1 | P a g e

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....

2 | P a g e

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......

3 | P a g e

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......

4 | P a g e

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......

5 | P a g e

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......

6 | P a g e

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......

7 | P a g e

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......

8 | P a g e

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......

9 | P a g e

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......

10 | P a g e

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......

11 | P a g e

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......

12 | P a g e

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.