Calcutta High Court
M.C. Prasannan vs The State on 21 December, 1998
Equivalent citations: (1999)1CALLT458(HC), 1999(1)CHN123, 1999CRILJ998
Author: Amitava Lala
Bench: Amitava Lala
JUDGMENT S.K. Sen. J. 1. This appeal is directed against the Judgment and order passed by the Sessions Judge, Andaman & Nicobar Islands, Port Blair on 4th June, 1998 in Sessions Case No. 11 of 1993. The charge against the appellant was that the appellant being a Class teacher in the Bengali bustee in Teressa, raped a minor Nicobaree tribal girl, a resident of Teressa Island in the Nicobar District. 2. The case of prosecution as appears from the said judgment of the Sessions Judge is that the accused Prasannan was a teacher in the Bengali Bustee in Teressa. The Prosecutrix was a student of that school in Class IV. Accused Prasannan was the class teacher of the Prosecutrix/victim. While the victim used to go to the school, the accused would look her regularly. The victim also used to look the accused regularly. One day the accused told the victim to come to his house at night which was at a distance of about 300 metres from the house of the victim. When the victim went to the house of the accused she was told by the accused that he loves the victim and he will marry her. With that assurance, he unclothed the victim and he unclothed himself also and thereafter committed sexual Intercourse with that girl. Thereafter on several dates the victim was called by the accused in his house at night and he used to commit sexual intercourse with the victim with the assurance of marrying her. The victim Indulged in committing sexual Intercourse with the accused as the accused assured to marry her. The victim became "pregnant for such act by the accused person. She stated to the accused about her pregnancy, but the accused gave her pieces of garments and told her to give those pieces of garments to an old lady and cause abortion and he refused to many the victim. The victim however did not give the pieces of garments to the elderly woman and did not try to cause abortion as she wanted the child, but she disclosed the fact to her mother and family members. Hearing that fact the mother of the victim and other members of the family became sorry and their family peace was disturbed. On 28.2.1991 at about 11.30 A.M. when the village first Captain Fistus (P.W.3) along with the second Captain Poter (P.W.2) went to the house of James, the foster father of the victim where the victim used to reside with her mother. In course of their routine look and contact with the inhabitants of the vfllage,-they found the victim (P.W.1), her mother and James in sorrow mood and were sitting under the platform of the house. On query they disclosed that the victim was carrying for about five months. The victim told them that her teacher Prasannan committed rape on her and as a result of which she was carrying. Thereafter the first Captain and the second Captain went to the police out post and the first Captain lodged a complaint. The matter was Informed to the SHO, Nancowry through wireless, who consulted with the Deputy Superintendent of Police, Car Ntcobar as the age of the victim was not mentioned in the signal. Thereafter Nancowry P.S. Case No. 9 of 1991 dated 2.3.1991 was started against this accused person Prasannan. 3. According to the Instruction of Deputy Superintendent of Police, the SHO Noncowry P.S. took up the Investigation of the case. On 4.3.1991 SHO, Noncowry P.S. reached Bengali bustee in Teressa alongwith one Head Constable Ramakantan and started investigation. The victim handed over the clolth pieces to the I.O. which were seized by him under a seizure memo. He went to the house of the accused person, drew the sketch map with Index. Thereafter he recorded the statement of the other witnesses on different dates. He arrested the accused person on 11.3.1991. On 12.3.1991 the victim and the accused were sent to Nancowry hospital for their medical examination. Both the victim and the accused were medically examined. The statements of the victim girl and other witnesses under section 164 of Code of Criminal Procedure were recorded by the learned Magistrate at Port Blafr. The baby of the victim was born on 8.5.1991 and the baby died on 15.5.1991. The matter was informed to the l.O. by the first Captain. I.O. (P.W.12) informed the fact to the Chief Judicial Magistrate. Again the I.O. went to the Teressa Bengali village and recorded witnesses who were examined earlier and also some other witnesses Including the father of the Church, obtained medical reports of the victim Including the X-Ray plates, seized the admission register from the school where the victim was studying. After completing the investigation, charge sheet was submitted against this accused person under section 376 IPC. 4. As the offence under section 376 of the IPC is exclusively triable by the court of Sessions, the case was committed along with the accused to the court. 5. On 9.12.1996 a charge under section 376 of 1PC was framed against the accused. The charge was read over and explained to the accused. The accused person pleaded not guilty and claimed to be tried. There after on a petition dated 27.10.1997 filed by the learned Public Prosecutor, who is also a Special Public Prosecutor under section 15 of SC & ST (Prevention of Atrocities) Act. 1989, the charge was amended on 29.10.1997 by addition of another charge under section 3(1)(xii) of the SC & ST (Prevention of Atrocities) Act, 1989. The charges were again read over and explained to the accused. He pleaded not guilty and claimed to be tried and the trial began. 6. The accused was examined under section 313 Cr.PC No defence witness was examined. From the statement of the accused person while he was examined under section 313 Cr.PC and from the trend of cross-examination of the P.Ws., the defence case appears to be a case of innoce'nce slmplicitor. From the suggestions put to the P.Ws., it appears that according to the defence, the victim was not pregnant and she did not give birth to any child. No rape was committed on, her and on false allegations, the accused has been entangled in this case. 7. After considering the evidence, the learned Sessions Judge inter alia held that the prosecution has been able to establish beyond all reasonable doubt the charges under section 376 IPC and section 3(1)(xii) of the SC & ST, (Prevention of Atrocities) Act, 1989 against this accused and the accused has got no way out to escape from conviction. In the result the case succeeds. 8. The learned Sessions Judge accordingly ordered as follows :-- "The accused Prasannan is found guilty in respect of the charges under section 376 of the Indian Penal Code and section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and he is convicted under those sections." 9. It appears from the finding made by the learned Sessions Judge that the victim used to visit the residence of the accused as found from the evidence as analysed by the learned Sessions Judge. It is clear that the victim consented to the intercourse on the assurance given by the accused that he would marry her. The evidence of the victim however is that the accused declined to marry her and asked her to cause abortion. The victim categorically stated that the accused assured to marry her, she Indulged in commiting sexual Intercourse and had the accused not promised to marry her, she would not have Indulged in committing sexual Intercourse with her by the accused. This evidence clearly goes to show that the victim willingly and with full consent had sexual Intercourse with the accused. 10. The learned Sessions Judge also recorded in his finding that the victim failed to give any date, month or year and time of the Incident. Learned Sessions Judge proceeded merely on the basis that the victim girl who gave evidence was simple and rustic and she had got practically no idea about the date, month and year. The finding of the learned Sessions Judge also appears to be based on presumption. In this connection the following portion of the finding may be noted : "The accused person is a class teacher. There were other teachers also in that school. Had the accused not been responsible for the pregnancy of this victim, why should the victim take the name of the accused as responsible for her pregnancy? It is quite natural that the accused who is well acquainted with the so-called modern civilisation, would be able to alure a rustic girl like.the victim by saying that he will marry her. There is no reason, leaving any other person, why should the victim take the name of her class teacher as the person responsible for her pregnancy? The girl was so rustic and simple that she has stated at the time of cross-examination that alter 4 months from the date of commission of such intercourse she came to know that, she was pregnant. Such evidence clearly shows how Innocent the victim is. In view of my discussions above the evidence of P.W.1, the victim girl, I find no reason to disbelieve her." 11. The Learned Sessions Judge, however held in paragraph 43 in his judgment as follows :-- Taking the evidence of P.W.5, P.W.8. P.W. 10 and P.W. 11 and Mat. Ext 11 series and exts. 6. 9 and 14 the reasonable conclusion that can be drawn is that at the time of commission of Intercourse on the victim by the accused, the age of the victim was between 12 and 15 years i.e. she was minor. In such circumstance, the consent of the victim for committing Intercourse has got no relevance in the present case and it does not help the accused in any way and 1 have no other way but to hold that the Intercourse committed by the accused Prasannan on the victim comes within the definition of rape provided in section 375 of the Indian Penal Code." 12. The question, therefore, arises if it was proved that the victim girl was a minor. 13. Since nobody appeared to argue the defence case on behalf of the appellant, Mr. Ashis Roy, a senior Advocate of the court was requested to Act as an Advocate on behalf of the appellant and argue the defence case to which Mr. Roy agreed. Mr. Roy has made elaborate submissions and made out a strong defence case on behalf of the appellant. He has referred to Modi's 'Medical Jurisprudence' and tried to show the Infirmity in the deposition of the Doctor being P.W. 11. According to Mr. Roy the deposition of the Doctor was contrary to the expert opinion as reflected in Modi's 'Medical Jurisprudence' that the age of the victim girl was between 12 and 15 years. This conclusion as to the age of the victim girl arrived at by the learned Judge as to age is nobody's case and as such this is a contradiction, and benefit of doubt arising out of such contradiction should go to the accused. 14. It may be noted Irt this connection that the doctor i.e. PW 11 gave evidence which though contrary to the expert's opinion as reflected in Modi's 'Medical Jurisprudence' that the age of victim girl was between 13 and 15 years, the learned Sessions Judge however went by his own assumption to the effect that the said victim girl was between 12 and 15 years of age. There is no evidence to the effect that the age of the girl could be between 12 and 15 years and as such the finding of the learned Sessions Judge is contrary to the evidence on record. The benefit of doubt on the question of age should have been granted in fovour of the accused. In fact, there being no corroborative evidence to the effect that the age of the girl could be between 12 and 15 years, the finding of learned Sessions Judge to that effect cannot be accepted. 15. Since the evidence adduced on behalf of the victim girl clearly Indicates the consent of the victim girl, the alleged commission of rape upon her is really doubtful unless it can be shown that the age of the girl is below 16 years at the time of that affair. In support of the contention of the prosecutrlx that the age of the girl is below 16 years, so-called extract from admission and withdrawl register, the exhibit 9 was produced which however shows that no birth certificate was produced either at the time of admission of the girl on 10.7.1986 or thereafter. The certificate issued by P.W.5 clearly shows that the system of filling up of admission form along with birth certificate/transfer certificate of learner prior to 1991 when the said P.W.5 assumed duties as Headmaster of the Govt. Secondary School, Terresa was not introduced. It may be noted that the said register was seized after 23.7.1992 and the FIR was lodged on 28.2.1991. There is unusual delay in lodging FIR also. The alleged rape took place sometimes in November. 1990 or immediately thereafter. However, the FfR was lodged on 28.2.1991 and that too after the victim girl, that is prosecutrlx, started to have been showing physical signs of pregnancy. Such delay not being explained by any cogent and convincing evidence, casts a cloud of suspicion on the prosecution case. In this connection learned Advocate for the appellant has relied upon the judgment and decision in the case of Saibir v. State of U.P. . In the aforesaid case FIR was lodged three days after the Incident and delay of three days was taken as a ground in which there is doubt and suspicion since it was admitted that the injured person was conscious throughout after the receipt of the injury. In that case also the FIR was lodged by the father of the Injured person who was not an eye-witness. 16. In the Instant case, FIR was lodged after more than 3 months of the alleged Incident and only after pregnancy was shown and that too by a stronger being the First Captain of Bengali village, Terrasa and not either by the victim or by foster father or mother. This creates grave suspicion, and benefit of doubt should also be given on that basis. 17. It has been submitted by Mr. Roy, learned advocate for the accused that from the delay in lodging FIR, the Inference can safely by drawn that any person other than the accused was responsible for the alleged pregnancy of the prosecutrix. This submission, in our view, cannot be said to be without any. substance. 18. It may also be noted that the doctor i.e. P.W.11 gave evidence as to the age of the victim girl is contrary to the authority as contained in Modi's 'Medical Jurisprudence. Regarding the opinion of the said witnesses i.e. P.W. 11 as to the non-appearance of third mollar teeth in the denture of the girl, reliance can be placed on Modi's 'Medical Jurisprudence' at page-29 which states that the third molars or the wisdom teeth errupts between the age of 17th to 25th year. This period, according to Modi, is also average and not absolute. Under such circumstances, the possibility of the age of the girl is Just below 17 years but above 16 years at the time of her examination, cannot be, eliminated. In our view, this presumption being favourable to the accused, the appellant is entitled to the said benefit 19. Modi in his 'Medical Jurisprudence' at page 31 stated as follows :-- ".....In ascertaining the age of young persons radiograms of any of the main joints of the upper or the lower extrimity of both sides of the body should be taken, and an opinion should be given according to the following table, but it must be remembered that too much reliance would not be placed on this table as it merely indicates an average and is likely to vary in individual cases even of the same province owing to the eccentricities of the development. Recent work has shown that the range of error may be upto (±) 3 years. 20. The table showing the age in years of the appearance and fusion of some of the epiphysis shows that fusions of some of the Joints occur tn between the age of 16 to 18, 17 to 19 and 14 to 17 years. The age given in this table is also not accurate as per the author himself who opined that the range of error in the table may be upto (±) 3 years. 21. It may be noted that the doctor who has given evidence although contrary to Medical Jurisprudence has stated that the age of the girl should be between 13 and 15 years. If that be so, taking the opnion of Modi as stated in his Medical Jurisprudence, the range of error may be upto (+) 3 years. In that event it may be noted that the age of the girl may be 16 years. The learned Sessions Judge held that the age is between 12 and 15 years, so that even taking into consideration the range of error is (±) 3 years, the girl's age will come within 15 and so that she may be treated as minor. 22. The learned Sessions Judge proceeded with a pre-concelved view and did not decide the case with open mind. Accordingly, in our view, the finding that the girl was a minor cannot be accepted since there is no definite corroborative evidence as to the age of the girl and the benefit of doubt should be given to the accused person. We are accordingly of the view that since there is a clear case of the consent in the Instant case and since the age of the victim girl has not been properly determined, the accused person should be given benefit of doubt so far as the charge under section 375 is concerned. 23. It may also be noted that the Supreme Court in the case of Sidheswar Ganguly v. State of West Bengal held that the only conclusive evidence may be the birth certificate which is not ordinarily available, the conclusion about it are to be based upon all the facts and circumstances disclosed on examination of all the physical features in conjunction with oral testimony. 24. The Act of 1989 [The charge under section 3(1)(xii) of the SC & ST (Prevention & Atrocities) Act, 19891 though passed by the Parliament sometimes tn 1989, it was published by Notification in the Gazette of India at New Delhi on 30.01.1990. From the framing of the charge under section 376 IPC on 9.12.96 it is abundantly clear that the I.O. had no knowledge and/or information about the existence of the said Act of 1989 and/or the Notification promulgated by the Central Government in 1990. It appears that the said charge under section 3(1)(xii) of the Act of 1989 was framed by the learned Sessions Judge on 29.10.1997, i.e. about 7 years after the alleged commission of offence. 25. From such delay in framing the charge under section 3(1)(xii) of the Act of 1989 it can be easily presumed that neither I.O. nor the learned Prosecutor nor the learned Sessions Judge nor the learned Chief Judicial Magistrate who committed the case for trial to the learned Sessions Judge was aware of the existence of Act of 1989. 26. It may be noted that the girl stated in Court of Sessions on 5.12.1997 that she was 16 years. This statement remains unchallenged in cross-examination. The statement remaining unchallenged, should be accpeted. 27. Judgment and decision in the case of Krishan Lal v. State of Haryana relied upon by learned Public Prosecutor. In our view, cannot support the case of prosecution. 28. The evidence of village Captain and Monica has been placed by the Public Prosecutor. He has also relied on the Judgment of the Supreme Court in the case of Dalvir v. State of Punjab reported in AIR 1977 SC 477 which does not appear to be of any substance. The said decision of the Supreme Court is distinguishable in view of the fact that the said two witnesses are not relatives of the girl. 29. Let us now consider if section 3(1)(xii) of the SC & ST (Prevention & Atrocities) Act, 1989 applies in the instant case. Section 3(1)(xii) of the said Act, 1989 provides as follows :-- "Whoever not being a member of a Scheduled Castes or Scheduled Tribe, being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed. Is punishable with Imprisonment for a term which shall not be less than 6 months, but which may extend upto 5 years and with fine." 30. In the Instant case, there is no question of dominating the will of the victim girl since she herself gave consent according to the case of prosecution to have sexually Intercourse. Allegation, however, is that the accused promised to marry her. There is no allegation however that subsequently the accused declined to marry her. No case has been made out to that effect. 31. Considering that aspect of the matter we are of the view that there is no question of exploitation in the instant case or to dominate the will of the victim girl. Accordingly, the other charge also falls. In fact, it has already been noted that the said charge was not originally there but that was subsequently added after 7 years and that itself shows that the prosecution was at great doubt as to if the safd charge is applicable in the instant case. 32. Considering that aspect of the matter we are of the view that the benefit of doubt should be given in respect of the said charge against the accused to the appellant. 33. In view of the facts and circumstances noted above and in view of our finding as aforesaid, we are of the view that both the charges under section 376 of the Indian Penal Code and under section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention and Atrocities) Act, 1989 against the appellant fall and the accused person should be acquitted forthwith. Registrar, appellate side, Calcutta is directed to communicate this Judgment and order to the Registrar Andamans at Port Blair forthwith. 34. Appeal allowed A. Lala, J.
35. I agree.