Calcutta High Court (Appellete Side)
Raju Das vs The State Of West Bengal on 17 March, 2016
Author: Ranjit Kumar Bag
Bench: Ranjit Kumar Bag
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Mr. Justice Ranjit Kumar Bag
C.R.A. No.408 of 2008
Raju Das.
Versus
The State of West Bengal.
For the appellant: Mr. Biswajit Manna,
Mr. Rajul Ganguly,
For the respondent: Mr. Manjit Singh,
Mr. Anand Keshari Heard on: 17th March, 2016 Judgment on: 17th March, 2016 Ranjit Kumar Bag, J.:-
1. This appeal arises out of judgment and order of conviction and sentence passed by learned Additional Sessions Judge, Fast Track, 3rd Court, Burdwan, in Sessions Trial No.53 of 2007 arising out of Sessions Case No.195 of 2007, by which the appellant was convicted and sentenced to suffer rigorous imprisonment for 7 years and to pay fine of Rs.500/- for the offence under Section 376 of the Indian Penal Code and was also sentenced to pay fine of Rs.100/- in default to suffer imprisonment for 7 days for the offence punishable under Section 417 of the Indian Penal Code - with direction that the period of imprisonment undergone by the appellant as under trial will be set off.
2. The backdrop of conviction and sentence of the appellant is as follows:-
3. On October 18, 2004 the victim Sabitri Das filed a petition of complaint before the court of learned Chief Judicial Magistrate, Burdwan, praying for direction to forward the said petition of complaint to the Officer in Charge of Bhatar Police Station for registration of FIR and causing investigation.
4. On January 8, 2005 Bhatar Police Station Case No.4 of 2005 under Section 493/376/315/120B of the Indian Penal Code came into existence on the basis of the petition of complaint filed by the victim Sabitri. It is alleged by the victim Sabitri in the petition of complaint that the appellant is her neighbour. There was love affairs between the victim and the appellant. The appellant gave proposal of marriage to the victim which was accepted by her. The appellant cohabited with the victim on promise of marriage. The victim became pregnant and the said fact was intimated to the appellant by the victim. The appellant took the victim to one doctor for termination of pregnancy, but the victim did not agree with the said proposal of the appellant. Ultimately, the appellant refused to marry the victim.
The victim gave birth to a female baby in due course. Thereafter, the entire incident was reported to the police through learned Chief Judicial Magistrate, Burdwan, and the criminal case was registered.
5. The police investigated the criminal case and submitted charge sheet against the appellant and other co-accused persons. Ultimately, the court framed charge against the appellant and other co-accused persons for the offence under Sections 417/34 of the Indian Penal Code and against the appellant under Section 376 of the Indian Penal Code. On conclusion of trial, the appellant was convicted and sentenced to suffer imprisonment for 7 years and to pay fine, but the co-accused persons were acquitted of the charge.
6. Mr. Biswajit Manna, learned counsel for the appellant has pointed out various discrepancies in the oral evidence of the prosecution witnesses. He submits that the victim girl attained the age of consent for sexual intercourse at the time of cohabitation with the appellant. The specific submission of Mr. Manna is that the cohabitation took place due to love affairs between the victim and the appellant and the question of marriage cropped up only when the victim became pregnant. According to Mr. Manna, the appellant was also of tender age at the time of commission of the offence and as such, the quantum of sentence imposed on the appellant may be reduced by awarding substantial amount of compensation in favour of the victim. Mr. Manna submits on instruction from his client that the appellant may be directed to give compensation to the tune of Rs.1 lakh to the victim.
7. Mr. Anand Keshari, learned counsel for the State contends that the victim was of tender age and she is illiterate rustic girl having no knowledge about the consequences of the act of cohabitation and as such consent if any given by the victim for sexual intercourse must be under misconception of fact. He submits that adequate amount of compensation may be awarded to the victim which will be real justice in this case.
8. Now, the question for consideration of the court is whether the judgment and order of conviction and sentence passed by trial court is liable to be set aside. I would like to scan the evidence adduced on behalf of the prosecution before dealing with the rival contentions made by the learned counsel representing the respective parties. It is elucidated from the evidence of the victim girl (PW1) that there was love affairs between the victim and the appellant. It is also elucidated from the evidence of the victim girl (PW1) that the appellant gave the proposal of marriage to the victim and she agreed to the said proposal. The victim girl has stated that there was cohabitation between the victim and the appellant on promise of marriage and thereby the victim became pregnant. It transpires from the evidence of the victim girl (PW1) that the appellant took the victim to the doctor for termination of pregnancy, but the victim refused to terminate the pregnancy. The victim girl states that the appellant ultimately did not marry the victim who gave birth to a female baby. This aspect of evidence of the victim girl is corroborated by the mother of the victim girl (PW4). The co- villagers of the victim girl and the appellant (PW 2,3,5,6 & 7) have consistently stated before the trial court they came to learn about the pregnancy of the victim girl and that they were aware of the love affairs between the victim and the appellant. The doctor (PW8) who examined the appellant has opined that the appellant was potent and was capable of sexual intercourse. The doctor (PW8) who examined the victim girl also opined that the victim girl is habituated with sexual intercourse and she showed the sign of delivery per-vagina. The DNA test conducted to establish the paternity of the female baby of the victim girl was of no help to the prosecution, because the result of DNA test is inconclusive. I do not find any cogent reason to disbelieve the evidence of the victim girl (PW1), mother of the victim girl (PW4) and the co-villagers of both victim and the appellant (PW 2,3,5,6 &7).
9. Let us now scan the evidence to find out what was the age of the victim girl at the time of cohabitation with the appellant. The victim girl has stated in evidence that she was aged about 15/16 years when love affairs developed between the victim and herself about 4 years back. The victim gave this statement before the trial court on January 16, 2008. By mathematical calculation, I can infer that the love affairs took place in the last part of the year 2003 of the first part of the year 2004. The cross-examination of the victim girl reveals that she was aged about 20 years at the time of filing of the criminal case. The petition of complaint was filed by the victim girl before the trial court of learned Chief Judicial Magistrate on October 18, 2004 and the FIR was registered on January 8, 2005. The voter's identity card (exhibit-1) of the victim indicates that the year of birth of the victim is 1988. By no stretch of imagination, the victim girl attained the age of 20 years at the time of filing the petition of complaint before the court of learned Chief Judicial Magistrate. Admittedly, the victim girl is illiterate and belongs to very poor family of cobbler. The tenure of testimony of the victim girl (PW1) indicates that she has no knowledge about the age and the year. It is, therefore, safe to rely on the report of oscification test of the victim girl for determination of her age. The victim girl was examined by the doctor (PW8) on August 12, 2005. The doctor (PW8) has opined on the basis of radiological examination (oscification test) that the victim girl is aged about 16 to 18 years on the date of examination i.e. on August 12, 2005. The incident was reported to the police by filing a petition of complaint by the victim on October 18, 2004. The victim has stated in the petition of complaint that she reported the incident after giving birth of the baby and the cohabitation with the appellant took place at least one year before filing of the petition of complaint in the court. Again, by mathematical calculation, the initial cohabitation of the appellant with the victim must have taken place some times in the month of October, 2003. The report of oscification test indicates that the victim was 16 to 18 years old on August 12, 2005. The age of the victim must have been about 14 years 2 months to 16 years 2 months in October, 2003 when the appellant must have cohabited with the victim for the first time. Since the exact date cannot be calculated on the basis of the oscification test and since sufficient evidence is not adduced by the prosecution to establish the age of victim, I am of the view that the victim may be of 14 to 16 years of age when the appellant cohabited with the victim for the first time.
10. Now, the question for consideration of the court is whether cohabitation took place between the appellant and the victim out of love affairs or on (Ranjit Kumar Bag, J.)