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2019 DIGILAW 1317 (JHR)

Asim Kumar Mallick v. State of Jharkhand

2019-07-22

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

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ORDER : 1. The sole appellant has challenged the judgment of conviction under section 366A IPC and under section 376 IPC dated 06.08.2001 and the order of sentence of R.I. for Seven years with fine of Rs. 5000/- under section 366A IPC and R.I. for Ten years with fine of Rs. 5000/- under section 376 IPC dated 09.08.2001 passed by the 5th Additional Sessions Judge, Dhanbad in Sessions Trial No. 249 of 1990. 2. The appellant was granted bail by this Court by an order dated 28.01.2002. 3. The informant of this case is father of the victim girl. On the basis of his fardbeyan recorded on 18.02.1990 that his daughter is missing since 13.02.1990, Jharia P.S Case No. 65 of 1990 was registered under section 366A IPC against the accused-appellant. However, after the investigation a charge-sheet was filed under section 366A IPC and section 376 IPC and by an order dated 14.05.1993 charges for the aforesaid offences were framed. 4. During the trial, the prosecution has examined altogether 8 witnesses; the informant is PW-2 and the victim girl has been examined as PW-5. 5. The investigating officer of this case has not been examined and Dr. Leena Priya who has been examined to prove the medical report has denied that she has medically examined the victim girl. 6. The learned 5th Additional Sessions Judge, Dhanbad, however, has held that the prosecution has proved the charge under section 366A IPC and under section 376 IPC against the appellant and, accordingly, convicted him for the aforesaid offences. 7. Ms. Aprajita Bhardwaj, the learned Amicus, submits that: (i) there is no investigation on the Ambassador car and the other person who was accompanying the appellant when he took away the victim girl, (ii) no one from the school or the shops near the school has been examined; victim girl herself admits presence of 200-300 students in the school, (iii) there is discrepancy in her evidence recorded before the Magistrate under section 164 Cr.P.C. on offering Pan Parag to her by the appellant, (iv) there is no allegation of assault upon the victim girl by the appellant and (v) the victim girl does not say that she resisted the sexual assault upon her or tried to escape from the house of the appellant. 8. 8. Mother of the victim girl has deposed that the appellant's behaviour with her daughter was bad, however, he did not assault her. She says that it might be possible that her daughter was born in the year, 1971. The victim girl in her cross-examination has failed to give her date of birth. She says that she was born at Matri Sadan. Her mother also says that her daughter namely, Runu Dutta was born at Matri Sadan, however, no certificate disclosing the date of birth of the victim girl has been produced by the prosecution. No witness from the school of the victim girl has been examined and no documentary evidence has been produced by the prosecution to establish that at the time of occurrence the victim girl was a minor. 9. Section 366A IPC defines the offence of procuration of a minor girl. Under section 366A IPC a girl who is under the age of 18 years is minor. It further provides that whoever induces any minor girl to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with “another person” shall be punished with imprisonment which may extend to Ten years, and shall also be liable to fine. Ms. Aprajita Bhardwaj, the learned Amicus, submits that it is not the prosecution's case that the victim girl was forced or seduced to have illicit intercourse with another person and while so, the offence under section 366A IPC is not proved. We concur with the learned Amicus. We find that the prosecution has failed to prove that the victim girl was a minor. We further find that the offence under section 366A IPC has not been proved against the appellant and, therefore, the appellant must be acquitted of the charge framed under section 366A IPC. Accordingly, his conviction under section 366A IPC and the order of punishment awarded in Sessions Trial No. 249 of 1990 for the said offence are set-aside. 10. Admittedly, the prosecutrix is the only eye-witness in this case. There is no witness on the point of abduction of the victim girl by the appellant allegedly from outside her school. Accordingly, his conviction under section 366A IPC and the order of punishment awarded in Sessions Trial No. 249 of 1990 for the said offence are set-aside. 10. Admittedly, the prosecutrix is the only eye-witness in this case. There is no witness on the point of abduction of the victim girl by the appellant allegedly from outside her school. It has also not been brought on record that the victim girl was forcefully confined in the house of the appellant, rather mother of the victim girl says that she was not assaulted by the appellant. The victim girl has also admitted that she was permitted to change her clothes and she was given food. PW-1 is uncle of the victim. He says that from the house of the appellant at Betur the victim girl was recovered. In his examination-in-chief, he says that the victim girl informed him that no wrong doing has been committed with her. The appellant is a neighbour and he does not intend to contest the case is what he has stated in his cross-examination. Father of the victim girl has also stated that there has been an amicable settlement between the parties. In his examination-in-chief, he also says that his daughter did not disclose anything to him. PW-3 is another uncle of the victim girl. He says that he heard a rumour that since 13.02.1990 a boy in the neighbourhood is also missing. He admits that the appellant is known to him. 11. The case set up by the defence is that the victim girl did not want to marry the boy with whom her family had fixed her marriage and she on her own left house and accompanied the appellant. 12. The learned Amicus has contended that the aforesaid evidence establishes that the victim girl had good acquaintance with the appellant, a strong circumstance that she on her own had gone with the appellant. The learned Amicus has relied on the decision in Rajesh Patel vs. State of Jharkhand, (2013) 3 SCC 791 , to support this contention. 13. By now, it is well-settled that evidence of the victim girl is sufficient to record conviction of an accused for the offence under section 376 IPC; the only caution is that her evidence inspires confidence. In State (Govt. 13. By now, it is well-settled that evidence of the victim girl is sufficient to record conviction of an accused for the offence under section 376 IPC; the only caution is that her evidence inspires confidence. In State (Govt. NCT of Delhi) vs. Pankaj Chaudhary and Others, 2018 SCC Online SC 2256, the Hon'ble Supreme Court has observed that it is now a well-settled principle of law that conviction can be sustained on sole testimony of the prosecutrix if it inspires confidence and it is also well-settled that evidence of the prosecutrix can be relied upon without corroboration. It has been further held that if evidence of the victim does not suffer from any basic infirmity and the “probabilities factor” does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. 14. It is the prosecution's case that the victim girl was examined by Dr. Leena Priya. PW-3 and PW-4 have deposed that the victim girl was medically examined by a doctor. However, Dr. Leena Priya, when examined in the court, has disowned the medical report. She says that she has not examined the victim girl. The so-called medical report of the victim girl has not been produced on record. It, thus, stands admitted that no medical report of the victim girl was produced by the prosecution during the trial, though she was medically examined by a doctor. In “Pankaj Chaudhary” the Hon'ble Supreme Court has made an exception to the reliability of the prosecutrix, if medical evidence wherever possible can be produced. 15. Section 53 of the Code of Criminal Procedure mandates that when a person is arrested on a charge of committing an offence for which it would be reasonable to believe that examination of such person will afford evidence as to the commission of the offence, such person shall be examined by a registered medical practitioner acting at the request of a police officer not below the rank of Sub-Inspector. The victim girl has alleged that she was repeatedly sexually assaulted by the appellant, allegation against the appellant is not of an isolated or one time sexual assault upon the victim girl, and therefore examination of the appellant by a registered medical practitioner could have afforded evidence as to commission of the offence by him. 16. Non-examination of the appellant under section 53 Cr.P.C. and absence of any report on medical examination of the victim girl, in our opinion, would substantially erode the credibility of the evidence of the prosecutrix. In Raju and Others vs. State of Madhya Pradesh, (2008) 15 SCC 133 , it has been held by the Hon'ble Supreme Court that: “10. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the court.” 17. The appellant and the victim were known to each other; they are residing in the same neighbourhod. Their families are known to each other. PW-4 and PW-8 are uncle of the victim girl. PW-4 says that on enquiry in the neighbourhood he came to know that the appellant and the victim girl had gone together. He says that the elder brother of the appellant when contacted informed him that the appellant with the victim girl have gone to their village Betur. PW-8 says that the elder brother of the appellant asked them not to report the matter to the police. He admits that the elder brother of the appellant had informed them that the appellant had gone to village Betur. But, what has not been spoken of by the other prosecution witnesses has been said by PW-8. None of the prosecution witnesses except the victim girl has alleged that she was sexually assaulted by the appellant, however, PW-8 says that the victim girl had informed him that the appellant has sexually assaulted her. But, what has not been spoken of by the other prosecution witnesses has been said by PW-8. None of the prosecution witnesses except the victim girl has alleged that she was sexually assaulted by the appellant, however, PW-8 says that the victim girl had informed him that the appellant has sexually assaulted her. Before proceeding further, we intend to indicate that in his cross-examination PW-8 has admitted that his statement was not recorded by the police. Normally, evidence of a witness in the court, whose statement was not recorded by the police during the course of investigation, is viewed with suspicion and the courts look for corroboration. Adambhai Sulemanbhai Ajmeri and Others vs. State of Gujarat, (2014) 7 SCC 716 . At this stage, it is also relevant to record that on the point of information to the police the witnesses have given three different versions. PW-1 says that a written report was given to the police on 17.02.1990 and PW-2 says that a written report was given on 18.02.1990, whereas PW-3 says that it was given on 19.02.1990. And, there is serious controversy on the place from where the victim girl was recovered; witnesses have given two different places where the victim girl was found with the appellant. 18. In the above facts, delay of five days in not lodging a First Information Report and, that too, when the informant and other prosecution witnesses were informed on the same day that the appellant has gone with the victim girl raises considerable doubt on the story of the occurrence as floated by the prosecution. In Tameezuddin Alias Tammu vs. State (NCT of Delhi), (2009) 15 SCC 566 , the Hon'ble Supreme Court has held as under: “9. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter.....” 19. In view of the aforesaid discussions, we hold that the prosecutrix is not a reliable and trustworthy witness. On the basis of her evidence, the appellant cannot be convicted for the offence under section 376 IPC. In view of the aforesaid discussions, we hold that the prosecutrix is not a reliable and trustworthy witness. On the basis of her evidence, the appellant cannot be convicted for the offence under section 376 IPC. Accordingly, his conviction under section 376 IPC dated 06.08.2001 and the order of sentence of R. I for Ten years with fine of Rs. 5000/- dated 09.08.2001 passed in Sessions Trial No. 249 of 1990 are set-aside. 20. The appellant namely, Asim Kumar Mallick, who is on bail, is discharged of liability of the bail-bonds furnished by him. 21. In the result, Criminal Appeal (DB) No. 386 of 2001 is allowed. 22. We appreciate the able assistance rendered by Ms. Aprajita Bhardwaj, the learned Amicus. She has meticulously prepared list of events and short synopsis on the prosecution evidence and tendered photo-copies of the judgments in the Court. 23. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bills. She shall be paid Rs. 5500/- for each effective date of hearing, but subject to the cap as provided under the Notification dated 23.11.2017. 24. Let a copy of the Judgment be transmitted to the court concerned through FAX. 25. Let the lower-court records be sent to the court concerned, forthwith.