Md. Sameth Ali @ Md Samed Ali vs The State of Assam

This is a criminal appeal, filed under Section 374 of the Cr.PC, against the judgment and order, dated 23.3.2009, passed by the learned

Sessions Judge, Marigaon, in Sessions Case No. 131/2007, convicting and sentencing the accused-convict Mahibul Islam to suffer rigorous

imprisonment for 7 years and to pay a fine of Rs. 1,000/- with a default clause on each count under Sections 366(A)/372 of the IPC. The appeal

is filed by the father of the accusedconvict Mahibul Islam claiming him to be a juvenile.

I have heard learned Amicus-curiae, Mr. D. Chakarborty, for the appellant. Also heard Mr. B.J. Dutta, learned Additional Public Prosecutor

for the state respondent.

I have perused the impugned judgment as well as the record of the learned trial court including the evidence of the witnesses.

The fact leading to the case is that, an FIR was lodged by the informant on 28.3.2007, alleging that, about 2 months before, his 17 years old

daughter/victim was induced by one Smt. Runjuna Begum stating that she was being taken for purchasing cloths, but, subsequently, she left the

victim somewhere, and thereafter, she could not be traced out after search made to find her out. It was learnt that the daughter of the informant

was handed over to someone at Silbhanga in Jagiroad.

On receipt of the FIR, on the above facts, Dharamtul Police Station registered a case, being No. 23/2007, under Sections 366(A)/372 of the

IPC. After completion of the investigation, the police submitted charge-sheet against the present accused-convict and others under Sections

366(A)/372/34 of the IPC. It deserves a mention here that during the course of investigation, the victim was recovered and her statement was

recorded by the investigating officer under Section 164 of the Cr.PC.

I have perused the evidence on record meticulously.

Before appreciating the evidence on record for a decision on the appeal, it is proposed to decide as to whether the convict Mahibul was a

juvenile on the date of occurrence.

In the instant case, the occurrence took place 2 months prior to 28.3.2017, which means that the occurrence might have taken place in the

month of January, 2007. In the statement of the accused-convict recorded under Section 313 of the Cr.PC, by the learned trial court of Sessions

Judge on 6.1.2009, his age was recorded to be 22 years. If the period between the date of occurrence and the date of recording his statement

under Section 313 of the Cr.PC on 6.7.2009 is taken out for consideration of his age, yet he is above 18 years of age on the date of occurrence.

Learned Amicus-curiae has also agreed that the accusedconvict Mahibul is not a juvenile on the date of occurrence.

To appreciate the facts in issue appropriately with reference to the offence alleged, this court proposes to discuss the evidence of the victim,

examined as PW1 first.

It appears from the evidence of PW1/victim that, at the relevant time of occurrence, she was studying in Class-VIII and the accused-convict

Mahibul expressed his love to her, but she was reluctant. Subsequently, with the help of Runjuna and Sahid she got persuaded to love the

accused-convict Mahibul. She was also assured by accused Runjuna and Sahid that she would be kept with accused-convict Mahibul at

Guwahati. After long persuasion, she agreed to love with accused-convict Mahibul and this continued for about 2 months. Thereafter, at the

instance of accused-convict Mahibul she eloped with him. Runjuna and Sahid, aforesaid, also told her that if accused-convict Mahibul did not

allow her to stay with him at Guwahati, then they will take the risk for her. Thereafter, at the advice of accused Runjuna, the victim went to the

house of accused Sahid, where accused-convict Mahibul was said to have been waiting for her. Sahid took her to the road in front of his house

and she along with Sahid boarded a 407 bus and came to Morigaon wherefrom accused-convict Mahibul took her in another bus to Guwahati.

After arrival at Guwahati, at about 8:00 pm, accused-convict Mahibul took her to the railway station and when she asked him as to why she was

being taken to railway station instead of going to the rented house, accused-convict Mahibul replied to her that if he goes to his rented house,

people from the locality might recognize them, and therefore, he wanted to avoid them, and hence, went to the railway station. At about 2:00 am,

the accused-convict Mahibul took her for Bihar in a train. She being not accustomed to railway journey, she felt dizziness and fell down and at that

time a man came to help her but accused-convict Mahibul introduced her to be his sister. They travelled for three days in the train and accused-

convict Mahibul told her that she was being taken to the house of his friend. Accused-convict Mahibul got down along with her at Kishanganj

Railway Station and thereafter she was taken by a bus to a village called Panjipara. There he took her to a family where one lady was there in that

house and accused-convict Mahibul asked her to sit inside. The accused-convict Mahibul talked to the lady in another room and after some time

he came out from the room and then she asked him where was he going. Accused-convict Mahibul told her that he was going to a shop and asked

her to wait. She also wanted to accompany him but he advised her to stay back. Accused-convict Mahibul did not return till 10:00 pm although

she was making query from the lady as regards accused-convict Mahibul. On asking the lady again and again about accusedconvict Mahibul, she

dealt a blow on her, pushed her inside a room and locked the door from outside. The lady also informed her that she should not expect accused-

convict Mahibul to return as she was sold to her for Rs. 25,000/-. She was there in the house of the lady at Bihar for about 2 months under her

strict vigil and she was engaged in prostitution. She was compelled to take prostitution for her survival.

PW9 is the doctor who examined the victim. It has come out from his evidence that there was sexual intercourse with the victim and she also

carried pregnancy. At the time of examination by the doctor she was carrying 15 weeks pregnancy.

The other witnesses were reported about the occurrence by the victim/PW1 herself after she was recovered. PW2 is the father of the victim

who reported about the missing of his daughter to the police on 22.8.2007.

Now, the question, is whether the evidence led by PW1 is reliable and can be acted upon to hold the accused-convict Mahibul guilty of

offence under Sections 366(A)/372 of the IPC as held by the learned trial court of Sessions Judge, Marigaon.

I have meticulously examined the cross-examination part of the evidence of the victim/PW1. The core issue that she was taken to Bihar by

accused-convict Mahibul from Guwahati and that she was left at Bihar in the custody of a lady is not found to have been assailed, meaning thereby,

the core issue of taking her away by the accused and engaging her in prostitution is a fact remained unrebutted even during cross-examination of

the victim/PW1.

The evidence of defence, through DW1, DW2 & DW3, appears to be an attempt to project the disappearance of the victim to be not because

of the her taking away by the accused-convict Mahibul. DW1 deposed that the victim went to her maternal uncle''s house, and thereafter only, she

was missing. DW2 deposed that there is an incident, prior to the occurrence in the instant case, in which occurrence one Babul handed over the

victim to her parents. DW3 appears to have stated that he has no independent knowledge about the occurrence. The evidence of victim/PW1 is

consistent in her examination-in-chief and in the cross-examination and the defence has not been able to break the story with their evidence as the

defence evidence does not appear to have been centered around the fact of taking away the victim/PW1 by the accused-convict Mahibul. DW1,

DW2 & DW3 appears to have attempted to stage a story which is totally improbable in the facts and circumstances of the case. Therefore, the

evidence of PW1/victim, being creditworthy can be acted upon.

In this connection, the decision of the Hon''ble Supreme Court, in the case of State of Himachal Pradesh -vs- Sanjay Kumar alias Sunny,

reported in (2017) 2 SCC 51, in paragraph 31, can be usefully referred to, paragraph-31 of this judgment of the Hon''ble Supreme Court reads as

follows:

After thorough analysis of all relevant and attendant factors, we are of the opinion that none of the grounds, on which the High Court has

cleared the respondents, has any merit. By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there

are compelling reasons, which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the

victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement

before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus,

to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without

corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek

corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate

one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a

woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why

should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses

tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance (See Bhupinder Sharma v. State of H.P).

Notwithstanding this legal position, in the instance case, we even find enough corroborative material as well, which is discussed hereinabove.

In view of the above, in the considered view of this court, the order of the learned trial court convicting the accused-convict Mahibul appears

to be based on evidence on record and needs no interference.

In view of the above, the appeal is dismissed.

Send down the LCR along with a copy of this judgment.

The accused-convict is directed to surrender before the learned trial court to serve out the sentence, if not already served.

This Court records its appreciation for the assistance rendered by learned Amicus Curiae, Mr. D. Chakraborty. Learned Amicus Curiae be

paid an amount of Rs. 7,000/-, as remuneration.