Present:- Sri K.Dohotia Asstt.Sessions Judge, Jorhat. JUDGMENT IN ...

1IN THE COURT OF THE ASSISTANT SESSIONS JUDGE JORHAT.Present:- Sri K.DohotiaAsstt.Sessions Judge,Jorhat.JUDGMENT IN SESSIONS CASE No.04/2013.State of AssamVsJuly Bhuyan………Accused.The case is committed by Sri J.Singh, Ld.S.D.J.M.(M)vide orderdtd.4.1.13 in G.R.case No.1705/12.Date of Evidence :- 26.3.13, 25.4.13 & on 11.6.13.Date of Argument :- 19.6.13.Date of Judgment :- 26.06.13.APPEARANCES:- Mr.I.Ahmed, Ld.Addl.P.P for the State.S.Bezbaruah, State Defence counsel for the accused.JUDGMENTAccused July Bhuyan stands charged U/S.366 of I.P.C for kidnapping„X‟(real name withheld).1. The case of the prosecution, in a nutshell, is that on 20.9.12Bhuban Bhumij(P.W.2) lodged an F.I.R at Deberapara police outpost against accused July Bhuyan alleging, inter alia, that17.9.12 at about 9 p.m, his 13 years old daughter went to enjoyJhumoir Dance held at their village, but she was missing from thatplace. Later on, he came to know that accused July Bhuyankidnapped his daughter.on2. On receipt of the F.I.R , I/C of Deberapar police out postmade G.D.Entry No.375 dtd.20.9.12. and forwarded the same toMariani P.S for registering a regular Case and endorsed to S.IMayurjit Gogoi for investigation.3. O/C Mariani P.S registered a case bearing Mariani P.S caseNo.102/12 U/S.366(A) of I.P.C.

24. During investigation, Mayurjit Gogoi (P.W.6), the I/O,recorded the statement of the informant, visited the place ofoccurrence, drew rough sketch map(Ext.4) of the place ofoccurrence on being shown by the informant and recorded thestatement of the witnesses. On the same day, at about 7:30 p.m,informant produced the victim girl at the police out post and theaccused was produced by the V.D.P party. He recorded thestatement of the victim and the accused. On the next day, at about11 a.m, he interrogated the victim, but she refused to give herstatement to be recorded U/S.161 of Cr.P.C. As such, victim wasforwarded to the Court for recording her statement U/S.164 ofCr.P.C and for medical examination. On the same day, he arrestedthe accused and forwarded him to the Court. After collectingmedico-legal report and copy of the statement U/S.164 of Cr.P.C,he completed the investigation and submitted charge sheet (Ext.5)against the accused U/S.366(A) of I.P.C.5. As the offence U/S.366(A) of I.P.C is exclusively triable bythe Court of Session, Sri J.Singh, Ld.S.D.J.M (S) committed thecase vide order dtd.4.1.13. On such commitment, this Sessioncase is registered. Ld.Sessions Judge, Jorhat, transferred thiscase to this court for trial.6. Upon hearing both sides and considering the documentssubmitted U/S.173 of Cr.P.C, charge was framed against theaccused U/S.366 of I.P.C. Accused demanded trial when theparticulars of charge was read over and explained to him.7. Prosecution examined as many as six witnesses to prove itscase.8. On the closure of the prosecution evidence, statement of theaccused U/S.313 of Cr.P.C was recorded. In the statementrecorded U/S.313 of Cr.P.C, the accused has stated that prior toone year of the occurrence, there was a love affair between them.On the day of occurrence, the victim came to his house on her

3own will. She was not induced by him. About 1 ½ month back fromthe date of recording his statement, the victim again came to hishouse and at present, the victim is at his own house. He statedthat he is innocent. As he was not acquitted U/S.232 of Cr.P.C, hewas asked to enter into defence, but declined to adduce evidence.NOW POINTS FOR DETERMINATION ARE-Whether the accused kidnapped “X” on 17.9.12 as alleged ?9. I have gone through the evidence on records very carefully. Ihave also heard the submission advanced by the Ld.Addl.P.P andthe Ld. State Defence counsel .DECISION & REASONS THEREOF.10. According to the victim, on the date of occurrence, Jhumurdance was held in the garden on account of Karam Puja. At about7 p.m with her neigbour Pakhila and Shamim, she went to enjoythe dance. When she was enjoying the dance, one Aman calledher, accused July was also with him. When she was going home,Aman following her. He told that he wanted to take her sister, butas the sister was found , he will take her. Aman caught her anddragged her to a nearby field. He tried to commit foul act with her ,but failed. When she wanted to go home, he (Amar) not allowedher. She was taken to their house and handed over to the accusedJuly Bhuyan) Amar called the accused over phone. Then, accusedcame and took her to his house. From there, she was taken to hissister‟s house. When her father lodged ejahar, she and accusedcame and surrendered at police station. She was examinedthrough Doctor. She gave her statement before the Magistrate.Ext.2 is her statement and Ext.2(1) is her signature.11. In cross, she has denied that she voluntarily went with theaccused and Aman . She has admitted that before the Magistrate,she stated that she loves the accused. She has also admitted thatbefore the Magistrate, she stated that, she went with the accusedvoluntarily.

412. P.W.2 Bhupen Bhumij, the father of the victim as well as theinformant has deposed that on the date of occurrence, at about8/9 p.m, the victim went to enjoy Jhumur dance with some girls ofhis locality. But, till the morning, she did not return. He informedthe matter to the VDP of his village and village people of theaccused. He lodged the ejahar (Ext.1). Police recovered hisdaughter. On being asked, the victim told that when she was onthe way to her home, accused took her by gagging her mouth.13. According to P.W.1 Junu Bhumij, the sister of the victim, thevictim (P.W.3) went to enjoy Jhumur danace. P.W.1 has alsostated that on being asked her sister, the victim told that when shewas coming home , accused dragged her by gagging her mouth.P.W.1 and P.W.2 have stated that at the time of occurrence, victimwas 13 years old.14. Though the victim in her evidence before the court hasstated that she was taken from the Jhumoir dance, but the earlierstatement of P.W.4 recorded U/S.164 of Cr.P.C (Ext.2) we findthat P.W.4 had given altogether a different story. According to her,she had love affairs with the accused and pursuant to the saidaffair, she eloped with the accused. The victim has also admittedthis when she was cross-examined on behalf of the accused.15. In view of the nature of evidence recorded, I have nohesitation whatsoever, to hold that this is not a case of forciblekidnapping as stated by the witnesses but this is a case ofvoluntary elopement.16. In view of the above, the age of the victim becomes morerelevant factor. From the oral evidence on record of P.W.1,2 andP.W.4 the age of the victim is 13 years on the date of occurrence.But, admittedly, no birth certificate has been produced to show theactual age of the victim . P.W.3 who held the ossification testand opined that the age of the victim is above 14 years and below16 years. Ext.3 is the medico-legal report. The Doctor has opined

5that the girl is experienced with sexual intercourse. In the case ofJaya Mala versus Hon’ble Secrety , J & K, AIR 1982 SC 1297,the Hon‟ble Apex Court has held that “ the ossification test is nodoubt a sure test but the margin of error in two years ineither side.”17. From the above facts and circumstances, it appears thatthe victim girl was a consenting party in going together with theaccused and there is no evidence to presume safely that victimgirl, though she was under the age of 18 years at the time ofoccurrence, was kidnapped by the accused.18. In Hazarat Ali vs. State of Assam, reported in 2004(3)GLT 110, our own Hon‟ble High court held that the “prosecutrixthough found to be below 18 years did not resist the action ofthe appellant without making hue and cry or raising alarm andshe proceeded with the appellant. Her version was notaccepted as trustworthy and reliable and she was taken to bea willing party to go with the appellant on her own.” Similarview was also taken in Gouranga Roy & Ors vs State of Tripurareported in 2007(2) GLT 379 and Shyam & Anr. Vs State ofMaharastra, reported in AIR 1995 SC 2169.19. From the evidence of the I/O (P.W.6), it appears that thevictim refused to give her statement U/S.161 of Cr.P.C. So, shewas forwarded to the Court for recording her statement U/S.164 ofCr.P.C and after that statement, statement U/S.161 of Cr.P.C wasnot recorded. In fact, procedure should have been otherwise. TheHon‟ble Apex Court in 2011 AIAR (Criminal) 604 , Krishan kumarMalik versus State of Haryana, held that “Normally, statement ofwitness must first be recorded Under Sec.161 , Cr.P.C,-Statement under Sec.164, Cr.P.C, if any, should be recordedafter the one recorded under Sec.161- Statements recordedvice-versa is a peculiar mode- Adoption of such procedurereflected that right from the beginning the prosecution wasdoubtful on trustworthiness of prosecutrix herself- Precisely

6that was the reason that she was first bound down by herstatement under Sec.164 of Cr.P.C.”O R D E R.In the present case, the alleged occurrence of kidnapping ofthe victim is not free from suspicion and the lone version of thevictim girl before the court is not trustworthy.Considering the above facts and circumstances, I am of theview that the prosecution failed to establish the case beyondreasonable doubt.The accused is acquitted of the charge U/S.366 of I.P.C andset at liberty.His bail bond stands discharged.The Judgment is delivered in the open Court under my signand seal on this 26 th day of June,2013.Dictated & corrected by me –(Sri K.Dohotia )Asstt.Sess.Judge,Jorhat.ASSTT.SESS.JUDGE,JORHAT.Transcribed & typed by-Nirju R. Gogoi, Stenographer.

726.6.13. Accused July Bhuyan is present.Judgment is delivered in the open Court, written inseparate sheets at my dictation which is corrected by me.Keep it with the case record.The accused is acquitted of the charge U/S.36 ofI.P.C and set at liberty. His bail bond stands discharged.Case is disposed of.Asstt.Sess.Judge,Jorhat.