Gauhati High Court
Nur Rahman & 2 Ors vs State Of Assam on 10 January, 2017
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL
PRADESH)
Criminal Appeal 107 of 2014
(1) Nur Rahman, Banskandi Part II, Lakhipur,
Police Station, Cachar District (Assam).
(2) Nur Mohammad alias Lal Babu, Kanakpur,
Part II, Joypur Police Station, Cachar District
(Assam).
(3) Kutub Uddin, Kanakpur Part II, Joypur Police Station,
Cachar District (Assam).
....Appellants
-vs-
(1) State of Assam
(2) Abdul Hamid, Lanka Basti, Lakhipur Police Station,
Silchar, Cachar District (Assam).
............ Respondents
BEFORE HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN For the appellants : Mr. HRA Choudhury, Sr. Advocate, Mr. J. Islam, Mr. AAR Karim and Ms. S.F.Maitin, Advocate.
For the respondent : Mr. B.Sarma, Addl. P.P. Assam.
For the Respondent no.2 : N/P
Date of hearing : 8.12.2016
Date of Judgment : 10.1.2017
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JUDGMENT & ORDER (CAV)
Heard Mr. HRA Choudhury, learned senior counsel appearing for the appellants as well as Mr. B.Sarma, learned Addl. Public Prosecutor, Assam, for the Respondent State.
2. This appeal has been preferred by the appellants against the judgment and order dated 3.2.2014 rendered by the learned Addl. Sessions Judge, (FTC) Cachar at Silchar in Sessions Case no.325/2010 U/S 366/376/34 IPC convicting the accused appellants and sentencing them to undergo rigorous imprisonment for (four) years and to pay fine of Rs.5,000/- each u/s 366/34 IPC, in default simple imprisonment for seven years and to pay a fine of Rs.5000/- each U/S 376/34 IPC in default S.I. for another four months.
3. The prosecution case, inter alia is that on 26.5.2009 at about 5 pm one Md. Abdul Hamid of Lamba Basti, P.S.Lakhipur Silchar, District Cachar lodged a written ezahar to the In-charge, Banskandi Police Out Post alleging that on 21.5.2009 at about 8 AM where his daughter Halima Begum (aged about 17 years) was going to the tailoring work at Banskandi Bazar, the accused appellant no.2 at the instigation of accused appellant nos. 1 and 3 kidnapped his daughter. At that time his daughter had gold ornaments on her ear, neck and hands worth Rs.25,000/- and a mobile phone worth Rs.4000/- with her. On due search, he came to learn that the accused appellant no.2 kept confined his daughter in the house of accrued appellant no.1 with the help of accused appellant nos. 1 and 3. The delay in filing the ezahar was caused for the said searching process.
4. On receipt of the said ezahar, the In-charge, Banskandi Polcie Out Post made a G.D.Entry No. 474 dated 26.5.2009 at 5 PM and forwarded the same to the O/C Lakhipur Police Station for registering a case. Accordingly, a case was registered vide Lakhipur Police Station Case No. 142/09 U/S 366(A)/34 IPC (G.R. Case No.1800/2009). After completion of investigation charge-sheet u/s 366 (A)/376/34 IPC was submitted against all the accused appellants showing accused appellant nos. 2 and 3 as absconders.
35. After receipt of the Charge-sheet, the learned CJM, Cachar at Silchar was pleased to take cognizance and after furnishing the copies of relevant document u/s 207 CrPC, committed the case to the court of Sessions as the case was exclusively triable by the Session Court. Accordingly a case vide Sessions Case No.325/2010 was registered and after hearing the counsel of both the sides, framed cartages U/S 366 /376/34 IPC against all the accused appellants and the same was explained to them to which they pleaded not guilty and claimed to be tried.
6. During trial the prosecution examined as many as 6 witnesses including the Medical Officer and the Investigating Officer of the case. The prosecution witnesses were cross-examined by the defence and after conclusion of the evidences for prosecution, the accused appellants were examined U/S 313 CrPC and their plea was of total denial. The defence denied to adduce any evidence in its support. On conclusion of trial the accused appellants convicted as aforesaid. Hence the appeal before this Court.
6. The learned counsel for the appellants vehemently contended that the conviction of the accused appellants by the impugned judgment and order dated 3.2.2014 is unwarranted and unsustainable in law inasmuch as, the facts available on records clearly reveals that there is no eye witness in this case and the PW 1 (victim girl) is also not at all reliable and further, the prosecution miserably failed to bring home the prosecution case in all its fronts, not to speak to prove/establish its case beyond all reasonable doubts for which the impugned judgment and order of conviction and sentence are bad in the eye of law.
7. Further it has been contended that the learned trial Court failed to appreciate the evidence in due manner which has resulted failure of justice. The delay in filing the FIR is not explained satisfactorily as well as the statement of vital witness the victim woman is inconsistent on material aspect, and that the victim being a major girl remained with the accused appellant without making any effort to flee way from the clutch of the accused, that the victim girl admitted her marriage with the accused Nur Mohammad @ Lal Babu in her statement U/S 164 CrPC which she denied in course of trial, etc not at all considered by the learned trial Court. Pointing towards the aforesaid serious infirmities in the prosecution story the learned counsel for the appellants has urged before this Court that no credibility can be given to the prosecutrix and the appellants deserve acquittal.
48. On the other hand, the learned Addl. P.P. has submitted that the evidence of prosecutrix can be relied on in view of ht fact that she was minor at that point of time and she was forcefully taken away by three persons and she was kept in confinement at different places for which she was unable to fled away. She has given categorical statement in course of trial as against the accused appellants about forceful abduction implicating the accused appellants with the offence alleged. The learned trial Court has rightly convicted the accused appellants.
9. I have given due consideration to the rival submissions and gone through the evidence on record.
10. So far as the case concerned it is to be noted that the informant filed the FIR after about one week of the occurrence. According to the informant, his daughter, aged about 17 years went out to tailoring shop on 21.5.2009 at about 8 a.m. and she did not return and he came to know that the accused person Nur Mohammad @ Lal Babu at the instigation further two accused appellants kidnapped his daughter and that time she was wearing gold ornaments of Rs.25,000/-and having mobile phone of Rs.4000/- and she was kept confined in the house of Nur Mohammad @ Lal Babu. It is to be noted that although the victim girl was missing as on 21.5.2009 in the morning but FIR was filed on 26.5.2009 in the evening, which is itself peculiar as, no guardian will await for filing an FIR if a minor girl is found missing. Moreover, age of the girl is also not properly mentioned which is stated to be 17 years approximately, there being scope to hold that the informant is not sure about the age of his daughter.
11. In her evidence the victim girl (PW1) has stated that on the day of occurrence while she was returning from tailoring shop Baskandi and reached Lambabasti, three accused appellants forcibly picked her up in a Maruti Van by gagging her mouth with cloth and they took her to Shillong and kept her in confinement in a motor garage and all accused persons committed rape upon her against her will. After five days they took her back to Baskandi Adhabasti and kept her in the house of Nur Mohammad @ Lal Babu wherefrom she was recovered with the help of police. She is stated to be 17 years of age at the time of occurrence. She gave statement before Magistrate vide Ext.1. In her cross examination she has stated that though she raised alarm at the time when she was taken away but none came for rescue. The Maruti Van in which she was taken came back to Baskandi. At the time of keeping her at Shillong she used to remain alone while accused Lal Babu went out for work. She also used to go toilet 5 which is nearby the garage and there are number of residents and shops nearby the garage. Further it is stated by her that while she was taken back from Shillong to Baskandi in a Night Super she did not reported to the other passenger about the incident. Thus her evidence reveals that while staying at Shillong she did not report the matter to anybody nor on her return home from Shillong to Silchar then to Baskandi by Night Super as well as taxi reported any one of the persons she meet although there are lots of persons in the Bus Sand as well as Taxi Stand. She also denied her marriage with the Nur Mohammad @ Lal Babu with her consent and in cross-examination it is stated she stated before the Magistrate about her marriage with accused Nur Mohammad @ Lal Babu out of fear of accused persons.
12. The said victim girl in her statement U/S 164 CrPC has given a different story which is materially contradictory to the statement given in course of trial. Obviously, in view of her admission about such statement which is prior in time and immediately after her recovery bears much impact in the helm of affair. In the said statement Ext.1 she has stated that only the accused Nur Mohammad @ Lal Babu forcefully took her inside the vehicle and proceeded to Shillong and kept her in a garage and lateron other two accused appellants arrived and all of them committed rape upon her. The accused Nur Mohammad @ Lal Babu married her as per Muslim Sariat. It appears that her statement is totally inconsistent with the testimony given in course of trial. According to Ext.1 there was only one accused Nur Mohammad @ Lal Babu in the vehicle and he administered drugs at the time of her kidnapping for which she became senseless but in course of trial she has stated that three accused appellants was there inside the vehicle and all of them forcibly took her by gagging her mouth with a cloth. Such inconsistent statement of the victim woman, who is stated to be a major one aged above 20 years by the M.O.PW6, cannot be accept as a truthful version of the facts.
13. That apart, if at all the victim girl was raped by three accused persons for five days continuously then there must be some sort of mark of injury and other sign of sexual intercourse on the person of the victim but the evidence of M.O.reveals that there is no sign of recent sexual intercourse, no evidence of violence on her person and she is aged above 20 years, Vide Ext.5. That being so, a girl aged above 20 years if not a consenting party then there must be some injury on her private part as well as sign of intercourse, which is not found in the present case.
614. On the next it is found that though the victim girl has denied about her marriage with accused Nur Mohammad @ Lal Babu in course of trial (which she admitted in her statement U/S 164 CrPC) but her own brother has nullified her version. The PW 2, Md. Abdul Rashid Choudhury, own brother of the victim girl has stated that he was informed by his father about missing of his sister and lateron on recovery of his sister she reported him that she got married to accused Nur Mohammad @ Lal Babu and they are staying together as husband and wife for about a week. Such a statement of a material witness is sufficient to discredit the testimony of the victim who has changed her version at her own will, which cannot be permitted to accept her testimony in the parlance of law as well as fact., She being a major girl was found missing from the public road and thereafter she remained with the accused for about a week without resisting the accused, and her long stay with the accused Nur Mohammad @ Lal Babu with a liberty to go outside the house and thereafter also while returned back from such a long distance from Shillong to Baskandi which is more than 300 Kms she made no any attempt to flee way all reveals her voluntary conduct. In the given circumstances, her testimony in curse of trial that she was kept in confinement, that she stated about marriage out of fear etc is no way can be acted upon and her evidence is not at all inspiring and convincing.
15. Other two witnesses PW 3 Abdul Mazid and PW4 Imrana Choudhury related to the informant has simply stated the they came to know about missing of PW 1 as told by the informant (since expired) and they have no direct knowledge about the occurrence. However, after recovery PW 1 reported that she was forcibly taken to shillong by accused persons and raped her. In the cross examination PW 4 stated that while making search for the victim girl they met the owner of the tailoring shop where the victim girl used to receive training, who replied that victim girl did not come to the shop on that day. Equally, on enquiry in the nearby shop nobody can give any information to them. This portion of evidence again raises serious doubt upon the testimony of the prosecutrix who said that she was kidnapped while returning from the tailoring shop.
16. The investigating officer has also stated that the place of occurrence is of National Highway i.e. Silchar Imphal Road and that being so if the victim girl made hue and cry at the time of kidnapping she could have rescued by the people passing by.
7The I.O. has also contradicted the statement of victim that she did not state before him that she was picked up by accused by gagging her mouth in a Maruti Van.
17. In a given case there being no eye witness to the occurrence and the whole case centered around the testimony of the victim girl who has given a inconsistent testimony during the course of investigation and trial and more particularly she being a major one cannot be expected to give such twisting evidence unless motivated by falsehood. Her evidence being doubtful cannot be made the sole basis for conviction of the accused appellants. The learned trial Court failed to appreciate all above aspects in proper perspective of law and facts and has accepted the version of the victim as gospel of truth, whereas the prosecution failed to prove the charges against the accused appellants beyond all reasonable doubts.
18. In view of all above finding and discussions appeal is allowed. Charge U/S 366 (A)/376/34 IPC failed and all the accused persons are acquitted from the charge. Return the LCR forthwith along with a copy of the judgment to the Court below.
JUDGE Nandi