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In the Court of Assistant Sessions Judge, Karimganj.
District:- Karimganj. Sessions Case No-47/2012.
U/S-366(A) / 376/342/34 IPC.
State of Assam……………………….………….……………Prosecution.
-VS-
Tuman Nath &
Mithon Nath………..……………..………………..…..…Accused Persons.
Present:- Shri A. Rahman, L.L.M., A.J.S.
Asstt. Sessions Judge,
Karimganj.
For the prosecution- Mr. N. Dutta Roy, Ld Additional PP.
For the defence- Mr. D. R. Das & A. Ekbal Ld Advocates.
Charge framed on- 31/3/2012&,23-8-2012.
Evidence Recorded on-16/05/2012,11/10/2012,14/12/2012,21/02/2013,15/03/2013&07/05/2013
Argument heard on- 20/05/13 .
Judgment delivered on – 28/05/13.
J-U-D-G-M-E-N-T
1. Prosecution case as unfolded in the trial is that on 09-
01-2010 at about 12 noon,the minor 16years old daughter “X”(actual
name withheld) of informant Bijit Kumar Nath of Jalalpur, a student of
class XI ,Bhanga Higher secondary school while coming to attend her
music class,at Madhab Dham, Srigouri,accused persons viz- Tumon
Nathand Mithon Nath both of Chandpur under Borkhola , Cachar
kidnapped her by a Maruti van from NH-44 .Thereafter, she was kept
confined at the house of accused Tumon Nath and he committed rape
on her against her will.
Contd....
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2. As “X” did not return home of the informant on the said
day, himself and his relatives started searching her at several places
but could not find clue of her. Subsequently, the fact of kidnapping of
‘X’ by the accused persons came to the knowledge of informant upon
which, he lodged Ext-1 FIR with the Badarpur police station.
3. The criminal investigation was put in to motion as soon
as Ext-1, FIR was received by the Officer in Charge of Badarpur police
Station from informant Bijit Kumar Nath (PW-1), a case being
Badarpur PS case No- 2/02, dated 15-01-2010, U/S 366(A) IPC was
registered. Shri D. J. Saikia, SI ( PW-7) was entrusted to investigate the
case.
Investigation:
4. During the investigation, the I/O recovered the victim
girl; she was sent to Karimganj Civil Hospital for her medical
examination and produced before the Magistrate for recording her
statement U/S 164 CRPC. He also visited the place of occurrence, drew
sketch map thereof, and examined the witnesses U/S 161 Cr.P.C. At the
conclusion of investigation, the IO having collected the medical
examination report of the victim girl and her statement recorded by
Magistrate submitted charge sheet against accused Tumon Nath only.
Commitment:
5. The case was committed by Ld. CJM, Karimganj to the
court of Hon’ble Sessions Judge who in turn passed the order dated 31-
3-2012 made over the record of GR case No-42/2010 to this Court for
trial.
Trial.
6. On appearance of the accused Tumon Nath, initially,
considering the materials on CD including the statement of the victim
Contd......
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girl recorded U/S 164 Cr. P. C and hearing the Ld. Addl. PP as well as
Ld Advocate for the accused person, charge U/S 366( A) IPC was
framed. The accused person denied the charge so framed.
Subsequently, during trial considering the evidence of the witness
including the victim(X), accused Mithon Nath was impleaded with the
rope of Section 319 CRPC. Thereafter, considering the evidence of the
victim girl” (PW-3) and hearing both sides, charge U/S 376 IPC against
accused Tumon Nath and charges U/S 366(A)/342/34 IPC were
framed against accused Mithon Nath. They denied the charges and
claimed to be tried.
7. To substantiate the charges against the accused
persons, prosecution examined altogether sevenwitnesses including
the M/O and I/O. The prosecution also exhibited the FIR, the
statement of the victim girl recorded U/S. 164 Cr. P.C., her medical
examination report, the birth certificate of the victim and also the
charge-sheet. The accused persons were examined U/S. 313 Cr.
P.C.They denied all the allegations levelled against them by the
prosecution. The plea of accused TumonNath is that the alleged victim,
being a major girl following her love affairs with him for one year prior
to the alleged occurrence voluntarily went to his house and got
married with him. However, the accused persons declined to adduce
evidence.
8. I have heard Mrs. Rebi Roy, Ld. Addl. P.P. and Mr. D.R.
Das and Mr. A. Ikbal , Ld. Advocates for the accused persons at length.
9. Now the points for determination are –(i) Whether the
accused persons in furtherance of their common intention kidnapped
the victim girl (X) on 09/01/2010 at about 12/12.30 PM from Srigouri
Contd......
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nearby Madhavdhab knowing / with the intention that she might be
compelled to marry accused Tumon Nath accused her will or that she
might be seduced to illicit intercourse with her and thereby committed
offence punishable U/S. 366 (A) /34 IPC?
(ii) Whether the accused person Tumon Nath committed
rape on the victim girl (X) by forcibly making physical intercourse with
her against her will and consent and thereby committed offence U/S.
376 IPC?
DISCUSSION, DECISION AND REASON THEREOF
10. During the course of argument hearing, Ld. Advocates
appearing on behalf of the accused persons stridently argued that the
prosecution’s case, in the face of it is false and doubtful on two counts –
Firstly, there is delay of about five days in lodging the FIR (Ext. 1) and
no explanation has been provided either in the FIR itself or during the
trial by PW 1 who lodged the same. Secondly, the age of victim girl(X)
could not be proved by the prosecution either by oral or documentary
evidence including the medical evidence to be below 18 years on the
date of alleged occurrence. And onthis count, it is submitted by Mr. A.
Ikbal , Ld. defence counsel that the prosecution has miserably failed to
establish offence U/S. 366 (A)/376 IPC and as such, the accused
persons are entitled to benefit of doubt coupled with inordinate delay
in lodging the FIR without any explanation of such delay.
11. On the other hand, Mrs. R. Roy, Ld. Addl. P.P. submitted
that the prosecution side has proved beyond reasonable doubt that the
victim girl (X) was below 18years on the date of occurrence. Mrs. Roy
submitted that the evidence of PW 1 being the father of the victim and
Ext. 5 (also Ext. 7) the birth certificate and Ext. 3 the evidence of the
Contd......
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doctor clearly established the fact that she was below 18 years of age
and as such, the aforesaid submission of the Ld. defence counsel is of
no help for the defence. And the offence U/S. 366 (A) /376 IPC has
been established against the accused persons beyond reasonable
doubt.
12. Now, in order to appreciate the correctness of the above
submission of Ld. Advocates of both sides, it is plausible to scrutinize
the evidence. Considering the offences alleged to have been committed
by the accused persons and the above submission of both sides, it is
plausible to discuss the evidence in order to ascertain the age of the
victim girl at the very outset.
13. PW 1 Sri Bijit KR. Nath being the father of the victim girl
(X) has deposed that he lodged Ext. 1FIR on 15/01/2009 and Ext. 1 (1)
is his signature. He has also testified that at the relevant time of
occurrence the age of his daughter (X) was 16 years and she just
passed her matriculation examination. It is pertinent to mention here
that on the petition filed by prosecution, PW 1 was re-examined and he
produced Ext. 7 (proved in original), the birth certificate issued on
27/09/2008 by Registrar, Births and Deaths, Srigouri CHC to show the
date of birth of his daughter. Ext. 7 reveals that (X), was born on
04/12/1993.
14. In cross-examination of PW 1, he has made it clear that
at the time of HSLC Examination of his daughter (X), he applied for
birth certificate through the Panchayat authority to which he supplied
the date of birthof his daughter as per his own idea. He has also very
distinctly stated that there is no writing regarding the birth of his
daughter at his house and her horoscope was also not prepared. Thus,
from the evidence of PW 1, it becomes clear that he obtained Ext. 7
Contd......
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birth certificate of his daughter (X) after long years of her birth and
the date mentioned therein was supplied by him by his own idea. That
being the position, even if, Ext. 7 is relevant U/S 35 of the Evidence Act,
but the date of birth of mentioned therein cannot be accepted as
correct and relied on as true. Therefore, it is unsafe to rely on birth
certificate (Ext. 7) to ascertain the actual age of the victim girl at the
relevant time of occurrence. As per Ext. 1, the occurrence took place
on09/01/2010 and as such, as per Ext. 7 , the age of ‘X’ was about 16
years , 08 months, 27 days even if, this document is taken into
consideration. In his cross-examination, he has candidly stated that he
himself did not witness the occurrence of abduction of his daughter.
15. PW 3 (X), the victim girl in her evidence has clearly
stated that Ext. 2 is her statement recorded by Magistrate during the
investigation and she has affirmed that Ext. 2(1) is her signature. From
Ext. 2, it appears that PW 3 on oath deposed that her age was 17 years
at the relevant time of occurrence.
16. Now, turning to the medical evidence, it appears that
PW 6, Dr. (Mrs.) Suparna Paul examined PW 3 on 16/01/2010 at
Karimganj Civil Hospital and found the followings---
i) No. of teeth:- 7/7⌠7/7 (28 in numbers).
ii) No sign of injury mark on her body and private parts.
iii) Secondary sexual characters well developed.
iv) HPE examination of vaginal swab – No spermatozoa
seen.
v) (a) X-ray of wrist joint, elbow joint, knee joint and hip
joint not ossified.
vi) Hymen absent.
Contd......
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She has opined that the age of the victim is below 18
years and rape cannot be said in view of absence of injury on her
private parts.
PW 6 has stated that Ext. 3 is her report and Ext. 3 (1) is
her signature.
In cross-examination, she has opined that the age of the
girl may vary from 17 to 18 years.
17. In the case of Jaya Mala ---------VS---------Home
Secretary, Govt. of Jammu and Kashmir and Others (1982) 2 SCC
538, the Hon’ble Supreme Court has observed as follows---
“………………………… However, it is notorious and one can
take judicial notice that the margin of error in age ascertained
by radiological examination is two years on either side”.
18. Therefore, in view of the aforesaid medical evidence, it
may be inferred that PW 3 at the relevant time of occurrence might be
18 years also. On the other hand, following the said ruling of the
Hon’ble Apex Court, it can also be held that PW 3 might attain 18 years
of her age at the relevant time of occurrence. Therefore, in view of the
above discussion and observation, it can be safely concluded that PW 3
at the relevant time of occurrence was above 16 years and she might
attain 18 years also. Thus, it appears that prosecution has failed to
establish that PW 3 was below 16 years at the relevant time of
occurrence.
19. In the instant case, considering the facts and
circumstances of the case and the offences for which the accused
persons have been charged with, PW 3 appears to be most vital
witness. As such, it is plausible to scrutinize her evidence at first.
Contd......
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20. As regards the offence of kidnapping, PW 3 has in her
examination in chief has testified that on 09/01/2010 at about
12/12.30PM, at the relevant time of occurrence while she was going
to Music School at Srigouri Madhavdham, she crossed a little distance
of the Music School towards shop in order to purchase a pen as she
forgot to bring her pen with her from home. Then the accused person
Tumon Nath and Miton Nath came by a green colour Maruti Van from
Karimganj and suddenly stopped nearby her. Then accused Tumon
Nath having got down from the vehicle lifted her in the van and
forcibly gagged her mouth for which she could not raise alarm. Both of
the accused persons moved her to so many places for 3/4 hours. They
also wrapped her eyes with cloth. And on 15/01/10, the accused
persons took her with the house of accused Tumon and kept her
confined therein under lock and key. She has further testified that
accused Tumon did bad works with her (rape) against her will and
outraged her modesty. She has further testified that on 15/01/10,
during night time at about 12.30 AM police rescued her from the house
of accused Tumon Nath. She has also stated thatshe gave Ext. 2
statement before the Magistrate as tutored by accused Tumon Nath.
In her cross-examination, PW 3 has very clearly stated that
Madhavdham is situated to the contiguous of NH 44. It is also clear
from her evidence that there is petrol pump and Azmal Foundation
Hospital nearby Madhavdham by the side of NH 44. Moreover, Srigouri
High School is also situated at a distance of only 150 meter from
Madhavdham. She has very candidly stated that she did not state
before the I/O that the accused Tumon had done bad works with her.
And she has also not stated in her statement U/S. 164 Cr.P.C. that the
accused person made physical relation with her. Towards the end of
her cross-examination, she has also stated that at the time of her
examination by the police, accused Tumon was inside police lock-up
Contd......
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and her father PW 1, aunt PW 2 Smti. Ratna Rani Nath were also
accompanied her to the Court at the time of recording her statement
before the Magistrate. Thus, it becomes clear that the statement of PW
3 that she gave her statement (Ext. 2) before the Magistrateas per
instruction of accused Tumon appears to be afterthought story.
Because, it is clear that at the relevant time, accused Tumon Nath was
in police lock-up.
21. PW 7 Shri Debjibon Saikia who is the I/O of this case has
clearly stated in his evidence (cross-examination) that PW 3 did not
state before him that the accused persons did not lift her in a Maruti
Car; rather she stated that she voluntarily went with accused Tumon.
And PW 7 has also stated that PW 3 also did not state before him that
she raised alarm at the PO. It clearly reveals from cross-examination of
PW 7 that PO is a busy place nearby NH 44 within the locality of which
Srigouri High School, Srigouri Hospital, Madhavdham High School are
also situated.
22. From the evidence of PW 3 and PW 7, it is crystal clear
that she did not state before the I/O that the accused persons
kidnapped her nor she had stated before him that accused Tumon Nath
did bad work with her.
23. In Baij Nath Shah ----VS_---------- State of Bihar,
(2010) 6 SCC 736, The Hon’ble Apex Court has laid down that
“statement U/S. 164 Cr .P.C. is not a substantive evidence and can
be utilised only to corroborate and contradict the witness vis a vis
as statement made in the Court. In other words, the statement
U/S. 164 Cr.P.C. may be utilised only as a previous statement and
nothing more”.
Contd......
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24. Ext. 2 clearly reveals that PW 3 having been in love
affairs with accused Tumon, came out from her house on 09/01/10 at
about 10.30 AM in the pretext of going to school and she
communicated with Tumon and thereafter, both of them went to
Silchar, got married and then went to his house. In Ext. 2 statement,
she has not stated that the accused persons kidnapped her by forcibly
lifting her in the Maruti nor she stated that the accused Tumon had
made physical relation with her. Thus, although Ext. 2 is not in sharp
contradiction with her statement before the Court, but it appears that
PW 3 has for the first time before the Court has stated that the accused
persons forcibly kidnapped her and accused Tumon Nath committed
rape on her. Thus, the testimony of PW 3 appears to be concocted and
exaggerated which renders her credence difficult to believe and accept
as gospel truth. PW 3 in her cross-examination has admitted that Ext.
A is her photograph with the accused Tumon. Ext. A clearly reveals that
PW 3 and accused Tumon took their snap jointly in a closed way which
indicates that they were in deep love. It has already been held that
PW3 at the relevant time of occurrence was above 16 years and she
might also attain the age of 18 years. That being the position, if we
accept that accused Tumon had sexual intercourse with her; in that
case also, she having crossed 16 years, had consent to such physical
relation with him because of love affairs. The aforesaid medical
evidence has ruled out any injury on her private parts and presence of
spermatozoa on her vaginal swab when she was examined on
16/01/2010 at Karimganj Civil Hospital. Hence, prosecution has failed
to prove the offence U/S. 376 IPC against accused Tumon Nath beyond
reasonable doubt. It also appears from Ext. 2 that PW 3 voluntarily
eloped with accused Tumon Nath to Silchar and got married there.
There is nothing in her deposition before the Court as well as in Ext. 2
that accused persons induced/enticed her to go with them on the
relevant day of occurrence. Hence, in absence of
inducement/enticement of PW 3 by the accused persons, no offence
U/S 366 (A) IPC has been made out.
Contd......
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25. Our Hon’ble Gauhati High Court in the case of Gulapi
Bibi and another-------VS---------- State of Assam 2003 GLR 338 has
held that mere accompanying a person without being induced does
not commit an offence U/S 366 (A) IPC. It appears from Ext. 2 that
PW 3 on account of love affairs with the accused Tumon Nath came out
from her house on her own volition on the relevant date and
thereafter, she accompanied him without any inducement from him to
Silchar. It is clear fromthe evidence of PW 3 and PW 7 has made it
clear that the PO is a busy place nearby NH 44, surrounded by petrol
pump, Azmal Foundation Hospital, Madhavdham and Srigouri High
School. If the accused persons had forcibly kidnapped PW 3 by lifting
her in the Maruti Van, she would have raised alarm and the nearby
people could have easily witnessed the same. Surprisingly, PW 3before
the I/O and Ext. 2 never stated that she was kidnapped by the accused
persons. Thus, the prosecution’s case suffers from serious doubt due to
material contradiction and exaggeration in the testimony of PW 3.
26. It may be mentioned here that PW 2 Smti. Ratna Rani
Nath and PW 4 Shri Ranjit Kr. Nath who are aunt and uncle of PW 3
respectively are not the eye witnesses to the occurrence. They simply
accompanied the I/O to the house of accused Tumon on the night of
15/01/2010. Hence, their evidence not discussed thoroughly.
27. PW 5 Abdul Malik, who claims to be eye witness, stated
in his cross-examination that on 1.30 PM, the family members of PW 1
Bijit Nath were informed by him on 09/01/2010 itself that he had seen
the accused persons kidnapping PW 3. Surprisingly enough, PW 1 even
knowing the occurrence did not lodge FIR on that day; rather he
lodged the FIR, Ext. 1 after four days, i.e. on 15/01/2010 and he has
not offered any explanation about the delay. Prudence demands that if
PW 1 indeed knew about kidnapping of his daughter, PW 3 on
09/01/2010, he would surely lodge the FIR on the same date. But PW
Contd......
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7 has made it clear that even no missing entry of PW 3 was made to
the PS up to 15/09/2010. This also creates reasonable doubt on the
veracity of the prosecution’s case which in turn renders the credence
of witnesses into suspicion and afterthought.
28. In the light of above discussion, observation and
reasons, it is held that the prosecution has failed to prove the case
against the accused persons beyond reasonable doubt. Accordingly, the
accused persons are acquitted on benefit of doubt. Their bail bond
stands discharged.
29. Judgement is pronounced and delivered in the open
Court under my hand and seal this 28th day of May, 2013 at
Karimganj.
(A. Rahman, AJS). Asstt. Sessions Judge,
Karimganj.
Dictated and corrected by me-
(A. Rahman, AJS). Asstt. Sessions Judge, Karimganj.
Dictation taken and transcribed by – Tapash Chanda, Stenographer.
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