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IN THE GAUHATI HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
A.K. GOSWAMI, J.
Md. Abdul Matin Pradhani – Appellant
Versus
The State of Assam – Respondent
Crl. A. No. 162 of 2009
Decided On : 20-04-2016
Indian Penal Code Section 366A/34/376 – Suffer rigorous imprisonment –Prosecution failed to prove the case against the appellants – Learned Trial Court held that the prosecution failed to prove the case against the appellants under Section 376 IPC – By an order, passed Case, the impugned judgment and order was suspended till disposal of appeal and the appellants were allowed to remain on previous bail as granted by the learned Trial Court – An Ejahar was lodged by the brother of the victim (PW3), who is herein after referred to as “X” stating that at around his younger sister Musstt. Arjina Begum, 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 – Thereafter, her whereabouts was not known –Held, 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 – PW5, on the basis of radiological report, had opined that the age of the girl is 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 It came out from the evidence of PW3 herself that she was a student – School certificate or the birth certificate is the best evidence as regards age –Same was not produced – Appeal is allowed.
1. 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 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 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 judgment of the Apex Court in the case of Sunil vs. State of Haryana, reported in (2010) 1 SCC 742 and the judgments of this Court in the cases of Samsul Hoque @ Samsul Haque @ Samsul Alam vs. State of Assam, reported in 2005 (3) GLT 105 as well as Gourango Roy 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 judgment 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 Mala vs. Home Secretary, Government of Jammu and Kashmir and Others, reported in AIR 1982 SC 1297, the Ap
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