Calcutta High Court (Appellete Side)
Mantu Ansari vs The State Of West Bengal on 18 April, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
1
Item 737/Aloke/AB
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
C.R.A. 1 of 2009
MANTU ANSARI
VS
THE STATE OF WEST BENGAL
For the appellant : Mr. Himangsu De, Advocate
Mr. Navnil De, Advocate
For the de facto complainant : Mr. Mritunjay Chatterjee, Advocate
For the State : Ms. Anusua Sinha, Advocate
Heard on : April 18, 2017
Judgement on : April 18, 2017
Joymalya Bagchi, J. :
The Appeal is directed against judgement and order dated 16.12.2008 passed by the learned Additional District & Sessions Judge, 5th Fast Track Court, Malda convicting the appellant for commission of offence punishable under Section 376 of the Indian Penal Code and sentencing him to suffer rigorous 2 imprisonment for five years and to pay a find of Rs.500/-, in default, to suffer simple imprisonment for one month.
The prosecution case, as alleged, against the appellant is to the effect that on 27.12.2006 the victim lodged a complaint against the appellant with the Officer-in-Charge, Pukuria Out Post, P.S. Ratua alleging that three years ago a relationship developed between them and both of them had cohabited on a number of occasions on the promise that the appellant would marry her. Subsequently the appellant refused to marry her. On the complaint of the victim Ratua P.S. Case No. 234/06 dated 27.12.2006 under Sections 493/376 of the Indian Penal Code was registered for investigation. In conclusion of investigation charge-sheet was filed in the instant case under Sections 493/376 of the Indian Penal Code and the case was committed to the Court of Sessions and transferred to the Court of learned Sessions Judge, 5th Fast Track Court, Malda for trial and disposal.
Charges were framed under Sections 493/376 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried.
In the course of trial prosecution examined 17 witnesses. The defence of the appellant was one of innocence and false implication. In conclusion of trial the trial court by judgment and order dated 16.12.2008 convicted and sentenced the appellant as aforesaid.
Mr. De, learned senior counsel appearing for the appellant submits that appellant was a minor at the time of commission of offence. Drawing my attention to the Admit Card issued by the West Bengal Board of Secondary 3 Education in favour of the appellant, he submits that the date of birth of the appellant was 27th April, 1988 and accordingly he was below the age of 18 years at the time of commission of the incident. It is further submitted that the victim and the appellant were of the same age and there is nothing to show that they had cohabited together on the false promise of marriage.
Ms. Sinha, learned counsel appearing for the State submits that the aforesaid document was not proved during trial. She however admits that the appellant disclosed his age as 20 years during his examination under Section 313 Cr.P.C. i.e. in 2008. She, however, submits as the victim girl was below 16 years at the time of incident, that is, 3 years prior to registration of FIR, consent of the girl to the sexual intercourse was immaterial.
Mr. Chatterjee, learned counsel appearing for the de facto complainant submits that his client does not have any grievance against the appellant as he was a minor at the time of commission of the offence.
From the evidence on record particularly that of P.W.1 the victim, it appears that 2-3 years prior to the registration of the first information report the victim had cohabited with the appellant on a number of times. However, dates on which they had cohabited have not been specifically mentioned. The age of the appellant as it appears from his examination under Section 313 Cr.P.C. held on 2008 as well as during his medical examination (Exbt. 4) in 2007 is 20 and 19 years respectively. It is, therefore, evident that the appellant who was 18 years old at the time of lodging of FIR in 2006 and was a minor at the time when he cohabited with the victim which was 2-3 years prior to the registration of FIR. It 4 is also true that the victim who was born on 14th April, 1988 as is evident from the evidence of P.W. 17, the Headmistress of Araidana R.N.G. Balika Vidyalay where she was a student, which would render her below the age of consent, i.e. 16 years at the time of the incident which occurred 2-3 years prior to the registration of first information report in 2006.
Hence, I am of the view that the cohabitation by and between the appellant and victim irrespective of whether the appellant had held out a promise to marry or not amounted to a case of statutory rape punishable under Section 376 IPC. Hence, the conviction of the appellant under Section 376 IPC is upheld.
Coming to the issue of sentence, I find that there is material on record to show appellant was a minor at the time of occurrence, that is, 2-3 years prior to registration of FIR. Section 7A of the Juvenile Justice (Care and Protection) Act, 2000 entitles an accused to raise the issue of juvenility at any stage of the proceeding including the appellate stage. The appellant has accordingly raised such issue of juvenility which from the materials on record appears to be a convincing one.
Accordingly, I hold that the appellant was a juvenile at the time of commission of the offence. However, the appellant had been tried, convicted and sentenced by an ordinary court as if he was an adult. In view of the law declared in Jitendra Singh vs. State of U.P. (2013) 11 SCC 193 undu such circumstances while maintaining the conviction of the appellant, sentence imposed upon him is to be set aside and the matter is to be sent to the Juvenile 5 Justice Board for imposition of fine in terms of Section 20 read with Section 15 of the aforesaid Act of 2000.
Hence, I uphold the conviction recorded against the appellant under Section 376 IPC but set aside the sentence imposed upon him as the appellant was a juvenile at the time of commission of offence. However, as the appellant has suffered detention for a period of time during the investigation, trial and pendency of this appeal and the de facto complainant is not willing to proceed with the matter, I refrain from remitting the matter to the Juvenile Justice Board for imposition of fine and compensation upon the appellant.
The appeal is partly allowed.
The appellant shall be discharged from his bail bond under Section 437A Cr. P.C. after six months from date.
Copy of the judgement along with LCR be sent down to the trial Court at once for necessary compliance.
(Joymalya Bagchi, J.) Item No. 737 Aloke/ AB