Gauhati High Court
Md Abdul Matin Pradhani & 2 Ors vs The State Of Assam on 20 April, 2016
Author: A. K. Goswami
Bench: A. K. Goswami
1
THE GAUHATI HIGH COURT (for reporting)
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH)
Crl. A. 162/2009
1. Md. Abdul Matin Pradhani,
S/o Gulam Mustafa @ Mostofa Pradhani,
Vill. No. 1 Joyma, P.S. Gossaigaon,
Dist. Kokrajhar (BTC), Assam.
2. Md. Sanil Ali,
S/o Md. Batul Sheikh @ Batul Ali,
Vill. No. 2 Joyma, P.S. Gossaigaon,
Dist. Kokrajhar (BTC), Assam.
3. Sri Fulo Roy,
S/o Sri Nagan Roy @ Nagen Roy,
Vill. No. 1 Joyma, P.S. Gossaigaon,
Dist. Kokrajhar (BTC), Assam.
- Appellants
-Versus-
,
The State of Assam
- Respondent
BEFORE
HON'BLE MR. JUSTICE A. K. GOSWAMI
Advocates present:
For the appellants : Mr. M. H. Ahmed,
Mr. I. Hussain, Advocates
For respondents : Mr. D. Das,
Additional Public Prosecutor, Assam.
Dates of hearing : 18.04.2016 and 20.04.2016.
Date of order : 20.04.2016.
JUDGEMENT AND ORDER
(ORAL)
Heard Mr. M. H. Ahmed, learned counsel for the appellants. Also heard Mr. D. Das, learned Additional Public Prosecutor, Assam.
2. The appeal is directed against the judgment and order dated 05.09.2009 passed by the learned Additional Sessions Judge (FTC), Kokrajhar, in Sessions Case No. 28/06 (G.R. Case No. 139/2005), convicting the accused appellants under Section 366A/34 IPC and Crl. A. 162/ 2009 2 sentencing them to suffer rigorous imprisonment for three years each and fine of Rs. 2,000/- each, in default, simple imprisonment for three years.
3. The learned Trial Court held that the prosecution failed to prove the case against the appellants under Section 376 IPC.
4. By an order dated 19.10.2009, passed in Crl. Misc. Case No. 592/2009, the impugned judgment and order dated 05.09.2009 was suspended till disposal of appeal and the appellants were allowed to remain on previous bail as granted by the learned Trial Court.
5. An Ejahar was lodged on 04.03.2005 by the brother of the victim (PW3), who is herein after referred to as "X", stating that on 24.02.2005 at around 11:00-12:00 P.M., his younger sister Musstt. Arjina Begum, aged about 13 years, went missing from her bed while she was sleeping. Searches were made to trace her out and, later on, it was learnt that the accused persons (i.e. the appellants herein) had called her out from her bed and taken her in a Maruti vehicle to Bijni. Thereafter, her whereabouts was not known. However, on the previous day, at around 07:00-08:00 P.M., she was abandoned near the railway track of Guabari Gaon and as a result thereof, she had to go to the residence of her brother-in-law, Md. Azizul Hoque.
6. On receipt of the aforesaid Ejahar (Ext.1), Gossaigaon Police Station Case No. 38/2005, under Sections 366A/34 IPC was registered. After completion of investigation, Charge-Sheet (Ext.4) was filed.
7. The statement of the victim girl was recorded under Section 164 Cr.PC on 07.03.2005 (Ext.2). During trial, prosecution examined 6 (six) witnesses including the Medical Officer and the Investigating Officer as PW-5 and PW-6, respectively.
8. Father and brother of the victim were examined as PW-1 and PW-2, respectively, and the victim was examined as PW-3. The elder sister of the victim was examined as PW-4.
9. Mr. M. H. Ahmed, learned counsel for the appellants has submitted that after almost ten days of the occurrence, Ejahar was lodged, concocting a false story without any explanation for the delay in lodging the Ejahar. Best evidence (School certificate) with regard to the age of the victim was not produced. The medical report shows that the age of the victim was below 18 years and, according to him, the Medical report is not conclusive proof of the age of the victim. Having regard to the evidence on record, which goes to show that the alleged victim was in the company of the accused persons for a considerable long period of time and was travelling to different places, it is apparent that there was no Crl. A. 162/ 2009 3 inducement of any kind upon her and that it was a voluntary act on the part of PW3. Mr. Ahmed has pressed into service a judgement of the Apex Court in the case of Sunil vs. State of Haryana , reported in (2010) 1 SCC 742, and the judgements of this Court in the cases of Sam sul Hoque @ Sam sul Haque @ Sam sul Alam vs. State of Assam , reported in 2005(3) GLT 105 as well as Gourango R oy and Ors. vs. State of Tripura, reported in 2007 (2) GLT 379.
10. Mr. D. Das, learned Additional Public Prosecutor, however, submits that non- production of the birth certificate will not derail the prosecution case. The medical report has indicated that the girl was below 18 years of age and the victim herself had stated her age to be around 16 years and, therefore, the impugned judgement requires no interference.
11. I have considered the submissions of the learned counsel for the parties and have perused the materials on record.
12. In Jaya M ala vs. Hom e Secretary, Governm ent of Jam m u and K ashm ir and Others, reported in AIR 1982 SC 1297, the Apex Court held that margin of error in age ascertained by radiological examination was two years on either side. In Sam sul Haque (supra), the doctor, who had held the ossification test, had opined that the age of the victim was above 16 years and below 18 years. Holding that there is a margin of error of two years on either side in an ossification test, this Court held that the victim was not a minor and the case being voluntary elopement, the benefit must go to the accused.
13. In Gourango Roy (supra), the alleged kidnapped girl was fully grown up and was aged about 17 years at the time of the occurrence. In the facts and circumstances of the case, it was observed by the Court that the alleged kidnapped girl was a consenting party and there was no evidence to presume, though the girl was not 18 years of age at the time of the occurrence, that she was kidnapped by the accused persons and was compelled to marry the appellant No. 1 therein against her will. It was held that the prosecution story appeared to be a story invented mechanically subsequent to the recovery of the girl by the police.
14. In Shyam and Another vs. State of M aharashtra , reported in AIR 1995 SC 2169 , the Apex Court had opined that the conduct of the alleged victim girl therein, subsequent to the alleged kidnapping, goes to show that she was a willing party to go with the appellant on her own. The Apex Court opined that the prosecutrix was not tied to the bicycle and if she had really been kidnapped, she could have easily jumped off the bicycle. The Apex Court had observed that the prosecutrix was fully grown up and, even if she did Crl. A. 162/ 2009 4 not attain the age of 18, was still in the age of discretion, sensible and aware of the intention of the accused, that he was taking her away for a purpose, and yet she did not put up a struggle or raised any alarm.
15. In Sunil (supra), the Apex Court observed that in a criminal case conviction cannot be based on an approximate date, which is not supported by any record.
16. By the time the evidence was recorded on 13.02.2008, "X" had married. In her examination-in-chief, she had stated that Matin and Phulo had gagged her mouth and had carried her forcefully and made her sit in a car where Sanil was already sitting. She had shouted for help, but without any avail and they had, thereafter, taken her to Bijni and Guwahati and thereafter abandoned her at Guabari. It was specifically asserted by her that the accused persons did not have intercourse with her. From her cross-examination, it appears that she was put up in a house belonging to a relation of Matin at Bijni, and she had slept with the paternal aunt of Matin. Though she stated that she had told the paternal aunt of Matin that she had been kidnapped, such statement has to be taken with a pinch of salt inasmuch as, in the next morning, she went walking all the way to railway station for going to Guwahati by train and, at that time, she was accompanied by Salil. On the way, she had come across many people and she did not raise hue and cry. They had waited for the train on the platform where many other passengers were present. In the train also there were many passengers and, after disembarking from the train at Guwahati, she went to the residence of a relative of the accused by undertaking a journey of one hour by rickshaw, where she also interacted with the family members of the relative of the accused and, all along, Salil was with her. On the next day, they returned and she got down at Gossaigaon rail station and then she went to Guabari.
17. The conduct of "X", the alleged victim, that is to say, walking with Salil in crowded areas and travelling with fellow passengers belies the claim that there was any kind of pressure or coercion upon her or that she was abducted or kidnapped or allured or induced to travel with the accused persons. In the Ejahar, it was mentioned that "X" had gone missing from her bed at around 12-30 O'clock at night. In the Ejahar it was also stated that she had gone out to attend to a call of nature when the accused persons had caught hold of her. However, the subsequent conduct of PW3 in freely mixing up with the accused persons put a dent in the prosecution case and it appears to the Court that she had volunteered to go out with the accused persons on the night of the occurrence. In the Section 164 CrPC statement, she had stated that she was taken to Guwahati in a Line Bus, which is totally different from a train journey undertaken by her, as deposed by her in the evidence. It was Crl. A. 162/ 2009 5 also stated therein that they returned back from Guwahati to Gossaigaon by train where Salil kept her in a house and, then abandoned her. However, the story of abandoning her is not presented in her evidence before the Court. In her statement under Section 164 CrPC, she had also alleged that Salil had raped her but, in her evidence she was categorical that the accused did not have intercourse with her. In her deposition before the Court, she had stated that she had given statement under Section 164 CrPC (Ext.-2) involving the accused persons as advised by the police.
18. Though PW1 and PW2 had stated that the Ejahar was lodged on the next date of the occurrence, it is seen that the Ejahar (Ext-1) was lodged only on 04.03.2005. Contrary to the statement made in the Ejahar that they came to know about the incident involving PW3 immediately, PW4, with whom PW3 was sleeping on the night of the occurrence, stated that she came to learn about PW3 going missing only in the morning. It appears to the Court that the prosecution has suppressed the actual occurrence.
19. PW5, on the basis of radiological report, had opined that the age of the girl is below 18 years. In such report, it was not indicated as to what would be her minimum age. Significantly, the father of PW3 did not mention the age of PW3. It came out from the evidence of PW3 herself that she was a student. The school certificate or the birth certificate is the best evidence as regards age. The same was not produced.
20. On the basis of the radiological report, which put the age of the girl below 18 years, given that there is a margin of error of two years on either side, it will be hazardous to hold that PW3 was below 18 years of age. Going by the evidence projected by the prosecution, it cannot be said with certainty that PW3 was below 18 years of age. She appears to have taken a voluntary part in the entire episode and, therefore, in the facts and circumstances of the case, I am of the considered opinion that the appellants are entitled to acquittal on the touchstone of benefit of doubt. Accordingly, the impugned judgement is set aside.
21. The appeal is allowed. The appellants are set at liberty.
22. Bail bond of the appellants stand discharged.
23. Registry will send back the LCR.
JUDGE RK Crl. A. 162/ 2009 6 Crl. A. 162/ 2009 7 Crl. A. 162/ 2009