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2012 DIGILAW 694 (GAU)

Binay Debnath v. State of Tripura

2012-06-06

SUBHASIS TALAPATRA

body2012
JUDGMENT Subhasis Talapatra, J. 1. Heard Mr. T.D. Majumder, learned counsel appearing for the appellant as well as Mr. A. Ghosh, learned Additional Public Prosecutor appearing for the State. This appeal filed under Section 374 of the Criminal Procedure Code, 1973 (hereinafter referred to as Cr PC) is directed against the judgment of conviction and order of sentence dated 29.11.2011 as passed by the learned Addl. Sessions Judge, Court No.2, West Tripura, Agartala in Case No. ST 75 of 2011 whereby the appellant has been convicted and sentenced to suffer simple imprisonment for two years and a fine of Rs.10,000/- in default of payment of fine to suffer further SI for six months. It was further directed that the period of detention of the accused as under trial prisoner from 06.07.2010 to 13.07.2010 be set off from the sentence. 2. The Prosecution case, as transpired from the records, in brief, can be noticed as under: One Smti. Mukta Ghosh alias Bulti, daughter of the informant was missing from 29.06.2010 at around 2 a.m. The informant reported the matter to Ramnagar Police Out-Post. Subsequently on 02.07.2010 the informant came to learn that Binay Debnath and Bikash Debnath of Lankamura along with 2/3 other persons kidnapped his daughter, namely, Smti. Mukta Ghosh (Bulti) on 29.06.2010 forcibly. In the said ejahar as filed on 02.07.2010, the informant stated that his daughter was aged about 16 years at the time of kidnapping. On the basis of that ejahar West Agartala PS Case No.278 of 2010 was registered under Section 366/34 of the Indian Penal code, 1860 (hereinafter referred to as IPC). 3. On completion of the investigation, charge-sheet was filed by the police against the appellant, namely, Binay Debnath, for committing offence punishable under Section 366 of the IPC. 4. The offence under Section 366 of the IPC being exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate, West Tripura, Agartala after taking cognizance committed the case to the Sessions Court, West Tripura, Agartala and the learned Sessions Judge, West Tripura, Agartala transferred the case for trial to the Court of the learned Addl. Sessions Judge, Court No.2, West Tripura, Agartala. 5. The said Addl. Sessions Judge framed the following charge against the appellant:- That, on or about the 29th day of June, 2010, noon at about 1400-Hrs. Sessions Judge, Court No.2, West Tripura, Agartala. 5. The said Addl. Sessions Judge framed the following charge against the appellant:- That, on or about the 29th day of June, 2010, noon at about 1400-Hrs. at Lankamura, under the jurisdiction of West Agartala P.S. you kidnapped or abducted a woman namely Smti. Mukta Ghosh Bulti with intent that she may be compelled marry you against her will and you thereby committed an offence punishable 11/S-366 of the I.P.C. and within the cognizance of this Court. The appellant pleaded not guilty and claimed to be tried. 6. Mr. Datta Majumder, learned counsel for the appellant contended that the judgment of conviction and order of sentence is perverse as the settled position of law in regard to consent vis-a-vis Section 366 of the IPC was not at all appreciated by the trial Court and that one photocopy of the school certificate (Exbt.4) was admitted in the evidence in breach of law. Moreover, the judgment of conviction as returned by the learned trial Judge is palpably wrong for the reason that without any evidence the trial Court has observed that the appellant took/enticed the girl out of keeping of her lawful guardian and thus the minor girl as per provisions of Section 361 of the IPC was kidnapped by the appellant. 7. On the other hand, Mr. Ghosh, learned Addl. PP submitted that the finding of the conviction as returned by the learned trial Court cannot be faulted inasmuch as the consent of the kidnapped girl is immaterial considering her age as she did not reach the consenting age at the time of occurrence. According to Mr. Ghosh, learned Addl. PP the impugned judgment of conviction and order of sentence does not call for any interference. 8. For appreciation of the challenge as projected against the impugned judgment and order, it is necessary that the evidence on record be surveyed properly. To establish the charge, the Prosecution examined as many as 4 witnesses including the informant and the woman who was kidnapped/abducted. Apart that, some documents including the school reading certificate and the ejahar were admitted in the evidence in support of the prosecution case but the defence did not adduce any witness. The informant, namely, Shri Paresh Ghosh, father of the kidnapped/abducted girl, namely, Smti. Mukta Ghosh (PW -2), appeared in the Court and deposed as PW - 1. Apart that, some documents including the school reading certificate and the ejahar were admitted in the evidence in support of the prosecution case but the defence did not adduce any witness. The informant, namely, Shri Paresh Ghosh, father of the kidnapped/abducted girl, namely, Smti. Mukta Ghosh (PW -2), appeared in the Court and deposed as PW - 1. He stated that his daughter Mukta, a student of Class -X while coming back from her school at about 2/2 -30 p.m. was kidnapped by the appellant. At the time of incident she was aged about 16 years. She was kidnapped to compel her to marry against her will. Thereafter, he filed the complaint at Ramnagar Police Out Post written by one Samir Ghosh as per his statement. He exhibited the complaint (Exbt.1) and the signature (Exbt.1/1). He revealed in the examination in chief that his daughter was recovered by police after ten days of filing the complaint and his daughter was produced in the Court from where he received his daughter. He identified the appellant in the Court. In the cross examination he stated that he learnt it from other students that his daughter went to her school and his daughter left with one boy at 4 p.m. On the date of incident he informed to PS about missing of his daughter before filing of the regular complaint. It appears that the knowledge of kidnapping by the appellant was gathered from other students but their names have not been divulged in the examination in chief. The abducted/kidnapped girl, namely, Smti. Mukta Ghosh (Bulti) appeared before the court and deposed as PW - 2. She stated that about one year one month back at about 4 p.m. she came out from her house to go to tailoring shop but she did not go to the tailoring shop. She went along with the appellant at her free will. She found the appellant in front of her school and she left with him by an auto rickshaw. They went to Kashba Kali Bari along with the appellant where marriage ceremony was held between herself and the appellant. None was present from her family at Kashba Kali Bari. From Kashba Kali Bari they went to the house of relative of the appellant at Manu of North Tripura District. They went to Kashba Kali Bari along with the appellant where marriage ceremony was held between herself and the appellant. None was present from her family at Kashba Kali Bari. From Kashba Kali Bari they went to the house of relative of the appellant at Manu of North Tripura District. After 3/4 days the brother of the appellant brought them to the Court and from the Court she was sent to Girls' Home at Abhoynagar. At the time of incident she was aged about 16 years. In the cross examination she categorically stated that she did not like to go with her parents and on her refusal she was sent to the protective home. The mother of the PW-2, namely, Smti. Pratima Ghosh, was examined by the prosecution as PW - 3. She stated that about one year back from the date of recording her deposition the appellant took away her daughter by force. Later on, the police recovered her daughter and her daughter was aged about 16 years. She was also not witnessed the occurrence. PW-4, namely, Smti. Bidya Laxmi Debbarma is the investigating officer who stated before the court that the case having been endorsed to her, she took up the investigation and recorded some statements on 05.07.2010. She seized one photocopy of school certificate on preparing the seizure list (Exbt.3) whereas the school certificate was marked as Exbt.4 subject to objection by the defence. On 06.07.2010 the appellant and the victim surrendered before the Court. As per order of the Court the victim girl was handed over to Abhoynagar Girls' Home. On 08.07.2010 after taking permission from the Court she examined the victim girl and recorded her statement. She visited the place of occurrence and prepared the hand sketched map with index (Exbt.5 series) and thereafter she submitted the charge-sheet against the appellant. She admitted that there was no explanation for delay in filing the case. The IO also admitted that the PW - 2 did not want to go back her parents' house and PW-2 stated to her at the time of recording the statement that she went with the appellant of her own will. 9. Mr. Datta Majumder, learned counsel for the appellant while refuting the submission of Mr. Ghosh, learned Addl. PP quite emphatically argued that the learned trial Court did not give any reasons to discard the objection raised by the defence. 9. Mr. Datta Majumder, learned counsel for the appellant while refuting the submission of Mr. Ghosh, learned Addl. PP quite emphatically argued that the learned trial Court did not give any reasons to discard the objection raised by the defence. The admission of the school certificate in the evidence as Exbt.4 is absolutely illegal. To draw support for his contention he referred to a decision of the apex Court as rendered in Ram Murti vs. State of Haryana reported in (1970) 2 SCC 21 where the apex Court in a similar circumstances observed as under: That court also took into consideration an unproved and unexhibited school certificate which appears to have been obtained by the Investigating Officer from the Dev Samaj School, According to this certificate the date of Satnam Kaur's birth is stated by the trial court to be August 5, 1948, We had a look at this document, It is dated April 9, 1965 and purports to certify the date of Satnam Kaur's birth according to the school register to be November 5, 1948 and is signed by someone describing herself as Head Mistress, Dev Samaj Girls' High School, We fail to understand how the trial court felt justified in taking this document into consideration and holding the date of birth as entered in this document to be August 5, 1948. 10. In support of the admission of the photostat copy, Mr. 10. In support of the admission of the photostat copy, Mr. Datta Majumder, learned counsel for the appellant relied another decision of the apex Court as rendered in Ashok Dulichand vs. Madahavlal Dube and another reported in (1975)4 SCC 664 where the apex Court in no uncertain terms held as under:- After hearing the learned Counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference, According to Clause (a) of Section 65 of the Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it, Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of Clause (a) of Section 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed photostat copy. Prayer was also made by the appellant that in case respondent No. 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was, however, nowhere stated in the affidavit that the original document of which the photostat copy had been filed by the appellant was in the possession of respondent No. 1. There was also no other material on the record to indicate that the original document was in the possession of respondent No. 1. It was, however, nowhere stated in the affidavit that the original document of which the photostat copy had been filed by the appellant was in the possession of respondent No. 1. There was also no other material on the record to indicate that the original document was in the possession of respondent No. 1. The appellant further failed to explain as to what were the circumstances under which the photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent No. 1 in his affidavit denied being in possession of or having anything to do with such a document. The photostat copy appeared to the High Court to be not above suspicion. In view of all the circumstance, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court. 11. Mr. Datta Majumder, learned counsel for the appellant has rightly contended that the PW-4 did not make any endeavour to seize the original record from the school authority which issued the Exbt.4 documents and when the trial commenced, the prosecution also did not make any endeavour to produce the original records with leave of the trial Court and as such admission of the Exbt.4 documents in the evidence is unsustainable in law. Moreso, on the face of the objection, the learned trial Court without assigning any reason had admitted the said document and did not bother to discharge the objection. 12. For further elucidation, Mr. Datta Majumder, learned counsel for the appellant has relied to a decision of this Court as rendered in Sanjiv Baidya vs. State of Arunachal Pradesh as reported in 2010(3) GLT 758. The relevant part is reproduced hereunder:- 4. Mr. I. Basar, learned Additional Public Prosecutor representing the State of Arunachal Pradesh, submits that at the time of the incident, the victim girl 'Pine' was below the age of 18 years as per the Birth Certificate dated 20.09.2000 Issued by the Registrar, Registry of Death & Birth, Got, of Arunachal Pradesh, Nasal Circle, Lomita District, wherein the date of birth of the victim girl has been shown as 20.03.1985. The learned Addl. The learned Addl. Public Prosecutor has shown the aforesaid certificate from the records of the case. According to him, the prosecution has been able to prove the age of the victim girl as below 18 years of age and thereby, proved Its case, on the basis of which, the learned trial court rightly convicted the accused appellant, as stated above, calling for no Interference In appeal. 5. I have perused the said birth certificate shown by the learned Addl. Public Prosecutor. It is seen that it is merely a photocopy of the Birth certificate issued by the Registrar of Death & Birth, Government, of Arunachal Pradesh, Namsai Circle, Lohit Circle, without being accompanied by the original one. It is further seen that the said certificate was not proved by the prosecution before the learned trial court inasmuch as the same has not been marked as an Exhibit. In my considered view, such a document without being proved and/or exhibited before the trial court, cannot be treated as a valid piece of evidence and no finding, whatsoever, on the basis of such a document, can be recorded by the trial court, as regards the age of the victim girl. Even if the original document of the aforesaid birth certificate was produced before the trial court, the same should have been proved by the Officer concerned who issued the said certificate. Further, even if the issuing Officer has been produced as a witness, he must also produce the relevant Register/record maintained by his office and the same should be proved and exhibited before the concerned trial court. No such procedure in proving the aforesaid document/certificate has been followed/adopted by the prosecution. As per the evidence of Pt144-7, I.O. of the case, the said photo copy of the birth certificate was seized by him. If the prosecution wanted to prove the same, it could have made an application before the learned trial court for production of the original birth certificate and the learned trial court could have also summoned the issuing authority to prove the certificate, in question. The prosecution did not do so although it was Incumbent upon them to do so for proving Its case. 6. Confronted with such a queer (situation, Mr. Basar, learned Addl. The prosecution did not do so although it was Incumbent upon them to do so for proving Its case. 6. Confronted with such a queer (situation, Mr. Basar, learned Addl. Public Prosecutor, submits that since the photocopy of the aforesaid birth certificate is on record of the case and the learned trial court having mentioned about the same in its judgment and order, It can be treated as a valid piece of evidence and on the basis of the same, the conviction and sentence can be maintained. In this regard, the learned Addl. Public Prosecutor, would rely on the State of Maharashtra vs. Gajanand reported in (2008)8 SCC 38 and Monlram Hazarlka vs. State of Assam reported in (2004)5 SCC 120 . 7. I have gone through the judgment in Gajanand's case (supra). It is a case where the prosecution produced the Headmaster of the School apart from the medical evidence to prove the age of the victim girl. In the said case, the concerned High Court discarded the documentary evidence even when the Headmaster of the said School deposed and produced the records on the ground that entry on the School's Register was not in the handwriting of the Headmaster and he could not have deposed the date of birth of the victim girl and it was, therefore, held by the Supreme Court that there was no basis for the High Court to conclude that the entry cannot be taken to be above suspicion. However, in the Instant case, as already stated earlier, neither the School Headmaster and/or the Admission Register of the School were produced nor the Registrar of the Registry of Death & Birth, who issued the said certificate, has been examined as a witness by the prosecution. In my considered view, the aforesaid case is not to the help of the prosecution in any manner with regard to the instant case. The case of Monlram Hazarlka (supra) does not deal with the age of the victim girl and as such, it has no relevance to the present case. 8. In view of the above position, I am unable to accept the submissions of Mr. I. Basar, learned Additional Public Prosecutor, Arunachal Pradesh, to treat the aforesaid Birth certificate which was seized by the I.O. and kept on record but was not proved or exhibited, as a piece of legal evidence. 8. In view of the above position, I am unable to accept the submissions of Mr. I. Basar, learned Additional Public Prosecutor, Arunachal Pradesh, to treat the aforesaid Birth certificate which was seized by the I.O. and kept on record but was not proved or exhibited, as a piece of legal evidence. It is the settled position of law that unproved or unexhibited document cannot be treated as a piece of legal evidence and the lapse on the part of the prosecution cannot be condoned and for that matter, prosecution could not be allowed to prove the document on remand to the trial court, more so, when the prosecution, on record, did not make any application before the trial court for giving it chance to prove and exhibit the document by examining the concerned witnesses. (Emphasis supplied) 13. Mr. Datta Majumder, learned counsel for the appellant also has relied some decisions regarding the consent of the PW-2. In Moniram Hazarika vs. State of Assam as reported in (2004)5 SCC 120 the apex Court has enunciated the law. 6. As stated above, the learned counsel for the appellant placed strong reliance on the judgment of this Court in Varadarajan's case (supra). The facts of that case show that the minor in that case left the house of the legal guardian as per her own choice and not on the basis of any enticement or persuasion on the part of the accused. This is clear from the following observations of this Court in that case. There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. There is no suggestion that the appellant took her to the Sub-Registrar's office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or anything like that. 7. It is on the basis of the said finding that the minor in that case walked out of the house of her guardian without any inducement from the accused, this Court came to the conclusion that the accused in that case was not guilty of the offence. It is also worthwhile to notice what this Court said about the act of accused in such cases which amounts to enticement which is found in paragraph 10 of the said judgment and which reads thus. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. (Emphasis supplied) It is clear from the above observations of this Court that if the accused played some role at any stage by which he either solicited or persuaded the minor to abandon the legal guardianship, it would be sufficient to hold such person guilty of kidnapping. 14. Except the oral statement of PWs 1 and 3, there is no admissible evidence as regard to the age of the abducted/kidnapped girl, the PW-2. As it appears from the depositions of PW-1 and PW-3, the parents of the PW-2 that her age was above 16 years. Apart that, the deposition of the PW-2 does not suffer from any ambiguity and she had categorically stated that without any enticement, she came out of the legal guardianship and left with the appellant and at that time or prior to that no role was played by the appellant at least. Apart that, the deposition of the PW-2 does not suffer from any ambiguity and she had categorically stated that without any enticement, she came out of the legal guardianship and left with the appellant and at that time or prior to that no role was played by the appellant at least. No adverse evidence as regards to the role of the appellant is available in the evidence and as such the proposition of law as enunciated by the apex Court in S. Varadarajan vs. State of Madras as reported in AIR 1965 SC 942 and as approved in Moniram Hazarika (supra) is squarely applicable in this case and as such the findings of the conviction as returned by the learned trial Court cannot be sustained. 15. As stated earlier that the Exbt.4 had been admitted in the evidence without following the prescribed procedure as laid down in Section 65 of the Evidence Act, therefore, by appreciating that document in the evidence, the learned trial Court has committed serious illegality and rendered the impugned judgment and order perverse. Even the objection as raised by the defence at the time of admission was not discharged. On the point of consent of a minor girl, a decision of the apex Court may also be referred as rendered in State of Himachal Pradesh v. Suresh Kumar alias Chhotu reported in (2008) 10 SCC 104 where the apex Court observed that, as evident from the document the prosecutrix was more than 16 years of age at the time of occurrence and she accompanied the accused on her own and being a consenting party to the sexual acts. The apex Court further held that the consent would be valid if it is found that there is reason to suppose the prosecutrix is more than 16 years of age. 16. On consideration of the rival contentions as well as the law as expounded by the apex Court, this Court is of the view that the finding of the conviction as returned by the learned Addl. Sessions Judge, Court No.2, West Tripura, Agartala by the impugned judgment of conviction and order of sentence cannot be sustained. Accordingly, the same is set aside. As necessary consequence thereof, the sentence is also quashed. 17. The appellant is acquitted from the charge on benefit of doubt. The surety, if any, is discharged from their obligation. Sessions Judge, Court No.2, West Tripura, Agartala by the impugned judgment of conviction and order of sentence cannot be sustained. Accordingly, the same is set aside. As necessary consequence thereof, the sentence is also quashed. 17. The appellant is acquitted from the charge on benefit of doubt. The surety, if any, is discharged from their obligation. With this observation and direction this appeal stands allowed and accordingly is disposed of. Send down the lower Court records.