Taffazul Ali @ Bafaru Seikh vs State of Assam

Mrs. Rumi Kumari Phukan, J. (Oral) - Heard Mr. K.M. Haloi, learned counsel appearing for the appellant as well as Mr. B. Sarma, learned Addl. Public Prosecutor, Assam, for the Respondent State.

This appeal has been preferred by the appellant against the judgment and order dated 29.5.2008 rendered by the learned Addl. Sessions Judge, (FTC) Darrang, Mangaldai in Sessions Case No. 208 (DM)/06 U/S 366 IPC convicting the accused appellant and sentencing him to undergo rigorous imprisonment for 2 years with fine of Rs.7,000/- in default to undergo further rigorous imprisonment for six months.

The prosecution case in brief is that on 28.11.2005 at 9 AM daughter of the informant, Ms Enowara Begum, aged about 12 years, was found missing while she was going to school. Thereafter on the same day, the mother of the victim girl lodged an FIR before the Mangaldoi Police Station stating inter alia that she could learn from the pedestrian that the accused/appellant Bafaru Seikh along with his one friend had kidnapped her daughter. On the basis of the FIR, Mangaldoi Police has registered a case being Mangaldoi Police Station Case No.369/05 U/S 366(A)/34 IPC.

In course of investigation, the police rescued the victim girl along with the accused appellant and said appellant had been sent to jail hajot. The police also submitted charge-sheet against the appellant U/S 366(A)/376 IPC.

After receipt of the Charge-sheet, the learned Sessions Judge, Darrang, Mangaldoi transferred the case to the Court of learned Additional Sessions Judge (FTC), Darrang, Mangaldoi, who framed formal charge against the accused U/S 366 IPC. The charge was read over and explained to the accused/appellant, who pleaded not guilty and claimed to be tried.

During trial the prosecution examined as many as 9 witnesses including the Medical Officer and the Investigating Officer of the case. The prosecution witnesses were cross-examined by the defence and defence examined one witness. The defence denied to adduce any evidence in its support. On conclusion of trial the accused appellants convicted as aforesaid. Hence the appeal before this Court.

PW 1, victim girl deposed that in the year 2005 when she was reading in Class-VIII, she was 13 years old. On the day occurrence when she was going to school two boy came by an auto-rickshaw and forcefully taken her in an auto and went to the house of the aunt of the present appellant. Thereafter they took her to Tongla and kept there for 6/7 days, where the accused appellant rapped her. She was rescued there by police. She was medically examined and her statement U/S 164 CrPC was also recorded. In her cross this victim girl stated that accused appellant and his friend forcefully took her in the auto and taken her to accused appellant''s aunt''s house. Though she cried but there was none to help her. It is also stated that the accused appellant took her on foot after the auto-rickshaw was kept by the side of the road.

The parents of the victim Asma Begum/PW 2 (mother) and Md. Abed Ali PW/3 (father) both of them have stated that on the day of occurrence their daughter/PW 1 was aged about 14 years did not return from school for which the Ejahar was filed vide Ext.2 and their daughter was recovered after 15 days. The PW 1 reported to PW 3 that she was forcefully taken by the accused appellant from the road but she stated nothing to PW 2. It is stated by PW3 that accused used to work under him as an Assistant mason.

Other witnesses, Rohima Begum/PW 4, Samsul Hoque PW5 do not know anything about the occurrence and PW 4 has simply stated that PW1 did not return from school and after 12/13 days police recovered her. PW7 and PW8 are the Investigating Officers and they have stated all about receipt of FIR and filing of Charge-sheet. The victim girl was examined by PW9 Doctor D. Nath after her recovery and according to him the girl was aged about 14 years below 16 years and there is no evidence of recent sexual intercourse. Ext. 4 is the medical report.

In support of the plea that the victim girl voluntarily eloped with the accused appellant, one witness namely Bulu Begum has been examined as DW1, who has stated that she is the Aunt of the victim girl and said victim is aged about 20 years who eloped with the accused appellant. It is also stated that the accused appellant was working as an Assistant to the father of the victim girl/PW 3.

On appreciation of the evidence it is found that although the victim girl is stated to be minor at the time of occurrence but no any document such as school certificate, age certificate etc. has been produced in support of her age although she stated to be school going student. On the other hand, the evidence of Medical Officer is also found not conclusive as about the age of the victim girl. The opinion of medical officer as regards her age can be added with another two years to assess the age. DW1 is the relative of the victim girl, who deposed that the age of victim girl is 20 years and her evidence remained un-rebutted. That being so, we can at least held that the victim girl was more than 18 years at the time of occurrence.

The victim girl in her statement U/S 164 CrPC has given a different story which is materially contradictory to the statement given in course of trial. Obviously, in view of her admission about such statement that the accused appellant along with his frined forcefully took her inside the auto-rickshaw and proceeded to accused appellant''s Aunt''s house and kept there and later on she was taken to Tongla and kept there for 6/7 days, where the accused appellant rapped her for 2/3 days. She was rescued there by police. It appears that her statement is totally inconsistent with the testimony given in course of trial. The victim girl in her statement U/S 164 CrPC stated as follows :

"(English translation from vernacular)

I love Md. Tafajul @ Bafaru for one year. On 28.11.2005 morning pretending to go to school I eloped with Tafajul Hoque to Kotahi. At Kotahi we stayed there for about 10 days. Thereafter we went to Rangamati. At Rangamati we stayed about 5 days at the daughter of Tafajul''s Aunt. Thereafter Police rescued at Rangamati. I now want to go with my father."

That apart, if at all the victim girl was raped by the accused appellant for some days continuously then there must have been some sort of mark of injury and other sign of sexual intercourse on the person of the victim but the evidence of M.O. reveals that there is no sign of recent sexual intercourse, no evidence of violence on her person and she is aged in between 14 years and 16 years, Vide Ext.4. That being so, if we add 2 years to 16 years than the age of the victim girl will be 18 years and if not a consenting party then there must be some injury on her private part as well as sign of intercourse, which is not found in the present case.

On the next it is found that the victim girl has contradicted her statement deposed before the Magistrate as well as before the Police (which she admitted in her statement U/S 164 CrPC) but her own father has nullified her version. It is stated by PW3 that accused used to work under him as an Assistant mason for about one year. Deposition of PW 3 and DW1 supports the prosecution case. DW 1 deposed that she was the relative of the victim girl and that the said victim was aged about 20 years. Similarly, PW3 deposed that the accused used to work with him as his assistant. From the above two depositions it can easily be inferred that the victim might have eloped with the accused girl. This portion of evidence again raises serious doubt upon the testimony of the prosecutrix who said that she was kidnapped while going to school.

In a given case there being no eye witness to the occurrence and the whole case centred around the testimony of the victim girl who has given a inconsistent testimony during the course of investigation and trial and more particularly she being a school going girl cannot be expected to give such twisting evidence unless motivated by falsehood. Her evidence being doubtful cannot be made the sole basis for conviction of the accused appellant. The learned trial Court failed to appreciate all above aspects in proper perspective of law and facts and has accepted the version of the victim as gospel of truth, whereas the prosecution failed to prove the charges against the accused appellant beyond all reasonable doubts.

In view of all above finding and discussions, appeal is allowed. Charge U/S 366 (A)/376/34 IPC failed and the accused person is acquitted from the charge. Return the LCR forthwith along with a copy of the judgment to the Court below.

I do hereby appreciate the assistance rendered by the learned Amicus Curie, Mr. K.M. Haloi, while conducting the Appeal an amount of Rs.5000/-(rupees five thousand) only be paid to him by the Legal Services Authority.