Research › Search › Judgment

Calcutta High Court · body

2016 DIGILAW 969 (CAL)

Sk. Sobur v. State of West Bengal

2016-12-06

INDRAJIT CHATTERJEE

body2016
JUDGMENT : Indrajit Chatterjee, J. 1. This appeal has been preferred by the convict-appellant from jail assailing the judgment and order of conviction as passed by the learned Additional Sessions Judge, 1st Fast Track Court, Birbhum at Suri, in Sessions Case No.184 of 2011 (Sessions Trial No. 1/January, 2012) which arose from Dubrajpur P.S. Case No.116 of 2011 dated 26-09-2011 (G.R. Case No.205 of 2011). 2. The learned Trial Court on perusal and considering the oral and documentary evidence relied upon by the prosecution found the accused guilty in respect of the charge punishable under Section 376 of the Indian Penal Code (hereinafter called as the said Code). However, the convict was acquitted in respect of the charge punishable under Section 417 of the said Code. The learned Trial Court while passing the sentence clamped rigorous imprisonment for seven years and also directed to pay fine of Rs.10,000/- i.d. to suffer rigorous imprisonment for six months in respect of the offence as I have already stated. The convict was allowed to get set off under Section 428 of the Code of Criminal Procedure, 1973. 3. The fact as I get from the First Information Report lodged by the father is the that the victim girl (name withheld) was aged about 13 years when the FIR was lodged. The FIR further disclosed that the said girl was engaged in love relation with the present accused-convict and as such, they had free intercourse and it was further alleged in the FIR that false promise of marriage was given by this accused-convict to that girl while so mixing freely. Thus, the victim became pregnant and, thereafter, her father went to the house of this accused and gave marriage proposal to the guardians of the present convict. Sk. Majnu, i.e. the father of the present convict did not agree to the marriage and this accused also denied to accept the fatherhood of the baby and ultimately, this de facto complainant was driven out from that house. 4. Unfortunately, in the FIR, no date has been fixed regarding the second incident of refusal of the marriage proposal and manhandling. There is also no date on which the free mixing started or on which date she became pregnant or whether the baby was allowed to be born. 5. 4. Unfortunately, in the FIR, no date has been fixed regarding the second incident of refusal of the marriage proposal and manhandling. There is also no date on which the free mixing started or on which date she became pregnant or whether the baby was allowed to be born. 5. On receipt of the said FIR, this case was started about which I have already stated in the initial paragraph of this judgment. 6. Investigation was taken up by S.I. Mojammel Mondal (P.W-12). The accused was arrested on 27-09-2011 and he was duly forwarded to court. The accused was medically examined and so also the victim. The statement of the victim was recorded under Section 164 of the Cr.P.C. which was marked as Ext. 4 before the learned Trial Court. The medical report of the victim was marked as Ext. 2 and the medical test report of the accused-convict was marked as Ext.3. 7. The Investigating Officer examined witnesses under Section 161 of the Cr.P.C. and after completion of investigation, he submitted charge-sheet against this accused-convict on 31-10-2011 vide charge sheet No. 116 of 2011 of that police station under Sections 376/417 of the Code. 8. The case was committed to the Court of Sessions and ultimately, it was transferred to the present Trial Court. Charge was framed accordingly under Sections 376/417 of the Code to which this accused pleaded not guilty and the trial started. 9. On behalf of the prosecution as many as 13 witnesses were examined. The prosecution relied upon several documentary evidence which has been duly noted by the learned Trial Court in internal page no.3 of the judgment. I do not like to repeat the same. 10. Accused was examined under Section 313 of Cr.P.C. The accused denied the incident. He did not prefer to adduce either oral or documentary evidence. The case of the defence before the floor of the Trial Court was a story of entire denial of the episode. I have stated the result of the sessions trial. 11. On behalf of the convict, Mr. Mukherjee, learned Advocate, was appointed as amicus curiae and at the time of his argument, he took me to the body of the charge to show that actually the charge was framed on 02/01/2011 when the FIR was lodged in September, 2011 and as such, this charge is itself defective one. 11. On behalf of the convict, Mr. Mukherjee, learned Advocate, was appointed as amicus curiae and at the time of his argument, he took me to the body of the charge to show that actually the charge was framed on 02/01/2011 when the FIR was lodged in September, 2011 and as such, this charge is itself defective one. He further submitted by taking me to the body of the charge to convince this court that the learned trial court fixed the month of the incident to be May, 2011 but there was no police paper before the learned trial Judge to note that the incident took place in May, 2011. He also took me to the FIR to say that in the FIR no date, month or year of the incident were noted. He also took me to the evidence of P.W.1, 2 & 3 that is respectively the father, the victim and her mother and noted the contradiction in between themselves that P.W.2 deposed that there was co-habitation frequently whereas her mother, P.W. 3 deposed that she was raped only once. 12. Regarding the evidence of P.W.3, Mr. Mukherjee banked upon four lines of the cross-examination which myself prefer to put in this judgment wherein this P.W. 3 deposed that before one year, the victim girl informed her that the accused used to follow her, pulled her hands and embraced her from back side and they informed the matter to the police and the matter was enquired by the police. Mr. Mukherjee submitted that actually the police was informed at least before one year from the lodging of the FIR and the police did not take any action and as such, this FIR giving rise to the present prosecution has no leg to stand upon. He also attacked the prosecution story on the ground that not a single villager except the P.W.10 could have been made available by the Investigating Officer to depose regarding the love affairs between the victim and the accused and only the witness, P.W.10 was declared hostile. He tried to make a dent in the prosecution story which is his argument that if the story of love could not be proved, then it is difficult to say that the baby in the womb of the victim was actually the baby of this convict. He tried to make a dent in the prosecution story which is his argument that if the story of love could not be proved, then it is difficult to say that the baby in the womb of the victim was actually the baby of this convict. He further submitted that the Investigating Officer did not try to make D.N.A. test to confirm as to whether the baby in the womb was the baby of this accused and the victim. 13. He faintly took me to the evidence of the doctor to say that the doctor did not find injury on the body of the victim when she was examined on 19/10/2011 but at the same time, on my asking he admitted that it is impossible to get any such marks of injury on the body if the victim is examined after a gap of four or five months. He also attacked the prosecution story to say that there is no evidence when the baby was born or whether the baby was at all born or not. He further submitted that there is inordinately delay in lodging of the FIR at least for four or five months and that delay is very fatal to the accused. He further submitted that if one woman puts such a charge that the accused made him pregnant after a gap of three or four months of her pregnancy, what defence the accused can take except the denial of the story and he submitted that negative cannot be proved. On this point, he also led stress on his previous argument that the prosecution failed to prove that there was courtship between this accused and the victim. 14. On behalf of the prosecution, Mr. Ali, learned Advocate, submitted that the date, i.e. 2nd January, 2011 was a typographical mistake and it cannot be said that actually the charge was framed on that date when the FIR was lodged on 26th September, 2011. He also took me to the corresponding order sheet to substantiate his argument on that. 14. On behalf of the prosecution, Mr. Ali, learned Advocate, submitted that the date, i.e. 2nd January, 2011 was a typographical mistake and it cannot be said that actually the charge was framed on that date when the FIR was lodged on 26th September, 2011. He also took me to the corresponding order sheet to substantiate his argument on that. Regarding the fixation of the month and year of the crime, he submitted that the court below while fixing the month ‘May 11’ made a back calculation from the lodging of the FIR, pregnancy of the accused for four months at the time of the lodging of the FIR and that ‘May 11’ was the right choice for the court in that event. He further submitted that the accused was not prejudiced on that score and as such, this point cannot be agitated. 15. Learned State Counsel admitted that the Investigating Officer did not collect any witness to substantiate the case of the prosecution that there was courtship between the victim and the convict. He tried to put the blame on the Investigating Agency and submitted that for defective investigation, defence cannot get walkover. He took me to the evidence of the doctor who deposed candidly that on date of the examination of the victim on 19/10/2010, the victim was carrying for 12/14 weeks and her pregnancy was proved to be positive. 16. Learned State Counsel submitted that the evidence of P.W.2, i.e. the victim of this case vis-à-vis the evidence of the doctor, P.W.8 led the learned trial court to come to the conclusion that there was rape on the victim and as a result thereof, she became pregnant. He took me to the cross-examination of P.W.s 1 2 & 3 to say that the age of the victim has not been challenged. He took me to the evidence of P.W.13 and also the document (Ext.8) proved by him to convince this court that the victim was born on 22/04/1999. Regarding the cross-examination of P.W.13, he submitted that in the village at that point of time, the registration of birth was not in force or prevalent and as such, no supporting evidence could be produced by the teacher-in-charge of Rampur Primary School. 17. Regarding the cross-examination of P.W.13, he submitted that in the village at that point of time, the registration of birth was not in force or prevalent and as such, no supporting evidence could be produced by the teacher-in-charge of Rampur Primary School. 17. He concluded his argument by saying that the accused/convict was rightly found to be guilty in respect of the charge punishable under Section 376 of the Indian Penal Code and was rightly convicted and minimum sentence was awarded. He reiterated that the appeal be dismissed being devoid of any merit. 18. Thus, I am to answer the points raised by learned defence counsel and also to consider whether the learned trial court rightly convicted the accused. 19. Regarding the putting of date in the formal charge to be on 2nd of January, 2011, this court is of the opinion that is a typographical mistake as the FIR on 26.09.2011. It cannot be that the incident cannot be happened on 26.09.2011 and the charge was framed on 2nd January, 2011. Thus the argument of the defence counsel on this point has not merit. 20. Regarding the second argument as to the date of the offence as in May, 2011, this court considering the circumstances and the submissions made by the learned prosecutor and also the date of the examination of the victim is satisfied that the court rightly fixed the month of May, 2011 to be the date of offence by making back calculation. Admitted that the victim was examined by the doctor on 19.10.2011 and she was found to be pregnant since 12 to 14 weeks that is 3 or 3½ months and as such the date of commission was fixed to be May, 2011. I do not support the learned trial court in this respect regarding fixation of such date but the trail court has no other alternative but to make back calculation. 21. There is nothing on record to show that the accused was prejudiced for such fixation of date/month. Section 464 of the Cr.P.C is a savior section in this regard. Thus, the alleged defects in the framing of charge cannot help the defence to any extent. 22. 21. There is nothing on record to show that the accused was prejudiced for such fixation of date/month. Section 464 of the Cr.P.C is a savior section in this regard. Thus, the alleged defects in the framing of charge cannot help the defence to any extent. 22. Regarding the third argument as regards the evidence of PW 3 as divulged in the cross-examination, “about one year ago (name withheld) informed me that the accused use to follow her, pulled her hands and embrace her from back side and we informed the matter to police, the matter was enquired by the police.” Mr. Mukherjee tried to make a mole out of a mountain through this sentence but this evidence of PW 3 must be read as a whole. It is true that the alleged love affair between the victim and the accused was known to her before one year of the incident but that does not mean that police enquired the matter before that one year. Here the sentence ‘we informed the matter to police’ cannot be inferred that such information was passed to the police before one year when PW 3 came to know regarding that love affair. It cannot be applied on the facts and circumstances of this case that police was informed prior to one year of the lodging of the FIR. There is no substantive evidence in this regard. 23. PW 3 is a rustic village woman and her evidence is to be assessed or scrutinized keeping that educational level in mind. Thus, the argument of the defence that the present FIR on which the prosecution is relying is the second FIR is not convincing to this court. 24. It is true that not a single villager came to depose regarding the love affair between the victim and this accused. Only one independent witness was cited by the prosecution and was examined as PW 10 who was declared hostile by the prosecution. It is the general tendency of the public not to involve themselves in such of matters. 25. It is true that not a single villager came to depose regarding the love affair between the victim and this accused. Only one independent witness was cited by the prosecution and was examined as PW 10 who was declared hostile by the prosecution. It is the general tendency of the public not to involve themselves in such of matters. 25. It is true that there is no evidence that the child of the victim was at all born but this court must keep in mind that the trial of this case ended within the gestation period of 10 months 10 days and naturally the court could not get any evidence as to whether the victim gave birth to a child. I may be permitted to repeat that the FIR was lodged on 26.09.2011 when the victim was already pregnant for 12 to 14 weeks and the evidence of the prosecution was closed on examination of PW 13 on 23.03.2012. Thus, this court cannot infer disbelieving the claim of the victim or her parents that the victim was not pregnant at the time of lodging of the FIR which is corroborated duly by the doctor’s evidence and also the report of the doctor. 26. This is a case under Section 376 of the IPC and the evidence of the prosecutrix is to be treated like that of an injured and not like that of evidence of one accomplish. I have gone through the evidence of PW-2 that is the procecutrix and on reading and rereading the said evidence I find nothing to disbelieve her particularly when her oral evidence has been duly supported by the doctor’s evidence both oral and documentary. There was no earthly reason on the part of this minor girl to implicate this appellant/convict falsely just to put the blame on him to share the burden of the baby in the womb. The evidence of the procecutrix is to be believed and that is the dictum of the Apex Court and I find no reason to discredit her evidence. 27. This court on scrutiny of the evidence of PW-1, PW-2, PW-3 and PW-13 who came to prove exhibit 8 this court is convinced that at the time of the incident the victim was about 13 years. The age point was not challenged by the defence before the trial court. 27. This court on scrutiny of the evidence of PW-1, PW-2, PW-3 and PW-13 who came to prove exhibit 8 this court is convinced that at the time of the incident the victim was about 13 years. The age point was not challenged by the defence before the trial court. This being so the victim did not attend the age of consent as prescribed in Section 376 of the Code. This being so the appellant convict touched and enjoyed one minor girl. There is a dictum that whoever touches a minor touches fire. The appellant cannot escape from this analogy. This court is not unmindful of the fact that the convict was roughly 20 years at the time of the incident but the legislature in its wisdom has not given any option to the Courts to pass any sentence except the minimum sentence of seven years and as such the hands of this court is tied even to reduce the sentence. 28. On scrutiny of the judgment of the trial court vis-à-vis the oral and documentary evidence on record and considering the argument put forward by the learned lawyers of the parties this court is satisfied that there is nothing to impeach the judgment of the learned trial court in view of the discussion made above. 29. Thus, there is no merit in this appeal and as such the appeal is dismissed. 30. The order of conviction and sentenced passed by the learned trail court is hereby confirmed. The appellant/convict is entitled to get set off and remission. 31. This court adore the services of Mr. Mukherjee the learned amicus curie. 32. The office is directed to communicate a copy of this order to the learned trial court along with the lower court records and another copy of this judgment be transmitted to the Superintendent, District Correctional Home, Birbhum at Suri to intimate the convict.