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2013 DIGILAW 157 (GAU)

Sultan Ali @ Sultan Mamud v. State of Assam

2013-03-06

S.C.DAS

body2013
S.C. Das, J. 1. This criminal appeal filed under Section 374 of Cr.P.C. is directed against the judgment and order of conviction and sentence, dated 03.09.2005, passed by the learned Sessions Judge, Morigaon, in Session Case No. 59/2004, whereby learned Sessions Judge found the accused appellant guilty of committing offence punishable under section 354 of IPC and sentenced him to suffer R.I. for 1 (one) year and to pay a fine of Rs. 2,000/-, in default of payment of fine to, suffer further R.I. for 6 (six) months. Heard learned counsel, Mr. A.M. Borbhuiyan, who has been appointed as Amicus Curiae by this Court and learned Addl. P.P., Mr. B.S. Sinha, for the State respondent. 2. The fact of the case may be summarised thus: 3.1 On 14.05.2003, at about 4:00 p.m., the victim prosecutrix "Sabita" (actual name kept concealed), a minor girl, aged about 13 years, alongwith her younger cousin sister, Subhadra Mandal, aged about 10 years, went to the paddy field near their house to collect grass. While they were about to leave the field, the accused-appellant, Md. Sultan Ali, suddenly, caught hold of 'Sabita' and started dragging her towards the paddy field. He caught the mouth of 'Sabita' and therefore, she was not in a position to raise alarm. On seeing the incident, PW 3, Shubadra Mandal raised alarm and rushed to their house and informed the incident to her mother, PW 6, Smti. Saraswati Mandal and PW 6 immediately informed the incident to her husband, PW 4 Maniklal Mandal, and, they alongwith neighbours, went to the field. The accused, thereafter, left the place and entered in the house of Hamed Ali and Kuddush Ali, and when Maniklal Mandal, Saraswati Mandal and others came there to enquire about 'Sabita', Sultan Ali, Hamed Ali and Kuddush Ali came out to assault them and out of fear Maniklal Mandal, his wife Saraswati Mandal and others left the place. 3.2 On 16.05.2003, father of 'Sabita', lodged an F.I.R. with the O/C, Jagiroad P.S. alleging the incident and, accordingly, Jagiroad P.S. Case No. 61/03 under Sections 376, 511, 506 read with Section 34 of IPC was registered and investigation was taken up. 3.3 In course of investigation, I.O. arranged medical examination of 'Sabita' in the Civil Hospital, Morigaon and, accordingly, PW 7, Dr. Bhogeswar Thakuria, examined the victim girl in the hospital and medical report(Exbt. 2) was collected by him. 3.3 In course of investigation, I.O. arranged medical examination of 'Sabita' in the Civil Hospital, Morigaon and, accordingly, PW 7, Dr. Bhogeswar Thakuria, examined the victim girl in the hospital and medical report(Exbt. 2) was collected by him. 3.4 The prosecutrix, her father PW 2, Jagabandhu Biswas, PW 4, Maniklal Mandal, and PW 5, Barun Debnath, were produced before the learned Judicial Magistrate for recording their statements under Section164 of Cr.P.C. and, accordingly, their statements were recorded. In the statements made by the prosecutrix and her father it was disclosed that the accused, Sultan Ali committed rape on the prosecutrix in the field and when Maniklal Mandal and his wife Saraswati Mandal and others reached there the accused fled away. 3.5 I.O., in course of examination, got the copies of statements recorded under Section 164 of Cr.P.C. and also recorded statements of all materials witnesses, and thereafter submitted charge sheet against accused, Sultan Ali for commission of offence punishable under Sections 376, 511, 506 read with Section 34of IPC and did not forward the other two FIR named accused, Hamed Ali and Kuddush Ali to face the trial and, accordingly, they were discharged. 3.6 On commitment the case to the Court of Sessions, learned Sessions Judge, on 17.08.2004, framed charge against the accused Sultan Ali for commission of offence punishable under Sections 376 of IPC to which the accused pleaded not guilty and claimed to be tried. 3.7 Prosecution examined as many as 8 (eight) witnesses, namely, PW 1, the victim prosecutrix, PW 2, father of the prosecutrix, who was the maker of the FIR, PW 3, Shubadhra Mandal, younger sister of the prosecutrix, a minor girl, who was with the prosecutrix at the time of alleged occurrence, PW 4, Maniklal Mandal, father of PW 3, PW 5, Barun Debnath, a neighbour, PW 6, Saraswati Mandal, mother of PW 3 and wife of PW 4, PW 7, Bhogeswar Thakuria, the medical officer, who examined the prosecutrix and PW 8, SI Siblal Kumar, the I/O of the case. 3.8 Prosecution witnesses were cross examined by the defence and the accused was examined under Section 313 of Cr.P.C. 3. 3.8 Prosecution witnesses were cross examined by the defence and the accused was examined under Section 313 of Cr.P.C. 3. To my utmost surprise, on going through the Judgment, passed by the learned Sessions Judge, I find that after examination of the accused under Section 313 of Cr.P.C., learned Sessions Judge did not afford any opportunity to the accused to adduce defence evidence and, thereby, learned Judge utterly ignored the provisions of Section 233 of Cr.P.C. and thereafter heard the arguments of both sides and by the impugned Judgment convicted and sentenced the accused as aforesaid. I further find to my utmost astonishment that the accused was not heard on the question of mitigation of sentence by the learned Sessions Judge observing that it was not necessary since the accused was found guilty under Section 354 of IPC, which was triable as a summons case. Learned Sessions Judge acquitted the accused from the charge framed under Section 376 of IPC, holding that prosecution has failed to prove the charge and that finding has not been challenged. 4. Let us first have a glimpse to the evidence on record. 4.1 PW 1, the victim girl, in her deposition has stated that on the date of occurrence at about 4:00 p.m., she alongwith her younger cousin sister, were in the field about 200-300 meters away from their house to collect grass and after collection of grass when she was about to return home, at that time a boy caught hold of her from her backside covering her face and, subsequently, she could see that he was Sultan Ali and the boy laid her on the ali of the field. She was wearing skirt and pant at that time and the boy removed her skirt and pants and put his penis in her private parts. Her sister, Subadhra Mandal raised alarm and ran towards the house and reported the incident to her parents. She could not raise any cry as the accused closed her mouth. The accused, thereafter, tried to drag her towards the house of Hamed Ali but at that time her maternal uncle and aunty (PW 4 and PW 6 respectively) arrived there and the accused fled away. Thereafter, she was brought back to her house by her maternal uncle and aunty. Subsequently, her mother and father reported the incident to the police. The accused, thereafter, tried to drag her towards the house of Hamed Ali but at that time her maternal uncle and aunty (PW 4 and PW 6 respectively) arrived there and the accused fled away. Thereafter, she was brought back to her house by her maternal uncle and aunty. Subsequently, her mother and father reported the incident to the police. She further stated that she was taken to the doctor for medical examination and also produced before the Magistrate, where she narrated the incident. 4.2 PW 3 is the cousin sister of victim prosecutrix, who was with her in the field for collection of grass at the relevant time of occurrence. In her deposition she stated that she alongwith her elder sister, 'Sabita' went to collect grass for cows from the field and at that time she saw that a boy caught the hands and mouth of her sister (prosecutrix) and on seeing the occurrence she created 'hulla' and ran towards their house and informed the incident to her mother, father and other villagers, who immediately went to the spot and brought back her sister, 'Sabita'. 4.3 Evidence of PW 7, the medical officer, is very important to decide the case about the charges. In his deposition, PW 7 stated that he examined the prosecutrix on 17.05.2003. She was aged about 13 years at that time. It was stated to the doctor that a sexual offence on the previous day (Wednesday) at about 4:00 p.m. occurred with the prosecutrix. The doctor has observed that the prosecutrix had 26 nos. of teeth, breast not developed, auxiliary hair scanty, pubic hair scanty, labia majora and labia minora not developed, vagina not well developed, hymen absent, no sign of any injury present at her private part, spermatozoa absent at vaginal smear examination. Radiological examination was then held to confirm her age and it was found that she was aged about 13 years and no sign of sexual intercourse was detected. He proved the medical report as Exbt. 2. In cross examination, he stated that there may be some other reasons for absence of hymen such as jumping, running or self fingering due to irritation, etc. He proved the medical report as Exbt. 2. In cross examination, he stated that there may be some other reasons for absence of hymen such as jumping, running or self fingering due to irritation, etc. 4.4 Learned Sessions Judge arrived at a finding that the charge under Section 376 of IPC was not made out but considering the statements of PW 1 and PW 3 that the accused Sultan Ali caught the hands of the prosecutrix and tried to drag her towards the house of Hamed Ali, he arrived at a finding that modesty of the prosecutrix was outraged and, accordingly, held the accused guilty under Section 354 of IPC and sentenced him accordingly. Had the prosecutrix was dragged by the accused through the paddy field, as alleged, she might sustain at least some superficial injury on her person but medical evidence does not reflect of any such injury. The prosecutrix and other witnesses also stated nothing that for the alleged dragging through the paddy field she suffered any sort of injury in her person. 5. Admittedly, trial of the case was taken up by the learned Sessions Judge since it was a case of rape and for trial of a Sessions case, learned Sessions Judge was supposed to follow the procedure prescribed in Chapter XVIII of Cr.P.C. Learned Sessions Judge followed the procedure till the recording of prosecution evidence was over and thereafter dispensed with the procedure prescribed in that Chapter and chosen a procedure not recognised by law. He has totally discarded the right of the accused of adducing defence evidence and also did not hear the accused on mitigation of sentence. Learned Addl. P.P., Mr. Sinha has submitted that it is an absolute statutory right of the accused that he should be given the opportunity of adducing defence evidence and such right cannot be curtailed. He, however, left the matter to the consideration of this Court. 6. Learned Sessions Judge in paragraph 4 of the judgment made an attempt to assign as to why the accused was not afforded the opportunity to adduce defence evidence, which reads thus: In this case, the prosecution examined as many as 8 PW's including I/O and M/O whereas the defence examined none so far. 6. Learned Sessions Judge in paragraph 4 of the judgment made an attempt to assign as to why the accused was not afforded the opportunity to adduce defence evidence, which reads thus: In this case, the prosecution examined as many as 8 PW's including I/O and M/O whereas the defence examined none so far. Of course, this is not the stage to examine the D.W. as provided by law, because after examination of accused u/s. 313 Cr.P.C. and hearing argument of both the sides if prosecution case is found to be not established nor proved against accused, under the circumstance, Court shall prepare acquittal judgment and if the accused does not deserve his acquittal as provided by afore mentioned provision of law, under the circumstance, accused shall be called upon to enter into his defence. In this stage, giving a bird's eye view on evidence on record, it is a tough matter to hold whether accused deserves his acquittal or not unless we appreciate the evidence on record. If we proceed to appreciate the evidence on record, under the circumstance, taking point for decision, we must proceed to prepare our Judgment So, in this stage, the point for decision will be: (I) Whether on 14.05.2003 at about 4.00 p.m. while Padda Biswas, a minor girl aged about thirteen years was cutting grass in the field at Sutradal Pathar along with another girl Subhadra Mandal by name, at that time, whether suddenly accused Sultan Ali arrived in the midst of paddy at the grass cutting place and committed forcible sexual intercourse on the person of Padda Biswas? 7. A bare reading of the above makes it clear that learned Sessions Judge after examination of the accused under Section 313 of Cr.P.C. considered that after hearing argument if no case is found established he should prepare a judgment of acquittal and if not the accused shall be called upon to enter into his defence. It appears, learned Sessions Judge could not construe the provisions of Section232 of Cr.P.C. in its right perspective. The section reads thus: 232. Acquittal.-If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that mere is no evidence that the accused committed the offence, the Judge shall record an order of acquittal. The section reads thus: 232. Acquittal.-If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that mere is no evidence that the accused committed the offence, the Judge shall record an order of acquittal. The above provision contemplates that after the recording of prosecution evidence will be over, if the Sessions Judge found on examination of the accused and hearing the prosecution and the defence on any point and considers that there is no offence committed by the accused, the Judge shall record an order of acquittal. Such examination of the evidence of the prosecution is not an examination for the purpose of recording a judgment but for prima facie arriving at a conclusion as to whether there is any necessity for further proceeding with the case. Law requires that the provision of Section 232 shall apply after the recording of prosecution evidence will be over, if no incriminating evidence adduced by the prosecution, examination of the accused under Section 313 of Cr.P.C. becomes redundant Section 232, therefore, prescribed that after the recording of evidence for the prosecution is over, the Court should give an opportunity of examining the accused and hearing the prosecution and the defence and if the Court is satisfied that there is no evidence that the accused committed the offence he should be acquitted without proceeding further. If the court is satisfied that there are materials in the evidence on record adduced by the prosecution, he should proceed to examine the accused under Section 313 of Cr.P.C. Section 233 of Cr.P.C. prescribes thus: 233. Entering upon defence.- (1) Where the accused is not acquitted under section 232 he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof. (2) If the accused puts in any written statement, the Judge shall file it with the record. (3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that is made for the purpose of vexation or delay or for defeating the ends of justice. A reading of the above provision makes it abundantly clear that after the recording of prosecution evidence is over and the Judge found material in the evidence on record, in that case after examination of the accused under Section 313 of Cr.P.C., if the accused is not acquitted under Section 232, the accused shall be called upon to enter on his defence and adduce evidence if any he may have in support thereof. It is further made clear that consideration of prosecution evidence under Section 232 of Cr.P.C. is not for preparation of final judgment of the case but for arriving at a conclusion as to whether the court shall further proceed or not Learned Sessions Judge was absolutely wrong in deciding the case finally at the stage of consideration of prosecution evidence under Section 232 of Cr.P.C. 8. It appears that learned Sessions Judge has mingled the procedures prescribed in Chapter XVIII, XIX, XX and XXI with that of the provisions prescribed in Chapter XXIV of Cr.P.C. The provisions prescribed in Chapter XXIV is applicable generally in all trials irrespective of whether it is a Sessions trial or warrant trial or summons trial. Section 313 of Cr.P.C., as prescribed in Chapter XXIV, stipulates that in every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court (a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary; (b) shall after the witnesses for the prosecution have been examined and before he is called on for his defence question him generally on the case. The above provision makes it clear that examination under Section 313 of Cr.P.C. should be made after consideration of the prosecution evidence under Section 232 of Cr.P.C. and not before it. Learned Sessions Judge, as it appears, examined the accused under Section 313 of Cr.P.C. meaning thereby that he has found incriminating material in the evidence on record and, therefore, he proceeded to examine the accused under Section 313 of Cr.P.C. and, thereafter, he vaulted his face to Section 232 of Cr.P.C. and finally considering the case wrote the judgment without affording opportunity to the accused to adduce defence evidence and that has vitiated the trial. As it appears learned Sessions Judge after appreciation of evidence while acquitted the accused from the charge of the offence triable by the court and while found the accused guilty of committing offence under Section 354 of IPC arrived at a conclusion that since it was a summons trial case, provision of Section 233(1) and 235(2) of Cr.P.C. need not be complied with. In paragraph 20 of the judgment, he has held: 20. As it reveals, the offence comes down from Section 376 I.P.C. to Section 354 I.P.C. Though case is tried in a sessions court, since offence come under summons procedure, under the circumstance, the procedure laid down Section 233(1) and 235(2) Cr.P.C. need not be complied with. Since accused deserves his conviction for offence under Section 354 I.P.C. I convict and sentence accused to undergo rigorous imprisonment for a period of 1 (one) year with a fine of Rs. 2000/- in default he will suffer for his offence punishable under Section 354 I.P.C. In the mean time his period in custody shall be set off from his sentence. His bail bond stands cancelled. The above observation of the learned Sessions Judge is in clear conflict of the provision prescribed by law. While he was trying the case under Chapter XVIII of Cr.P.C., he was supposed to conclude the trial under the provision of that Chapter alone. In the midst of the trial he would not shift to the procedure prescribed in another Chapter. Even under Chapter XX, for trial for a summon case, opportunity of adducing defence evidence requires to be afforded to the accused as prescribed in Section 254 of Cr.P.C. Sub-section (1) of Section254 of Cr.P.C. clearly spelt out that the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produced in his defence. Learned Sessions Judge while trying the case neither afforded the opportunity as prescribed under Section 233(1) of Cr.P.C. nor under Section254(1) of Cr.P.C. and a valuable right of the accused prescribed by law has thereby taken away by the Court. Learned Sessions Judge while trying the case neither afforded the opportunity as prescribed under Section 233(1) of Cr.P.C. nor under Section254(1) of Cr.P.C. and a valuable right of the accused prescribed by law has thereby taken away by the Court. It is further made clear that once a trial is taken up following procedure as prescribed in Cr.P.C. either as a Sessions trial or a warrant trial or a summon trial the Court shall proceed to conclude the trial following the procedure unless otherwise required as per law. 9. The next point, that has come up for consideration, is whether Section 354 of IPC is, and/or may be treated, a minor offence of that of Section 376 of IPC. Chapter XVI of IPC deals with offences affecting the human body in different particular sub-heading such as (i) offences affecting life, (ii) offences of causing of miscarriage, of injuries to unborn children, of the exposure of infants, and of the concealment of births, (iii) offences of hurt, (iv) offences of wrongful restraint and wrongful confinement, (v) offences of "Criminal Force and Assault", (vi) offences of kidnapping, abduction, slavery and forced labour, (vii) sexual offences and, lastly (viii) of unnatural offences. It is, therefore, evident that the offence under Section 354 of IPC is a part and parcel of the offences prescribed under the heading of "criminal force and assault". Admittedly no charge was framed under Section 354 of IPC, so the question emerges as to whether ingredients of offence under Section 354 of IPC is there or not in the charge framed under Section 376 of IPC for which trial has been made. Section 354 of IPC prescribes punishment for outrage of modesty of a woman. Section 354 of IPC reads thus: 354. Assault or criminal force to woman with intent to outrage her modesty.-Whoever assaults or uses criminal force to any woman, intending outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. To prove the ingredients of the offence of outrage of modesty of a women punishable under Section 354 of IPC prosecution has to prove the ingredients defined in Sections 349, 350 and 351 of IPC, i.e. the 'force', 'criminal force' and 'assault'. To prove the ingredients of the offence of outrage of modesty of a women punishable under Section 354 of IPC prosecution has to prove the ingredients defined in Sections 349, 350 and 351 of IPC, i.e. the 'force', 'criminal force' and 'assault'. Whereas, the sexual offence has been defined in a different heading and to prove the ingredients of 'rape' essentially the ingredients of force, criminal force or assault are not required to be proved. The definition of rape has been given in Section 375 of IPC which is quite distinguishable to that of the definition of force, criminal force and assault Offence under Section 354 of IPC, therefore, can in no way be said to be a cognate offence of Section 376 of IPC. It cannot be held to be minor offence or rape. The words, 'minor offence' have not been defined in the criminal law but it has now been settled by the Apex court as well as by judgment of this Court. The Apex Court in the case of Shamnsaheb M. Multtani Vs. State of Karnataka reported in : (2001) 2 SCC 577 has held that although the minor offence is not defined in the code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-a-vis the other offence. In my considered opinion, learned Session Judge was absolutely wrong in holding the accused guilty of committing offence punishable under Section 354 of IPC, in absence of any charge framed under that section. 10. The next point, which has emerged for consideration, is that the accused was not heard on mitigation of sentence. Learned Addl. P.P., Mr. Sinha, has submitted that for ends of justice, in every case, when an accused is found guilty, he should be heard about the quantum of punishment and, even, in summons trial case also that opportunity should not be taken away. Learned Amicus curiae also made the same argument. 11. Learned Addl. P.P., Mr. Sinha, has submitted that for ends of justice, in every case, when an accused is found guilty, he should be heard about the quantum of punishment and, even, in summons trial case also that opportunity should not be taken away. Learned Amicus curiae also made the same argument. 11. Admittedly, it was a Sessions trial before the learned Sessions Judge triable under Chapter XVIII of Cr.P.C. and Section 235thereunder prescribes that if the accused is convicted the Judge shall unless he proceed in accordance with the provision under Section360, hear the accused on question of sentence and then pass sentence on him according to law. A Sessions Judge, while trying an offence, triable by the Court of Sessions, is empowered to try other offences in the same trial and he should not follow different procedures for different offences punishable under different Sections in the same trial. He has to follow the procedures of Session trial alone, while trying a sessions case from beginning to the end of trial. 12. In the present case, in paragraph 20 of the judgment, learned Sessions Judge has observed that he has withheld the procedures prescribed in Section 233(1) and 235(2) Cr.P.C., because Section 354 of IPC is a summons trial offence. Such an observation of a Sessions Judge cannot be legally accepted and, therefore, it is not tenable in law. 13. The last point, which I would like to point out in this judgment, is that the decision of the Supreme Court regarding non-disclosure of name of the victim of a sexual offence. The learned Sessions Judge mentioned the name of the victim girl in the judgment which has been forbidden by the Supreme Court in the case of in the case of Bhupinder Sharma Vs. State of Himachal Pradesh reported in (2003) 8 SCC 551 and the learned Sessions Judge as well as the Courts below are advised to take care of it in future. In paragraph 2 of the judgment the Apex Court has observed that Section 228A of IPC makes disclosure of identity of victim of certain offences punishable. Printing or publishing name of any matter which may make known the identity of any person against whom an offence under Sections 376, 376-A, 376-B, 376-C or 376-D is alleged or found to have been committed can be punished. Printing or publishing name of any matter which may make known the identity of any person against whom an offence under Sections 376, 376-A, 376-B, 376-C or 376-D is alleged or found to have been committed can be punished. True it is the restriction does not relate to printing or publication of judgment by High Court or Supreme Court. But keeping in view the social object of preventing social victimization or ostracisms of the victim of a sexual offence for which Section 228-A has been enacted, it would be appropriate that in the judgments, be it of High Court or lower Court, the name of the victim should not be indicated. It is expected that the Courts below should follow the direction of the Supreme Court in letter and spirit. 14. In view of the decisions made above, the appeal is allowed. The judgment and order of conviction and sentence, passed by learned Sessions Judge is set aside and quashed. The convict be set at liberty and the bail bond, if any, executed on behalf of the convict, also stands discharged. 15. Send back the L.C. records along with a copy of this judgment. I should not miss here recording of my appreciation regarding the assistance rendered by learned counsel, Mr. Barbhuyia, as amicus curiae in this case and he should be entitled to a fees of Rs. 5,000/- (rupees five thousand).