Md. Monowar Hussain Vs the State of Assam

2. The petitioner by way of instituting the present revision petition invoke under Sections 397/401 of the Code of Criminal Procedure, 1973, has assailed the Judgment and Order dated 20.08.2013, passed by the learned Sessions Judge, Darrang, Mangaldoi, in Criminal Appeal No.13(D-3)13, affirming the Judgment and Order dated 13.06.2013, passed by the learned Assistant Sessions Judge, Darrang, Mangaldoi, in Sessions Case No.49 (DM-4)12, convicting the petitioner, herein, under Section 363 IPC and sentencing him to undergo Rigorous Imprisonment for 3(three) years and to pay a fine of Rs.10,000/-(Rupees Ten Thousand) in default of payment of fine to undergo Simple Imprisonment for further period of 6(six) months.

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3. The prosecution case unraveled during the Trial is that on 22.06.2011, one Nabina Begum had lodged an Ejahar with the Officerin-Charge, Mangaldoi Police Station, alleging that on the same date at around 4.30 p.m, while her daughter Marami Begum, aged about 15(fifteen) years, a student of class 9(nine) of Lengrijhar Krisak High School, was returning from school after she had appeared in her examination, was kidnapped by the petitioner, herein, by an Indica car.

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On receipt of the said FIR, the police registered Mangaldoi Police

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Station Case No.436/2011 under Section 366-A IPC. On conclusion of the investigation, the police laid a charge-sheet against the petitioner, herein, under Section 366-A IPC. The Trial Court, thereafter framed charge against the petitioner under Section 366-A IPC and the same being read over and explained to the petitioner, herein, he having pleaded not guilty and claimed to be tried, a Trial ensued in the matter.

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4. During the Trial, the prosecution had examined 6(six) witnesses including the victim, Medical Officer and the Investigating Officer. Thereafter the statement of the petitioner, herein, under Section 313 CrPC was recorded. The petitioner also examined himself as DW-1. The learned Trial Court on appreciating the evidences coming on record was pleased by Judgment and Order dated 13.06.2013, to hold that the ingredient for bringing home the charge under Section 366-A IPC against the petitioner was found to be lacking. However, the evidence coming on record having brought to the forefront that the petitioner, herein, had kidnapped the accused and the ingredients of Section 361 IPC being satisfied, proceeded to convict the petitioner, herein, under Section 363 IPC.

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On such conviction the petitioner was sentenced to suffer Rigorous Imprisonment for 3(three) years and to pay a fine of Rs.10,000/(Rupees Ten Thousand), in default to suffer Simple Imprisonment for further 6(six) more months.

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5. The petitioner, herein, being aggrieved by the said Judgment and Order dated 13.06.2013, assailed the same by way of instituting an appeal being Criminal Appeal Case No.13(D-3)13. The Appellate Court upon appreciating the materials coming on record was pleased vide Judgment and Order dated 20.08.2013, to dismiss the appeal upholding

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the conviction and sentencing of the petitioner by the Trial Court.

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Being aggrieved the petitioner has instituted the present proceeding.

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6. Mr. M. P. Goswami, learned Additional Public Prosecutor, appears for the State Respondents, by taking this Court through the evidences adduced in the matter by the witnesses, both prosecution as well as the defense, and also to the statement recorded of the petitioner, herein, under Section 313 CrPC, has submitted that the learned Trial Court on consideration of the same, had not committed any error in concluding that the case against the petitioner under Section 366-A IPC was not proved beyond reasonable doubt. He further submitted that the learned Trial Court having been found that the materials brought on record has satisfied the ingredients of commission of offence under Section 361 IPC, had proceeded to convict the petitioner, herein, under Section 363 IPC and sentenced him as noticed, hereinabove.

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7. Mr. M. P. Goswami, has submitted that the evidences adduced in the matter by the prosecution with regard to the age of the victim having not being dislodged by the petitioner, herein, during their crossexamination, the ingredients of Section 361 IPC must be held to have been fulfilled and accordingly, the conviction of the petitioner, herein, under Section 363, IPC would not mandate any interference from this Court. He submits that the issues raised in the present revision petition were also urged by the petitioner, herein, before the Appellate Court and the Appellate Court had taken note of the same and drawn conclusion, thereon, basing on the materials coming on record.

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8. I have heard the learned Additional Public Prosecutor, and also perused the materials brought on record.

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9. The learned Trial Court upon appreciating the evidences coming on record during the Trial had drawn the following conclusions ;

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“21. From the ratio of the aforesaid decision of the Hon'ble Supreme Court and from the discussion made above, it appears that school certificate is a public document and to prove the school certificate no formal proof is necessary. Here in this case the school certificate of the victim collected by the 1. O. and he filed the same along with the charge sheet and victim prove the same as exhibit-2 without any objection from the defence side. Hence in this case there is no option but to rely on the school certificate i. e. exhibit2 to ascertain the age of the victim. From exhibit-2 it reveals that at the time of occurrence age of the victim was 14 years 5 months and 12 days. Hence, the age of the victim was below 18 years at the time of occurrence.

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(22) The next question arises whether the accused takes or entices the victim out of the keeping of the lawful guardian of victim without the consent of the guardian of victim or not. From the evidence of PW2 it reveals that father of the victim died and PW2 is the mother of victim. Hence PW2 is the natural guardian of the victim. From the evidence of victim Marami Begum it appears that while she was returning from School, on the way the accused came near to her and pulled her into an Indica car and put something on her nose and she became senseless. Though it is not the case of the prosecution that the victim was raised alarm at the time of occurrence but during cross

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examination defense side put question to victim in this regard and the victim clearly stated that at the time of occurrence she raised alarm but there was no man on the road. Hence it is amount to admission that the victim was raised alarm at time of occurrence. Accused examined himself as defense witness accused in his examination in chief stated that on the day of occurrence his mother and sister were came to his working place at rijhar goan and the victim Moromi Begum along with his mother and sister in an Indica car came to Mangaldai for roaming according to her own will. From the evidence on record it appears that it is admitted fact that accused has taken the victim on the day of occurrence by an Indica car. Accused has not stated in his deposition at Mangaldai whose house they came to roaming. Rather accused in his cross examination stated that he did not know where from the police recovered the victim. If the victim came with him for roaming then obviously he ought to have know the place where the victim stayed at that time. The victim was taken from the road while she was wearing school uniform. But from the evidence of victim it appears that while she got her sense she desires to telephone to her house but the accused person restrained her. Hence the plea of the defense that the victim went with accused for roaming is not believable. Moreover from the above discussion it reveals that the victim is a minor and as such her consent has no value in the eye of law of Evidence.

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(23) What transpires from the above discussion is that

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the victim is a girl below 18 years, the accused taken her by an Indica car without the consent of the guardian of the victim out of keeping of lawful guardian by force while the victim was returning from school and the woman who were with the accused told the victim that she will be remained with them as sister in law. During cross examination of victim prosecution side could not able to dislodge her evidence to impeach the veracity of her evidence: Hence, 1 find that the evidence of PWI is reliable, trustworthy, cogent and inspire the confidence of court. Hence I have nothing to hesitate to hold that the prosecution side able to prove that the accused Monowar Hussain committed an offence u/s 363 IPC beyond all reasonable doubt. Accordingly accused is found guilty under section 363 of the IPC. But this case no charge framed under section 363 of the IPC. Hence a pertinent question arises whether without framing charge on that offence accused can be convicted. As per provision of section 222(2) of the Cr. P. C.- when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, though he has not charged with it. In this case charge was framed u/s 366-A IPC which is major offence than offence under Section 363 IPC. The natures of both the offences are same. Hence I find that there is no bar to convict the accused u/s 363 IPC. Accordingly accused Monowar Hussain is convicted u/s 363 of the IPC.

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(24) The convict kidnapped a girl of the age of 14 years 5 month and a student of class-IX from the road while she was returning from school. Hence the act of convict is a crime against a woman. Now a day's crime against woman increase in the society. If the convict is released on probation then it will be encouraged the other antisocial persons to do the same type of crime in the society. Moreover the convict is a Immam of a Masjid and he is responsible persons of a particular community. Crime committed by an ordinary man in the society and a responsible person of the society is different. So considering all this aspect and considering nature of offence and fact and circumstances of the case I am of the considered view that the convict does not deserve to get the benefit of the provision of section 3 and 4 of the Probation of offenders Act. Hence I am not inclining to extent the benefit of the provision of section 3 and 4 of the Probation of offender Act to the convict.”

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10. On a perusal of the said conclusions drawn by the learned Trial Court, this Court finds that the same is supported by the evidences coming on record as well as decisions of the Hon’ble Supreme Court applied in the matter by the learned Trial Court. This Court finds no infirmity with the conclusions drawn by the learned Trial Court.

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11. Having drawn the said conclusion this Court would not examine the conclusions drawn by the Appellate Court vide the Judgment and Order dated 20.08.2013. The learned Appellate Court upon considering the evidences coming on record, had proceeded to uphold the Judgment and Order dated 13.06.2013, passed by the learned Trial Court. The

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learned Appellate Court had also considered the issue as to whether the charge being framed against the petitioner, herein, under Section 366-A IPC, he could be convicted under Section 363 IPC. The learned Appellate Tribunal after noticing the decisions applicable in the matter by the Hon’ble Supreme Court, proceeded to hold the same, was permissible.

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12. On a perusal of the conclusions drawn by the learned Appellate Court in the matter, this Court does not find any infirmity, therein. Accordingly, this Court is of the considered view that the Judgment and Order dated 20.08.2013, passed by the learned Trial Court would not mandate any interference by this Court.

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13. Having drawn the above conclusions, this Court notices that the incident involved in the present proceedings had occasioned on 22.06.2011 and as on date more than 14(fourteen) years has lapsed since then. This Court further notices that the petitioner, herein, is not alleged to be involved in similar nature of offence, prior to the one alleged against him in the present proceedings, in other words he is a first time offender. Further the petitioner is found to be litigating the matter for the last around 14(fourteen) years, initially before the Trial Court, thereafter before the Appellate Court and presently before this Court in the present revision petition.

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14. In view of the above position, this Court finds that the petitioner, herein, is entitled to the benefits available to him under the Probation of Offenders Act, 1958. The learned Trial Court had refused to extent the benefit under the provisions of the Act of 1958 only on consideration of the nature of the offence committed by the petitioner, herein. The Appellate Court had not considered the issue with regard to the

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extension of the benefits available to the petitioner, herein, under the provisions of the Act of 1958.

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15. In view of the discussion made in the fore going paragraphs, this Court while maintaining the conviction of the petitioner, herein, holds that it is a fit case wherein the petitioner, herein, is eligible to be extended the benefits under the Act of 1958.

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16. Accordingly, for the reasons recorded, hereinabove the petitioner, herein, is given the benefit under the Act of 1958 and the sentence is modified to the effect that instead of sending the petitioner to jail, he be given the benefit under Section 4 of the Act of 1958.

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17. As such, it is directed that the petitioner, herein, shall file two sureties to the tune of Rs.20,000/-(Rupees Twenty Thousand) each, along with personal bond before the learned Assistant Sessions Judge, Darrang, Mangaldoi, and undertake to the effect that the petitioner shall keep peace and good behavior during the period of 6(six) months from today. The aforesaid bond be filed within 1(one) month from today.

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18. Registry to send down the records of this case to the learned Trial Court along with a copy of this order for information and necessary action.

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JUDGE

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Md. Monowar Hussain v. the State of Assam

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Md. Monowar Hussain v. the State of Assam

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