ARUN ROY v. STATE OF WEST BENGAL — 1999 DIGILAW 53 (CAL)

NURE ALAM CHOWDHURY, J. ( 1 ) THIS appeal on behalf of the appellant Arun Roy, from jail is directed against his conviction and sentence by the Ld. Assistant Sessions Judge (Addi), Purulia in his judgment and order dated 28-5-1990 in Sessions Trial No. 10 of 1990 (Sessions Case No. 86 of 1989), convicting the appellant on the charge under section 363, I. P. C. and sentencing him thereon to suffer R. I. for five years and to pay a fine of Rs. 2,000/- and to suffer R. I. for one year more and also convicting him under section 376. I. P. C. and sentencing him to suffer R. I. for eight years and to pay a fine of Rs. 2,000/- in default to suffer R. I. for one year more thereon both the sentences to run concurrently. ( 2 ) THE aforesaid trial emanated from Purulia (Town) P. S. Case No. 9 dated 19-11-1998 under sections 363/366a. I. P. C. recorded on the written complaint (Ext. 1) of one Haraku Kumar (P. W. 1), father of Jay anti Kumar (P. W. 6) and a Homeguard, at the said P. S. on the same day at 16. 25 hrs alleging thereon that on November 6. 1988 (i. e. about twelve days back), his daughter, Jayanti Kumar aged about 14 years 6 months, hereafter referred to as the victim girl went to see an open air opera at Nadihia Barawase and since then she was untraced till that day and he came to know that Sri Arun Roy (appellant) had fled away taking his minor daughter from the place to satisfy his immoral purpose. ( 3 ) ON 21-1-1989 i. e. about four months thereafter, the appellant and the victim girl surrendered themselves at the police station and they were arrested and forwarded to Court and on the prayer of the 1. 0. medical examination of the appellant was done by Dr. Asit Kumar Das Dan (P. W. 9) and the victim girl was done by Dr. Pradip Kumar Bagchi (P. W. 7) to ascertain her ages and her statement (Ext. 3) was recorded under section 164. Cr. P. C. by the Ld. 0. medical examination of the appellant was done by Dr. Asit Kumar Das Dan (P. W. 9) and the victim girl was done by Dr. Pradip Kumar Bagchi (P. W. 7) to ascertain her ages and her statement (Ext. 3) was recorded under section 164. Cr. P. C. by the Ld. S. D. J. M. Purulia (P. W. 8) on 23-1-1989 and after completion of investigation charge-sheet was submitted against the appellant for offences punishable under sections 363, 366/376, I. P. C. and ultimately the appellant was placed on trial to face the charges under sections 363 and 376, I. P. C. and convicted and sentenced as above. ( 4 ) PROSECUTION examined eleven witnesses in support of the prosecution case and no witness was examined in support of the defence. ( 5 ) AMONG the prosecution witnesses, P. W. 1 is the informant and father of the victim girl. P. W. 2 was a tenant of P. W. 1 and she entered the house of P. W. 1 on the same day of alleged occurrence. P. W. 3 is the mother of the victim girl. P. W. 4 and P. W. 5 both sons of P. W. 1 were tendered for cross-examination only P. W. 6 is the victim girl herself. P. W. 7 is the doctor who held the ossification test of the victim girl on 28-2-1989 to ascertain her age. P. W. 8. S. D. J. M. at the relevant time recorded the statement of the victim girl under section 164, Cr. P. C. (Ext. 3) on 23-1-1989. P. W. 9 is the doctor who examined the appellant on 24-1-1989. P. W. 10, was the teacher-in-charge of the school where the victim girl studied and issued the certificate of her date of birth (Ext. 4) as transpired from the Admission Register of the school and P. W. 11 is the I/o. ( 6 ) WE find from the evidence of P. W. 1 the informant and father of the victim girl that he was not present in his house when Jayanti Kumar left his house to see Jatra and he returned to his house at 7. 30 P. M. and from Karpura Debi (P. W. 2) his tenant he came to know that the appellant took Jayanti to Durga Mandir to see Jatra but he did not lodge any G. D. with the P. 5. 30 P. M. and from Karpura Debi (P. W. 2) his tenant he came to know that the appellant took Jayanti to Durga Mandir to see Jatra but he did not lodge any G. D. with the P. 5. till the date of lodging the F. I. R. , and the house of the appellant and his house are-intervened by one house and he did not state in the written F. I. R. that the appellant called Jayanti and took her to Durga Mandap to see Jatra. ( 7 ) IT appears that P. W. 2 Karpura Debi stated in her evidence that she first took her entry in the house of P. W. 1 as a tenant on the date of occurrence and she did not get acquainted with all the people of the locality. ( 8 ) P. W. 3 mother of the victim girl stated in her evidence that her daughter. Jayanti once disclosed that she would go to Durga Mandap to see the Jatra-show at night and she did not state to the Police Officer that on that date her husband returned home at 7. 30 P. M. and thereafter they went to Durga Mandap to search for her daughter Jayanti. ( 9 ) IT transpires from that evidence of P. W. 6 the victim girl herself that she had no acquaintance with the appellant prior to the incident and several persons were present in the pandal of burga Mandap and from Durga Mandap they went to Shankar Chitrayan via Main Road and on the next morning she was taken to Ranchi Road by Main Road and Purulia Town P. S. is by the side of Main Road but she did not raise any alarm and they stayed at Chas for a month and thereafter at Dhanbad for another month and there after she was taken to colliery and at last she was back to Purulia with the appellant and she lived at Chas as husband and wife and she did not remember what she stated before the police officer and the Magistrate. ( 10 ) P. W. 7, the doctor who examined the victim girl stated in his evidence that from the Medicological findings he opined that Jayanti completed l6years of age but below 18 years on the day of her x-ray examination on 28-2-1989 and he proved his report (Ext. 2 ). ( 10 ) P. W. 7, the doctor who examined the victim girl stated in his evidence that from the Medicological findings he opined that Jayanti completed l6years of age but below 18 years on the day of her x-ray examination on 28-2-1989 and he proved his report (Ext. 2 ). ( 11 ) FROM the evidence of P. W. 8, the Ld. S. D. J. M. who recorded the statement of the victim girl on 23-1-1989, we find he was satisfied that the victim girl made her statement voluntarily. ( 12 ) EVIDENCE of P. W. 9 the doctor shows that he examined the appellant on 24-1-1989 but did not find any injury on his penis. ( 13 ) P. W. 10, the teacher-in-charge of the school where Jayanti studied and give certificate of her date of birth stated that he was not present at the time and place of admission of Jayanti in the school. ( 14 ) P. W. 11, the I/o stated in his evidence that the father of the appellant was a police constable. He also stated that he (I/o) was present when the appellant and the victim girl surrendered at the P. S. and he found vermilion on the tiara of the victim girl and he did not send the vaginal swab of the victim girl for examination. He also stated that the victim girl told him that she had love-affair with the appellant and they had strong desire to live as husband and wife and she was married to the appellant at the Kalibari at chas and used to take vermilion as a sign of her marriage and they hired a house at chas and lived there as husband and wife and she did not tell him that she was taken to the different places by the appellant as told by her evidence in Court. ( 15 ) P. W. 12, the doctor who examined the victim girl gynaecologically, stated that he examined the victim girl on 24-1-1989 and found her hymen ruptured but no mark of violence on her private parts and he did not find any foreign body or hair present in her vagina and he found her manstrual history normal. ( 16 ) HEARD the Ld. Advocate appearing on behalf of the appellant and the Ld. Advocate for the State. ( 16 ) HEARD the Ld. Advocate appearing on behalf of the appellant and the Ld. Advocate for the State. ( 17 ) ON consideration of the submissions of the respective parties and the evidence on record we find that the prosecution witnesses including the victim girl have introduced a new story at the trial. ( 18 ) FROM the evidence of P. W. 8, it appears that the victim girl attained the age of her discretion and from her statement recorded under section 164, Cr. P. C. it appears that the appellant and the victim girl were in love with each other and were married and living as husband and wife of their own accord. ( 19 ) THE appellant was a young man of about 22 years. We have no hesitation in holding that the prosecution has failed to prove the ingredients of the offences under sections 363 and 376 of the I. P. C. to the hilt against the appellant as transpire from the evidence on record, following the ratio of the decision reported in the State of Karnataka v. Sureshbabu Pule Raj Poral. ( 20 ) THE appeal therefore succeeds 1994 Calcutta Criminal Law Reporter S. C. 63 and is allowed and the conviction and sentence of the appellant by the Trial Court is set aside the appellant is acquitted of the charge under section 363, I. P. C. as well as of the 376, I. P. C. The appellant is directed to be released from custody forthwith. Bhattacharjee, J I agree with the findings arrived at by my learned brother. I would only like to add a few words. The appellant-accused has been convicted under sections 363/376. I. P. C. From the statements made by the girl P. W. 6, Jayanti Kumar before the learned Magistrate under section 164 Cr. P. C. as well as the statement made to the 1. 0. during the investigation it is evident that there was a long standing love affair between the girl and the accused and pursuant to that the girl taking the opportunity of going to visit Yatra in the particular evening went away from her house and joined the boy (appellant ). It also transpires from the evidence that thereafter they went together to different places and stayed at Chas. Dhanbadand a colliery and together returned to the house of the accused about, after three months. It also transpires from the evidence that thereafter they went together to different places and stayed at Chas. Dhanbadand a colliery and together returned to the house of the accused about, after three months. The house of the girls parents is also situated in the closed neighbourhood of the accused in the same place at Nadia. Bibirbandh Para. Purulia. During the trial the girl of course has resiled from the earlier statements she made to the 1. 0. as well as to the Magistrate under section 164, Cr. P. C. But from the facts, Circumstances and evidence-an-record there is no doubt that the earlier statements made by her to the 1. 0. as well as to the Magistrate under section 164, Cr. P. C. were voluntary statements and indeed genuine statements. The prosecution indeed has adduced in evidence one school certificate showing the date of birth of the victim girl Jayanti. According to that certificate her age was about fourteen and half years at the time of occurrence. The prosecution however has not adduced evidence as to at whose instance the date of birth was recorded in the Admission Register of the school. On the other hand the opinion of the Radiologist is that at the relevant time the girl Jayanti had completed 16 years of age but was below 18 years. Evidently therefore the girl had attained the age of discretion at the relevant time and was above 16 years of age. There is no doubt that the affair was a voluntary one and any sexual intercourse between the boy and the girl that might have taken place while they were staying together at different places as husband and wife must have taken place with the consent of the girl who according to the medical evidence was aged more than 16 years. That being so the charge of rape under section 376, I. P. C. must fail. As regards the other charge under section 363 I. P. C. the girl had attained the age of discretion. She it seems voluntarily accompanied the appellant accused of her own accord with a view to leading a conjugal life with the appellant in the circumstances the charge under section 363 I. P. C. also must fail and at any rate the appellants is entitled to benefit of doubt on that score. She it seems voluntarily accompanied the appellant accused of her own accord with a view to leading a conjugal life with the appellant in the circumstances the charge under section 363 I. P. C. also must fail and at any rate the appellants is entitled to benefit of doubt on that score. Accordingly agreeing with my learned brother direct that the appeal is allowed and the conviction and sentence imposed by the learned trial Court upon the appellant is set aside and the appellant is acquitted of the charges framed against him. He be forthwith released from jail if not already released on bail during the pendency of this appeal. Appeal allowed.