Research › Search › Judgment

Gauhati High Court · body

2020 DIGILAW 67 (GAU)

Md. Nazim Uddin v. State of Assam

2020-01-23

AJIT BORTHAKUR

body2020
JUDGMENT : Ajit Borthakur, J. 1. Heard Mr. P Dutta, learned counsel for the appellant and Mr. D. Das, learned Addl. Public Prosecutor, appearing for the State/respondent. 2. This appeal has been preferred under Section 374(2) of the Cr.P.C. praying for setting aside the impugned judgment and order, dated 30.04.2013, passed by the learned Sessions Judge, Karimganj in Sessions Case No. 31/2011, whereby the accused appellant has been convicted and sentenced to rigorous imprisonment for a period of one year and to pay a fine of Rs. 1,000/- (Rupees One Thousand) only, in default to undergo a further term of rigorous imprisonment for one month under Sections 366/511 of the IPC. 3. An FIR was lodged by the father of the victim girl on 14.03.2011, before the Officer-In-Charge of Longai P/P under Karimganj Police Station alleging that on that day, at about 1/1.30 pm, when his daughter went to their vegetable garden to fetch vegetables, the accused appellant appeared there and made an attempt to have physical relation with her and when she resisted his approach, he assaulted her and made an attempt to abduct her by dragging. Based on the aforesaid FIR, GD Entry being Longai PP GDE No. 253/2011, dated 14.03.2011 was made and on being forwarded registered as Karimganj PS Case No. 123 of 2011, under Sections 354/323/366/511 of the IPC, dated 15.03.2011. 4. After completion of investigation, police submitted a charge sheet under Sections 354/366/511 of the IPC against the accused appellant. The learned CJM, Karimganj committed the case to the court of learned Sessions Judge, Karimganj, vide order, dated 30.03.2011 passed in GR Case No. 276 of 2011. Thereafter, Sessions Case No. 31 of 2011 was registered in the Court of learned Sessions Judge, Karimganj. The learned Sessions Judge, Karimganj, after considering the materials on the case diary and hearing the learned counsel for both the sides, framed charges under Sections 354 and 366 of the IPC read with Section 511 of the IPC, vide order, dated 10.05.2011. The charges, on being read over and explained to the accused appellant, he pleaded innocent and claimed to be tried. In order to prove the charges aforementioned, the prosecution examined six witnesses including the investigating officer. On closing the case of the prosecution side, the statement under Section 313 Cr.P.C. was recorded. The accused appellant pleaded innocent and declined to examine any witness in defence. In order to prove the charges aforementioned, the prosecution examined six witnesses including the investigating officer. On closing the case of the prosecution side, the statement under Section 313 Cr.P.C. was recorded. The accused appellant pleaded innocent and declined to examine any witness in defence. Thereafter, the learned Sessions Judge, on appreciation of evidence on record and hearing the learned counsel of both sides, convicted and sentenced the accused appellant as stated above. 5. Mr. P Dutta, learned counsel for the accused appellant, submits that the learned Sessions Judge has come to an erroneous finding on facts and law as the only allegation to the effect that the appellant caught hold of the victim girl from the backside and tried to drag away did not satisfy the ingredients of the offence of abduction under Section 366 of the IPC. According to Mr. Dutta, there is no semblance of materials to indicate that the intention of the accused appellant was to compel the victim girl (PW-2) to marry her or seduce her to illicit intercourse by deceitful means and as such, the whole prosecution case is shaken warranting no conviction of the accused appellant for the alleged offence of attempted abduction. 6. Per contra, Mr. D. Das, learned Addl. Public Prosecutor appearing for the State/respondent, submits that the allegation of attempted abduction of the victim girl, aged about 20 years, is quite inspiring and the purpose behind such conduct is concerned and as such, no interference in the impugned Judgment and Order is called for. 7. In Gabbu Vs. State of M.P. reported in (2006) 5 SCC 740 , the Hon'ble Apex Court has held as herein below: "11.****** to constitute an offence under Section 366, IPC, it is necessary for the prosecution to prove that the accused induced the complainant-woman or compelled by force to go from any place, that such inducement was by deceitful means, that such abduction took place with the intent that the complainant may be seduced to illicit intercourse and/or that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction. Mere abduction does not bring an accused under the ambit of this penal Section. Mere abduction does not bring an accused under the ambit of this penal Section. So far as a charge under Section 366, IPC is concerned, mere finding that a woman was abducted is not enough, it must further be proved that the accused abducted the woman with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. Unless the prosecution proves that the abduction is for the purposes mentioned in Section 366, IPC, the Court cannot hold the accused guilty and punish him under Section 366, IPC. 12. We have gone through the statement of the prosecutrix. The prosecutrix nowhere alleged that she was abducted with the intention to commit an offence, that she was compelled to marry the accused or any other person or that the accused knew that she would be forced or seduced to illicit intercourse or that it was likely that she would be forced or seduced her to illicit intercourse." 8. In the instant case, perusal of the evidence of PW-1, the father of the victim girl (PW-2), reveals that at the time of the alleged occurrence, he was at his home along with his wife and daughter and he sent his daughter (PW-2) to the vegetable garden to collect vegetables and at that relevant time, the occurrence had taken place. The FIR was lodged when he came to know about the incident from his daughter, the victim girl (PW-2). 9. Coming to the evidence of PW-2, it appears that at the time of the alleged occurrence, she went to the vegetable garden to collect vegetables. The accused appellant followed her and from the backside, caught hold of her hand. She raised alarm. Her evidence further reveals that the accused tried to take her away ostensibly for some work. On raising alarm, her family members rushed to the place of occurrence. At the time of the alleged occurrence, she was accompanied by her niece, namely, Hasna Begum, aged about 10 years. However, the prosecution has not examined the said Hasna Begum obviously for not being cited as witness in the charge sheet, although she was a competent witness. 10. On raising alarm, her family members rushed to the place of occurrence. At the time of the alleged occurrence, she was accompanied by her niece, namely, Hasna Begum, aged about 10 years. However, the prosecution has not examined the said Hasna Begum obviously for not being cited as witness in the charge sheet, although she was a competent witness. 10. Turning to the evidence of PW-3, Abdul Khalique, it is noticed that at the relevant time of the occurrence, he was working in his land situated nearby to the place of occurrence, for growing vegetables. Hearing her (PW-2) cry, when he turned, he found PW-2 running away from the place of occurrence and some people caught hold of the accused appellant. However, during evidence, he could not identify the accused appellant as the person whom the people caught. Going ahead to the evidence of PW-4, Md. Namor Ali, it appears that he was an eye witness to the alleged occurrence. He saw the accused pulling the wearing cloths of the victim (PW-2). The evidence of PW-5 Abdul Hannan appears to be hearsay as he learnt from Mubarak Ali, Namor Ali (PW-4) and others that the accused appellant attempted to rape PW-2 and on raising alarm, the neighbouring people rushed to the place of occurrence and nabbed the accused appellant. 11. A perusal of the evidence of PW-6, SI Sajal Ch. Deb, the investigating officer, it appears that he had drawn the sketch map of the place of occurrence, vide Exhibit-2, which shows the place of occurrence as the vegetable garden of PW-1. It is noticed from his evidence that the victim (PW-2) refused to undergo necessary medical tests. Therefore, it appears that the alleged occurrence of attempt of abduction had taken place at the vegetable garden of PW-1, the father of the victim girl (PW-2). 12. Although the defence elicited some contradictions in the evidence of PWs 1 to 5, on a close scrutiny of those statements made by the prosecution witnesses, this Court finds that there is no factual discrepancy on any material point to the evidence of the PW-2 (the victim) and as such, not significant enough to disbelieve the evidence of the victim girl (PW-2). It is clear from their evidence that the accused appellant induced the victim girl (PW-2) to go from the place of occurrence in the pretext of having a work done. It is clear from their evidence that the accused appellant induced the victim girl (PW-2) to go from the place of occurrence in the pretext of having a work done. But from the nature of the conduct of the accused appellant, it is clear beyond doubt that he intended to have physical intimacy with her or any other act mentioned in the Section at a nearby place for which purpose, he made attempt to abduct her. Thus, the offence of attempt to abduct has been completed with the dragging of the victim girl forcibly, that too with an intention to commit, any of the acts mentioned in Section 366 of the IPC with her (PW-2), to which she did not agree and raised alarm to save herself from his clutch. In this regard, non-examination of Hasna Begum, Rubiana Begum and Abdul Hannan, who allegedly witnesses the occurrence, does not cloud the veracity of testimony of the victim (PW-2) corroborated in material particulars by PW-4, so far her attempted abduction is concerned and when the accused appellant has not examined any witness to the contrary of the evidence led by the prosecution in the case. 13. For the reasons, set forth above, the appeal stands dismissed. 14. The accused appellant is directed to surrender before the court of the learned Sessions Judge, Karimganj within a period of 1(one) month to serve out the sentence. The criminal appeal stands disposed off.