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2017 DIGILAW 1330 (GAU)

Mangal Arya v. State of Assam

2017-10-10

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER (ORAL) Heard Mr. A.D. Choudhury, the learned Amicus Curiae appearing for the appellant as well as Ms. SH Bora, the learned Additional Public Prosecutor, Assam for the State and Mr. M.U. Mondal, the learned counsel appearing on behalf of the informant in the case. 2. This appeal has been preferred from jail by the accused-appellant. The appeal was forwarded by the Supdt. of Jail, Goalpara to this Registry of this Court and on receipt of the same, this Appeal was registered. The accused-appellant was tried for an offence committed under Section 366 (A) of IPC and on trial, the accused-appellant was convicted to undergo sentence of rigorous imprisonment for 7 years and also to pay fine of Rs.2000/-, in default, further rigorous imprisonment for 6 months. 3. The case in brief is that on 26.11.2010 the informant Dolly Arya has lodged an FIR with Dhaligaon PS alleging that on 24.11.2010 at about 4:00 PM her daughter, namely, ‘X’ (name withheld as the victim was then minor), who was a student of Class-VIII of Dhaligaon High School was missing from the house in the absence of other family members. The informant subsequently came to know that the accused-appellant had eloped with her daughter and kept her hidden at an unknown place. On receipt of the FIR, Dhaligaon PS No.148/2010 was registered under Section 366 (A) IPC and the matter was investigated. During investigation, the accused-appellant was shown as absconder. On receipt of a charge-sheet, the learned trial court issued warrant of arrest and on arrest, the appellant was forwarded to judicial custody. The learned court of SDJM (S), Bongaigaon committed the case before the court of learned Sessions Judge, Bongaigaon for trial. The case was transferred for trial to the court of learned Assistant Sessions Judge, Bongaigon for trial. The charges were framed under Section 366 (A) IPC against the accused-appellant. On explaining the charges, the accused-appellant pleaded not guilty and claimed to be tried. 4. In course of trial, the prosecution examined as many 9 witnesses including the Medical Officer (PW.8) and the Investigating Officer (PW.9). The prosecution proved four exhibits, which were statement of victim recorded under Section 164 CrPC (Exhbt.1), the Chargesheet (Exhbt.2), FIR (Exhbt.3) and the Medical Report (Exhbt.4). 4. In course of trial, the prosecution examined as many 9 witnesses including the Medical Officer (PW.8) and the Investigating Officer (PW.9). The prosecution proved four exhibits, which were statement of victim recorded under Section 164 CrPC (Exhbt.1), the Chargesheet (Exhbt.2), FIR (Exhbt.3) and the Medical Report (Exhbt.4). The statement of the accused–appellant under Section 313 CrPC was recorded wherein he denied all the allegations made against him but the accused did not lead any evidence in defence. The learned trial court upon hearing the learned counsels for the parties, formulated the following point of determination:- “Whether on 24.11.2010 at about 4:00 PM accused Mangal Arya induced the minor daughter of the informant to go from her residence with intent that she may be compelled to marry her or she may be forced or seduced to illicit intercourse with him and thereby committed an offence punishable u/s 366 (A) IPC ?” 5. The mother of the victim, namely, Dolly Arya was examined as PW.1, who stated that her daughter was not at home on the date of incident. She could not find her daughter on search and on the next day, she got the information from the husband of her niece residing at Barpeta Road that her daughter is staying in the house of the elder sister of the accused. Her husband and others bring back her daughter from there. Thereafter, her husband produced her before the police, who got her daughter medically examined and recorded her statement before the Magistrate. Her daughter informed that she was taken to show a ‘mela’. In her cross examination, her evidence could not be demolished. 6. PW.2 is the victim girl, who stated that the accused had come to his maternal uncle house on the date of occurrence, which was near her house. On the date of incident, school was closed. While she was standing outside her house, the accused asked her whether she would go to mela. The accused stated her that two other girls were also going with them. She came up to the road for going to mela. The accused informed that other girls are standing at some distance. Having not found other girls, PW.2 refused to go with the accused and then the accused told her that it would be bad if she does not go with him. She came up to the road for going to mela. The accused informed that other girls are standing at some distance. Having not found other girls, PW.2 refused to go with the accused and then the accused told her that it would be bad if she does not go with him. Thereafter, the accused forced her to board into the train at Bongaigaon station at about 3:30 PM. The accused took her to the house of his elder sister at Barpeta Road and kept her hidden. Subsequently, her brother in law came there and brought her back to his house and thereafter her father and mother brought her back. On that day, she was brought before the police to get her medically examined and her statement was recorded before the Magistrate. She proved her statement as Exhbt.1 and her signature as Exhbt.1(1). During her cross examination, the victim stated that she had come to know the accused only one day before. She stated that since morning she was at Bongaigaon station with the accused on a Rickshaw which was at a distance of 5/6 Km. She stated that she did not shout by travelling with the rickshaw with the accused. She did not inform anybody that the accused had brought her forcibly. She stated that there was traffic police while coming from the house at 3-4 places but she did not inform the police that she was forcibly taken away. She stated that the accused did not show any arms to her and did not close her mouth. She stated that the accused had purchased the train ticket and they were staying in the station for about ½ hour. Even in railway station, she did not inform the public and police that the accused had forcibly taken her. They boarded the train at about 4:00 PM and reached Barpeta Road at about 6:00 PM. She stayed with the accused to his sister’s house in the night. In the morning, her brother in law took her back to his residence. She stated that she did not go to police station in Barpeta Road. She did not remember her date of birth and police did not ask her about any document relating to her birth. She denied that she was 18 years of age at the relevant time. She went with the accused because of affection towards him. She stated that she did not go to police station in Barpeta Road. She did not remember her date of birth and police did not ask her about any document relating to her birth. She denied that she was 18 years of age at the relevant time. She went with the accused because of affection towards him. She denied while giving her statement that she did not state that the accused taken her by force. 7. Prafulla Arya, PW.3, is the father of the victim and the husband of the first informant. His statement is similar to that of PW.1. In his cross-examination, his statement could not be demolished. 8. One Shanti Bala Arya, (PW.4), who is the mother of the first informant stated that she had gone to Barpeta Road with her son-in-law to bring back the victim from there. She also stated that on being asked the victim informed that the accused took her to Barpeta Raod by stating that he would take her to witness a mela. In cross-examination, her evidence could not be demolished. 9. PW.5, Shefali Arya, she is not the eye witnesses, she had stated that on return from work towards home, he heard that somebody had eloped the victim to Barpeta Road. One Rajen Arya was examined as PW.6, who also stated similar to PW.5. In cross, they stated that they were not the eye witness to the incident. 10. PW.7 was the Investigating Officer of the case. He was entrusted with the investigation by the Officer-in-Charge, Dhaligaon PS and after investigation he had submitted the charge-sheet against the accused person under Section 366 (A) IPC. He exhibited the charge-sheet as Exhbt.2 and his signature as Exhbt.2(1). He exhibited the FIR as Exhbt.3 and the signature of the Officer-in-Charge was exhibited as Exhbt.3(1). During his cross-examination, he had stated that the informant had not mentioned the reason for delay in filing the ejahar. She stated that there was no endorsement of the thumb impression. He stated that investigation started on 26.11.2010 at about 10:00 AM and as per the Case Diary, ejahar was lodged after recovery of the victim. He recorded the statement of the victim. He had not collected or procured any certificate regarding age of the victim. She stated that there was no endorsement of the thumb impression. He stated that investigation started on 26.11.2010 at about 10:00 AM and as per the Case Diary, ejahar was lodged after recovery of the victim. He recorded the statement of the victim. He had not collected or procured any certificate regarding age of the victim. He had got the victim medically examined the victim and as per the medical report, the age of the victim was 16 to 20 years. He had stated that the complainant in her statement under Section 161 CrPC, he stated the age of the victim and in her statement under Section 164 CrPC, PW.4 had not stated that at the time of occurrence, the victim was reading in Class-VIII, he also stated that the victim in her statement had stated that the accused used to go to her house. 11. The Doctor was examined as PW.8, he had stated that he examined the victim on 27.11.2010 while he was working as SDM & HO in Sidli PHC and examined the victim at 11:30 AM. He stated that the age of the victim was 14 years and made a categorical statement that the victim was not raped. He proved the medical report as Exhbt.4 and his signature was put as Exhbt.4(1). In his cross-examination, he had stated that it was not mentioned in the report that the victim was examined on requisition. The police case was not mentioned in the report. In his report, it was not stated that the victim was escorted by the police personnel. The person who had identified the victim was also not mentioned in his medical report. He had stated that the age of the victim had been recorded on the basis of the report of the Radiologist, but there was no mention of the Radiologist report and the report of the Radiologist was not sent along with the medical report. 12. The Officer-in-Charge, Dhaligaon PS was examined as PW.9, who had submitted the charge-sheet after going through the case diary. He had exhibited the charge-sheet as Exhbt.2 and his signature was proved as Exhbt.2(1). In his cross-examination, PW.9 admitted that in the medical certificate, the age of the victim was mentioned as 16 to 20 years and he had also stated that he did not visit the place of occurrence. 13. He had exhibited the charge-sheet as Exhbt.2 and his signature was proved as Exhbt.2(1). In his cross-examination, PW.9 admitted that in the medical certificate, the age of the victim was mentioned as 16 to 20 years and he had also stated that he did not visit the place of occurrence. 13. On perusal of the statement made by the victim under Section 164 CrPC, it appears that the victim had stated her age as 14 years and she was studying in Class –VIII at Dhaligaon High School. As per her statement on 24.11.2010, the accused had taken her to show mela and she was taken to the Barpeta Road and she was kept in his sister’s house. She had stated that the accused had offered to marry her but she had refused. Her brother-in-law, who is residing in Barpeta Road had come in the morning and taken her to his house. She had stated that the accused did not do anything bad with her. 14. The learned Amicus Curiae, by referring to the statement made u/s 164 CrPC as well as by referring to the cross-examination of the I/O of the case, has projected that the victim was aged between 16 to 20 years and in her initial statement u/s 164 CrPC, she had not mentioned about use of any force by the appellant and therefore, this was a case where the victim had subsequently improved her version to claim that there was a threat to her when she refused to go to mela not finding other accompanying girls. It is further submitted that the accused had no evil intention and therefore, although the victim girl was with him for more than a day, there was no criminal or sexual assault on the girl. It is further submitted that when the victim girl was found missing from her own house, the family members did not lodged any FIR. The family members are appear to be aware of the whereabouts of the victim girl, which is why, the brother-in-law of the victim had easily found out the place where the victim was staying and had brought her back to his house at that time also there was no resistance on the part of the accused person. 15. The family members are appear to be aware of the whereabouts of the victim girl, which is why, the brother-in-law of the victim had easily found out the place where the victim was staying and had brought her back to his house at that time also there was no resistance on the part of the accused person. 15. The learned Amicus Curiae further submits that there was no element of misbehaviour on the part of the accused and no evil intention and therefore, the offence under Section 366 (A) IPC was not present in the instant case. It is submitted that at best this would be a case which falls under Section 361 IPC as there was no element of either enticing the victim or compelling her to marry or for commission of sexual intercourse. It is submitted that this would also not be a case falling within the meaning of Section 366A IPC. The learned Amicus Curiae has submitted that this is a case where the accused person should be given benefit of doubt because the victim had voluntarily accompanying the accused person out of her own volition. It is further submitted that there is no inference of use of force because as per the evidence of PW.2 (victim), she has moved around with the accused person before public on the busy road and at the railway station and even walked from Barpeta Road station to the house of elder sister of the accused and she did not make any hue and cry even before the police personnel, who were on duty in the vicinity at the road as well as in the railway station. 16. The learned Additional Public Prosecutor has argued in support of the impugned judgment and submitted that there was un-impeachable evidence to show that the age of the victim girl is 14 years and therefore, consent or voluntariness on the part of the victim to go with the accused is of no consequence, as she was a minor. Therefore, it was a case where it must be presumed that the victim was kidnapped for the purpose of compelling her to marry or for forcing her to sexual intercourse. Therefore, it was a case where it must be presumed that the victim was kidnapped for the purpose of compelling her to marry or for forcing her to sexual intercourse. In this regard, the learned Additional PP has relied on the statement made by the PW.2 wherein she had stated that she was threatened if she did not go with the accuse person and he had also relied on the statement of the victim to the effect that the victim was forced to board the train. It is further submitted that the act of taking her from custody of her parents to go to mela is an act of enticing a minor to take her from custody of her parents and therefore, the essential ingredient of Section 366 and 366 A IPC was present and therefore, it is submitted that the sentence and conviction of the accused need not be interfered with. 17. Mr. MU Mondal, the learned counsel appearing for the informant has submitted in support of the conviction recorded in the impugned judgment. He has made his submission similar to the arguments advanced by the learned Additional Public Prosecutor and has referred to the medical evidence as well as the statement made by the victim (PW.2) and submits that the evidence of PW.2 is trustworthy and, as such, conviction and sentence of the accused is not liable to be interfered with. 18. Having heard the learned counsel for both sides, I have perused the materials available on record. It is seen that the medical report, which was signed on 19.11.2010 is marked as Exhbt.4, which was proved by the Doctor (PW.8). As per the contents of the said Exhbt.4, the Doctor has opined that the victim was aged about 14 years only. Having noticed that the PW.7 as well as PW.9, the Investigating Officer and the Officer-in-Charge of the Dhaligaon PS respectively, who have stated in course of their cross-examination that as per the medical report, age of the victim was 16 to 20 years. Therefore, the contents of Exhbt.4 do not counsel-relate with the statement elicited in cross-examination of PW.7 and PW.9, where the PW.7 and PW.9 had stated that the victim was aged about 16 to 20 years. 19. Therefore, the contents of Exhbt.4 do not counsel-relate with the statement elicited in cross-examination of PW.7 and PW.9, where the PW.7 and PW.9 had stated that the victim was aged about 16 to 20 years. 19. Having seen this glaring mistake and discrepancy in recording the age of the victim, this Court has perused the Case Diary, which is available on record in original. In order to elicit proper assistance from the learned Amicus Curiae, the learned Additional Public Prosecutor as well as the learned counsel for the informant on the matter, the said Case Diary was also shown to the learned counsels. As per the entries made in page-24 of the Case Diary, which is entry No.2 in Case Diary No.IV dated 18.02.2011, Entry at 1:10 PM under the synopsis of Entry “receipt of report by post” (in English translation). The relevant Entry reads as follows: “Copy of the medical report:- certified that I have examined Smt. (name omitted) at SIDLI PHC at 11:30 AM on 27.11.2010, found the followings: “……………………… ………………………… As per X-ray report of RT wrist joint left L+ wrist joint of right RT ile-crest deep. The person is in between 16 to 20 years. Pt. is not raped. Sd/- Dr. M.C. Gossami, SDMN HO SIDLI PHC 17/02/2011” However, although the copy of the medical report is found to be extracted in the Case Diary, the said document is not available on record. 20. On the overall consideration of the matter, this Court is faced with two medical report – one dated 17.02.2011, which found mentioned in the Case Diary as the age of the victim girl between 16 to 20 years, which is in contrast with the content of the second medical report at Exhbt.4 which gives the age of the victim girl as 14 years. 21. In the opinion of the Court, if there is a ossification test done, the resultant medical opinion about the age on the basis of medical test would describe the age to be between a range of +/- 2 years, which is a standard protocol practice. The medical report at Exhbt.4 is not accompanied by any co-related material like X-Ray plates or the opinion of the expert Doctor, who conducted the test and yet the Doctor (PW.8) mentioned in his report that the age of the victim girl was 14 years. The medical report at Exhbt.4 is not accompanied by any co-related material like X-Ray plates or the opinion of the expert Doctor, who conducted the test and yet the Doctor (PW.8) mentioned in his report that the age of the victim girl was 14 years. Therefore, in the opinion of this Court, the medical report dated 17.02.2011 which found mentioned in the Case Diary appears to be more acceptable than the medical report at Exhbt.4, which is dated 19.11.2010, because as per the entries made in the Case Diary, the medical report was received by the police by post and the Case Diary does not contain any entry showing that the medical report at Exhbt.4 was collected by the police. As per the Case Diary, first entry appears to be on 26.11.2010 with the entry of copy of the FIR and thereafter, refers to the opinion of the Investigating Officer in the case. Therefore, the medical report dated 27.11.2010 (Exhbt.4) did not form a part of the Case Diary. This is the glaring discrepancy which appears in the matter. 22. The medical report which is marked as Exhbt.4 appears to have been produced before the learned trial court while at the time of recording of evidence. It appears to be so because there was no endorsement or signature of the learned committal court on the medical report (Exhbt.4). Therefore, when the Investigating Officer (PW.7) and the Officer-in-Charge (PW.9) have admitted in the cross examination that the age of the victim girl was 16 to 20 years by necessary implication it can be presumed that even the Investigating Officer was not aware that the victim was 14 years of age as per medical report (Exhbt.4). Therefore, either the investigation itself was totally faulty or two medical reports have been prepared on the basis of examination of the victim on 27.11.2010. In both the event, it is only the accused who appears to have suffered immense prejudice. 23. It is an admitted case of the Doctor (PW.8) in his cross-examination that the X-Ray reports or the opinion of the Radiologist was not part of his report (Exhbt.4). Therefore, according to this Court, the oral evidence of the contents of the report which was documented stand excluded by operation of the provisions of Section 92 of the Evidence Act, 1872. Therefore, according to this Court, the oral evidence of the contents of the report which was documented stand excluded by operation of the provisions of Section 92 of the Evidence Act, 1872. Therefore, before the learned trial court convicted the accused only on the basis of the age of the victim girl given in the medial report, it was incumbent on the part of the prosecution as well the trial court to at least peruse the X-ray plate or the report of the Radiologist, who had given the first report on the age of the victim girl because that formed the basis on which the Doctor (PW.8) had opined in his report (Exhbt.4) that the age of the victim was 14 years. 24. In view of the discrepancy found in recording the age of the victim girl as 14 years in Exhbt.4 and 16 to 20 years as per the Entry made in the Case Diary in the Entry dated 18.02.2011 purportedly copied from medical report dated 17.02.2011, which is reported to be signed by PW.8, this Court is of the view that the said glaring discrepancy calls for re-trial because of the fact that if the victim was aged between 16 to 20 years then the accused-appellant is entitled to benefit of doubt and if the victim is 14 years then the defense to the effect that the victim being a consenting party is no longer available. 25. Accordingly, on the finding that the discrepancy as regards the age of the victim girl may have caused a mis-trial of the accused-appellant because the Entry in the Case Diary regarding medical report dated 17.02.2011 is not in consonance with the medical report dated 27.11.2010 (Exhbt.4). 26. Accordingly, the impugned judgment dated 30.03.2016 passed by the learned Sessions Judge, Chirang, Kajalgaon in Sessions Case No.32(J)/2015 is hereby set aside and the re-trial of the appellant-accused is called for. The appellant will be at liberty to move the learned Sessions Court for a fresh consideration of bail, if so advised. 27. Let the LCR be returned forthwith before the court of learned Sessions Judge, Chirang, Kajalgaon. On receipt of the record shall inform the accused-appellant about the commencement of trial. The appellant will be at liberty to move the learned Sessions Court for a fresh consideration of bail, if so advised. 27. Let the LCR be returned forthwith before the court of learned Sessions Judge, Chirang, Kajalgaon. On receipt of the record shall inform the accused-appellant about the commencement of trial. It would be open to the learned court of Sessions Judge, Chirang, Kajalgaon to direct the police to produce the medical report dated 17.02.2011 which is reflected in the Case Diary in Entry dated 18.02.2011 and to take fresh evidence so far it concerned the medical report dated 17.02.2011 mentioned in the Case Diary vide Entry dated 18.02.2011. 28. It is further provided that the evidence of other witnesses shall remain as a part of the record and the learned trial court my rely on the same while passing of fresh judgment on the basis of fresh materials on record and on the basis of medical report regarding the age of the victim girl. 29. The appeal stands partly allowed by ordering a re-trial, as indicated in pargarph-27 above. 30. This Court puts on record the appreciation of the assistance rendered by the learned Amicus Curiae as well as the learned A.P.P., and considering that the learned Amicus Curie has taken pains to conduct the hearing of the matter before this Vacation Court, the learned Amicus Curiae is entitled to his remuneration, which is quantified as Rs.7,000/- to be paid by the State Legal Services Authority.