Babita Hajuwari and 3 Ors. Vs the State of Assam and Anr.

Heard Mr. B M Choudhury, learned counsel appearing for the appellants. Also heard Ms. A Begum, learned Additional Public Prosecutor, Assam for the State.

¶40

2 . This appeal under Section 374(2) of the Code of Criminal Procedure, 1973 is directed against the judgment and order of conviction and sentence dated 29.05.2014 passed by the learned Sessions Judge, Morigaon in Sessions Case No. 38/1012 arising out of G.R. Case No. 903/2010, whereby the appellants have been convicted under Sections 372/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 10 (ten) years and to pay a fine of Rs. 10,000/(Ten Thousand) each, and in default of payment, to undergo rigorous imprisonment for a further period of 6 (six) months.

¶41

3 . The prosecution case, in brief, is that the informant (PW-1), father of the victim girl, lodged an FIR on 25.08.2010 alleging, inter alia, that the accused appellant No. 1 took his daughter, aged about 15 years, to Bhakatpara on 14.08.2010 at about 8 AM and thereafter, she did not return. It was further alleged that on 22.08.2010, though the accused appellant No. 1 had returned back, however, the victim girl did not return. Upon enquiring, the informant came to know that the accused appellants took his daughter to Delhi by inducing her and sold her to unknown persons for prostitution.

¶42

4. Accordingly, a case was registered under Sections 372/34 IPC. Upon completion of investigation of the case, police submitted charge-sheet under the aforesaid sections and thereafter, the learned Trial Court framed charges under Sections 372/34 IPC and the accused appellants pleaded not guilty and claimed to

¶43

Page No.# 4/9

¶44

be tried.

¶45

5. During trial, prosecution examined as many as 7 witnesses, including the Investigating Officer of the case. However the victim girl was not examined.

¶46

6. After completion of the trial, the learned Trial Court convicted the accused appellants. Situated thus, the present appeal has been preferred.

¶47

7. Mr. B M Choudhury, learned counsel for the appellants submits that no offence under Section 372 IPC is made out, in as much as, the prosecution has miserably failed to establish that the victim was below the age of 18 years and that she was sold for the purpose of prostitution or illicit intercourse. He further submits that no eye witness to the alleged taking or sale was also examined. In support of his submission, he relied on the decision of the Himachal High Court in the case of Lal Singh -Vs- State reported in 1994 Criminal L.J. 859.

¶48

8. Per contra, Ms. A Begum, learned APP, Assam vehemently objecting to the instant criminal appeal submits that the learned Trial Court has convicted the accused appellants under the aforesaid sections of law based on evidence and sound reasoning.

¶49

9. I have heard the submissions advanced by the parties and also perused the materials available on record. I have also duly considered the case laws cited at the bar.

¶50

10 . The following questions arise for consideration in the instant appeal:

¶51

(i) Whether the prosecution has proved, beyond reasonable doubt, that the victim was a minor within the meaning of Section 372 IPC?

¶52

(ii) Whether the prosecution has proved that the accused appellants sold, let to hire, disposed of, or trafficked the victim for the purpose contemplated

¶53

Page No.# 5/9

¶54

under Section 372 IPC?

¶55

(iii) Whether the conviction can be sustained in the absence of the testimony of the victim?

¶56

11 . Section 372 IPC penalizes selling, letting to hire, or otherwise disposing of any person under the age of 18 years for the purpose of prostitution or illicit intercourse or any unlawful and immoral purpose. The essential ingredients are:

¶57

i. The victim is under 18 years of age.

¶58

ii. The accused sells, lets to hire, or disposes of the victim.

¶59

iii. The act is done for prostitution, illicit intercourse, or any unlawful and immoral purpose.

¶60

iv. There must be proof of the act of sale/ disposal.

¶61

12 . The burden lies entirely on the prosecution to prove each ingredient beyond reasonable doubt. It is well settled that in offences involving age-based statutory ingredients, the prosecution must lead reliable and cogent evidence of age, usually through birth certificates, school records, or medical opinion.

¶62

13 . In the present case, the prosecution has merely relied on the age as disclosed by the informant PW-1 while lodging the FIR to the effect that the victim was aged about 17 years. No documentary evidence, such as birth certificate or school admission register, was produced.

¶63

14. Nowhere during deposition before the Trial Court, the parents of the victim deposed regarding the age of the victim girl. Pertinent that PW-3, i.e., Dr. Dhiren Chandra Nath, Sr. Medical & Health Officer, Morigaon Civil Hospital deposed that the victim girl was aged about 19 years vide X-ray plate No. 8375, 76, 77 dated 06.09.2010.

¶64

Page No.# 6/9

¶65

15. Mere disclosing the age in the FIR without oral or documentary proof is wholly insufficient to prove the minority, when the age is an essential ingredient of the offence. An FIR is not a substantial piece of evidence. Hence, the first ingredient being minority, is not established beyond reasonable doubt to constitute an offence under Section 372 IPC.

¶66

16. Turning to the 2^nd vital ingredient of the offence being the factum of sale itself, it is apparent that the foundation of the FIR itself is that the PW-1 heard that the accused appellants had sold his daughter somewhere in Delhi. This is purely hearsay. No witness who saw or participated in the alleged sale was examined during the Trial. The victim herself, whose testimony would be primary evidence of any disposal, was not examined, without any explanation. There is no evidence of sale, whatsoever. That apart, there is no recovery memo and/or any witness from Delhi/Uttar Pradesh or any proof of any payment of transaction in support of the alleged sale. Hence, the allegation remains un-substantiated.

¶67

17 . In the case of Lal Sing (Supra), the Himachal Pradesh High Court held that the act of sale of a minor girl is criminal, not per se, but only of proof of one of the intentions mentioned in the Section. It is further held therein that the point of time which is crucial for determining the culpability of the accused is the one when sale of the girl takes place. It is at that point of time that the intention of the accused who sells the minor has to be taken into account. If marriage is the intention with which the sale is effected, it cannot be for the purpose of illicit intercourse nor can performance of marriage be treated as a purpose unlawful or immoral. It is immaterial if the marriage which subsequently takes place turns out to be a marriage not strictly in conformity with the tenets of the Hindu Law.

¶68

18. In the present facts, it is clear from the evidence of PWs- 1 & 2, being the parents of the victim girl that the victim after being recovered from Uttar Pradesh,

¶69

Page No.# 7/9

¶70

once again went back to Uttar Pradesh to live with her husband with whom she also had a child.

¶71

19. PW-1 deposed that on the date of the occurrence, the accused appellant No. 1 called his daughter to accompany her to go to Bhakatgaon and accordingly, he allowed his daughter to go with her as she is her neighbor. However, the victim did not return back and the accused appellant No. 1 was also not found in her house. After about 10-12 days, the accused appellant came back and upon being asked about the victim, she told that the victim girl was married at Delhi. He further deposed that though he protested, the accused appellant No. 1 told him that the marriage documents are with the accused appellant No. 2. He further deposed that he accordingly called for a village gathering, but the accused appellants did not attend the said meeting. He further deposed that thereafter he filed a case and after police recovered the victim girl from Uttar Pradesh, the victim girl told him that the accused appellants took her to Uttar Pradesh and forcibly handed her to some other persons and left from Uttar Pradesh. He further deposed that the victim girl is presently residing at Uttar Pradesh and after 10-12 days from being recovered, she went back to Uttar Pradesh and has never came back to home since then. During cross-examination, he clarified that he heard that the victim girl had given birth to a child and that he sometime speak with her over the phone. He further clarified that the victim girl is married with one Babul and both of them came to his home about 1 year ago. He further clarified that he does not know whether Babul was known to the victim girl prior to their marriage. Though a suggestion was made that the victim girl married with Babul as per her wish, however, PW-1 denied the same. PW-2, the mother of the victim supported the testimony of the PW-1 in all material particular.

¶72

20. Upon careful analysis of the above circumstances, at best, the

¶73

Page No.# 8/9

¶74

circumstances indicates that the victim girl went to UP with the accused appellant No. 1 and married said Babul on her own and that they were subsequently blessed with a baby. Thus, it is clear from the prosecution witnesses itself that the victim girl was taken out of her home for the purpose of her marriage and not for any of the purposes mentioned under Section 372 IPC for constituting a criminal offence. Hence, the materials are wholly insufficient to prove an offence under Section 372 IPC.

¶75

21. That apart, the victim girl is the most material witness for proving minority, voluntariness, and the allegation of sale. The prosecution has offered no reason for withholding her from the witness-box.

¶76

22 . Failure to examine the star witness, when available, permits the Court to draw an adverse inference under Section 114(g) of the Evidence Act. Consequently, an adverse inference must be drawn that her testimony would not have supported the prosecution.

¶77

23. Pertinent also that the defence version under Section 313 CrPC is that the victim informed the accused appellants that she is in love with a boy from Uttar Pradesh and wanted their help to take her to the boy for marriage. This version is also not improbable and is supported by the admitted fact that the victim married one Babul from Uttar Pradesh and has a baby out of their wedlock. While the prosecution must prove the guilt beyond reasonable doubt, the defence can do this by using cross-examination to expose the contradictions in the prosecution story or by presenting its own evidence to create a different, plausible narrative. In the present case, the accused appellants apart from presenting its own explanation for taking the victim to Uttar Pradesh, also used cross-examination to expose the contradictions in the prosecution story. Hence, the prosecution having failed to prove any ‘sale’ or ‘disposal’, the defence version appears more plausible.

¶78

Page No.# 9/9

¶79

24 . In conclusion, the age of the victim has not been proved, there is no evidence whatsoever of any sale or disposal, the victim was not examined, and an adverse inference arises and the defence version of voluntary elopement and marriage is consistent with the admitted facts.

¶80

25 . In view of the above, this Court is of the unhesitant view that the learned trial court convicted the accused appellant purely on conjectures and hearsay. The conviction, hence, is unsustainable, having been rendered without satisfying the statutory ingredients of Section 372 IPC.

¶81

26 . Resultantly, the instant appeal is allowed.

¶82

27 . The judgment and order of conviction and sentence dated 29.05.2014 passed by the learned Sessions Judge, Morigaon in Sessions Case No. 38/1012 under Sections 372/34 IPC, is hereby set aside. The accused appellant accordingly is acquitted of the charge under Sections 372/34 of the IPC. Bail bond stands discharged.

¶83

28 . TCR be returned forthwith.

¶84

JUDGE

¶85

Comparing Assistant

¶86

Pranab Digitally signed by Pranab Kumar Deka Kumar Date: 2025.11.18 Deka 20:45:37 +05'30'

Babita Hajuwari and 3 Ors. v. the State of Assam and Anr.

Case brief

What is this about?

What did the court decide?

Babita Hajuwari and 3 Ors. v. the State of Assam and Anr.

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Santosh Newar and 3 Ors. Vs the State of Assam and 2 Ors.

Sheikh Noor Iman Mukhtar and Anr. Vs the State of Assam and Anr.

Mustt. Kudratani Khatun @ Ramisa Khatoon Vs State of Assam

Abul Hussain Vs State of Assam

Pranab Bora, Vs the State of Assam and Anr.

Mr. Vipin Saboo Vs Anglo Packagings Pvt. Ltd.