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2020 DIGILAW 99 (GAU)

Md Mostafa Jaman v. State Of Assam

2020-01-30

PARTHIVJYOTI SAIKIA

body2020
JUDGMENT Parthivjyoti Saikia, J. - Heard the learned counsel, Mr. I. A. Talukdar, appearing for the appellant. Also heard Mr. D. Das, learned Additional Public Prosecutor, Assam, appearing for the State respondent. 2. The challenge in this appeal is to the judgment dated 06.01.2010, passed by the learned Additional Sessions Judge (F.T.C.) No. 3, Kamrup, Guwahati, in Sessions Case No. 343 (K) of 2008. By the impugned judgment, the learned Court below convicted the appellant under Section 366 A of the Indian Penal Code and awarded imprisonment for a period of 3 (three) years along with fine of Rs. 10,000/- and in default of payment of fine, rigorous imprisonment for another period of 6 (six) months. 3. The prosecution against the appellant lies within a short campus. He fell in love with the girl who was below 18 years of age. In the complaint, the age of the girl is stated to be 14 years as her birth certificate discloses her date of birth to be 02.11.2001. The father of the victim girl had lodged the complaint alleging that on 11.01.2006, the appellant had kidnapped his minor daughter. 4. During the period of investigation, the victim girl gave her statement under Section 164 of the Cr.P.C. She had admitted before the Magistrate that she was in love with the appellant for a long time. She further stated before the Magistrate that pursuant to her love affair with the appellant, she herself had gone with the appellant and married him. 5. On completion of investigation, the police filed the Charge-Sheet against the appellant under Section 366 A of the Indian Penal Code. Accordingly, the learned Trial Court also framed the charge under Section 366 A of the Indian Penal code. The accused pleaded not guilty before the learned Trial Court and accordingly, the Trial proceeded. 6. As many as 6 (six) witnesses were examined by prosecution. The defence plea was total denial and the appellant examined 1 (one) witness. Thereafter, on the basis of the evidence on record, the learned Trial court arrived at the impugned finding. 7. The accused pleaded not guilty before the learned Trial Court and accordingly, the Trial proceeded. 6. As many as 6 (six) witnesses were examined by prosecution. The defence plea was total denial and the appellant examined 1 (one) witness. Thereafter, on the basis of the evidence on record, the learned Trial court arrived at the impugned finding. 7. The only point for determination of trial is as to whether the appellant induced the minor girl under the age of eighteen years to go from any place or to do any act with the intend that such girl may be, or knowing that it is likely that she will be, forced or seduced to do illicit intercourse with another person. 8. Considering the nature of the offence, I shall first take up the evidence of the victim. She has stated in her evidence that the appellant is her husband. She disclosed that pursuant to her love affair with him, she had gone with the appellant on her own. She has also stated in her evidence that her father was cruel to her and that is also another reason for which she had gone with the appellant. 9. The other witnesses are Torap Ali, the father of the victim; Naimuddin Ahmed; Taizul Haque; Bholanath Sarma, the Police Investigating Officer; and Dr. R. Chaliha, who examined the victim girl at the time of police investigation. 10. After going through the impugned judgment, I find that the learned Trial Court has held that a minor girl does not have the right to choose her life partner without the wishes of her parents. It appears that the Trial Court insinuated that if her parents had agreed then she would have the right to choose her life partner. 11. Be that as it may, Section 359 of the Indian Penal Code has laid down that kidnapping is of two grounds, viz, (i) kidnapping from India and (ii) kidnapping from lawful guardianship. 12. At this stage, a visit to Section 366 A would be fruitful. It is quoted herein below "366A. 11. Be that as it may, Section 359 of the Indian Penal Code has laid down that kidnapping is of two grounds, viz, (i) kidnapping from India and (ii) kidnapping from lawful guardianship. 12. At this stage, a visit to Section 366 A would be fruitful. It is quoted herein below "366A. Procuration of minor girl.-Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine." 13. On a plain reading of Section 366 A of the Indian Penal Code, it is clear that whoever procures a minor girl for some other person than only he can be held guilty under this Section. If he kidnaps a woman for him, then he shall be guilty under Section 366 of the Indian Penal Code. In Section 366 of the Code the age is immaterial. So, the learned Trial Court has erroneously framed the charge under Section 366 A and also erroneously convicted under Section 366 A of the Indian Penal Code. 14. Leaving this aspect of the case aside, I find that the reason for finding the convict guilty is not at all acceptable. At the risk of repetition, I would state that the learned Trial Court has held that it would have agreed to the marriage of the minor girl with the appellant if consent was given by her parents. 15. Here in this case, the victim has stated that she had gone with the appellant on her own. There is no cross-examination on that point and therefore, it is clear that she was a consenting party to the act of the appellant. Taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. In S. Varadarajan vs. State Of Madras, (1965) AIR SC 942 , the Hon'ble Supreme Court has observed thus --- "Where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In S. Varadarajan vs. State Of Madras, (1965) AIR SC 942 , the Hon'ble Supreme Court has observed thus --- "Where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our, opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking"". 16. Reverting to the case in hand, I find that there is no evidence to prove that the appellant had induced the victim to go with him. Thus, this Court finds that the impugned judgment is not sustainable. The offence against the accused appellant has not been proved beyond all reasonable doubt and accordingly, the impugned judgment dated 06.01.2010, passed by the learned Additional Sessions Judge (F.T.C.) No. 3, Kamrup, Guwahati, in Sessions Case No. 343 (K) of 2008, is set aside. The appellant is acquitted from this case. 17. The offence against the accused appellant has not been proved beyond all reasonable doubt and accordingly, the impugned judgment dated 06.01.2010, passed by the learned Additional Sessions Judge (F.T.C.) No. 3, Kamrup, Guwahati, in Sessions Case No. 343 (K) of 2008, is set aside. The appellant is acquitted from this case. 17. With the observation made above, the criminal appeal stands disposed of. 18. Send down the LCR.