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Tripura High Court · body

2013 DIGILAW 6 (TRI)

Babul Chandra Pal v. State of Tripura

2013-06-04

U.B.SAHA

body2013
JUDGMENT U.B. Saha, J. The appellant was acquitted from the charge leveled against him under Sections 376/494 of the Indian Penal Code (for short, IPC) and convicted under Sections 366A of the IPC and sentenced to suffer R.I. for 2(two) years and also to pay fine of Rs. 2,000/-, in default of payment of fine, he should also suffer S.I. for two months, vide judgment and order dated 21.12.2005 passed in S.T. 72(ST/U) 2004. Being aggrieved by the said judgment, the appellant preferred the instant appeal for setting aside the order of conviction and sentence under Section 366A of IPC. Heard Ms. S. Deb (Guta), learned counsel appearing for the accused appellant as well as Mr. P. Bhattacharjee, learned Addl. Public Prosecutor appearing for the State-respondent. 2. The case of the prosecution is as follows:-- That, on 20-12-2003 A.D. while the PW-3, Gita Rani Das, the mother of the victim (PW-4), on return to her home came to learn that her daughter victim was not there in the house. Thereafter, she and her husband searched for their daughter in the neighbouring houses, but not finding her there, they came towards the market and came to learn that she had gone with one Babul Ch. Pal, the Panchayat Secretary of Baramura (Darjeelingbari). Even after search, they could not trace out regarding the whereabouts of their daughter. Thereafter, she filed ann FIR with the OC, Killa Police Station and the said First Information Report was registered as Killa PS case No. 19/2003 under Section 366A of IPC. Upon investigation of the aforesaid case, the police has filed a charge-sheet under Sections 366A/376(1)/494 of the IPC against the accused-appellant. 3. Learned Chief Judicial Magistrate, South Tripura, Udaipur taking cognizance and finding the offence triable by the Court of Sessions committed the case to the learned Sessions Judge, South Tripura, Udaipur for trial. 4. After receipt of the case, the learned Sessions Judge framed the charge against the accused-appellant as follows:-- Firstly, that you on 20.12.2003 at any time at Killa under P.S. Killa, Sub-Division Udaipur kidnapped to Kumari Sefali Das with intent that she may be compelled to marry against her will or knowing it to be likely that she will be seduced to illicit intercourse and you thereby committed an offence punishable under Section 366(A) of the I.P.C. and within my cognizance. Secondly, that you on and from 20.12.03 to 24.12.03 at any time at Darjeeling bari and Pitra under P.S. Killa, Sub-Division Udaipur committed rape on Kumari Sefali Das and you thereby committed an offence punishable under Section376(1) of the I.P.C. and within my cognizance. Thirdly, that you on the same date, time and place having husband of Ist wife living married again with Kumari Sefali Das such marriage being void by reason of its taking place during the life of the Ist/previous wife and you thereby committed an offence punishable under Section 494 of the I.P.C. and within my cognizance. And I hereby direct that you be tried on the said charges by this Court of Sessions. 5. Prosecution to prove its case has examined as many as 13 witnesses including the official witnesses and also exhibited some documents. On completion of the recording of prosecution evidence, the accused was examined under Section 313 of the Code of Criminal Procedure (for short, Cr.P.C.), to which he pleaded not guilty and also declined to adduce any evidence. 6. Considering the evidence of prosecution witnesses and the documents exhibited, the learned trial Court convicted the accused appellant under Section 366A of the IPC as stated supra and acquitted from the charge leveled against him under Section 376/494 of the IPC, as the prosecution failed to prove its case beyond reasonable doubt. 7. Ms. Deb (Gupta), learned counsel for the appellant, while urging for setting aside the order of conviction and sentence as impugned herein, would contend that the learned trial Court acquitted the accused-appellant from the charges under Sections 376/474 of the IPC as the prosecution failed to prove those charges beyond reasonable doubt and convicted the accused-appellant under Section 366A of the IPC, though the evidence on record would satisfy that no such ingredient of Section 366A of IPC is available, particularly when the accused-appellant at no point of time forced the victim to go for intercourse with any other person than the accused. In support of her aforesaid contention, she has placed reliance on Iqbal v. State of Kerala [ (2007) 12 SCC 724 ], wherein a Division Bench of the Apex Court held that, In the instant case, the admitted case of the prosecution is that the girl had left in the company of the accused of her own will and that she was not forced to sexual intercourse with any person other than the accused. The admitted case is that she had sexual intercourse with the accused for which, considering her age, conviction under Section 376 IPC has been maintained. Since the essential ingredient that the intercourse must be with a person other than the accused has not been established, Section 366A has no application. 8. She has further contended that it would be evident from the evidence of victim girl (PW-4) that a love affair had grown up between her and the accused and marriage was also solemnized in the Tripureswari temple and more so, on 28.11.2005 admittedly she was at the age of 21 years and at the time of alleged occurrence she was 19 years. Thus, it cannot be said that she was a minor even at the time of alleged commission of offence. She again submits that the Admission Register produced by the prosecution for proving that the victim girl was minor at the relevant time of offence was not proved either by the scribe of the Admission Register or in support of the recording the age of the victim therein any prescribed form filled up at the time of admission and more so, the mother of the victim (PW-3) was silent while she was put a specific question that the age of her daughter was 21 years old on 28.11.2005 and being she was silent at the time of cross-examination, it would be proper for the Court to rely upon the evidence of PW-4 who specifically stated that her age was 21 years at the time of trial and the incident was occurred 2 years back from the date of her examination, meaning thereby at the relevant time she was 19 years. In support of her aforesaid contention, she has also placed reliance on a decision reported in 1998 CRI. L.J. 1434 [Rakesh & Anr. v. State of Rajasthan], particularly paragraphs 27 and 32, wherein a Single Bench of Rajasthan High Court held that, 27. In support of her aforesaid contention, she has also placed reliance on a decision reported in 1998 CRI. L.J. 1434 [Rakesh & Anr. v. State of Rajasthan], particularly paragraphs 27 and 32, wherein a Single Bench of Rajasthan High Court held that, 27. I have carefully considered the evidence produced by the prosecution. Smt. Subi Devi PW 3, who is the mother of Bhagwati, could not remember the date of birth of her daughter Bhagwati. In cross-examination she has stated that her eldest son is about 30 to 35 years of age and that several children were born to her after the birth of eldest son and the birth of Bhagwati. Out of those children two sons have expired and one daughter Pana, who was elder to Bhagwati is already married. She has however stated that she cannot tell what is the age of Bhagwati. In view of the admission made by Smt. Subi Devi PW 3, who is the mother of Bhagwati, it must be said that Smt. Subi Devi does not remember the date of birth of Bhagwati. Therefore, her statement regarding the age of Bhagwati should be deemed to be silent. Bhagwati’s father could not be examined during trial, because he had expired. Bhagwati PW 12 could not tell her age or date of birth. As such there is no direct evidence of the date of birth of Bhagwati alias Bhatu. The prosecution has however produced in evidence the School Certificate Ex. P/9 issued by the Head Master of the School, where Bhagwati, daughter of Manak Chand Saini had studied. According to this Certificate the date of birth of Bhagwati has entered in the school record is 2nd August, 85. The Certificate Ex. P/9 has been proved by Shri Pura Ram, who has stated on oath that on 9th Nov. 92 he was the Head Master of the Gov. Primary School No. 2, Dungargarh, Shri Pura Ram has deposed on the basis of the school record that Bhagwati had taken admission in the school on 2nd August, 85 and that according to the school record, her date of birth was 5th March, 1979. 92 he was the Head Master of the Gov. Primary School No. 2, Dungargarh, Shri Pura Ram has deposed on the basis of the school record that Bhagwati had taken admission in the school on 2nd August, 85 and that according to the school record, her date of birth was 5th March, 1979. In cross-examination, Shri Pura Ram PW 9 has stated that the register, which contains the record of the date of birth was signed by the senior officers from time to time and that in this register no page has been replaced or tampered with and that the register was maintained regularly. The statement of Pura Ram PW 9 has not been shaken in the cross-examination. It must therefore, be held that his statement that in the school record the date of birth of Bhagwati is recorded as 2nd March, 85, is reliable and his evidence about the entires of the date of birth in the school record is relevant under Section 35 of the Evidence Act. It may however be pointed out that the original application form which was submitted at the time of admission of Bhagwati in the school has not been produced and the prosecution has not cared to prove that the person, who stated before the school authorities that the date of birth of Bhagwati was 2nd March, 85 had any special means of knowledge about the date of birth of Bhagwati, in these circumstances, the evidence of Pura Ram PW 9, though relevant, cannot be said to be sufficient to prove beyond reasonable doubt that the date of birth of Bhagwati is 2nd August, 1985. ......................................................................... ......................................................................... 32. I have carefully considered the evidence and the arguments advanced by the learned counsel for the accused. In my opinion, the argument advanced by the learned counsel for the accused in this behalf is well founded and the prosecution evidence is not sufficient to prove beyond reasonable doubt that Bhagwati alias Bhati was less than 18 years of age on the date of alleged occurrence. The charge of kidnapping under Section 366 and 366A, I.P.C. cannot be said to be established beyond reasonable doubt. 9. The charge of kidnapping under Section 366 and 366A, I.P.C. cannot be said to be established beyond reasonable doubt. 9. She has also submitted that though the register was proved, but what was the source of recording the date of birth of the victim as 25.03.1986 in the register was not produced and moreso, no Medical officer was examined by the prosecution to ascertain the actual age of the victim girl. 10. She has finally submitted that the learned trial Court in his judgment noted, inter alia, that the mother of the victim was concealing the date of birth of her daughter for the reason that a Salish (meeting) was there and they had to receive Rs. 70,000/- from the accused. More so, the girl is now residing in the house of the accused person as his wife, though there is no such evidence on that aspect. 11. Mr. P. Bhattacharjee, learned Addl. Public Prosecutor, in his usual fairness, submits that it would be very difficult on his part to support the impugned judgment passed by the learned trial Court, as there is no convincing evidence that the accused-appellant at any point of time induced the victim to go to any place with the intent that she may be, or knowing that she is likely that she will be, forced or seduced to illicit relation or intercourse with another person, which constitutes an offence under Section 366A of the IPC. He also fairly submits that to prove the age of the victim girl at the time of the alleged offence, there was no ossification test done by the investigating authority. According to him, when the mother of the victim herself is silent about the age of the victim as questioned by the defence, it is very difficult to say exactly what was the age of the victim girl at the time of the alleged offence. 12. It would be profitable if we discuss regarding the evidence of the prosecution witnesses before looking into the submission of the learned counsel for the parties. 12. It would be profitable if we discuss regarding the evidence of the prosecution witnesses before looking into the submission of the learned counsel for the parties. PW-1, Smt. Anjali Jamatia, a woman constable, in her statement stated that she was posted at Killa Police Station on 25.12.2003 and she herself and other police personnel went to Laxmipati in the house of the accused and at the time of visiting the house of the accused, the father of victim was also with them and they had found the victim in the house of the accused and they took her to the Police Station and on the following day she was sent to Court. This witness also stated that when the victim was guarded by her, she was with bangles and vermilion in her wearing and used as a bride. PW-2, Shyamal Raga, a Police Officer, who was also posted as ASI of Police at Pitra Outpost whose evidence is not relevant for deciding the case in hand. Thus, the same is not discussed here. PW-3, Smti. Gita Rani Das, is the mother of the victim who stated that victim is her daughter and she had filed the case but she could not say the name of the person who had written the FIR. She further stated that her daughter was found in the house of the accused who was in the dock and she did not know how her daughter went to the house of the accused. She also stated that she could not say the age of her daughter when she was found in the house of the accused in her cross, when she was suggested that on the date of her examination the age of her daughter was 21 years, she remained silent. PW-4, the victim, in her evidence stated before the learned trial Court that she was 21 years old and her mother filed a case against the accused Babul Paul for kidnapping her. She further stated that the occurrence was of two years back from the date of her examination and a love affair had grown up between her and the accused. She also stated that the accused took her to his house and the marriage was solemnized in the temple of Tripureswari and she subsequently heard that the accused has his wife and children. She also stated that the accused took her to his house and the marriage was solemnized in the temple of Tripureswari and she subsequently heard that the accused has his wife and children. PW-5, Sri Chitta Ranjan Debbarma, is the BDO of Killa R.D. Block and he did not say anything regarding the alleged offence. PW-6, Sri Indrajit Chakraborty, is the scribe of the FIR and he did not implicate the accused except saying that he had written the FIR as per statement of the PW-3. PW-7, Sri Kartik Chakraborty, is the seizure witness and he has identified the seized materials namely School certificate and the Citizenship certificate of the victim which were marked exhibited as Exbt. 3 and 4 respectively. PW-8, Smt. Sefali Paul, is a hearsay witness who stated that she heard that the victim was taken to hills by the accused Babul. PW-9, Md. Joynal Abedin, stated that he had written a petition as requested by the victim. PW-10, Sri Nilani Kishore jamatia is the teacher-in-charge of Kaipangbulai Primary School, has produced the original admission register and stated that on the basis of the register, the date of birth of the victim was 25.03.1986. He also stated that he had not issued any certificate regarding the date of birth of the victim. In his cross, he stated that a system is there that at the time of admission in the School, a prescribed form has to be filled in and he had hot produced the said prescribed form/petition. He also stated in his cross that the supporting documents or any statement regarding the date of birth is generally noted in the said form. In absence of that form, it is not possible on his part to say the source of information about the date of birth. PW-11, Sri Surjya Jamatia, was declared hostile by the prosecution, who stated that he does not know anything about the incident. PW-12, Sri Ananda Kumar Jamatia, is also a seizure witness in whose presence the admission register of Kaipangbulai S.B. School was seized. PW-11, Sri Surjya Jamatia, was declared hostile by the prosecution, who stated that he does not know anything about the incident. PW-12, Sri Ananda Kumar Jamatia, is also a seizure witness in whose presence the admission register of Kaipangbulai S.B. School was seized. PW-13, Saktipada Bhattacharjee, is the I.O. of the case and in his statement, he stated that he recovered the kidnapped girl from the house of the accused and he found that the victim used vermillion and bangles as a sign of married woman and he had handed over the girl to her guardian after recovery and this witness only done the investigation and finally submitted the charge-sheet. 13. In Ramesh v. The State of Maharashtra, [ AIR 1962 SC 1908 ], the Apex Court discussed that there are three principal ingredients of the offence contemplated by Section 366A, which are as follows:-- (a) that a minor girl below the age of 18 years is induced by the accused; (b) that she is induced to go from any place or to do any act, and (c) that she is so induced with intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person. The Apex Court also while deciding the appeal preferred by the appellant therein considered the evidence on record and stated that: The evidence clearly establishes that Anusaya had not at the material time attained the age of 18 years. But there is no evidence on the record that Patilba induced Anusaya to go to the theatre or from the theatre to Bohori Kathada. It must be assumed that when Patilba accompanied Anusaya to the theatre and from the theatre to the Bohori Kathada at the suggestion of the appellant knew that she was going for plying her profession as a prostitute. But in our judgment a person who merely accompanies a woman going out to ply her profession of a prostitute, even if she has not attained the age of eighteen years, does not thereby commit an offence under S. 366A of the Indian Penal Code. It cannot be said that thereby he induces her to go from any place or to do any act with the intent or knowledge contemplated by the section. 14. It cannot be said that thereby he induces her to go from any place or to do any act with the intent or knowledge contemplated by the section. 14. In Jinish Lal Sha v. State of Bihar, [ AIR 2003 SC 2081 ], the Apex Court while considering an appeal preferred by the appellant therein who was convicted by the Sessions Judg, Sitamarhi under Sections 366A and 376 of the IPC discussed as follows:-- ......................................... 5. PW-10 the doctor in his evidence has stated that PW-1’s X-ray photograph showed partial epiphy seal fusion of iliac crest. In her opinion, PW-1 appeared to be 17 years old which opinion of the Dr. is from the very language used by her shows it to be approximate. The physique of PW-1 as explained by PW-10 also indicates the probability of PW-1 being above the age of 18 years. In this background if we examine the evidence of PWs. 6 and 10 it is clear that evidence of PW-1 is wholly unreliable when she states that she was only about 14 years old. Even though PW-10 Dr. stated that PW-1 appeared to be 17 years old cannot be held that this evidence is conclusive enough to come to the conclusion that PW-1 was really below 18 years on the date of incidence, in view of positive statements made by PW-6 the father. We have already referred to the evidence of the father, according to whose evidence PW-1 was 19 years of age when she left the house of the father. In such situation, we think it not safe to come to the conclusion that PW-1 was less than 18 years of age on the date when she left the house of her father. While discussing this part of the prosecution case, the Trial Court in its judgment has not considered the evidence of PW-6 the father at all. It merely relied upon evidence of PW-10 accepting the same on its face value, without discussing the other material that was available on record. Even the High Court in this regard in its judgment merely stated Dr. who examined the prosecutrix found her age to be 17 years............"the High Court has not independent given any finding either accepting this evidence or not. It has also not discussed the evidence of PW-6 in regard to the age of PW-1. Even the High Court in this regard in its judgment merely stated Dr. who examined the prosecutrix found her age to be 17 years............"the High Court has not independent given any finding either accepting this evidence or not. It has also not discussed the evidence of PW-6 in regard to the age of PW-1. In this background for the reasons already stated hereinabove we think that the prosecution has failed to establish that PW-1 was less than 18 years of age as on the date of incidence.", and ultimately acquitted the appellant therein. 15. It appears from the evidence that the police had seized the school admission register and the photocopy of the said admission register was also exhibited as Exhibit-5 and according to the said exhibit, the date of birth of the victim is 25.03.1986, i.e. on 20.12.2003 she was 17 years 8 months 25 days old. As the learned trial Court has already acquitted the accused-appellant from the charge leveled against him under Section 376/494 of the IPC, it is not necessary for this Court to discuss regarding the evidence relating to those charges. As the age of the victim (PW-4) was at the relevant time just below 18 years as per prosecution, it cannot be said that she was not in a position to understand the consequence of either rape or marriage. 16. It further appears from the evidence of the victim of the case (PW-4) that at the time of trial she was 21 years old and admittedly, the alleged occurrence happened about two years prior to trial and thus it cannot ruled out that at the time of alleged occurrence she was about 18 years old and from her evidence it also appears that a love affair had grown up between her and the accused and she was not taken away forcibly by the accused to his house nor at any point of time the accused forced her to marry him against her will. She also did not make any allegation that the accused kidnapped her to intercourse with any other person than the accused against her will. According to her, the accused is her husband and the marriage was solemnized between them in the temple of Tripureswari and subsequently, she heard that accused has another wife and children living. She also did not make any allegation that the accused kidnapped her to intercourse with any other person than the accused against her will. According to her, the accused is her husband and the marriage was solemnized between them in the temple of Tripureswari and subsequently, she heard that accused has another wife and children living. In her cross, she specifically stated that the accused did not take her by force, though no social marriage was solemnized between them. It further appears from the evidence of PW-3, mother of the victim, that even when the prosecution put a certain question, she was all along remained silent and declined to answer any question. Though the FIR was submitted by her, but she could not say who had written the said FIR. She also stated that her daughter was found in the house of the accused who was in the dock at the relevant time and the alleged incident was happened 1 1/2 years ago from the date of her examination in the learned trial Court. In her cross, she also stated that she could not say the age of her daughter when she was found in the house of the accused and she finally stated that her daughter had been given in marriage with the accused. When in cross, a suggestion was made by the defence that the age of her daughter on the date of examination in the Court was 21 years old, then she remained silent Except these two witnesses, no other witness implicated the present accused-appellant in the alleged offence. 17. To constitute an offence under Section 366A of the IPC, prosecution has to establish that the victim girl was kidnapped or abducted with an intent that she may be compelled or knowing it to be likely that she will be compelled, to marry any person against her will or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse. More so, in a case relating to an offence under Section 366A of IPC, prosecution is to prove conclusively that the victim of the case was below 18 years at the time of the occurrence. More so, in a case relating to an offence under Section 366A of IPC, prosecution is to prove conclusively that the victim of the case was below 18 years at the time of the occurrence. But in the instant case, no such evidence is available that the accused-appellant had induced the victim to leave her parental house with intent that she may be forced or seduced to illicit intercourse with other person than the accused and also it is not conclusively proved that the victim was at the time of alleged occurrence below the age of 18 years. Thus, according to this court, the learned trial Judge without considering the ingredients as required to prove an offence under Section 366A noted, inter alia, that: Under the above discussed facts, circumstances and legal position analysed I find that on the date of occurrence Sefali Das was minor and she was allured and kidnapped by the accused Babul Pal and as such I convict him under Section 366A of the I.P.C. and he is liable to be punished. which is wholly unwarranted being the finding is not supported by any cogent evidence on record. 18. A court deciding an offence in a criminal trial should not act either on presumption or surmise. We have to have in mind that in a criminal case always a stricter proof is required. There is no place either for presumption or assumption. This court also appreciates the submission of the learned Addl. Public Prosecutor who has fairly and rightly not supported the impugned judgment for upholding the order of conviction under Section 366A of IPC and sentence thereof. 19. Upon proper survey of the evidence on record and the law reports cited by the parties, this court is of considered opinion that in the impugned judgment, there is no such application of Section 366A of IPC. Accordingly, the appeal of accused Babul Pal against his conviction and sentence under Section 366A of IPC is entitled to be allowed. 20. Accordingly, the impugned judgment and order dated 21.12.2005 is set aside and consequent thereto, the accused-appellant is acquitted of the offence under Section 366A of the IPC. As the accused-appellant is at present on bail, his bail bond stands discharged. In the result, the appeal is allowed. Send down the lower court records.