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2012 DIGILAW 298 (CAL)

Hari Nandi v. STATE OF WEST BENGAL

2012-04-10

KANCHAN CHAKRABORTY

body2012
JUDGMENT 1. The challenge in this appeal is to the judgement and order dated 25th/26th November, 2009, passed by the learned Additional District and Sessions Judge, Fast Track Court- 3, North 24 Parganas at Barasat in Sessions Trial case no. 1 (11) of 2008, corresponding to Sessions case no 25 (9) of 2008, thereby convicting the appellant under Section 366 A and 376 of IPC and sentencing to suffer R.I. for 7 years and to pay fine of Rs. 5000/- for both the offences which would run concurrently. 2. Hari Nandi, the appellant has assailed the judgement on the following grounds : a) that the learned Court framed charges against the appellant wrongly and thereby caused gross miscarriage of justice; b) that the learned Court failed to appreciate the evidence on record in its proper and true perspective; c) that the learned Court admitted irrelevant evidence and materials into evidence and failed to consider material and relevant portion of evidence while recording the conviction; d) that the learned Court failed to take into consideration the discrepancies in the evidence of the prosecution witnesses on material points; e) that the learned Court failed to appreciate the fact that the victim was a major girl at the relevant point of time and there was no case of kidnapping against the appellant; f) that there was no injury on the private parts of the victim suggesting commission of rape; g) that the judgement impugned is based on surmises and conjecture and it being bad in law is liable to be set aside; h) that the learned Court failed to adopt proper method of examining the appellant under Section 313 Cr.P.C. 3. Sandhya Banerjee, mother of Sutapa Banerjee lodged one complaint in the Court of Chief Judicial Magistrate, Barasat alleging therein that the appellant Hari Nandi and two others eloped her minor daughter Sutapa Banerje,e aged about 13 years, with mala fide intention to give marriage with the appellant Hari Nandi. Hari Nandi was married man having children. The Minor Sutapa was found missing since 23.2.2008 and a G.D. entry to that effect was recorded in Ashoknagar Police station on 26.2.2008. Sandhya Banerjee came to know that Hari Nandi, the appellant had been living with her minor daughter as her husband somewhere in Kolkata within the knowledge of other two accused persons. The Minor Sutapa was found missing since 23.2.2008 and a G.D. entry to that effect was recorded in Ashoknagar Police station on 26.2.2008. Sandhya Banerjee came to know that Hari Nandi, the appellant had been living with her minor daughter as her husband somewhere in Kolkata within the knowledge of other two accused persons. Sandhya Banerjee prayed for referring the complaint to Ashoknagar Police station to investigate into the matter treating the same as F.I.R. On the basis of said F.I.R, Ashoknagar police station case no. 76 dated 24.3.2008 was registered against appellant and two others. 4. On conclusion of investigation, charge-sheet was filed against Hari Nandi only under Section 366A and 376 of IPC while two other accused persons were not sent up for trial. Appellant Hari Nandi pleaded not guilty to the charges and accordingly, the trial commenced. The learned Trial Court upon consideration of evidence on record found the appellant Hari Nandi guilty of offence under Section 366A and 376 of IPC and, accordingly, recorded his conviction and sentence which is impugned in this appeal on the grounds mentioned already. 5. Mr. Kaji Safiulla, learned Senior Counsel appearing on behalf of the appellant contended that the prosecution failed to established that the victim was a minor on the date of incident. There was a birth certificate which was produced in Court and admitted into evidence but not in accordance with provision of law. The birth certificate was a photocopy of the original one and the Court admitted the same without any reason which is against the provisions of Section 76 of the Indian Evidence Act. This apart, he contended that the I.O. of the case did not state anywhere that he seized the original birth certificate. Again, the P.W. 8 makes it clear that Sutapa was the adopted daughter of Sandhya. The G.D. Entry dated 26.2.2008 shows that Sutapa passed Class IX examination already on the date of incident. Besides everything, ossification test of the victim Sutapa was not done. All these factors together creates doubt as to the actual age of Sutapa. MR. Safiulla contended that learned Court ought to have disbelieved that Sutapa was a minor the date of incident. 6. Mr. Besides everything, ossification test of the victim Sutapa was not done. All these factors together creates doubt as to the actual age of Sutapa. MR. Safiulla contended that learned Court ought to have disbelieved that Sutapa was a minor the date of incident. 6. Mr. Safiulla contended further that the learned Court should not have framed charge under Section 366 A of IPC against the appellant as the victim was not a minor on the date of incident especially when a separate charge under Section 363 of IPC has already framed against the appellant. 7. Mr. Safiulla contended further that there was consent on the part of the victim in the matter of going with the appellant, to marry him and to live with him as his wife. Therefore, there was no case under Section 376 of IPC against the appellant and the learned Court failed to appreciate that factual aspect. 8. It has been contended by Mr. Safiulla that the learned Court did not examine the appellant properly under Section 313 of the Cr.P.C. and thereby caused gross mis-carriage of justice. 9. Mr. Rudradipta Nandi, learned Counsel appearing on behalf of the respondent State of West Bengal contended that the original birth certificate was place before the Court which was marked exhibit and returned to the de facto complainant after taking a copy of the same which has been reflected clearly on the material on record. He contended further that the F.I.R., the statement of victim under Section 164 of Cr.P.C., the birth certificate and evidence of witnesses altogether indicates that the victim was a minor at the relevant period of time. Since the victim was a minor at the relevant period of time, question of consent does not arise. He contended that in view of Section 464 of Cr.P.C. mistake on the part of the Court in framing charge under Section 366A IPC against the appellant is curable. It has been further contended by him that there is clinching evidence of the victim herself which is supported by other witnesses as well as the statement 164 IPC which have proved the prosecution case beyond doubt. The offence under Section 376 IPC has been well established. The delay in lodging F.I.R. has also been explained properly. It has been further contended by him that there is clinching evidence of the victim herself which is supported by other witnesses as well as the statement 164 IPC which have proved the prosecution case beyond doubt. The offence under Section 376 IPC has been well established. The delay in lodging F.I.R. has also been explained properly. It is contended again by him that in all the cases of rape, it is not necessary that victim should have sign or marks of injury on her private part. The judgement being a reasoned one basing on proper appreciation of evidence, is not required to be upset in this appeal. 10. Mr. Kaji Sufiulla, learned Counsel appearing for the appellant put much stress on the age of the victim. According to him, the prosecution failed to establish beyond doubt that the victim was a minor at the relevant period of time. He has drawn attention of this Court that the original birth certificate was not seized by the I.O. Again, the G.D. entry which was marked exhibit no. 7 shows that age of sutapa Banerjee was 15 years and she was class IX passed on the date the G.D. entry was recorded. MR. Safiulla stated that in the F.I.R. i.e. exhibit 4 shows that the age of Sutapa was 13 years and she was a student of class IX. The birth certificate was not seized by the I.O as he never stated that he seized the birth certificate. The P.W. 1 i.e. the lodger of the F.I.R. stated on the date of her examination on 13th January, 2009, Sutapa was 16 years old. Sutapa herself stated as P.W. 2 that she was 15 years old on 14.1.2009 i.e. date of her examination in the Court. MR. Safifulla contended that all these factors together goes to indicate that the prosecution was not certain about the actual age of the victim. In such a case, he contended, the learned Court ought to have disbelieved that the victim was a minor. 11. Mr. Nandi, learned Counsel appearing on behalf of the State contended that there might be some discrepancies in the statement of witnesses regarding the age of victim but in all probabilities, it has been made clear that she was not more than 16 years on the date of incident. 11. Mr. Nandi, learned Counsel appearing on behalf of the State contended that there might be some discrepancies in the statement of witnesses regarding the age of victim but in all probabilities, it has been made clear that she was not more than 16 years on the date of incident. He had taken this Court to the birth certificate which was marked exhibit 3 and the seizure list. He had taken this Court to Exhibit 2 i.e. Jimmanama executed by the P.W. 1, Sandha Banerjee on receiving the original birth certificate which was replaced by a photo copy as per order of the Court. He also had drawn attention of this Court to the evidence of P.W. 1 and P.W. 2. Neither of them has stated that Sutapa was more than 16 years at the relevant period of time. 12. I have carefully gone through the evidence of P.W. 1 Sandha Banerjee, the mother of the victim as well as the lodger of the F.I.R. She has stated that her daughter Sutapa was 16 years old on that date i.e. 13.1.2009. The incident alleged had taken place on 23.2.2008. She further stated that she signed the seizure list whereby the birth certificate of Sutapa was seized. The signature of P.W. 1 on the seizure list was admitted into evidence and marked as Ex. 1/1. The evidence of P.W. 1 shows further that the original birth certificate was filed by her in Court on 13.1.2009 which was returned to her on filing of a copy of the same. Both the original and copy were marked Ex. 3. The evidence of P.W. 1 indicates clearly that the original birth certificate which was filed by her in Court and marked Ex. 3 was returned to her by the Court on execution of Jimmanama which was marked Ex. 2 and that was done as per order of the Court. It is clear from the evidence of P.W. 1 that the original birth certificate was produced in Court and marked ex. 3 without any objection. The copy of the same which is found on record has also been marked Ex. 3. The same shows that the date of birth of Sutapa was 13.1.1994, i.e., 15 years, approximately, on the date the P.W. 1 was examined in Court. 13. 3 without any objection. The copy of the same which is found on record has also been marked Ex. 3. The same shows that the date of birth of Sutapa was 13.1.1994, i.e., 15 years, approximately, on the date the P.W. 1 was examined in Court. 13. In view of Section 74 of the Evidence Act, the birth certificate is a public document which is exception to heresay rule and admissibility of the same rests on the ground that the facts contain therein are of public interest and the statements are made by authorized and competent agent of the public in course of their official duties. A joint reading of Section 74 and 75 of the evidence Act will go to show that Section 74 is only an exception to the provisions of requiring proof under the Evidence Act. IN the instant case, the original birth certificate was filed and admitted into evidence. It was marked Ex. 3. Whether it was seized by the I.O. or not becomes immaterial because the same was admitted into evidence without any objection and opposition from the defense side. The certificate shows that date of birth of Sutapa on 13.1.1994 and that supports the statement of P.W. 1. The P.W. 2 the victim Sutapa has stated also that she was 15 years old on the date she was examined in Court. She was examined as P.W. 2 on 14.1.2009. A little arithmetic would make it clear that her statement regarding her age supported the prosecution case that she was a minor at the relevant period of time. 14. P.W. 8 has stated that the P.W. 1 is adopted mother of Sutapa. Therefore, it was contended by Mr. Safiulla, the statement of P.W. 1 regarding age of Sutapa cannot be accepted. This apart, the G.D. entry shows that Sutapa was class IX passed student on the date of incident. But the F.I.R. shows that she was a student of class IX at that time. Therefore, Mr. Safiulla contended, there is material discrepancies in the statement of witnesses regarding age of Sutapa. 15. This Court upon consideration of evidence on record, oral and documentary, finds it difficult to accept the proposition of Suffiulla. The discrepancies are minor in nature having no impact, whatsoever, on this issue. Therefore, Mr. Safiulla contended, there is material discrepancies in the statement of witnesses regarding age of Sutapa. 15. This Court upon consideration of evidence on record, oral and documentary, finds it difficult to accept the proposition of Suffiulla. The discrepancies are minor in nature having no impact, whatsoever, on this issue. The P.W. 1 and P.W. 2 have made it clear that Sutapa was not more than 15 years old on the date of incident. Their statements were supported by the Ex. 3, the original birth certificate which was admitted into evidence without any objection. If so, there is no reason for Mr. Suffiulla to doubt the prosecution case, so far as it relates to age of Sutapa at the relevant period of time. The fact that the Sutapa was below 16 years on the date of incident and was a minor has been established by sufficient and satisfactory evidence barring some minor discrepancies. Therefore, the prosecution case to the effect that Sutapa was a minor at a relevant period of time has been correctly and rightly accepted by the learned Trial Court. This Court also sharers that view of learned Trial Court. 16. Sutapa was missing for about a month before her recovery from the house of the appellant. The fact that Sutapa was recovered from the house of appellant has been established by the evidence of P.W.1, P.W. 2 and the P.W. 8. The statement of victim of Sutapa was marked Ex. 5. The same was recorded by the P.W. 6, Judicial Magistrate at Barasat under Section 164 Cr.P.C. The statement also shows that victim was recovered from the house of the appellant by police. The evidence of P.W. 1, P.W. 2, P.W 8 and Ex. 5 altogether indicates that the victim was recovered from the house of appellant on 24.3.2008 when the appellant was arrested from his own house. This fact of the prosecution has been established by cogent and reliable evidence. 17. Now the question is whether the appellant has kidnapped/abducted the victim or not. According to the statement of the victim (P.W. 2) she was requested by the appellant to come with him when she was proceeding to her matrimonial uncles house by rishwa van. Therefore, it was a request on the part of the appellant. 17. Now the question is whether the appellant has kidnapped/abducted the victim or not. According to the statement of the victim (P.W. 2) she was requested by the appellant to come with him when she was proceeding to her matrimonial uncles house by rishwa van. Therefore, it was a request on the part of the appellant. That statement of the victim makes it clear that there was no inducement on the part of the appellant which led the victim to go with the appellant. She only kept the request of the appellant. In her statement under Section 164 Cr.P.C. (Ex 5) she has made a different statement altogether. She stated that the appellant under the threatening compelled her to board off the rishwa van and being scared, she went to Banumgachi with the appellant. There is material contradiction in the statement of the victim as P.W. 2 and statement of victim under Section 164 Cr.P.C. on this issue. It is really doubtful whether the appellant induced the victim to go with him or not. Rather it appears to this Court that the victim herself or on her own went with the appellant to Bamungachi then and there when she was requested. She might be a minor at that time but the act of the appellant, as it appears to this Court, cannot be said to be amounting to kidnapping or abduction. Therefore, the Court is of view that the offence under Section 366A IPC against the appellant has not been established satisfactorily by the prosecution. The view of the learned Trial Court in this regard is not accepted. 18. There are discrepancies in the statement of victim as P.W. 2 and her statement under Section 164 Cr.P.C. relating to so called marriage. But, the fact that she was kept by the appellant in the house of the uncle of the appellant for about 15-16 days and having physical relation by him has been stated by the victim as P.W. 2 as well as in her statement under Section 164 Cr.P.C. The learned Trial Court accepted the version of P.W. 1 and P.W. 2 in respect of that fact. To be stated preciously, there was no reason for the learned Court to disbelieve the oral statement of P.W. 1 and 2 and the statement of the victim under Section 164 Cr.P.C. The victim was recovered from the house of the appellant and that too after a considerable period of time from the date of her missing. She was taken to different places by the appellant and had to live as his wife. The appellant never disclosed that he was a married man having children. She stated in her examination in chief that the appellant prevented her to go back to her paternal house and she was under surveillance all the time and was not allowed to go outside. She stated also that the appellant established physical relation by force. 19. It is true that on medical examination no mark of injury was found on the private part of the victim. But, this fact alone does not necessarily imply that the victim had no sexual intercourse with the appellant. This Court is not oblivious of the fact that the victim was a minor. Therefore, it cannot be accepted in any event that she had consent to the sexual intercourse with the appellant. The learned Trial Court put much importance on this factual aspect. This Court finds that being a minor, question of consenting to sexual intercourse, by the victim does not arise in such a case. When a minor was sexually intercoursed whether with consent or not, it comes within the definition of Rape. In course of trial the defense failed to establish that there was enmity between two families which prompted the victims family to initiate a false case against the appellant. Victim was examined as P.W. 2 on 14.1.2009. By that time she was a married lady. Being a married lady it can not be accepted that she had made false statement at the cost of her new matrimonial life. This being the fact and evidence on record, this Court finds that the learned Trial Court has rightly come to a conclusion that the appellant committed rape on the P.W. 2. Therefore, recording of conviction under Section 376 of IPC against the appellant is not required to be interfered with as the prosecution has established that case with credible, trustworthy and consistent evidence. 20. Therefore, recording of conviction under Section 376 of IPC against the appellant is not required to be interfered with as the prosecution has established that case with credible, trustworthy and consistent evidence. 20. In the premises above, the Court while setting aside the order of conviction under Section 366A against the appellant, affirms the order of conviction under Section 376 of IPC passed by the learned Court. 21. The question raised by Mr. Safiulla regarding mistake informing of charges under Section 363 and 366A I.P.C. is no longer required to be answered as this Court finds that the appellant is found not fuilty to the charges under Section 363 and 368 A of IPC. Mr. Safiulla raised question as to the manner in which the appellant was examined under Section 313 Cr.P.C. I have carefully gone through the entire process of recording statement of the accused under Section 313 Cr.P.C. and found that there was no material omission or mistake on the part of the Court in doing so. In the ultimate analysis it is found that the appellant has not been prejudiced in any manner because of the way he had to explain the inculcatory portion of the statement of the prosecution witnesses. Therefore, this Court does not like to put any importance on that issue. 22. It was submitted by Mr. Safiulla that the appellant is in custody since 23.3.2008 i.e. more than 4 years in connection with this case. He has been sentenced to suffer R.I. for 7 years for the offence under Section 376 IPC and to pay a fine of Rs. 5000/-. Considering the fact that the appellant is a married man and the victim is also a married lady now and the fact that the appellant had already undergone a considerable period of time behind the bars in connection with this case. Justice, I am afraid, would be met if the sentence is reduced to the period under gone by the appellant. However, the appellant is sentenced to pay a fine of Rs. 10,000/- within a period of three months from the date of communication of this order. In default of payment of fine, the appellant should undergo S.I. for two (2) years. In case the fine amount is paid, the same should be given to the victim. 23. Accordingly, the appeal fails and is disposed of. 10,000/- within a period of three months from the date of communication of this order. In default of payment of fine, the appellant should undergo S.I. for two (2) years. In case the fine amount is paid, the same should be given to the victim. 23. Accordingly, the appeal fails and is disposed of. The learned Trial Court is directed to comply with the order and take necessary steps. 24. Urgent Photostat certified copy of the judgement, if applied for be handed over to the parties on compliance of necessary formalities.