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2012 DIGILAW 697 (GAU)

Biswajit Biswas v. State of Tripura

2012-06-06

SUBHASIS TALAPATRA

body2012
JUDGMENT Subhasis Talapatra, J. 1. This appeal, filed under Section 374 of the Criminal Procedure Code, 1973, is directed against the judgment of conviction and order of sentence dated 07.03.2005, passed by the learned Addl. Sessions Judge, Belonia, South Tripura, in the Sessions Trial No.39 (S T/B)/2004, whereby the appellant is convicted and sentenced to pay a fine of Rs.20,000/- (rupees twenty thousand) and in default of payment of fine to suffer simple imprisonment for one year. In this appeal, a petition under Section 391 of the Criminal Procedure Code, 1973 was filed by the appellant for additional evidence in regard to the juvenility of the appellant. By the order dated 06.02.2012, as passed in this appeal, this Court directed as under: Situated thus, this Court directs the learned Addl. Sessions Judge, South Tripura, Belonia to enquire into the age of the appellant, namely, Shri Biswajit Biswas, as per procedure as laid down under Rule 12 of the Juvenile Justice (Care & Protection of Children) Rules, 2007. Learned Addl. Sessions Judge, South Tripura, Belonia would allow the parties including the appellant to furnish necessary evidence in regard to determination of the age of the appellant. After such enquiry is made, learned Addl. Sessions Judge, south Tripura, Belonia shall forward the report for consideration of this Court. The entire exercise has to be completed within a period of 3(three) months from today. In pursuant to the said direction, learned Addl. Sessions Judge, Belonia, South Tripura took up the enquiry and disposed of the reference by the order dated 11.04.2012, as passed in the file of S.T. 39 (S T/B) of 2004 and remitted the file to this Court for necessary consideration. Profitably, the said order dated 11.04.2012 is reproduced hereunder. Sri Biswajit Biswas, convict is present with his engaged counsel and has filed the attested photocopies of the transfer certificate issued by the Rajarbagh Senior Basic School, Udaipur in the printed form of the Government of Tripura, School Education Department and also attested copy of the birth certificate issued by the Department of Health and Family Welfare in the prescribed form. Ld. counsel has also produced the original certificates. As per the birth certificate, Sri Biswajit Biswas was born on 29th January, 1987. The incident of the case took place on 10th July, 2004. Ld. counsel has also produced the original certificates. As per the birth certificate, Sri Biswajit Biswas was born on 29th January, 1987. The incident of the case took place on 10th July, 2004. This means that on the date of the incident, Sri Biswajit Biswas was aged 17 years 05 months and 11 days. He thus being aged below 18 years on the date of the incident was a juvenile in conflict with law. The age of Biswajit Biswas as on the date of the incident thus being determined as per the procedure laid down in Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, it is ordered to send back the case record to the Hon'ble Gauhati High Court, Agartala Bench, Agartala with reference to the letter No.F.40(4)-HC/AGT/B/CRL/200 1/1059, dated, 07.2.20 12 immediately and positively within 05.05.20 12. 2. The said order has taken into cognizance by this Court but no opposition has been projected by Mr. P. Bhattacharjee, learned Addl. Public Prosecutor appearing for the State, and as such, the appellant is held a juvenile on the date of occurrence i.e. 10.07.2004. It is also noticed that at the time of trial this plea was not taken up even though it appears from the FIR itself that the appellant's age was indicated to be 17 years. While the statement of the appellant was recorded under Section 313 of the Criminal Procedure Code, 1973, he stated his age to be 16 years, despite that he was not tried as the juvenile in conflict with law. 3. The prosecution case, as transpired from the record, may be noted in brief. On 10.07.2004 at about 09.00 pm, one 'X' came out from the house to attend nature's call. At that time the appellant suddenly came in front of her, pressed her mouth by a 'lungi' dragged her towards jungle and tried to rape her. One Ratan Bhil appeared there hearing cry of 'X' and saved her. On 24.07.2004 after the lapse of 15 days, the 'X' submitted an Ejahar in writing to the Officer In-Charge of P.R. Bari Police Station and on the basis of such Ejahar P.R. Bari P.S. Case No.26/2004 was registered under Sections 376/511 of the Indian Penal Code. After the completion of investigation, the charge sheet was filed against the accused under Sections 376/511 of IPC. After the completion of investigation, the charge sheet was filed against the accused under Sections 376/511 of IPC. Cognizance was taken by the learned Sub-Divisional Judicial Magistrate in due course and since the offence was exclusively triable by the Court of Sessions, the same was committed to the Court of the learned Addl. Sessions Judge, Belonia, South Tripura. The learned Addl. Sessions Judge framed the charge under Sections 376/511 of the IPC to which the appellant pleaded not guilty and claimed to be tried. 4. To establish the charge, the prosecution adduced as many as 8 witnesses including the investigating officer and after appreciation of the evidence including the documentary evidence such as the Ejahar and the hand-sketch map along with index, the learned Addl. Sessions Judge returned the finding of the conviction against the appellant. However, the learned Addl. Sessions Judge categorically found that "The act of the accused does not constitute offence of attempt to rape as there was no preparation on the part of the accused to have sexual intercourse with the victim". However, learned Addl. Sessions Judge has held, "Accused Biswajit Biswas outraged the modesty". As a consequence to the judgment of conviction, the appellant was sentenced to pay a fine of Rs.20,000/- (rupees twenty thousand) and in default of payment of fine to suffer one year simple imprisonment with a direction that the fine, if realized, be paid to the victim girl by way of compensation. 5. Mr. A.C. Bhowmik, learned senior counsel appearing for the appellant with sufficient vehemence submitted that in the Ejahar the explanation for the delay as provided cannot be accepted. Apart from, he further contended that that aspect of the matter was not at all considered by the learned Addl. Sessions Judge while returning the finding of the conviction. In addition thereto he submitted that the deposition as made by the victim girl referred herein as 'X' as made in the trial Court as PW.1 is at variance to the content of the Ejahar Exbt.P.1. Even the deposition of one Ratan Bhil, who has been projected as the eye witness to the occurrence, cannot be believed as his version has been improved and new version was presented in the Court in vital contradiction to the previous statement as recorded under Section 161 of Cr. P.C. 6. Mr. P. Bhattacharjee, learned Addl. Even the deposition of one Ratan Bhil, who has been projected as the eye witness to the occurrence, cannot be believed as his version has been improved and new version was presented in the Court in vital contradiction to the previous statement as recorded under Section 161 of Cr. P.C. 6. Mr. P. Bhattacharjee, learned Addl. P.P. for the State, however, strongly refuted the submission made by Mr. A.C. Bhowmik, learned senior counsel. He contended that the judgment of conviction as returned by the Addl. Sessions Judge, Belonia cannot be faulted rather an unwarranted lenience has been demonstrated in the said judgment. Therefore, the finding of the conviction does not call for any interference by this Court. Situated thus, it is necessary that the evidence be re-appreciated. 7. In the complaint, the said 'X' stated that "On 10/7/2004 A.D. last, at about 9 O'clock at night when I had gone outside from the room for urination, accused Shri Biswajit Biswas (17) S/O Shri Bimal Biswas of Village Chikan Khil came infront of me all of a sudden and pressed my mouth with 'lungi' and taking me some distance away, forcibly tried to rape me. At that time one person named Ratan Veel on hearing my shouts came running and rescued me from the hands of the accused. Be it mentioned that on that day and at the said time none of my family members were present in my house." The victim (referred to as the 'X' herein), while deposing before the Court stated that the appellant "entered into our house. He was Biswajit Biswas previously known to me. He asked me to call my cousin sister Rita our adjacent neighbour. I refused and told him to call her if necessary, but insisted and on my refusal, became annoyed. Suddenly he pressed a cloth in my mouth so that I could not cry. Thereafter, he dragged me to the western side of the road, torned my choose kamij, undressed me and also took our my pant and he bitten my breast. I some how raised alarm. Hearing my cry, one Ratan Bhil of our village appeared there and on his coming, accd. could not rape me. Thereafter, he dragged me to the western side of the road, torned my choose kamij, undressed me and also took our my pant and he bitten my breast. I some how raised alarm. Hearing my cry, one Ratan Bhil of our village appeared there and on his coming, accd. could not rape me. In the cross the victim admitted that no such statement of taking off the 'salwar kamij' by the appellant is found in the previous statement as recorded by the investigating officer under Section 161 of Cr. P.C. She further admitted that no such statement is available in the previous statement to the effect that the appellant had taken off her pant. One Santi Sutradhar, uncle of the victim deposed as PW.2 but he was a hearsay witness. The person referred in the Ejahar as Ratan Bhil came to depose before the Court as PW.3, who in the examination-in-chief, stated that while he was passing by the jungle he heard the cry of the victim and rushed there and found her dresses were torn and she was completely naked. He further stated that the appellant was lying on her after undressing his pant. In such a situation, he tried to pull Biswajit but he was catching a teak tree and on threat of calling other people, the appellant got up and went away. In the cross-examination, PW.3 admitted that no such statement is available in his previous statement as recorded under Section 161 of Cr. P.C. by the investigating officer to the effect that Biswajit was also undressed by taking out his pant. He also admitted that in the previous statement there is no such statement that wearing apparels of the victim was torn and she was made naked. One Smt. Abala Debnath deposed as PW.4 and stated that the victim narrated the incident to her that the appellant tried to rape her and Ratan Bhil (PW.3) came and saved her from being disgraced. However, she also admitted in the cross-examination that in the previous statement no statement to the effect that the victim was weeping and showed her the bites on her breast what she stated in the examination-in-chief. However, she also admitted in the cross-examination that in the previous statement no statement to the effect that the victim was weeping and showed her the bites on her breast what she stated in the examination-in-chief. One Mrinal Sutradhar deposed as PW.5 and stated that he is the brother of the victim and on her return home on 14.07.2004 he came to know the occurrence from the victim but she gave a different version of the occurrence, which is required to be reproduced when she was entering into the room, accd. Biswajit caught from behind, pressed lungi on her mouth and dragged her towards near-by jungle. She was thrown into the ground 2/3 times, thereafter, inside the jungle, he sat on her breast, bitten her breast, and torned her clothes. Somehow she put out the cloth from her mouth and cried for help. In the meantime, one Ratan Bhil of our village arrived there and pulled the acc. who resisted by catching a teak tree. My sister then told him to call my uncle and when Ratan was going to call my uncle, he released her and went away." In the cross he also admitted that no such statement is available in the previous statement as recorded by the investigating officer under Section 161 to the effect that he did hear the matter from his younger sister, the victim, that Biswajit entered into their house, undressed her younger sister and bitten her breast. One Shibu Bhil, who deposed as PW.6 is a hearsay witness. He stated that when attempts of conciliation failed he advised the victim to take shelter of law. One Suresh Bhil was examined by the prosecution as PW.7, who is a hearsay witness but is the witness to the 'salish' where he heard about the occurrence in details. He deposed that for non-appearance of the appellant, the attempts of the conciliation failed and he advised the victim to take shelter of law. The Officer In-charge, namely, Madhu Sudhan Chakma was examined as PW.8, who narrated how he conducted the investigation in a very brief manner and admitted in the examination-in-chief that he has not mentioned the age of the victim girl in the FIR. However, he admitted that the victim did not state to him that the appellant insisted to call her sister or bite her breast or tearing her wearing apparels. However, he admitted that the victim did not state to him that the appellant insisted to call her sister or bite her breast or tearing her wearing apparels. He further admitted that the victim girl did not tell about any injury. 8. From the appreciation of the evidence as recorded by the learned trial Court even though there surfaced some insignificant variations in the statements of the victim girl or some embellishment in the statement of the PW.3 but the entire prosecution case cannot be disbelieved for that reason. It is well settled that in our country the principles of falsus in uno falsus in omnibus has no application. It implies that for holding a part of the evidence as false the entire part of the evidence shall not be treated as false. Evidence has to be carefully scrutinized and the truth has to be found from the chaff. It appears from the part that can be believed that there was no preparation or intention to commit rape. But the evidence as available on record as established without any reasonable doubt that the appellant outraged the modesty of the victim and as such no interference of the judgment of the conviction is called for and accordingly, the same is affirmed. 9. Since the appellant has been held to be a juvenile on the date of occurrence a fresh consideration in regard to the sentence is required. In Mohan Mali & another vs. State of M.P. as reported in AIR 2010 SC 1790 , the Apex Court held that the sentence has to be considered in view of the provisions of Sections 15 and 64 of the Juvenile Justice (Care & Protection of Children) Act, 2000 read with the provisions of Rule 98 of the Juvenile Justice (Care & Protection of Children) Rules, 2007. In Dharambir vs. State (NCT of Delhi) & another as reported in 2010 SC 1801 the Apex Court held that all relevant factors including keeping of the juvenile in the special home, when he has crossed the juvenility long back, are required to be considered at the time of sentence. 10. The trial was concluded on 07.03.2005. It would not be proper to remit the matter to the Juvenile Justice Board for re-trial. 10. The trial was concluded on 07.03.2005. It would not be proper to remit the matter to the Juvenile Justice Board for re-trial. For ends of justice, appropriate order of sentence should be passed by this court in terms of the provisions of Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000. Further, it has been provided in Section 16 of the Juvenile Justice (Care and Protection of Children) Act, 2000 that notwithstanding anything to the contrary contained in any other law for the time being in force, no juvenile in conflict with law shall be sentenced to death or life imprisonment, or committed to prison in default of payment of fine or in default of furnishing security. In consideration that the juvenile in conflict with laws committed the offence and by efflux of time the appellant is more a juvenile, this Court directs that the appellant shall to be released on probation of good conduct and he shall be placed under the guidance of a fit person. Accordingly, it is directed further that the appellant shall be released only on furnishing a bond, by a close relative on undertaking that he/she shall provide necessary guidance to the appellant for one year, to the satisfaction of the learned Addl. Sessions Judge, South Tripura, Belonia. A separate bond be furnished to the satisfaction of the learned Addl. Sessions Judge, South Tripura, Belonia by the appellant undertaking good conduct in future. 11. With this observation, the appeal is disposed of. Send down the L.C. records forthwith.