Gauhati High Court
Sri Biraj Mandal vs The State Of Assam on 13 September, 2013
Author: I. A. Ansari
Bench: I. A. Ansari
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM; NAGALAND; MIZORAM
AND ARUNACHAL PRADESH)
CRIMINAL APPEAL 70 OF 2012
Sri Biraj Mandal
-Accused-appellant
- Versus -
The State of Assam
- Opposite party
BEFORE
HON'BLE MR. JUSTICE I. A. ANSARI
Advocate present:
For the appellant : Mr. N. Uddin,
Mr. Z. Hussain,
Mrs. B. B. Ahmed,
Mr. G. Sarowar.
For the respondent : Ms. S. Jahan,
Addl. P.P., Assam.
Date of judgment & hearing: 13.09.2013
JUDGMENT & ORDER
(ORAL)
By the judgment and order, dated 27.03.2012, passed, in Sessions Case No. 385(K)/2010, by the learned Addl. Sessions Judge (FTC No. 1), Kamrup, Guwahati, the accused- appellant, Sri Biraj Mandal, stands convicted under Section 293 IPC and sentenced to suffer rigorous imprisonment for a Page No. 2 term of 2 (two) years and pay a fine of Rs. 1,000/- and, in default of payment of fine, suffer simple imprisonment for a period of 3 (three) months.
2. The case of the prosecution, may, in brief, be described as under:
(i) On 17.08.2008, an Ejahar was lodged by PW3 alleging to the effect that on the previous day, i.e., on 16.08.2008, at about 3 PM, the accused, a co-villager of the informant, had taken the two daughters of the informant, who were aged seven and five years, to his house for enjoying TV program and, then, committed rape on them.
(ii) Based on the Ejahar, so lodged, and treating the same as First Information Report (in short, 'FIR'), Basistha Police Station Case No. 429/2008, under Section 376(2)(f) IPC, was registered and, on completion of investigation, a charge-
sheet was accordingly laid against the accused.
3. At the trial, when a charge, under Sections 376 (2)(f) IPC, was framed against the accused, he pleaded not guilty thereto.
4. In support of their case, prosecution examined altogether 5 (five) witnesses. The accused was, then, examined under Section 313 Cr.PC and, in his examination, Crl. A. 70 of 2012 Page No. 3 aforementioned, the accused denied that he had committed the offence, which was alleged to have been committed by him, the case of the defence being that of denial. No evidence was adduced by the defence.
5. Having, however, found the accused not guilty of the offence under Section 376(2)(f) IPC, the learned trial Court acquitted him accordingly, but having found the accused guilty of the offence under Section 293 IPC, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence, which has been passed against him, the accused, as a convicted person, has preferred this appeal.
6. I have heard Mr. N. Uddin, learned counsel, appearing for the accused-appellant. I have also heard Ms. S. Jahan, learned Addl. Public Prosecutor, Assam.
7. While considering the present appeal, what needs to be noted is that no charge was framed against the accused- appellant under Section 293 IPC. While convicting the accused-appellant under Section 293 IPC, the learned trial Court was conscious of the fact that no charge, under Section 293 IPC, had been framed.
8. However, for the purpose of the conviction of the accused-appellant under Section 293 IPC without framing a Crl. A. 70 of 2012 Page No. 4 charge thereunder, the learned trial Court has referred to Section 221 (2) Cr.PC and observed that in view of the provisions contained in Section 221 (2) Cr.PC, the accused could be convicted, though no charge had been framed under Section 293 IPC.
9. It may be noted that Section 221(2) Cr.PC cannot be considered divorced from, or independent of, Sub-Section (1) of Section 221. Section 221 (1) Cr.PC comes into play if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts, which can be proved, will constitute and, in such a case, the accused may be charged with having committed all or any of such offences and any number of such charges may be tried at once; or he may be charged, in the alternative, with having committed some one of the said offences.
10. In the case at hand, the learned trial Court has not shown as to how it was doubtful, at the commencement of the trial, what offence the accused-appellant had allegedly committed. The FIR clearly alleged that accused had committed rape on the two minor daughters of the informant. The FIR never alleged that accused had shown any obscene film to the informant's minor daughters. The case against the accused was accordingly registered under Crl. A. 70 of 2012 Page No. 5 Section 376(2)(f) IPC and, on completion of investigation, as already indicated above, charge-sheet, too, was laid against the accused, under Section 376(2)(f) IPC.
11. To the case of present nature, it cannot be said that it was, at the time of framing of charge, doubtful as to what offence or offences the accused had committed. To a case of present nature, the provisions, embodied in Sub-Section (1) of Section 221, were not attracted and when Section 221 (1) is not attracted, in a given case, the question of Sub-Section (2) of Section 221 coming into play does not arise at all inasmuch as Sub-Section (2) of Section 221 Cr.PC clearly states that if in a case, which is covered by Sub-Section (1) of Section 221 Cr.PC., the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of Sub-Section (1) of Section 221 Cr.PC, he may be convicted of the offence, which he is shown to have committed, although he was not charged with it.
12. It needs to be clearly understood that to a case to which provisions of Section 221 (1) Cr.PC do not apply, provisions of Sub-Section (2) of Section 221 Cr.PC would not apply.
13. However, omission to frame a charge will not adversely effect the finding of guilt provided that a Court is Crl. A. 70 of 2012 Page No. 6 satisfied that notwithstanding the omission to frame charge, no prejudice would be caused to the accused in the sense that no failure of justice would occasion despite omission to frame charge in respect of an offence, which the accused can be convicted of. This is the principle, which emerges from the combined reading of the provisions of Section 464 and Section 465 Cr.PC.
14. The question, in the present case, is, therefore, whether the accused-appellant can be said to have not been prejudiced for having been convicted, under Section 293 IPC, without a charge having been framed under the said penal provisions?
15. With regard to the above, it is noteworthy that the learned trial Court has not indicated, in the impugned judgment, that the accused-appellant knew that the prosecution's case was also covered by the provisions of Section 293 IPC. The accused-appellant, in such a case, could not have been convicted of an offence, which he was never accused of or made aware of.
16. Coupled with the above, the literal translation of the evidence, given by the child, who was alleged to have been subjected to rape, was that the accused was watching, on his TV, at his house, a 'bad film', when the child walked into the Crl. A. 70 of 2012 Page No. 7 house of the accused without the accused having called her and that the accused continued to watch the said film despite presence of the said child and the child, too, watched the film. What the child (i.e., PW2) wanted to convey, by using the expression 'bad film', was never made clear at the trial.
17. In other words, by using the expression 'bad film', whether the child wanted to convey that the accused was watching, and he allowed her to watch too, an obscene film? No answer to this crucial question is discernible from the evidence on record. Neither the prosecution nor the learned trial Court tried to elicit from PW2 as to what she wanted to convey by the expression 'bad film'. What the child, in question, therefore, wanted to convey by the expression 'bad film' remains unclear, indefinite and clouded. Whether a 'bad film' means an obscene film or not, no one really knows.
18. It was, in such circumstances, the undoubted duty of the prosecution to elicit from the witness as to why she had described the 'film', which the accused had been watching, as a 'bad film'. If the prosecution had failed, in their duty, as they had, indeed, failed in the present case, it could not have absolved, nor did it absolve, the learned trial Court from taking recourse to its powers, embodied under Section 165 of Crl. A. 70 of 2012 Page No. 8 the Evidence Act, and elicit from the child as to what she wanted to convey by using the expression 'bad film'.
19. Thus, the power, which the learned trial Court had, was not exercised by the learned trial Court. Consequently, the corresponding duty, which Section 165 imposed on the learned trial Court, was never discharged.
20. Based on vague, indefinite and indeterminate evidence, the accused-appellant could not have been convicted of an offence under Section 293 IPC.
21. While, therefore, the conviction of the accused- appellant, under Section 293 IPC, cannot be sustained, he also, cannot, at the same time, be acquitted in the face of the evidence on record. The remedy, therefore, lies in setting aside the conviction of the accused-appellant as well as the consequential sentence passed against him and remand the case to the learned trial Court to frame a charge under Section 293 IPC, re-call and appropriately re-examine PW2 so as to bring on record clear, cogent, definite and reliable evidence for the purpose of reaching a valid conclusion by the trial and effective administration of justice.
22. In the result and for the reasons discussed above, this appeal partly succeeds. The conviction of the accused- appellant and the sentence, passed against him, by the Crl. A. 70 of 2012 Page No. 9 judgment and order, under appeal, are hereby set aside and the case is remanded to the learned trial Court to re-call PW2 for framing of a charge under Section 293 IPC, re-call PW2 and re-examine her and, then, dispose of the case, in accordance with law, bearing in mind the observations made by this Court in the preceding paragraphs of this judgment.
23. In order to expedite the trial of the accused-appellant, the accused-appellant is hereby directed to appear, in the learned trial Court, on 07.10.2013. On appearance of the accused-appellant in the learned trial Court, as directed hereinbefore, the learned trial Court shall deal with, and dispose of, the case, in accordance with law, expeditiously.
24. Send back the LCR.
25. With the above observations and directions, this appeal stands disposed of.
JUDGE Kalpana Crl. A. 70 of 2012