Calcutta High Court (Appellete Side)
Asaraf Ali @ Asraf Ali vs The State Of West Bengal on 7 April, 2016
Author: R.K. Bag
Bench: Ranjit Kumar Bag
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Present :
The Hon'ble Mr. Justice Ranjit Kumar Bag
CRA 330 of 2013
Asaraf Ali @ Asraf Ali
-Versus-
The State of West Bengal.
For the petitioner : Mr.Abhishek Sinha
For the State : Mr. Anand Keshri
Heard On: 07.04.2016
Judgment On: 07.04.2016
R.K. Bag, J.
This appeal is directed against the judgement and order of conviction and sentence passed by learned Additional Sessions Judge, Fast Track Court No.1, Islampur, Uttar Dinajpur on March 4, 2012 in Sessions Trial No.85 of 2011 arising out of Sessions Case No. 86 of 2011, by which learned Judge of the trial court sentenced the appellant to suffer imprisonment for five years for the offence punishable under Section 363 of the Indian Penal Code, to suffer imprisonment for seven years for the offence punishable under Section 376 of the Indian Penal Code and to suffer imprisonment for two years for the offence punishable under Section 419 of the Indian Penal Code.
2. The backdrop of conviction and sentence of the appellant is as follows: On March 18, 2011 one Kanailal Sarkar filed a written complaint before the Inspector-in-charge of Karandighi Police Station on the basis of which Karandighi Police Station Case No.112 of 2011 dated March 18, 2011 under Sections 363/366A of the Indian Penal Code was registered. The contents of the written complaint disclose that Arati Sarkar, daughter of the de facto complainant Kanailal Sarkar was found missing from March 6, 2011 and one missing diary was recorded in the said Police Station on March 13, 2011. The de facto complainant has stated in the written complaint that he came to learn from the wife of the appellant over telephone that Arati Sarkar is residing with the appellant in his house at Village Babupara, P. S. Raninagar, District Murshidabad.
3. The police investigated the said criminal case, recovered the victim- Arati Sarkar and arrested the appellant. The Investigating Officer submitted charge sheet on completion of investigation against the appellant for the offence under Sections 363/366A/376 of the Indian Penal Code. Initially the court framed charge against the appellant on the allegation of committing offence under Section 363/366A/376 of the Indian Penal Code. Subsequently, the trial court framed additional charge against the appellant on the allegation of committing offence under Section 419 of the Indian Penal Code. On conclusion of trial the appellant was convicted and sentenced to suffer imprisonment for various terms and also to pay fine for the offences under Sections 363/376/419 of the Indian Penal Code. The said judgement and order of conviction and sentence is challenged by the appellant by preferring this appeal while serving sentence in the Correctional Home.
4. Mr. Abhishek Sinha, learned counsel appointed as amicus curiae by this court, contends that there is delay of twelve days in lodging the First Information Report and this delay has not been explained properly by the prosecution. He has elaborated his submission by pointing out from the evidence that the father of the victim girl did not bother to enquire about the whereabout of the victim from the friends of the victim before lodging missing diary on March 13, 2011. He has also pointed out from the evidence that the copy of the missing diary is not admitted into evidence by the prosecution to explain the delay of twelve days in lodging the First Information Report. By referring to the statement of the victim girl recorded under Section 164 of the Code of Criminal Procedure and the evidence of the victim girl (P.W.3), Mr. Sinha contends that the victim girl eloped with the appellant voluntarily and had sex with the appellant voluntarily and the said fact belies the allegation of kidnapping levelled against the appellant. Mr. Sinha argues that the allegation of sexual intercourse is also doubtful in this case, because the doctor who examined the victim girl did not ascertain whether the hymen of the victim girl was raptured. He also urged this court to consider that the enries made in the admission register of the school with regard to the date of birth of the victim girl is doubtful, as the teacher-in-charge of Karandighi High School has admitted during cross- examination that no verification was done regarding primary school leaving certificate of the victim girl on the basis of which date of birth is recorded in the admission register of the school. The gist of submission of Mr. Sinha is that the victim girl was well-aware of the consequences of sexual intercourse with the appellant and she voluntarily left the house with the appellant in order to marry the appellant out of love. According to Mr. Sinha the appellant is liable to be acquitted of the charge.
5. Mr. Anand Keshri, learned counsel for the State contends that the date of birth of the victim girl recorded in the admission register of the school is proved by the teacher-in-charge of the said school. He further submits that there is consistent oral evidence which corroborates the fact of date of birth of the victim girl as January 15, 1996 and thereby it is established that the victim girl was aged only fifteen years and two months at the time of the incident. According to Mr. Keshri, the prosecution has been able to prove the charge against the appellant under Sections 376/419 of the Indian Penal Code, because it is the consistent evidence of the prosecution witnesses that the appellant disclosed his identity to the victim girl as Sujit Mondal instead of Asraf Ali and thereby persuaded the victim girl to marry him. According to Mr. Keshri, the appellant deserves the sentence imposed by the trial court.
6. Before dealing with the rival contentions made by learned counsel representing the respective parties, I would like to evaluate the evidence adduced before the trial court. It is elicited from the evidence of the de facto complainant-Kanailal Sarkar (P. W.1) that the appellant kidnapped the victim-Arati Sarkar and kept her in his house. He has stated specifically that the date of birth of his daughter Arati Sarkar is January 15, 1996 i.e. the age of the victim is about fifteen years and two months at the time of the incident. He has also stated in evidence that he went to the house of the appellant in the District of Murshidabad along with police and one Gautam Biswas (P. W.4), Suboth Roy (P. W.5) for recovery of the victim girl from the house of the appellant. This witness lodged the written complaint on March 18, 2011 (Ex-1). The oral evidence of Kanailal Sarkar (P. W.1) is corroborated by the document marked 'Ex-1'. It transpires from the evidence of the victim-Arati Sarkar (P.W.3) that on March 6, 2011 she voluntarily responded to the call of the appellant knowing him as Sujit Mondal instead of Asraf Ali and thereby she voluntarily eloped with the appellant. She has stated that she resided with the appellant in the rented accommodation at Berhampur for about eight days before shifting to the house of the appellant at the request of the wife of the appellant. She has further stated that she came to learn the appellant as Asraf Ali instead of Sujit Mondal after hearing the conversation between the appellant and his wife. She has also stated in the evidence that on February 15, 2011 she voluntarily eloped with the appellant and stayed with him in a hotel at Siliguri and suppressed this fact from her father. The above oral evidence of Arati Sarkar (P. W.3) is corroborated by her previous statement recorded under Section 164 of the Code of Criminal Procedure (Ex-2/2). One Sima Roy (P. W.2) who happens to be the friend of the victim-Arati Sarkar, has stated in evidence how the victim-Arati Sarkar eolped with the appellant voluntarily. The above aspect of evidence of the victim-Arati Sarkar (P. W.3) and her friend-Sima Roy ( P.W.2) go to establish that the victim eloped with the appellant voluntarily on March 6, 2011 and stayed with the appellant voluntarily in the rented accommodation at Berhampur for about eight days and thereafter in the house of the appellant till the time of recovery of the victim girl by the police and the father of the victim girl.
7. Gautam Biswas (P. W. 4) who accompanied the de facto complainant to the house of the appellant for recovery of the victim, has stated in evidence that he does not know anything about the incident. However, Subodh Roy ( P. W.5) who also accompanied the de facto complainant to the house of the appellant for recovery of the victim girl, has corroborated the evidence of the de facto complainant-Kanailal Sarkar (P. W.1) to the effect that the victim girl was recovered from the house of the appellant. Biplab Biswas (P. W.6) has also stated in his evidence that he does not know anything about the incident. Dr. Rajarshee Mitra (P. W. 7) examined the victim girl and submitted the report (Ex-3). He also examined the appellant and submitted the report (Ex-4). It appears from the report of the examination of the victim girl (Ex-3)that no injury was found in her private parts and the doctor has categorically stated in evidence that marks of injury may not be found in case of voluntary sexual intercourse. However, the report of examination of the appellant indicates that the appellant is capable of doing sexual intercourse. This witness has not stated in the report of examination of the victim girl (Ex-3) whether the hymen of the victim girl was raptured. Since it is established from expert evidence that marks of injury may not be found in the private parts of the victim for voluntary sexual intercourse, I would like to hold that the victim had sexual intercourse with the Appellant voluntarily.
8. The Assistant Sub-Inspector Prasanta Kumar Das (P. W.8) who accompanied the father of the victim and others to the house of the appellant, has stated that the victim girl was recovered from the house of the appellant. Sub-Inspector Subal Chandra Biswas (P. W.9) investigated the case and submitted charge sheet against the appellant before the court of the concerned learned Magistrate. One Nipendra Nath Ghosh (P. W.10) who happens to be teacher-in-charge of Karandighi High School, has proved the entries made in the admission register of the school (Ex-7). It appears from the copy of admission register of the school (Ex-7) that the date of birth of the victim girl is January 15, 1996. This witness has admitted during cross-examination that no verification was done with regard to the primary school leaving certificate of the victim-Arati Sarkar at the time of making entries of date of birth of Arati Sarkar in the admission register of the school. Since there is no inconsistency in the evidence of the prosecution witnesses with regard to the date of birth of the victim Arati Sarkar, I am inclined to give credence to the entries made in the admission register of the school (Ex-7). It is relevant to point out that the consistent oral evidence of the victim girl and the father of the victim girl is that the date of birth of the victim girl is January 15, 1996. In the absence of any evidence to the contrary I would like to hold that the victim girl was aged about fifteen years and two months at the time of the incident by holding is the date of birth of the victim girl as January 15, 1996.
9. On an analysis of the entire evidence adduced by the prosecution before the trial court I find that on March 6, 2011 the victim girl voluntarily eloped with the appellant out of love and lived with the appellant in the rented accommodation at Berhampur before shifting to the house of the appellant. It is established from the evidence on record that the victim girl had fallen in love with the appellant by knowing the appellant as Sujit Mondal and the victim came to learn the appellant as Asraf Ali after hearing the conversation of the appellant with his wife while she was residing in the rented accommodation in Berhampur. The victim girl has stated in evidence before the court and also in her statement under Section 164 of the Code of Criminal Procedure that she had sex with the appellant initially in a hotel at Siliguri after she eloped on February 15, 2011 and thereafter she had sex with the appellant in the rented accommodation at Berhampur after she eloped with the appellant on March 6, 2011. I do not find any cogent reason to disbelieve the above aspect of evidence of the victim girl (P. W.3), though the report of examination of the victim girl by the doctor does not indicate rapture of hymen. Admittedly the victim girl did not attain the age of consent for sexual intercourse on the date of incident. The natural corollary is that the appellant is liable for committing rape on the victim girl aged about fifteen years and two months and as such I do not find any illegality in the order of conviction and sentence passed by the trial court for the offence under Section 376 of the Indian Penal Code.
10. The consistent evidence of the victim girl is that she had developed love affairs with the appellant knowing him as Sujit Mondal, but she came to learn the appellant as Asraf Ali subsequently after her elopement with the appellant. This fact indicates that the appellant deceived the victim girl by suppressing his identify as Asraf Ali and by suppressing the fact that the appellant has wife in the house. This aspect of the evidence of the victim girl is sufficient to establish the charge against the appellant under Section 419 of the Indian Penal Code for which the appellant is convicted and sentenced by the trial court. However, I do not find sufficient evidence on record to establish the charge against the appellant for the offence under Section 363 of the Indian Penal Code and as such the appellant is not liable to be convicted of the charge under Section 363 of the Indian Penal Code.
11. In view of my above observation the conviction and sentence of the appellant for the offence punishable under Section 376 and for the offence punishable under Section 419 of the Indian Penal Code is affirmed. However, the conviction and sentence of the appellant for the offence punishable under Section 363 of the Indian Penal Code is set aside.
Criminal Appeal is, thus, disposed of. The appellant will serve both the sentences concurrently. The period of imprisonment undergone by the appellant as under trial prisoner will be set off under Section 428 of the Code of Criminal Procedure.
Let a copy of this judgement and order along with Lower Court Records be sent down to learned court below for favour of information and necessary action.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis after compliance with all necessary formalities.
( R. K. Bag, J. )