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2008 DIGILAW 398 (GAU)

Kanu Mia and etc. v. State of Tripura

2008-05-30

MAIBAM B.K.SINGH

body2008
JUDGMENT B.K. Singh, J. 1. These 3(three) appeals are directed against the Judgment dated 15-10-2001 passed by the learned Additional Sessions Judge, West Tripura, Agartala, in Session Trial No. 101 (WT/A)/1998, convicting and sentencing the appellants to suffer ten years' rigorous imprisonment with a fine of Rs.5,000/- each, in default of payment, to suffer simple imprisonment for three months under Section366 read with Section 34 of the Indian Penal Code. By the impugned judgment, the appellant, namely, Suku Ranjan Sarkar was also convicted and sentenced to suffer seven years' rigorous imprisonment with a fine of Rs.5,000/-, in default of payment, to suffer three months simple imprisonment under Section 376 of the Indian Penal Code and both the sentences are to run concurrently. All these appeals are taken up for disposal by this common judgment as same questions of law are involved in these appeals. 2. Facts giving rise to these appeals are that the informant lodged a written report on 20-2-1989 with the O/C Amtali P.S., to the effect that at about 0600 hours of the same day, the complainant's daughter, namely, Smti Anima Choudhary, aged about 12 years, while going to her school, was forcibly kidnapped by the accused Suku Ranjan Sarkar and two others and taken her in an autorickshaw bearing No. TRT-872. On the basis of the said report, Amtali Police Station Case No. 10(2)/89 under Section 366/351, IPC was initially registered but Sections 120-B and 376 of the Indian Penal Code were also subsequently added. After investigation, charge-sheet was submitted against 8 accused persons. The learned trial Court framed charges under Sections 366 and 376, IPC against accused-appellant Suku Ranjan Sarkar alias Bidal Sarkar and under Section 366 read with Section 34, IPC against the remaining 7 accused persons. All the accused persons pleaded not guilty to the charges framed and claimed to be tried. The learned trial Court convicted the appellants as stated above but acquitted the remaining accused persons. 3. Heard the learned Counsel appearing for the appellants and Mr. R.C. Debnath, learned In-charge Public Prosecutor for the State-respondent. 4. All the accused persons pleaded not guilty to the charges framed and claimed to be tried. The learned trial Court convicted the appellants as stated above but acquitted the remaining accused persons. 3. Heard the learned Counsel appearing for the appellants and Mr. R.C. Debnath, learned In-charge Public Prosecutor for the State-respondent. 4. That, at the time of hearing, one of the grounds amongst others raised from the side of the appellants is that the sentences imposed on the appellants by the learned trial Court are illegal in view of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as 'the Act'). According to the learned Counsel appearing for the appellants, all the appellants were juvenile at the time of alleged occurrence and thus, even, if, the Court finds that the appellants had committed the alleged offences, the findings should have been forwarded under Section 20 of the Act to the Juvenile Board for passing necessary orders in accordance with the provisions of the Act instead of imposing sentences on them. 5. That, it may be pointed out that no such plea was raised by the appellants during the course of trial. However, there is no bar in taking up such plea at the appellate stage. Such being the position, it has become necessary to examine whether the imposition of sentences on the appellants are illegal in view of the provision of the Act. The learned Counsel appearing for the appellants submit that the ages of the appellants as recorded in their statements recorded under Section 313, Cr.P.C. are 24 years in respect of Kanu Mia, 26 years in respect of Prabir Deb and 27 years in respect of Suku Ranjan Sarkar respectively as on 7-1-1999. The date of alleged occurrence was on 20-2-1989. Thus, they were aged about 14 years, 16 years and 17 years respectively on the day of occurrence. As per Section 2(a) of the Act, 'juvenile' or 'child' means a person who has not completed 18 years of age. Section 2(1) of the Act further provides that 'juvenile in conflict with law' means a juvenile who is alleged to have committed an offence. The learned Counsel appearing for the appellants, thus, contended that all the appellants were juvenile on the date of occurrence as all of them were below 20 years of age on that date. Section 2(1) of the Act further provides that 'juvenile in conflict with law' means a juvenile who is alleged to have committed an offence. The learned Counsel appearing for the appellants, thus, contended that all the appellants were juvenile on the date of occurrence as all of them were below 20 years of age on that date. True, it is the date of occurrence to be reckoned for determination of juvenile in conflict with law. 6. That, except the ages of the appellants which have reflected in their statements recorded under Section 313, Cr.P.C., no age proof certificate or horoscope or any other reliable document was produced either before the learned trial Court or before this Court to prove the appellants were Juvenile on the date of occurrence. In the absence of any reliable evidence showing the true ages of the appellants, I am not inclined to accept that the ages reflected in the statements recorded under Section 313, Cr.P.C. are the true and correct ages of the appellants. In Yaduraj Singh v. State of U.P. 1977 Cri LJ 340, the accused persons claimed that they were less than 21 years of age on the basis of their ages given in their statements recorded under Section 342, Cr.P.C. and thus, they ought to have been given the benefit of Probation of Offenders Act. But the Hon'ble Apex Court rejected the same by holding that the age reflected in their statements had no special significance in the absence of a proper plea under the Act. 7. That, even assuming the ages as given in their statements recorded under Section 313, Cr.P.C. are true and correct, in that case also the appellants are not entitled the benefit of the provision of Section 20 of the Act. The Juvenile Justice (Care and Protection of Children) Act, 2000, came into force w.e.f. 1-4-2001. Section 20 of the Act is a special provision in respect of pending cases, it runs as follows: 20. The Juvenile Justice (Care and Protection of Children) Act, 2000, came into force w.e.f. 1-4-2001. Section 20 of the Act is a special provision in respect of pending cases, it runs as follows: 20. Special provision in respect of pending cases.- Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any Court in any area on the date on which this Act comes into force in that area, shall be continued in that Court as if this Act had not been passed and if the Court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence. The above provision clearly indicates that this Section is applicable to all proceedings pending in any Court, i.e., including ordinary criminal Courts, in respect of juvenile when the Act came into force. It means, the benefit of this provision shall be extended to the Juvenile whose case is pending in any Court as on 1-4-2001. In the instant, case, the appellants were not Juvenile when the Act came into force. As per the ages reflected in their statements recorded under Section 313, Cr.P.C., the ages of the appellants would be not less than 24 years in resepct of Kanu Mia, 26 years in respect of Prabir Deb and 28 years in respect of Suku Ranjan Sarkar as on 1-4-2001. Thus, they were not Juvenile when the Act came into force. Hence, the benefit of Section 20 of the Act cannot be extended to the appellants. 8. That, on this point, Constitution Bench of the Hon'ble Apex Court in Pratap Singh v. State of Jharkhand held as follows: Section 20 of the Act as quoted above deals with the special provision in respect of pending cases and begins with non obstante clause. The sentence "notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any Court in any area on date of which this Act came into force" has great significance. The sentence "notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any Court in any area on date of which this Act came into force" has great significance. The proceedings in respect of a juvenile pending in any Court referred to in Section 20 of the Act Is relatable to proceedings initiated before the 2000 Act came into force and which are pending when the 2000 Act came into force. The term "any Court" would include even ordinary criminal Courts. If the person was a "juvenile" under the 1986 Act the proceedings would not be pending in Criminal Courts. They would be pending in Criminal Courts only if the boy had crossed 16 years or girl had crossed 18 years. This shows that Section 20 refers to cases where a person has ceased to be a juvenile under the 1986 Act but had not yet crossed the age of 18 years then the pending case shall continue in that Court as if the 2000 Act has not been passed and if the Court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, shall forward the juvenile to the Board which shall pass orders in respect of that juvenile. (Para 31) In the said case, the Hon'ble Justice Sinha further observed as follows: Section 20 of the Act of 2000 would be applicable when a person is below the age of 18 years as on 1-4-2001. For the purpose of attracting Section 20 of the Act, it must be established that: (i) on the date of coming into force the proceedings in which the petitioner was accused was pending; and (ii) on that day he was below the age of 18 years. For the purpose of the said Act, both the aforementioned conditions are required to be fulfilled. By reason of the provisions of the said Act of 2000, the protection granted to a juvenile has only been extended but such extension is not absolute but only a limited one. It would apply strictly when the conditions precedent therefore as contained in Section 20 or Section 64 are fulfilled. The said provisions repeatedly refers to the words "juvenile" or "delinquent juveniles" specifically. It would apply strictly when the conditions precedent therefore as contained in Section 20 or Section 64 are fulfilled. The said provisions repeatedly refers to the words "juvenile" or "delinquent juveniles" specifically. This appears to be the object of the Act and for ascertaining the true intent of the Parliament, the rule of purposive construction must be adopted. The purpose of the Act would stand defeated if a child continues to be in the company of an adult. Thus, the Act of 2000 intends to give the protection only to a juvenile within the meaning of the said Act and not an adult. In other words, although it would apply to a person who is still a juvenile having not attained the age of 18 years but shall not apply to a person who has already attained the age of 18 years on the date of coming into force thereof or who had not attained the age of 18 years on the date of commission of the offence but has since ceased to be a juvenile. (Para 98) Mr. A.K. Bhowmik, the learned Senior Counsel has placed reliance on a decision dated 14-6-2005, passed by a Division Bench of this Court in Criminal Appeal No. 25 of 2001. I have gone through the above-cited case and of the view that the said case is of no help in the instant case. 9. That, for the reasons what has been discussed above and having regard to the ratio laid down in the above case of the Hon'ble Apex Court, the argument advanced by the appellant's learned Counsel is unsustainable and accordingly not accepted. 10. That, coming to the merit of the case, it is the case of the prosecution that Smti Anima Choudhary, the victim, was kid napped on 20-2-1989 while going to the school by the appellants, she was compelled to sleep, in the night, with the appellant-Suku Ranjan Sarkar who had sexual inter course with her forcibly. 10. That, coming to the merit of the case, it is the case of the prosecution that Smti Anima Choudhary, the victim, was kid napped on 20-2-1989 while going to the school by the appellants, she was compelled to sleep, in the night, with the appellant-Suku Ranjan Sarkar who had sexual inter course with her forcibly. The learned Counsel appearing for the appellants submit that the appellant-Suku Ranjan Sarkar was falsely implicated in the case because of previous enmity with the brother of the victim, the impugned judgment was passed by mis-appreciating the evidences on record and the statement of the appellants under Section 164, Cr.P.C. were not recorded in conformity with law and the impugned judgment is liable to be set aside in view of the evidence of P.W. No. 15. Per contra, the learned In-charge Public Prosecutor, reacting strongly to the above submission advanced by the appellants' learned Counsel, submits that the prosecution case has, beyond all reasonable doubt, established that the appellants had committed the offences punishable under Section 366 read with Section 34 and Section 376, IPC respectively. 11. That, in order to satisfy whether the conviction and sentences passed by the learned trial Court is sustainable in the eye of law, I have carefully perused the evidence and the materials available on record. 12. That, there is no dispute that the victim Smti Anima Choudhury was a student of Class-V, Champamura Primary School when the occurrence took place. From the evidences of P.W. No. 1, father of the victim; P.W. No. 7, a Judicial Magistrate who recorded the statement of the victim under Section 164, Cr.P.C., P.W. No. 10, the victim and the 164 statement of the victim marked Exbt.-P/4 and the School Leaving Certificate marked Exbt.-P/6, it is clear that the victim was far below the age of 16 years on the date of occurrence. 13. That, P.W. No. 10 categorically stated that on the fateful day at about 6/6.30 a.m. while she was going to school along with Jamuna and Hasi alias Archana, one auto rickshaw was found parking on the road near the Panchayat Office. When they reached thereat, Suku called her and forcibly taken her inside the said auto rickshaw, in which, she found Kanu Mia and Prabir besides Suku. She raised alarm but they gagged her and taken her to the house of Sudhangshu under threat by showing a dagger. When they reached thereat, Suku called her and forcibly taken her inside the said auto rickshaw, in which, she found Kanu Mia and Prabir besides Suku. She raised alarm but they gagged her and taken her to the house of Sudhangshu under threat by showing a dagger. She was shifted to a Jeep from the said auto rickshaw by the appellants and other accused persons in front of the house of Sudhangshu. Suku was the driver of the said auto rickshaw. Sudhangshu drove the said jeep and taken to Melagarh at the house of one Tapan Laskar. She was threatened to say that she was staying voluntarily along with them and also asked her to change the dress. At about 3.00/4.00 p.m., except accused Suku and Biswambar, others left that house. During the night, Suku had sexual Intercourse with her forcibly after compelling her to sleep with him. In the mid-night, she was taken to another house at Melaghar, whose owner was unknown to her. In the early morning, police rescued her from the said house and taken to Melaghar police station with Suku. She disclosed all the facts of the Incident to the police. In the night, she was taken to her house, on the next day, she was brought to the police station again and therefrom to Court, where she stated all about the incident to the Magistrate. She was also taken to the V.M. Hospital, where she was medically examined by a Doctor. She was extensively cross-examined by the learned defence counsel but could not be shaken. 14. That, P.W. No. 2, Smti Jamuna Choudhary and P.W. No. 8, Smti Archana Shil stated in their statements that some years back while they were going to School with Anima, some persons forcibly taken Anima in an autorickshaw when they reached near Panchayat Office. She was taken by Suku, Prabir and Kanu Mia to wards Champamura bazar. P.W. No. 8 stated that one of the persons was Suku. Thereafter, they rushed to the School and informed the incident. P.W. No. 2 went to the house of the victim and informed the matter to her father (P.W. No. 1). P.W. No. 8 also informed the incident to the elder brother of the victim. P.W. No. 8 stated that one of the persons was Suku. Thereafter, they rushed to the School and informed the incident. P.W. No. 2 went to the house of the victim and informed the matter to her father (P.W. No. 1). P.W. No. 8 also informed the incident to the elder brother of the victim. P.W. No. 1, the father of the victim had also stated that he was informed by one of the victim's friend that Suku Ranjan Sarkar and two others forcibly kidnapped his daughter and taken her away. P.W. No. 2 also stated that some persons, namely, Lalit and Kanu made an attempt to stop the auto rickshaw but failed. 15. That, P.W. No. 3 Lalit Mohan Das, a shop-keeper, though he was declared as a hostile witness by the prosecution, stated that about 6 years back at about 6.00 a.m., immediately after opening his shop, he heard an alarm of a girl coming from an Auto rickshaw and made an attempt to stop it but the accused Prabir and Suku threatened him and the driver of the autorickshaw was one Kanu Mia. P.W. No. 4 Kanu Laskar stated that about 6 years back, one day in the morning, while he was returning to his house from a shop of Champamura, heard an alarm from an autorickshaw. He saw that a girl was forcibly taken away by three persons and those three persons were Suku, Prabir and Kanu Mia. 16. That, the appellant-Kanu Mia in his memo of appeal under ground Nos. 12, 13 and 14 stated that accused-Sudhangshu was the driver of the jeep by which the victim girl was taken to Melagarh at the house of one Tapan Laskar. But the learned trial Court acquitted him, whereas he was convicted for driving the autorickshaw. He admitted that he lifted the victim girl from Champamura bazar to the house of Sudhangshu, but pleaded that he was compelled to carry the victim along with Suku and Prabir in his Auto rickshaw as both the accused persons threatened him to be killed and that he had not participated in kidnapping Anima Choudhury. Other two appellants, namely, Suku and Prabir were not known to him prior to the occurrence. Other two appellants, namely, Suku and Prabir were not known to him prior to the occurrence. The appellant Prabir Deb in his memo of appeal pleaded under ground No. 8 that the victim girl stated in her examination-in-chief that the accused Suku forcibly taken the victim in an autorickshaw and she saw the appellant Prabir in the said autorickshaw only. And that the victim did not state that he was participated in the alleged kidnapping. The appellant-Prabir has been falsely implicated in this case. 17. That, the above evidences and the pleadings of the appellants clearly establish that the victim was kidnapped by the appellants. In the absence of any evidence, it is difficult to accept the plea taken by the appellant-Kanu Mia that he was a mere autorickshaw driver and he was compelled to carry the victim along with other two appellants under threat. According to him, the victim was kidnapped by the other two appellants. Whereas, the appellant Prabir Deb has taken the plea that the victim was forcibly taken by the appellant-Suku Ranjan Sarkar and he has been falsely implicated in the case. On the other hand, the appellant-Suku Ranjan Sarkar took the plea that he has been falsely implicated due to his enmity with the elder brother of the victim. It appears that all the above pleas are inconsistent (with) each other for the reasons that, according to the appellant-Kanu Mia, the other two appellants kidnapped the victim. On the contrary, the appellant-Prabir Deb pleaded that the appellant-Suku Ranjan Sarkar alone kidnapped the victim. In the instant case, all the three appellants were convicted for the offence punishable under Section 366, IPC. In view of the above pleadings of the appellants, the only conclusion which can be safely inferred is that all of them were involved in the commission of the offence punishable under Section 366, IPC and who was actively participated in the commission of the offence is immaterial. I do not find any convincing evidence to accept the plea that appellant-Suku Ranjan Sarkar has been falsely implicated in the case due to his enmity with the elder brother of the victim. 18. That, it is in the evidence of P.W. 10, the victim girl, that at the house of Tapan Laskar she was asked to change her dresses and also threatened her to say that she was staying voluntarily with the appellants. 18. That, it is in the evidence of P.W. 10, the victim girl, that at the house of Tapan Laskar she was asked to change her dresses and also threatened her to say that she was staying voluntarily with the appellants. During the night she was compelled to sleep with Suku Ranjan Sarkar and the latter had sexual intercourse with her forcibly. The above statement of the victim was also found in her statement recorded under Section 164, Cr.P.C. on 22-2-1989, marked Exbt.-P/4. Evidence further reveals that she was medically examined on 22-2-1989 at about 11.30 a.m. by a doctor. No Spermatozoa was found on vaginal swab but as per medical examination report, marked Exbt.-P/8, doctor opined that sexual intercourse might have taken place though there was no mark of external injuries on her breast and vagina. However, medical report also reveals that there was a scratch mark 3" long over the medial part of the left calf and another scratch mark over the anterior aspect of the junction of upper 2/3rd and liner 1/3rd measuring 1" in length over left labia. It is settled that when there is a conflict between the ocular evidence and the medical evidence, the ocular evidence shall prevail over the medical evidence unless the Court finds the ocular evidence unreliable. In the instant case, P.W. No. 10, the victim girl, categorically stated that the appellant-Suku Ranjan Sarkar had forcibly sexual intercourse with her on the night after compelling her to sleep with him. I do not find anything to disbelieve the testimony of the P.W. No. 10, who was admittedly a minor girl on the date of occurrence. The absence of external injury mark on her body, in my considered view. Is not sufficient either to draw any adverse inference or to disbelieve her testimony. 19. That, in a catena of decisions, it has been held by the Hon'ble Apex Court as well as by different High Courts that the testimony of prosecutrix should be treated on the basis of probabilities like testimony of any other witness and conviction can be based solely on such testimony of the victim. In Denish alias Bhuda v. State of Rajasthan, the Hon'ble Apex Court held to the extent that in a rape case the corroboration of the testimony of the victim girl is not a sine qua non for conviction. In Denish alias Bhuda v. State of Rajasthan, the Hon'ble Apex Court held to the extent that in a rape case the corroboration of the testimony of the victim girl is not a sine qua non for conviction. The statement of the victim inspired the confidence of the Court and is credible. 20. That, from the above evidences it is crystal clear that the victim was kidnapped by the appellants with intent either to compel her to marry or force her to have sexual intercourse with the accused Suku Ranjan Sarkar, I have also perused the statements of the appellants recorded under Section313, Cr.P.C. and of the opinion that there is no illegality or irregularity in recording their statements by the learned trial Court. The learned trial Court put all the incriminating evidences available against them in question-answer form, which were answered by the appellants. The appellants' learned Counsel could not point out any defect, illegality or irregularity alleged to have been committed by the learned trial Court in recording their statements under Section 313, Cr.P.C. That, for the reasons what has been discussed hereinabove and having regard to the ratio laid down by the Hon'ble Apex) Court, I am of the considered view that the prosecution has able to prove the charges levelled against the accused persons beyond all reasonable doubt. However, considering the ages of the appellants and the circumstances of the case, I am of the view that it will meet the ends of justice in modifying the quantum of sentence imposed on them for the offence punishable under Section 366, IPC to 5 (five) years' rigorous imprisonment. Accordingly, I do. Except with the modification indicated hereinabove, I do not find any other reason to interfere with the impugned judgment and order of conviction and sentence imposed on the appellants by the learned trial Court and the conviction and sentence of appellant-Suku Ranjan Sarkar under Section 376, IPC is affirmed. 21. Resultantly, these appeals are partly allowed to the extent indicated above. The appellants are directed to surrender before the learned trial Court to serve out the remaining period of sentences imposed on them, if not already served. Send down the lower Court records.