnized and the matter of miscarriage is not at all proved. The learned trial court has failed to appreciate the entire evidence on record in proper perspective of law and facts, which has rendered the decision unsustainable in the eye of law. 17. Resultantly, the appeal succeeds. The impugned judgment and order is set aside and quashed and the accused person is acquitted from the charge on the benefit of doubt. 18. Return the LCR.