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2020 DIGILAW 139 (GAU)

Sohidul Ali Goalpara v. State Of Assam

2020-02-05

MIR ALFAZ ALI

body2020
JUDGMENT Mir Alfaz Ali, J. - Heard Mr. S Islam, learned Amicus Curiae appearing for the appellant and Mr. MP Goswami, learned Addl. Public Prosecutor, Assam. 2. This appeal is directed against the judgment and order dated 25.04.2018 passed by the learned Special Judge, Goalpara in Sessions Case No.162/2015 and Special Case No.13/2015. By the said judgment, learned Special Judge convicted the appellant under section 366-A IPC and section 8 of the POCSO Act and sentenced him to imprisonment for 10 (ten) years and fine of Rs.5,000/- with default stipulation under section 366-A IPC. The appellant was further sentenced to imprisonment for 5 (five) years and to pay a fine of Rs.5,000/- with default stipulation under section 8 of the POCSO Act. 3. As per the prosecution case, on 20.05.2015 at about 2.30 PM when the daughter of the informant was coming from School by riding bicycle the appellant forcibly put the victim into a vehicle bearing registration No.AS-01L 5136 and left the place. It was also alleged that on the way the victim was subjected to sexual harassment and physical assault by the accused/appellant. Immediately the police of Krishnai PS got the information and caught the appellant along with the victim. An FIR was lodged by the father of the victim on the basis of which, Krishnai Police Station Case No.115/2015 was registered under section 370(4) IPC read with section 8 of the POCSO Act. Another FIR was lodged for the same offence by the driver of the vehicle in which the victim was taken away, on the basis of which Krishnai PS Case No.116/2015 was registered under section 341/366-A IPC and on conclusion of investigation, police submitted charge-sheet in both the cases. Trial was also proceeded independently, however, at the later stage, both the cases were amalgamated by the learned trial Judge. 4. In course of trial, 10 (ten) witnesses were examined in order to being home the charges and on appreciation of evidence, learned Sessions Judge convicted the appellant under section 366-A IPC read with section 8 of the POCSO Act and awarded sentence as indicated above. 5. Aggrieved the appellant preferred the instant appeal. 6. I have considered the submissions made by the learned Amicus Curiae as well as learned Addl. PP and scrutinised the evidence brought on record. 7. 5. Aggrieved the appellant preferred the instant appeal. 6. I have considered the submissions made by the learned Amicus Curiae as well as learned Addl. PP and scrutinised the evidence brought on record. 7. Learned Amicus Curiae strenuously arguing for the acquittal of the accused/appellant submits, that there was no evidence of sexual assault or sexual harassment and the victim being in relationship with the appellant eloped with him on her own volition, and as such, no offence was committed by the appellant. Supporting the conviction and sentence, learned Addl. PP Mr. Goswami contends that the evidence brought on record proved the guilt of the appellant beyond all reasonable doubt and as such, the conviction and sentence of the appellant calls for no interference. 8. The victim was examined as Pw-6. She deposed that at about 2.30 PM while she was coming from School, the appellant Sohidul Ali obstructed her on the way, forcibly put her into a Maruti Car and proceeded towards Harimura. According to her, the vehicle was driven by the driver Mohidul Islam. She further stated that while proceeding in the vehicle, the appellant rebuked her by using slang language and also touched her body. The appellant took her to the house of a person of Rava community and left her there for about two hours. She told the inmates of the said house that the was not in love with the accused and accordingly, the women of the said house informed the parents of the victim about the occurrence. She further stated that after about two hours the accused came back and took her from the said house and while proceeding towards Krishnai, police caught them on the way and arrested the appellant. 9. Pw-3 deposed that while she was in her house, a car parked in front of their house. A boy and a girl alighted from the car and came to their house and she offered them to sit. Noticing the girl weeping, when she asked, as to what has happened, the girl disclosed that she had no love affair with the boy and requested her (Pw-3) to inform her father. Accordingly her husband made a call to the father of the victim. She also stated that after a while the said boy and the girl left her house. 10. The informant, father of the victim was examined as Pw-1. Accordingly her husband made a call to the father of the victim. She also stated that after a while the said boy and the girl left her house. 10. The informant, father of the victim was examined as Pw-1. He testified that when his daughter aged about 14 years was coming from school, she was kidnapped. Having come to know about the occurrence he rushed to the place of occurrence and found that the books and bicycle of the victim was lying on the road. He immediately informed the police and lodged the FIR at Krishnai PS. He further stated that at about 4 pm police caught the accused along with the victim and later on he took his daughter in his custody from the Court. He did not state anything regarding the sexual harassment to the victim. 11. Pw-2 Kahinur Islam deposed, that while he was coming from market, he had seen the victim and other students going home as the school was over. He further stated that suddenly one maruti car came and stopped near the victim, dragged her into the car and left the place. Immediately he informed the father of the victim and on the same day the victim was recovered by police. 12. Pw-4 Nureja Bewa stated that she came to know from Atikul, that the victim was kidnapped from the road, while she was coming from School and later on, she was recovered by police. 13. Pw-5 Johinur Islam stated that he was informed by Pw-1 about the occurrence and he accompanied the police to search the victim. He further stated that after sometime the victim was recovered from the vehicle by which she was taken away by the accused. 14. Pw-7 & Pw-8 pleaded ignorance about the occurrence. Pw-9 was the Investigating Officer. He deposed that initially a GD entry was made at about 2.35 PM wherein, it was stated that the victim was kidnapped and accordingly, he along with other staffs proceeded in search of the victim and recovered her from the car in which, she was travelling with the appellant. 15. Pw-10, the medical officer who examined the victim deposed that the victim was 15 years of age at the time of the occurrence. The doctor also stated that no external injury was found on the body of the victim. 16. 15. Pw-10, the medical officer who examined the victim deposed that the victim was 15 years of age at the time of the occurrence. The doctor also stated that no external injury was found on the body of the victim. 16. A dispassionate scrutiny of the oral testimony of the prosecution witnesses, more particularly, the victim (Pw-6), father of the victim (Pw-1) and the Investigating Officer (Pw-9) shows that the victim was taken by the appellant from the road while she was coming from school at about 2.30 PM and after 11/2 hour she was recovered by police from the vehicle in which she was taken away. What is evident from the testimony of the victim is that though, she stated that the accused took her from school with other students she did not raise any alarm. It is also admitted position that the appellant left her in the house of the Pw-3 for almost two hours, where also she did not made any complaint of kidnapping. She only told that she had no affairs with the appellant. Evidently she remained in the house of Pw-3 for two hours waiting for the appellant and did not refuse to accompany the appellant, though allegedly her father was informed. The medical evidence also does not support the allegation of forceful removal of the victim. Although Pw-3 deposed that her husband informed the father of the victim (Pw1), the Pw-1 did not support the testimony of the Pw-3 that husband of Pw-3 informed him over phone. All these facts and circumstances speaks loud and clear that the appellant did not apply any force to take her away, though there might be inducement. The medical evidence shows that the age of the victim was 15 years, which was also supported by the Pw-1, the father of the victim, who deposed that the age of the victim was 15 years at the time of the occurrence. Even if an error of two years is taken into consideration on the higher side, then also the age of the victim becomes 17 years. From the testimony of Pw-1, it was clear that she was taken away from the road, while she was coming from school and caught by police while they were coming out from the house of Pw-3. From the testimony of Pw-1, it was clear that she was taken away from the road, while she was coming from school and caught by police while they were coming out from the house of Pw-3. What therefore emerges from the oral testimony of the prosecution witness including the Investigating Officer is that the victim was a minor at the relevant time and she was taken by the accused out of the keeping of the lawful guardian by inducement. 17. In order to constitute an offence under section 366-A IPC prosecution needs to establish the following ingredients: wxyz I. The accused has induced the girl. zyxw wxyz II. The girl has been induced to go from a place or to do any act, zyxw wxyz III. The girl must be below 18 years of age zyxw wxyz IV. The accused induced the girl to go with him with the intention that she may be forced or seduced to illicit intercourse with another person, Or, zyxw wxyz V. The accused has the knowledge that the girl is likely to be forced or seduced to illicit intercourse with another person. zyxw 18. The evidence brought on record though established that the accused took the victim from the road by inducement, there was no evidence to suggest even remotely that the appellant induced the victim to go with him or had taken away with the intention to force or seduce her to sexual intercourse with another person. Therefore, apparently, the vital ingredients of the offence of section 366-A IPC were absent. Therefore, on the facts and circumstances and the materials on record, the conviction under section 366-A IPC is not sustainable. However, the evidence brought on record establishes the offence of kidnapping as defined under section 361 IPC, inasmuch as, the appellant evidently took away the victim a minor girl out of the keeping of the guardian. 19. Evidently the victim was recovered within two hours of the occurrence from the vehicle when she was found travelling with the appellant. However, she did not tell to anyone about any sexual harassment during the journey, and as such, the evidence and materials brought on record was also grossly inadequate to establish the allegation of sexual harassment in order to prove the charge under section 8 of the POCSO Act beyond doubt. However, she did not tell to anyone about any sexual harassment during the journey, and as such, the evidence and materials brought on record was also grossly inadequate to establish the allegation of sexual harassment in order to prove the charge under section 8 of the POCSO Act beyond doubt. Accordingly, the conviction and sentence of the appellant under section 366-A IPC and section 8 of the POCSO Act are set-aside, instead he is convicted under section 363 IPC. 20. Upon modification of the conviction, the accused is sentenced to imprisonment for 2 (two) years and to pay a fine of Rs.1,000/- in default to SI for further 1 (one) month. With the above modification in the conviction and sentence, the appeal stands partly allowed. 21. Appreciating the assistance rendered by Mr. S Islam, learned Amicus Curiae, it is provided that he will be entitled to professional fees of Rs.7000/-. Upon production of a copy of this judgment Guwahati High Court Legal Services Committee shall pay the fee to Mr. Islam. 22. Send down the LCR along with a copy of this judgment.