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2012 DIGILAW 878 (CAL)

Kartick Chandra Dalui v. State of West Bengal

2012-09-18

TOUFIQUE UDDIN

body2012
JUDGMENT This appeal arose out of judgment and order dated 31st March, 1983 passed by Sri A.K. Sil, Additional Sessions Judge, 2nd Court, Alipore in Sessions Trial No. 2(8)/1983 convicting the appellant under section 376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for 4 years and to pay a fine of Rs. 100/- in default to rigorous imprisonment for further three months. 2. In the background of this appeal and the fact in a nutshell is as follows : The appellant committed rape on the minor girl Swapna Manna who was residing with her parents at 153, B.T. Road, Police Station Baranagore, Calcutta-35. On 26.4.1981 her parents went to Narkeldanga Sishu Hospital in the afternoon where their 3rd daughter was admitted leaving other daughters and sons at house. During that time, the victim girl went to privy for easing purpose when the accused caught hold of her inside the privy, fell her on the chatal and committed rape on her forcibly by gagging her mouth. Thereafter, the accused fled away when the victim raised alarm. Hearing her alarm, one Durga Pal, the landlady and two other young men namely, Samsul Haque and Gora Chand Mondal, came there. The victim narrated the incident to them and also to her parents on their return. Her father lodged FIR at Baranagore Police Station. Police started Baranagore P.S. Case No. 14 dated 26.1.1981. After investigation, police submitted charge-sheet against the appellant. Thereafter, the case was committed to the Court of Sessions. 3. On hearing, learned Sessions Court framed charge against the accused person under section 376 of the Indian Penal Code. The contents of the charges were read over and explained to the accused person who pleaded not guilty and claimed to be tried. 4. To bring home the charge, the prosecution examined as many as 11 witnesses while the defence side examined none. 5. However, the accused was examined under section 313 of the Cr.P.C. The defence plea was denial of an offence with a further plea of innocence. 6. No D.W. was examined. 7. On hearing of both sides, learned Trial Court convicted the accused. 8. Now, the point for consideration is if the impugned judgment suffers from any infirmity and causes any miscarriage of justice or not and the same can be sustained in the eye of law. 9. 6. No D.W. was examined. 7. On hearing of both sides, learned Trial Court convicted the accused. 8. Now, the point for consideration is if the impugned judgment suffers from any infirmity and causes any miscarriage of justice or not and the same can be sustained in the eye of law. 9. It was contended by the learned Counsel of the appellant that the judgment cannot be supported fully as there appears some discrepancies in evidence especially so far as the wearing apparels are concerned. 10. On the other hand, learned Counsel for the State Defence Counsel submitted that there is hardly any scope to interfere with the impugned judgment. 11. Needless to mention that one Mr. Shataroop Purakayastha, learned Counsel, was appointed as amicus curiae in this case to assist the Court. 12. I have heard the submissions of rival parties and the learned amicus curiae. It was contended by the learned amicus curiae that at the material point of time, the appellant was only 15 years old. So, his case should have been dealt with other way and the sentence cannot be sustained. 13. I have given my anxious thought over their submission. At the same time, I read between the lines not only of the evidence on record but also the findings of the learned Trial Court. The record palpably shows that the appellant at the time of alleged commission of offence was 15 years old as it transpires from not only in evidence but also in the examination sheet of the accused under section 313 of the Code of Criminal Procedure. The prosecution did not controvert this aspect. The date of offence was 26.1.1981 and the date of judgment was 31.3.1983. None took plea of juvenility that time. Then came Juvenile Justice Act, 1986. Again in 2000 came Juvenile Justice (Care and Protection of Children) Act, 2000. The present appeal was lodged on 9.1.1984. So, admittedly the appellant was juvenile on the date of offence. 14. Be that as it may, the trial, however, went on and got concluded in the form of conviction, which is under challenge. 15. Again in 2000 came Juvenile Justice (Care and Protection of Children) Act, 2000. The present appeal was lodged on 9.1.1984. So, admittedly the appellant was juvenile on the date of offence. 14. Be that as it may, the trial, however, went on and got concluded in the form of conviction, which is under challenge. 15. A point was taken by the learned amicus curiae that the victim ought to have been examined by the police under section 164 of the Code of Criminal Procedure, but for reasons best known to the Investigating Officer the victim girl was not placed before the learned Magistrate for recording her evidence under section 164 of the Cr.P.C. That could have gone a long way to establish the fact as to whether the victim girl admittedly aged about 11 years at the material point of time was capable of giving natural expression like a man of ordinary prudence with the sense of understanding of question and giving replies thereto in a sensible and acceptable manner. In this record, it is a serious flaw no doubt on the part of the Investigating Officer but due to fault of the Investigating Officer, the prosecution case should not be thrown in toto. Of course, other attending circumstances are to be gathered so as to judge whether the victim girl was capable of answering rational question in a prudent manner. In this respect I look to the evidence of P.W.4 i.e. the victim girl herself. Her evidence was projected in such an elegant and lucid manner that there was hardly any scope to doubt its genuineness. At the same time, the flow of her expression gave a clear cut indication that she knew what is what, where is what and how is what leaving no scope of any doubt in any manner whatsoever. So, I am of view that though she was not placed for examination under section 164 of the Cr.P.C. before the Magistrate, firstly to ascertain whether she was capable of giving any rational answer for the purpose of testing her competency to depose as a witness, yet there appears no doubt about her competency. Her deposition as P.W.4 appears to be quite natural, probable, reasonable and acceptable. 16. There might be some minor contradictions as pointed out by the defence side so far as the wearing apparels are concerned. Her deposition as P.W.4 appears to be quite natural, probable, reasonable and acceptable. 16. There might be some minor contradictions as pointed out by the defence side so far as the wearing apparels are concerned. It was pointed out by learned defence lawyer that P.W.4 stated she wore “Makshi” but the FIR shows that she wore both frock and torn cloth. So, I do not think that minor discrepancy will go to tough the very root of the case. The parents of the victim girl totally supported the prosecution case. The medical report amply corroborated the prosecution case. 17. No substantial contradiction of statement of witnesses appears to have been taken from the Investigating Officer under section 145 of the Evidence Act. Totality of the evidence leads me to hold that there is no scope to interfere with the findings of the learned Trial Court save and except the facts mentioned hereinafter. 18. The appellant was convicted to suffer substantive sentence of 4 years with fine and also with default clause. The trial is over. To take up the question of juvenility at this stage is meaningless but nevertheless one point has to be taken care of as to whether the sentence is to be maintained or not. The conviction I think is sustainable and accordingly it is upheld but so far as the sentence is concerned, I cannot go beyond the law as propounded by the Hon’ble Apex Court as reported in (2010) 5 SCC 344 , Dharambir vs. State (NCT OF DELH) and another wherein the Hon’ble Apex Court was pleased to maintain the conviction but quash the quantum of sentence in respect of a juvenile. Arithmetical calculation shows that the age at present of the appellant is 44 years. No dispute of age was raised by either side. He was in custody for almost 1½ month during pre-trial stage. So, in view of the aforesaid decision there is no point to refer him to the Juvenile Board. 19. Accordingly, the conviction is upheld but the sentence stands quashed. 20. The appeal is accordingly disposed of as above. 21. Before parting with the record, I must record my appreciation not only to the learned amicus curiae but also both to the learned Counsels appearing on behalf of the State and on behalf of the appellant for their co-operation. 22. The remuneration of Mr. 20. The appeal is accordingly disposed of as above. 21. Before parting with the record, I must record my appreciation not only to the learned amicus curiae but also both to the learned Counsels appearing on behalf of the State and on behalf of the appellant for their co-operation. 22. The remuneration of Mr. Shataroop Purkayastha, learned amicus curiae, be assessed at Rs. 1500/-. 23. Department is directed to inform the appropriate authority for ensuring the payment of the learned amicus curiae. Urgent photo-stat certified copy of this judgment and order, if applied for, be supplied to the parties as early as possible.