FAZAL ALI Vs. STATE OF ASSAM

JUDGEMENT

(1.) This Criminal appeal has been preferred by the accused Fazal Ali against the judgment and order dated 7.3.87 passed by the Sessions Judge, Nalbari in Sessions Case No. 41 (N) of 1986 convicting the appellant under section 366/376 I.P.C. sentencing him to undergo R.I. for two years U/s 366 and two years U/s 376 total 4 years. The prosecution case in brief is that on 22.1.81 at about 6.30 P.M. the appellant kidnapped the minor girl Smti. Putuli Begum from the custody of her guardian and took her to village Sandheli and kept her in the house of one Razia Khatun. While the uncle of the girl Md. Atowar Ali with other people went to the house of Beng of Chamata the accused-appellant fled away. The uncle of the girl lodged ejhar to that effect and police registered a case against the appellant along with one Islam and they were charged-sheeted U/ s 366/376/44 I.P.C. The other accused Islam was acquitted-and was released U/s 360 Cr.P.C. and the present appellant was convicted U/s 366/376 I.P.C. and sentence him to suffer R.I. for 2 years U/s 366 I.P.C. and also 2 years U/s 376 I.P.C. total being 4 years R.I. with the benefit of set off under section 428 Cr.P.C.

(2.) The prosecution examined as many as 9 witnesses including doctor and Investigating Officer. P.W. 1 Atowar Rahman is the informant. He gave a vivid description of the entire prosecution story. In his evidence he stated that his niece Putuli Begum was staying at his house at Mallapara of Nalbari town. Her age was 13/14 years at the time of occurrence. On 22.1.81 in the morning he left for Gauhati and on his return from Gauhati he was informed by his younger brother Babuli Ali (P.W.4) that accused-appellant Fajal Ali and Islam Ali had kidnapped Putuli Begum and proceeded towards Joymongala Village. Hearing this he took his motor cycle in search of Putuli and proceeded to Joymongala village and came to the house of accused Fazal and his mother told him that Putuli was not brought to her house. He lodged ejahar (Ext. 1) at Nalbari Police Station and thereafter he got information that Putuli was kept in the house of one Sufia at village Sandheli and. so he went to the house of Sufia, but he was told that Putuli was not brought to her house. Being informed by somebody that Putuli was kept in the house of Sufia's mother, the informant came to the house of Sufia's mother and when they reached there the victim girl Putuli came out weeping and told him that accused Fazal and Islam had gagged her mouth and forcibly lifted her on a rickshaw and brought her there on threat at the point of a dagger. Both the accused were seen there and on seeing police they ran away. Police chased tern and arrested Fazal and brought Putuli to Nalbari Police Station and sent her for medical examination and next day police arrested accused Islam also. P.W. 2 Md. Faij stated that he saw the occurrence from a distance of about 30 feet that the accused persons gage Putuli and lift her on a rickshaw and proceeded towards Palla Road. He tried to prevent them, but the accused persons showed him a dagger and he gave up. After recovery of Putuli he was present at the time when Putuli was telling before Atowar Rahman (P.W.1) and her grand mother P.W.6 that the accused persons had violated her chastity. The most material and important witness is P.W.3. Must. Putuli Begum the victim girl. Her evidence on records is that on the date of occurrence at 7 p.m. while she was coming to her grand father Maksed Ali's shop and she found that the shop was closed, the accused persons brought in a rickshaw and accused Fazal thrust some cloths in her mouth and picked her in the rickshaw. The accused Fazal sat by her side and the rickshaw-puller was directed to drive his rickshaw towards the house of accused Fazal at Joymongala Village, but his mother did not allow him to keep her there. Then Fazal took her in the house of a widow at Sandheli village and she was kept there for the night. At night accused Fazal rapped her. Next morning her maternal uncle Atowar Rahman came there and the accused persons fled away. Her mother maternal uncle Babuli Ali also came there. They brought her back to Nalbari and sent for medical examination and police has seized the materials. P.W. 4 Babul Ali, P.W.6 Smti Gulsan Khatun, grand mother of the prosecutrix also corroborated her evidence. P.W.7 is the Investigating Officer and his evidence on record is that he searched the house of Rejia Khatun (widow) at Village Sandheli and found accused Fazal Ali and Putuli Begum there. He forwarded Putuli to Nalbari Civil Hospital for medical examination and arrested Fazal and he seized Mat. Ext. 2 Petticoat from the prosecutrix and later on the statement of the prosecutrix he came to know that accused Islam Ali was also involved in that case and so he arrested him also. He also affirmed the statement of Putuli. The other important witnesses P.W. 9 Dr. Khagendra Nath Sarma who is a Medical and Health Officer at Nalbari Civil Hospital on 23.1.81. He examined the girl and found that the girl is a minor within 17 years of age and that the girl was raped.

(3.) From the evidence on record I find nothing to interfere with the judgment of the learned Sessions Judge. The learned Sessions Judge proceeded with the evidence in details and came to His finding and accordingly the accused was convicted and sentenced. Accordingly I affirm the judgment of the court below. As already stated that the accused-appellant was convicted U/s 366 I.P.C. and sentenced to 2 years R.I. and also U/s 376 I.P.C. for 2 years R.I. total being 4 years imprisonment with the benefit of Section 428 Cr.P.C., it appears from the record that the appellant was in custody before trial for 18 days only, he was arrested on 24.1.81 and released on 12.2.81 and since then he is in bail. In that view of the matter I direct the accused-appellant to surrender before the Chief Judicial Magistrate Nalbari within one week from the date of receipt of this Judgement to serve his sentence. The bail bond is cancelled. In 'the result the appeal is dismissed.