Gauhati High Court
Md. Nazimuddin Laskar vs The State Of Assam on 16 May, 2019
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
Page No.# 1/7
GAHC010013272018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J) 11/2018
1:MD. NAZIMUDDIN LASKAR
S/O. MD. ALTAB ALI LASKAR, ROKORPAR, P.S. LAKHIPUR, DIST. CACHAR
VERSUS
1:THE STATE OF ASSAM
GHC, GHY.
2:RESPONDENT 2
Addres
Advocate for the appellant: Mr. L.R. Mazumder and
Mr. Bhaskar Baruah, Amicus Curiae.
Advocate for the respondents: Mr. B.J. Dutta, Addl. P.P., Assam and
Mr. A. Choudhury.
BEFORE
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
Date of hearing & judgment: 16.05.2019.
JUDGEMENT AND ORDER (ORAL)
Heard Mr. L.R. Mazumdar, learned counsel being assisted by Mr. Bhaskar Baruah, learned Page No.# 2/7 Amicus Curiae for the accused/appellant. Also heard Mr. B.J. Dutta, learned Addl. P.P., Assam representing the State respondent as well as Mr. A. Choudhury, learned counsel for and on behalf of the informant.
2. The prosecution case in brief is that the informant who is the mother of the victim lodged an FIR before the O.C., Joypur P.S. on the allegation that her minor daughter aged about 14 years 8 months was missing from the house and on making inquiry, she learnt that her daughter was kept in the house of the accused person and accordingly on the basis of the FIR, the Joypur P.S. Case No.25/2014 was registered, u/s.366 IPC. During the course of investigation, the victim was recovered on the following day of lodging the FIR, she was medically examined and her statement was also recorded before the Magistrate u/s.164 CrPC. On conclusion of the trial, the I.O. submitted the charge sheet against the accused u/s. 366/344 of the IPC read with u/s. 6 of the POCSO Act.
3. The case was committed to the Court of Sessions and the learned Court after hearing both sides and considering the materials on record framed the formal charges u/s. 366/376 IPC read with Section 4 of the POCSO Act. The accused person denied the charges and pleaded not guilty.
4. In order to substantiate the charges, the prosecution examined 8 witnesses. The defence examined none and the plea of the defence is of total denial.
5. At the conclusion of the trial, the accused was convicted u/s.366 IPC, read with Section 4 of the POCSO Act and sentenced him u/s.366 IPC to undergo R.I. for two years and also to pay a fine of Rs.3,000/-, in default R.I. for one month and convicted u/s. 4 of the POCSO Act, to undergo R.I. for seven years along with fine of Rs.10,000/-, in default R.I. for three months, with further direction that the amount of fine if realized be paid to the victim as compensation. The Secretary of the DLSA was also directed to make a further inquiry to provide further compensation in appropriate manner, vide order dated 14.09.2017, in Special POCSO Case No.1/2016, by the learned Special Judge, Cachar at Silchar.
Page No.# 3/7
6. Challenging the legality and validity of the judgment, the appellant is before the Court.
7. I have considered the submission of learned counsel for the parties and also gone through the evidence on record.
8. The learned counsel for the appellant assisted by the learned Amicus Curiae has made submission that in view of the delay in filing the FIR coupled with the inconsistent statement given by the victim girl, which is not supported by the Medical Officer, the prosecution cannot claim that the charges have been proved beyond all reasonable doubt. The learned counsels for the appellant have also led the Court through the evidence on record.
9. Whereas according to the learned counsel for the State respondent as well as the informant, irrespective of the factum of delay in lodging the FIR, in view of the fact that the victim was a minor at the relevant point of time which has been proved by the oral testimony of the guardian as well as the school certificate that was obtained by the I.O. during the course of investigation, is sufficient to prove that the victim was minor at the relevant time and as such the accused is liable to be convicted for the said offence, as he cannot take the privilege of the consent of the victim girl, who is a minor.
10. Pursuant to the submission, this Court has also gone through the evidence on record.
11. So far as the FIR is concerned, it is to be noted that the same was filed after about two months of the occurrence and there is no explanation as to the cause of delay in filing the FIR, whereas admittedly the victim is the only child of the informant.
12. PW.1 and PW.4 are the parents of the victim and PW.3 is the uncle of the victim/brother of the PW.1. Their testimony will show that the victim girl (PW.2) did not return from the school after she went to appear in the examination. They have not mentioned any date as to the day of occurrence. However it is stated by the PW.1 and PW.4 that as the victim did not return till afternoon, then PW.3 informed them over telephone that the accused has taken away the victim. It is sated that though they searched for the victim but could not find her. After two months of the occurrence, they informed Page No.# 4/7 the police and went to the house of the accused and recovered the victim. As regards the age, it is stated that she was 14 years 8 months at the time of occurrence. On recovery, the victim daughter reported to them that the accused has forcefully taken her in an Auto.
13. It is to be noted that they have not totally mentioned as to the reason as to why they did not immediately went to the house of the accused to recover the girl while they were informed on the very day of occurrence by PW.3 that the accused has taken away their daughter. Under the circumstances, it can be held that it is a serious lacuna on the part of the prosecution not to explain such a long delay in filing the FIR.
14. According to the PW.1 and PW.4, they accompanied the police at the time of recovery of the victim from the house of the accused person but their statement is contradicted by the evidence of the I.O. (PW.8) while he stated that these two witnesses never accompanied him at time of recovery of the victim. The further statement of the PW.1 and PW.4 that on the very day of occurrence, the PW.3 informed them that the accused took the victim to his house, is also not stated before the I.O. That being the position, it is also not clearly explained as to under what circumstances, these witnesses awaited for such a long period of two months while their minor daughter was stated to have missing from their house. These witnesses also did not state before the I.O. that they were told by the victim that she was forcibly taken away by the accused, lifting in an auto.
15. Turning to the evidence of PW.2/the victim girl, it would reveal that she has stated that while returning from the school after appearing in examination of Class-VII, the accused forcibly took her into an auto by gagging her mouth and took her to Ramnagar (Lakhipur) to his maternal uncle's house and his maternal uncle gave marriage with the accused and thereafter the accused took her to his house at Rokorpar and she stayed with him as husband and wife for two months with physical relation. In her statement, she has not stated that the accused made forceful relation with her.
16. Now so far as the version that she was forcibly taken away by the accused, perhaps not Page No.# 5/7 supported by her own conduct and her statement that she made before the Medical Officer (PW.5). It is to be noted that the said PW.5, who examined the victim immediately after her recovery, she gave her statement that about two and half months ago, she eloped with the accused person and both of them got married and since then they were staying together in his house with physical relation. Her parents were against their marriage.
17. The forwarding report of the I.O. at the time of arrest of the accused also revealed that the victim made a statement before the I.O., immediately after the recovery that she has eloped with the accused at her own will. In such backdrop, while the victim herself made no attempt to fled away from the clutches of the accused, if she was forcibly taken away by him, raise the scope to hold that she has voluntarily went with him and chose to remain with him, having physical relation as wife.
18. On the other hand, there is also no any supporting evidence at all about such forceful kidnapping by the accused person if at all she was returning from the school, because at that time there may be so many friends of her and others on the road who may have noticed such forceful abduction. It is also noticed that she was stated to be kidnapped in an auto and took her from one place to another and at that point of time also she made no any effort to get away from the accused.
19. Thus from overall appreciation of the evidence on record, it can be safely held that there was no forceful abduction of the victim by the accused.
20. Now it is the case of the prosecution that the victim was a minor. So minor's consent is no consent and even the case of the prosecution under the POCSO Act, one can be convicted if any act of sexual offence is made out upon a minor. It is very much true that sexual assault upon a minor is an offence. In that context we have now to decide whether the victim is proved to be a minor in the present case.
21. Of-course the parents of the victim as well as the victim herself have stated that the victim is a school going student and her age is 14 years 8 months but despite the fact, no school certificate/age Page No.# 6/7 certificate has been produced by the prosecution during the course of trial to prove the age of the victim. The Medical Officer (PW.5), who has given an opinion that the age of the victim may be 14 to 16 years, but in her cross-examination she has stated that it is mere opinion and the age of the victim will be above 16 years if one go by the Modi's Jurisprudence Chart properly. It is a settled law that the evidence of the Medical Officer is mere opinion and it never conclusive as regards the age of the victim. As has been held by the Hon'ble Apex Court in Jaya Mala vs. Home Secretary, reported in AIR 1982 SC 1297, along with such opinion of the Doctor, another three years can be added to the age of the victim girl.
22. On the next, it is to be noted that although the PW.6 has produced certain attested Xerox copy of school certificate of the victim vide Ext.5, which was obtained during the course of investigation but it is to be noted that the school authority, who issued such certificate is not examined as witness. More so, it is not in original. It is a settled law that mere exhibiting a document will not prove the contents of the document unless the author of the document, who issued such document, is examined by the prosecution. Accordingly no explicit reliance can be placed upon such certificate produced by the prosecution.
23. Taking into all the materials discussed above and the circumstances, it can be held that even if we assume the recovery of the victim girl from the house of the accused, which is according to the appellant side is not proved properly but in view of the conduct of the victim and her different statements at different time coupled with the evidence of PW.1 and PW.4, it would be unjustified to place explicit reliance upon such statement of the victim. Similarly the delay in lodging the FIR without any explanation is also another vital lacuna in the prosecution case. Moreover, it is also not exclusively proved that the victim was a minor at the time of occurrence who in fact admittedly remained with the accused as his wife for more than two months. In the circumstances, it can be held that charges leveled against the accused person is not proved beyond all reasonable doubt.
Page No.# 7/7
24. Resultantly I find and hold that the accused deserved acquittal on the benefit of doubt. Accordingly the impugned judgment and order dated 14.09.2017, in Special POCSO Case No.1/2016, passed by the learned Special Judge, Cachar at Silchar is hereby quashed and set aside. The accused be released forthwith.
25. This Court appreciate the assistance rendered by Mr. Bhaskar Baruah, learned Amicus Curiae while conducting the case and the Gauhati High Court Legal Services Authority is hereby directed to provide him a sum of Rs.7,000/- (Rupees seven thousands) only as remuneration.
26. Return back the LCR along with a copy of this judgment.
JUDGE Comparing Assistant