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IN THE HIGH COURT OF CALCUTTA
Sahidullah Munshi, Subhasis Dasgupta, JJ.
Abdul Habib SK - Appellant
Versus
State Of West Bengal - Respondent
Criminal Appeal No. 636 of 2015
Decided On : 12-06-2020
Indian Penal Code - Kidnapping, Rape, and Marriage - Section 376, 366, 363 - Summary of Acts and Sections: The court discussed the provisions of Section 361 of the IPC, which requires a girl to be below 18 years of age for an act to be considered kidnapping. The court also considered the capacity for marriage under Mahomedan Law, which allows a girl of 15 years who has attained puberty to marry without parental consent. The court emphasized the importance of proving the age of the victim and the necessity of foundational evidence for secondary evidence to be admissible. The court also highlighted the requirement for corroboration of evidence and the significance of medical evidence in cases of sexual violation. The judgment was influenced by the interpretation of these legal provisions and the lack of evidence to support the prosecution's case.
Fact of the Case:
The prosecution alleged that the appellant kidnapped a minor girl and subjected her to sexual violation. However, the victim's statements and evidence presented in court contradicted the prosecution's case. The victim's age and her consent in accompanying the accused were disputed, and the medical evidence did not support the allegations of sexual violation. The court also considered the victim's earlier marriage and the capacity for marriage under Mahomedan Law.
Finding of the Court:
The court found that the prosecution failed to prove the charges of kidnapping, forced marriage, and sexual violation against the appellant. The victim's contradictory statements, lack of corroboration, and medical evidence led the court to conclude that the prosecution's case was not credible.
Issues: The key issues in the case were the age of the victim, her consent in accompanying the accused, the validity of her earlier marriage, and the lack of corroboration for the prosecution's case.
Ratio Decidendi: The court's decision was based on the lack of credible evidence to support the charges against the appellant. The court emphasized the importance of proving the victim's age and the necessity of corroboration for the prosecution's case. The court also considered the capacity for marriage under Mahomedan Law and the significance of medical evidence in cases of sexual violation.
Final Decision: The court set aside the order of conviction and allowed the appeal, directing the records to be sent back to the trial court. The judgment and sentence were set aside, and the appeal was allowed.
JUDGMENT
Sahidullah Munshi, J. - This appeal is against the judgment and order of conviction dated 24.08.2015 passed by the learned Assistant Sessions Judge, Second Court, Nadia, Krishnagar in Sessions Trial No. II of December, 2014 arising out of Sessions Case No. 1(II) 14 convicting the appellant under Sections 376, 366 & 363 of the Indian Penal Code and sentencing convict Abdul Habib Sk to suffer rigorous imprisonment for 10 years and with fine of Rs.1,000/-, in default to suffer simple imprisonment for 6 months for the offence punishable under Section 376 of Indian Penal Code; sentencing convict Abdul Habib Sk to suffer rigorous imprisonment for 10 years and with fine of Rs.1,000/-, in default to suffer simple imprisonment for 6 months for the offence punishable under Section 366 of Indian Penal Code; sentencing the convict Abdul Habib Sk to suffer rigorous imprisonment for 7 years and to pay a fine of Rs. 1,000/-, in default to suffer simple imprisonment for 6 months for the offence punishable under Section 363 of Indian Penal Code and sentencing the convict Rahim Sk to suffer rigorous imprisonment for 7 years and to pay a fine of Rs.1,000/-, in default to suffer simple imprisonment for 6 months for the offence punishable under Section 363 of Indian Penal Code.
2. Present appeal being C.R.A. no. 636 of 2015 has been filed by Abdul Habib Sk assailing the order of conviction and sentence passed against him.
3. In short the prosecution case is that one Jalemmuddin Sk lodged a complaint on 29.11.2013 that his daughter Suksari Khatun, aged about 17 years while pursuing her class IX studies from Kamari High School, on 26.11.2013 at about 9.30 in the morning, went to her school but did not come back even after the school gave over. While searching it was learnt through local people that the accused/appellant Abdul Habib Sk in association with another accused Rahim Sk took away his daughter prompting and alluring her to marry with malicious intention.
4. On receipt of the aforesaid complaint Kaliganj P.S. case No.861/13 dated 29.11.2013 was initiated under Sections 363/366/34 of Indian Penal Code against the FIR named accused persons. Police investigated and submitted charge-sheet. On receipt of charge-sheet learned Additional Chief Judicial Magistrate took cognizance of this case. After supplying necessary copies to the accused persons as required under the statutory provisions, committed the case to the learned Sessions Judge, Nadia, for trial as the same is exclusively triable by the Court of Sessions. On receipt of the case, learned Sessions Judge transferred it to the learned 2nd Court of Assistant Sessions Judge Nadia at Krishnagar. The learned trial Court after considering the materials submitted under Section 163 Cr.P.C. and on perusal of the case record, framed charges under Section 363/366/34 of Indian Penal Code against both the accused persons. Charge under Section 376 of the Indian Penal Code was framed against the accused Abdul Habib Sk. Charges were read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried.
5. Prosecution adduced as many as 15 witnesses including the complainant/father, victim girl, her mother, three doctors and Investigating officer of the case and also produced certain documents which were admitted into evidence and marked exhibits.
6. After the evidence was closed statement of the accused persons was recorded under Section 313 Cr.P.C. but their plea is a plea of denial only and the accused declined to adduce any evidence in their defence.
7. According to the prosecution case both the accused persons kidnapped the minor girl aged about 17 years on the day of occurrence, that is, 26.11.2013. The learned Court below on the issue of age of the victim girl arrived at a finding that law requires under Section 361 of the IPC that a girl if not above 18 years of age and any person without consent of the guardian take her, same would amount to kidnapping withi
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