Gauhati High Court
Ritom Bora vs The State Of Assam on 4 April, 2019
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
Page No.# 1/8
GAHC010223972017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J) 112/2017
1:RITOM BORA
VERSUS
1:THE STATE OF ASSAM
Advocate for the appellant: Mr. A.K. Gupta, Amicus Curiae.
Advocate for the respondent: Mr. B.J. Dutta, Addl. P.P., Assam.
BEFORE
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
Date of hearing & judgment: 05.04.2019.
JUDGEMENT AND ORDER (ORAL)
Heard Mr. A.K. Gupta, learned Amicus Curiae for the accused/appellant. Also heard Mr. B.J. Dutta, learned Addl. P.P., Assam representing the State respondent.
2. The present appeal has been preferred by the appellant from inside the jail who has been convicted by the learned Sessions Judge, Dhemaji, in Sessions Case No.78(DH)2016, u/s.366 of the IPC, read with Section 4 of the Protection of Children From Sexual Offences Act, 2012 (in short 'the Page No.# 2/8 POCSO Act').
3. The prosecution case in a nut shell is that on 19.05.2016, one Smti Tutumoni Saikia, the mother of the victim lodged an FIR, before the Gogamukh P.S. that on 18.05.2016, at 3 P.M., the accused person forcefully took away her daughter who is a student of Class-X, from the Gogamukh Chariali. She came to know that the accused has also another wife. On the basis of the aforesaid FIR, the Gogamukh P.S. Case No.99/2016 was registered, u/s.366(A) IPC. During the course of investigation, the victim was recovered and after completion of the investigation, the charge sheet was submitted against the accused u/s. 366(A) IPC.
4. The case was committed to the Court of Sessions being the offence u/s. 366(A) IPC is triable by the Court of Sessions.
5. The accused person faced the trial, denied the charge u/s.366 IPC, that was framed against him.
6. In support of the case, the prosecution examined 8 witnesses including the Investigating Officer and the Medical Officers. But however prior recording the statement of the accused u/s. 313 CrPC and considering the submission of the victim, the Court also framed charge u/s. 4 of the POCSO Act, which was accordingly explained to him to which he pleaded not guilty. The statement of the accused person was also recorded u/s.313 CrPC, who has taken the plea of juvenility and accordingly an ossification test was conducted to examine the actual age and in turn there was a medical report from the Medical Officer of Dhemaji Civil Hospital that the accused is 18 years, however the learned Sessions Court held that the accused was not juvenile on the day of occurrence. Thereafter the statement of the accused person was recorded u/s. 313 CrPC, wherein he has stated that they have love affairs and it was the victim herself who used to call him and asked him to take her out and he submitted that the victim went with him voluntarily and committed consensual sex with him, not by force.
Page No.# 3/8
7. The learned trial Court after examination of the witnesses found and hold the accused guilty and sentenced him to undergo R.I. for 5 years u/s. 366 IPC. The accused is also found guilty under Section 4 of the POCSO Act and sentenced him to suffer R.I. for 7 years and to pay a fine of Rs.4,000/- in default R.I. for four months.
8. Being aggrieved and dissatisfied with the aforesaid order, the present appeal is preferred.
9. The plea of juvenility is also taken before this Court at the initial stage of hearing. Accordingly the learned Sessions Judge, Dhemaji was directed to conduct a proper inquiry under The Juvenile Justice Act to determine the age of the accused/appellant. After the enquiry, the learned Sessions Judge furnished his report that the age of the accused on the day of occurrence was 18 years 8 months 28 days and he is not a juvenile. Hence the matter is taken up for hearing accordingly.
10. The learned counsel for the appellant has basically referred to the facts and circumstances and the conduct of the victim which is relevant for consideration of the entire case. It has been argued by the learned Amicus Curie that although the victim was a school going student but no any specific birth certificate or school certificate has been produced and proved by the prosecution to prove her age. On the other hand, from the evidence of two Medical Officers, the age of the victim appears to be 16 years which is again only an opinion and as per the decision in Jaya Mala vs. Home Secretary, reported in AIR 1982 SC 1297, followed by this Court in 2015 (3) GLT 89 (Nasib Hussain vs. State of Assam and others), it has been submitted that in such approximate age of the victim, another age of three years can be added in view of the guideline given in the aforesaid decisions.
11. On the next, the conduct of the victim has been referred, which will reveal that in fact she has voluntarily gone with the accused person for which she has not made any hue and cry or for any assistance.
12. The learned counsel for the State respondent has submitted that in view of the statement of the victim that she was 15 years at the time of occurrence as well as the medical evidence, given by Page No.# 4/8 the Medical Officers stating her age to be 16 years (approx.), the victim is a minor and in view of her statement u/s.164 CrPC as well as before the learned trial Court, it can be held that the accused has kidnapped the girl by enticing and has also committed rape upon her.
13. I have given due consideration to the submission of both the parties.
14. Let us have a look into the evidence of the victim which is crucial for the prosecution case. The said victim (name withheld) who was examined as PW.2 in her statement before the Court has stated that while she went to the market on the day of occurrence, at about 3 P.M. she met the accused who proposed to take her with him but she denied. Thereafter the accused by showing a blade told her that he will die if she does not go with him and thereafter the accused caught hold her and took her in a car to Lakhimpur and also put vermilion on her forehead and had some physical relation with her by force. Almost similar statement has been given by her u/s. 164 CrPC.
15. In addition to that she has also stated in her statement that the accused is known to her who proposed to love her and on the day of occurrence, she was taken by him with threatening that he will die if she do not accompany him.
16. In view of the statement of the victim herself give rise a question as to why the victim will accompany a person if she do not bother for him. If she is not at all concerned with the accused/appellant, then she might not even frighten by the threat of suicide by the appellant. Her evidence is more peculiar while she deposed that by showing the blade, the accused took her into the vehicle and thereafter she went with him from Gogamukh to Lakhimpur and she tried to project a case that she do not know how she reached Lakhimpur thereafter. Although she has stated about presence of her sister at the time of occurrence, while the accused taken her from the road but said sister was not examined, to reveal the truth of kidnapping. Neither the mother of the victim (PW.1) has stated about their second daughter who accompanied the victim at the time of occurrence.
17. Had the testimony of the victim is true that the accused by threatening took her forcibly and Page No.# 5/8 certainly the sister of the victim will report such matter to her parents but such a serious matter neither found place in the FIR, nor in the testimony of the victim. So it can be safely inferred that the victim has suppressed the actual facts.
18. It is an admitted position that the victim remains two days with the accused person in a house of his relative but during this period, she made no any protest against the conduct of the accused nor made any attempt to fled away from the clutches of the accused. In such backdrop and in view of the admission about the love proposal by the accused/appellant, coupled with her stay with the accused without any protest, it can also be inferred that she voluntarily took part in the entire episode.
19. So far as the age of the victim girl is concerned, she has not produced any sort of relevant documents to prove her age and the medical evidence shows that she is 16 years of age.
20. Regarding the dispute as regards the age of the victim, in Smt. Kavita vs. U.P. and others, reported in 2012 SCR 2723, the Hon'ble Supreme Court held as follows:
"............................it has been held that the determination of age is on the realm of being the estimated age on account of scientific exercise. This is the reason, the Hon'ble Apex Court in a case of Jaya Mala v. Home Secretary, AIR 1982 SC 1297, has observed that if the age has been determined by the Doctor, medically, then 3 years have to be added to such assessed age. The judgment has consistently been followed in cases of such nature to give weightage the age of victim so as to appreciating the evidence of minority/majority of the victim in favour of the accused. In addition to that, it is trite that if the girl who is at the verge of majority walks out of her parent's house to go with any man then it could not be a case of kidnapping as the same could not be said to be act of taking away or enticing away a woman below 18 years of age. It could be a mere case of elopement. The proposition was laid down by the Hon'ble Apex Court in the case of S. Varadarajan v. State of Madras, Manu/SC/ 0081/1964, AIR 1965 SC 962.
21. Now in the instant case, after scrutiny of the evidence, it is found that though the victim girl is stated to be a school going children but no school certificate has been produced to prove the authenticity of the age of the victim. It is well settled that to prove the age of school going children, the school certificate is the best evidence and prosecution has not explained any reason for non-
Page No.# 6/8 production of such best evidence. On the other hand, as has been pronounced in the above case law 2012 SCR 2723, Smt. Kavita v. State of U.P., we can added another 3 years to the age mentioned by the medical officer in the given case and in that case, the age of the victim girl will be 18 years and it is also seen that without any ossification test, etc., the medical opinion has been given by the M.O. and his mere opinion is subject to deviation. Even if we could hold that the victim is at the verge of majority, went-out with the accused voluntarily(as discussed above), it would not amount to inducement on the part of the accused nor same could not be said to be an act of taking away.
22. Taking into account the legal principle enunciated above and in view of the testimony of the victim as well in the present case, it can also be held that the victim was major at the time of occurrence. Moreover, from the aforesaid discussion, it can also be inferred that the victim was not forcibly taken away by the accused person and there is scope to hold that it is a case of elopement due to love and affection and not a case of kidnapping within the purview of Section 361 IPC.
23. After close scrutiny of evidence of the victim, the same is not found to be truthful one so as to place explicit reliance to arrive at the guilt of the accused.
24. So far as the other witnesses are concerned, there is no eyewitness to the occurrence. The PW.1 being the informant/mother of the victim has simply stated that her daughter was not returning home on the day of occurrence. They made search for her and on the next day morning the accused informed over phone that the victim girl is with him and solemnized marriage and then she filed the FIR, vide Ext.1. Although she had stated that the victim girl was 15 years of age but no any appropriate document/certificate was filed.
25. PW.3 is a reported witness who has simply stated that the victim girl was found missing from her house which was reported to her by PW.1 to her and she has no knowledge about the occurrence.
26. PW.5 and PW.6 are the Medical Officers, who have examined the victim and according to the PW.5, the age of the victim is above 15 years and below 17 years and according to the PW.6, the age Page No.# 7/8 of the victim is 16 years.
27. As has been discussed above, such a medical evidence of opinion can never be a conclusive evidence as regards the age.
28. The Investigating Officers (PW.7 and PW.8) have stated in their evidence about the investigation and the fact that on being informed by one person namely Hari Saikia, the accused and the victim was located at Dhemaji, who appeared before the Police Station.
29. In the present case, we can find that the age of the victim is not conclusively proved. Her statement that she was taken by the accused on threatening is not supported by her conduct and other circumstances, as discussed above and even if she is not held to be major aged 18 years, then also she has all the knowledge of consequences of such elopement and having consensual sex with the accused person. Morever the medical report never said about any sort of sexual intercourse upon the victim.
30. If a victim who is a grown up girl, indulged with consensual sex with the accused, it is hard to attribute any criminal culpability to that the accused person who is also similarly situated, aged 18 years 8 months 28 days. The entire case depicts about the case of elopement of both the victim as well as the appellant, who are at the stage of adolescent for which such incident has ultimately occurred. Accordingly there is no scope to hold about the offence under Section 4 of the POCSO Act.
31. Taking into account all above, it can be find and hold that the impugned judgment and order is not sustainable at all and accordingly the order of conviction and sentence is hereby set asideand the accused person is set at liberty forthwith.
32. This Court appreciate the assistance rendered by Mr. A.K. Gupta, the learned Amicus Curiae while conducting the case and the High Court Legal Services Authority is hereby directed to provide him a sum of Rs.7,000/- (Rupees seven thousands) only as remuneration.
33. Return back the LCR along with a copy of this judgment.
Page No.# 8/8 JUDGE Comparing Assistant