Tripura High Court
Shri Rathindra Namasudra vs The State Of Tripura on 7 July, 2020
Author: S. Talapatra
Bench: S. Talapatra, Arindam Lodh
HIGH COURT OF TRIPURA
AGARTALA
CRL.APP(J) 51 of 2018
Shri Rathindra Namasudra,
for Shri Ripan Namasudra [the convict]
resident of Village: Purba Satnala,
PO: Satnala, PS: Kanchanpur,
Dist: North Tripura
----Appellant(s)
Versus
The State of Tripura,
represented by Secretary-cum- Commissioner
Department of Home,
Government of Tripura,
PO: Kunjaban, PS: New Capital Complex,
District: West Tripura
---- Respondent(s)
For Appellant (s) : Mr. A. Bhowmik, Adv.
For Respondent(s) : Mr. S. Debnath, Addl. PP
Date of hearing : 12.12.2019 & 25.02.2020 *
Date of pronouncement : 26.06.2020
Whether fit for reporting : YES
HON'BLE MR. JUSTICE S. TALAPATRA
HON'BLE MR. JUSTICE ARINDAM LODH
Judgment & Order
(S. Talapatra, J)
By means of this appeal, the convict, through the appellant, has challenged the judgment and order of conviction and sentence dated 19.09.2018 delivered in *Spoken to the minutes **Corrected on 07/07/2020 Page 2 of 47 Case No. POCSO/4/2017 by the Special Judge, North Tripura, Dharmanagar. By the said judgment, the appellant [which would denote hereinafter the convict only] has been convicted under Section 6 of the Protection of Children from Sexual Offences Act, the POCSO Act in short and under Sections 363 and 376(1) of the IPC for committing offences of aggravated penetrative sexual assault, kidnapping and rape. However, the appellant has been acquitted from the charges under Section 366 and 376 (D) of the IPC. As consequence, the said conviction the appellant has been sentenced to suffer three year rigorous imprisonment and to pay fine of Rs.3,000/- with default stipulation under Section 363 of the IPC. The appellant has been further sentenced to suffer RI for 10 years and to pay fine of Rs.5000/- with default stipulation under section 6 of the POCSO Act. It has been observed that the sentences shall run concurrently and the fine money, if realized, shall be paid to the victim as compensation. The period of detention as undergone by the appellant during the time of investigation and trial shall be set off from Page 3 of 47 the substantive imprisonment. The period of detention has been recorded in the judgment. During the investigation, the appellant was detained for the period from 20.05.2016 to 12.08.2016 and during the trial from 29.05.2017 to 03.08.2017. The appellant from the date of judgment i.e. 19.09.2018 is in the jail for suffering the sentence as above stated.
[2] The genesis, so far the prosecution case is concerned, is rooted in the complaint filed by one Shanti Rani Nath (PW-1) on 16.04.2016 to the Officer-in- Charge, Kanchanpur PS (Exbt-1) revealing that on 15.04.2016 at around 10 a.m., her minor daughter (the name withheld for protection of identity of the victim) aged about 16 years was kidnapped by the appellant "by alluring and inducing her". Even on the earlier occasion, the appellant tried to entice away her daughter by different means. At the time of filing the complaint, her daughter could not be traced out. Based on the said complaint, Kanchanpur PS Case No.2013KCP027 was registered under Section 366(A) of the IPC. Thereafter, the statement of the victim girl was recorded under Page 4 of 47 Section 164(5) of the CrPC. After her recovery, Section 4 of the POCSO Act was added.
[3] It appears from the records that the statement of the victim was recorded second time under section 164(5) of the CrPC. The case was investigated by the police and the police report was filed sending up the appellant and other three persons namely Ratish Debnath, Sukhamay Das and Chitta Ranjan Paul. [4] The Special Judge having taken cognizance of the police report framed the charge under section 366 and 376(D) of the IPC and under Section 6 of the POCSO Act against the appellant and under Section 376(D) of the IPC against the other accused persons. The charge was denied and plea of innocence was raised to face the trial.
[5] In order to substantiate the charges, the prosecution has adduced 13 witnesses including the victim (PW-5). That apart, they have adduced 12 documentary evidence (Exbts-1 to 12) including the medical examination report (Exbts-6 & 7), birth certificate of the victim (Exbt-3) and age-proof certificate Page 5 of 47 of the victim - admit card of the Secondary Examination (Exbt-9). After recording the evidence of the prosecution, the appellant was examined under Section 313 of the CrPC when he reiterated his plea of innocence by stating that the evidence has been fabricated for malicious purpose. After appreciating the evidence of the prosecution, as no evidence was introduced for rebuttal by the defence, the Special Judge has observed as follows:
"On due analysis the evidence of PW-5, 1 and 9, I find that the evidence of victim girl PW-5 is not well supported by the evidence of PWs-1 and 9 regarding the help or abetting the accused Ripan for his kidnapping the victim girl and to have sexual intercourse with her, by the accused persons Ratish, Chitta and Sukhamay alias Kanai. As per evidence of the victim girl, the accused took her on 15th April, 2016 and only after about 6 days of her going with accused Ripan, accused Kanai sent one vehicle to Ripan, and then after about 10 days Kanai and other two accused met with Ripan. The investigating officer of the case too did not seize and alleged letters written by the victim girl to show that the accused Ratish, Chitta and Kanai had involvement in the process of kidnapping the victim girl by the accused Ripan and then having his sexual act with her. There is no single iota of convincing evidence on record that these three accused persons helped or abetted the accused Ripan to kidnap the victim girl PW-5 and then to have sexual act with her. Abetment means to instigate any person to do that thing or having conspiracy with one for the doing of that thing or intentionally aids by any act of illegal omission of the doing of that thing. But, here in the case, the prosecution has failed to prove that accused persons namely Ratish Debnath, Sukhamay Das and Chitta Paul abetted or aided Page 6 of 47 the accused Ripan to kidnap the victim girl and to have sexual act with her. There is no clinching evidence on record to prove the charges against these three accused. There are some suspicious circumstances exist pointing to the possibility of these three accused persons being perpetrators of offence of aiding of abetting the accused Ripan Namasudra for committing the offence of under section 363, IPC and section 6 of the POCSO Act, but there is really no substantive and clinching evidence or record to prove that theses accused Ratish Debnath, Sukhamay Das and Chitta Paul committed the offences punishable under section 6 read with section 5(1) of the POCSO Act and the offence punishable under section 376D of the IPC.‖ [6] It has been further observed that there is no proof of abetment by the other accused persons aiding the appellant to kidnap or rape the victim, neither there was any act in furtherance of a common intention. Mr. Debnath, learned Addl. PP, at this juncture, has stated that the state has not preferred any appeal against the said order of acquittal of the co-accused persons. [7] Mr. A. Bhowmik, learned counsel appearing for the appellant has submitted that the conviction has been returned based on the testimony of PWs-1, 5 and 8. But, the Special Judge has failed to appreciate the opinion and testimony of PW-6, Dr. Mousumi Halder who had examined the victim on 07.06.2016 at Dharmanagar Hospital. She prepared the report jointly with another Page 7 of 47 gynecologist, Dr. Apratim Debbarma who was however, not examined. Initially, the opinion was for the forensic report of the biological samples collected from the victim. In the forensic report (Exbt-6), it has been observed that the clinical examination is not consistent of recent sexual intercourse/assault. The said opinion was given on 17.06.2016. It has been further observed in the said report that the hymen even though was found torn but there was no fresh injury.
[8] Mr. Bhowmik, learned counsel has further submitted that the determination of the age of the victim is not tenable as the documents as relied for such purpose by the special Judge cannot by itself be the proof of the age unless it is disclosed who had provided the date of birth for purpose of creating the said document. Moreover, the statement of the victim as recorded in the trial, to some material parts, are grossly inconsistent with the statement of her mother (PW-1) and her father (PW-8).
[9] Mr. Bhowmik, learned counsel has further stated that the victim when was produced for medical Page 8 of 47 examination in Chandrapur Hospital, she refused to be examined by the medical officer. This has been admitted by the victim while testifying in the trial, but when the police arranged for the medical examination, she had allowed to be medically examined. The victim has further stated in the trial that during her stay at Nariniketan, she made an application to the officer-in-Charge that she did not make her statement correctly and she would like to make proper statement but she did not reveal in the trial whether further statement was recorded by the police or not.
[10] Mr. Bhowmik learned counsel has also submitted that the process that has been followed for determination whether there had been any penetration or any sign of the sexual assault is unrealistic and faulty. However, Mr. Bhowmik, learned counsel has acceded to the fact that the cross-examination in this regard is inadequate. On over all reading, it would be apparent that the finding of conviction is not based on legal evidence.Page 9 of 47
[11] To repel the submission of Mr. Bhowmik, learned counsel Mr. S. Debnath, learned Addl. PP has at the outset taken us to the document viz. medical examination report of the victim (Exbt-6) to show that the hymen was found torn but without any sign of fresh injury. In this regard, Mr. Debnath, learned Addl. PP has submitted that the said observation has to be appreciated for the time-gap that occasioned between the time of sexual intercourse and the medical examination. But this categorically shows that there was penetration and the tearing of hymen is sign of such penetration. Mr. Debnath, learned Addl. PP has categorically stated admission of the certificate of birth (Exbt-3) or the admit card of secondary education were not challenged by the appellant in the trial. [12] Mr. Debnath, learned Addl. PP in this regard relied on a decision of the apex court in Atluri Brahmanandam (Dead) through L.Rs vs. Anne Sai Bapuji reported in AIR 2011 SC 545 where a registered deed of adoption was prepared recording the custom in the "Kamma" community of Andhra Pradesh for adoption Page 10 of 47 of a child above 15 years. The apex court held that the court has to presume that the adoption has been made in compliance with the provisions of the Hindu Adoption and Maintenance Act (Section 10) which provides that a person to be adopted should not have completed the age of 13 years. It has been further held that such presumption becomes compulsive "since the respondent has utterly failed to challenge the said evidence and also to dispute the aforesaid adoption."
[13] Huge reliance has been placed by Mr. Debnath, learned Addl. PP on a case being Mahadeo S/o Kerba Maske vs. State of Maharashtra and Another reported in (2013) 14 SCC 637 where the apex court has applied Rule 12(3) of the Juvenile Justice (Care of Protection of Children) Rule 2007 for determining the age of young victim/prosecutrix. In this regard, the following passages are extracted:
―12. We can also in this connection make reference to a statutory provision contained in the Juvenile Justice (Care and Protection of Children) Rules, 2007, where under Rule 12, the procedure to be followed in determining the age of a juvenile has been set out. We can usefully refer to the said provision in this context, inasmuch as under Rule 12 (3) of the said Rules, it is stated that:Page 11 of 47
―12.(3) In every case concerning a child or juvenile in conflict with law, the age determination enquiry shall be conducted by the Court or the Board or, as the case may be, by the Committee by seeking evidence by obtaining:
(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school); first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
Under Rule 12 (3) (b), it is specifically provided that only in the absence of alternative methods described under 12 (3) (a) (i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of a juvenile, in our considered opinion, the same yardstick can be rightly followed by the Courts for the purpose of ascertaining the age of a victim as well.
13. In the light of our above reasoning, in the case on hand, there were certificates issued by the school in which the prosecutrix did her Vth standard and in the school leaving certificate issued by the said school under Exhibit 54, the date of birth of the prosecutrix has been clearly noted as 20.05.1990, and this document was also proved by PW-11. Apart from the transfer certificate as well as the admission form maintained by the Primary School, Latur, where the prosecutrix had her initial education, also confirmed the date of birth as 20.5.1990. The reliance placed upon the said evidence by the Courts below to arrive at the age of the prosecutrix to hold that the prosecutrix was below 18 years of age at the time of the occurrence was perfectly justified and we do not find any good grounds to interfere with the same.‖ Page 12 of 47 [14] Mr.Debnath, learned Addl. PP has submitted that the evidence of PW-5 (the victim) is the truthful account of how the crime was perpetrated and she has categorically stated that her date of birth is 04.11.1999 and the occurrence took place 15.04.2016. She has given a brief account when the appellant approached her to accompany him, she agreed because she had developed liking for him. After some time when the appellant proposed go with him forever she initially did not agree but later on she agreed to accompany him. She had candidly stated she spent three nights at a place and enjoyed "sexual intercourse" thereafter they changed places from Putni to Ramkrishnanagar then Bagargul by his vehicle. Later on, they travelled by a vehicle to Ashimganj. She had admitted that they did not have any formal marriage. She wrote some letters to the various authorities according to dictation of appellant‟s friends namely Kanai, Ratish Debnath and Sukhamay Paul. She has categorically asserted in her testimony that "I wrote all those letters mentioning some facts falsely against my parent and uncle. Even one of the appellant‟s Page 13 of 47 friend namely Ratish Debnath recorded a video footage containing the statement against her parent. [15] On 13.05.2016, she had returned to Kanchanpur and stayed there for 6 days. On 19.05.2016 both of them surrendered to the police in Kanchanpur PS. She gave the statement as tutored by the appellant. Mr. Debnath, learned Addl. PP in the course of explanation has submitted that the first statement as recorded under section 164(5) CrPC was equally tutored by the appellant and that is the reason why at the request of the victim, the second statement under section 164(5) of the CrPC was recorded. After production before the jurisdictional court, the victim was lodged in a short-stay home. There she spent 15-16 days. She realized there that "she committed blunder"
and decided to correct the statement made to the Judicial Magistrate and to the Police. She has denied in the cross examination that her first statements were not true account of the occurrence. Mr. Debnath, learned Addl. PP has urged this court to believe the victim. Page 14 of 47 [16] In the rejoinder, Mr. A. Bhowmik, learned counsel for the appellant has relied a series of decisions of the apex court. In Ram Murti Vs State of Haryana reported in AIR 1970 SC 1020 the apex court has clearly observed that unproved and unexhibited school certificate could not be treated in the case. The question of age of the prosecutrix in the case under Section 366 and 376 of the IPC is always pertinent. It was particularly so pertinent when the prosecutrix is found to be accustomed to sexual intercourse and the rupture in the hymen is old. In such cases, the court should examine the question of age more closely. In that case, the apex court has observed that considering the medical evidence that the prosecutrix was used to sexual intercourse, her statement that she was compelled, threatened or otherwise induced to go with the appellant, the corroboration on some material particulars from some independent source be found. Her bare statement cannot be considered sufficient to sustain the appellant‟s conviction.Page 15 of 47
[17] Mr. Bhowmik leaned counsel even though has placed his reliance in Satya Narain Musadi And Others Vs. State of Bihar reported in (1980) 3 SCC 152, but the passages, as relied, do not have any relevance in the context of the present case. Mr. Bhowmik, learned counsel has also referred another decision of the apex court in State of Punjab Vs. Gurmit Singh and Others reported in (1996) 2 SCC 384 where the apex court apart from taking a distinguished view in respect of appreciation of testimony of the victim of rape, has observed that corroboration is condition of judicial prudence for reliance on the testimony of the prosecutrix, even though is not requirement of law, but a guidance of prudence under the given circumstances. Therefore, the circumstances are of importance to assess the testimonies of the victim of the rape.
[18] The relevant passage as relied on from Ramdeo Chauhan Vs. State of Assam reported in (2001) 5 SCC 714 reads as follows:
19. It is not disputed that the register of Admission of students relied upon by the defence is not maintained under any statutory Page 16 of 47 requirement. The author of the Register has also not been examined. The register is not paged (sic) at all. Column No. 12 of the register deals with "age at the time of admission".
Entries 1 to 45 mention the age of the students in terms of the years, months and days. Entry No. 1 is dated 25-1-1988 whereas Entry No. 45 is dated 31-3-1989. Thereafter except for Entry No. 45, the page is totally blank and fresh entries are made w.e.f. 5.1.1990, apparently by one person up to Entry No. 32. All entries are dated 5.1.1990. The other entries made on various dates appear to have been made by one person though in different inks. Entries for the years 1990 are up to the Entry No. 64 whereafter entries of 1991 are made again apparently by the same perso. Entry No. 36 relates to Rajnath Chaudhan, son of Firato Chauhan. In all the entries except Entry No. 32, after 5.1.1990 in column No. 12 instead of age some date is mentioned which, according to the defence is the date of birth of student concerned. In Entry 32 the age of the student concerned has been recorded. In column No. 12 again in the entries with effect from 9.1.1992, the ages of the students are mentioned and not their dates of birth. The manner in which the register has been maintained does not inspire confidence of the court to put any reliance on it. Learned defence counsel has also not referred to any provision of law for accepting its authenticity in terms of Section 35 of Evidence Act. The entries made in such a register cannot be taken as a proof of the age of the accused for any purpose.‖ [19] Another decision as regards appreciation of the solitary witness has been banked upon. Sohan Vs. State of Haryana and another reported in (2001) 3 SCC 620 has been relied by the counsel for the appellant to related that the apex court had occasion to observe as follows:
28. We may add that the prosecution case entirely rested on the sole evidence of PW- 7, who was not only interested being the cousin of Page 17 of 47 the deceased and was inimical too to the accused in view of the civil litigation referred to above. It was unsafe to act on his evidence without any corroboration. Although there were material witnesses available to corroborate, their non-examination or withholding their evidence was a serious lacuna in the prosecution case. Non-examination of another eye-witness, Sumer, whose name was mentioned in the FIR and who had witnessed the occurrence according to PW-7, was also fatal, PW-7 stated that he himself, his brother Dani Ram and his cousin Tara Chand went to the place of occurrence and lifted Daya Nand to his house and their clothes got bloodstained.
The bloodstained clothes were neither produced nor seized. Failure to do so raises a serious doubt as to the version of PW-7. Dani Ram and Tara Chand were also not examined. PW-7 stated that immediately after the occurrence he ran towards his house; in front of his house Dani Ram and Tara Chand were sitting, he informed them and narrated about the incident and thereafter all three of them went to the place of occurrence and brought the deceased Daya Nand to his house. If only Dani Ram and Tara Chand were examined they would have corroborated the evidence of PW-7. This again shakes the prosecution case. The High Court disbelieved the recovery of both weapons and clothes. In all cases recovery by itself may not be material. But in this case in the absence of corroboration to the evidence of PW-7, the recovery aspect assumed importance. The civil litigation was started in 1982; the suit was decreed in favour of Sohan, accused no. 1 in 1993; the appeal filed by the deceased and PW-7 was pending on the date of occurrence; there was no immediate provocation or cause for committing the offence on 11.2.1985.
29. The credibility of PW-7 and truthfulness of his evidence in the circumstances needed to be scrutinized with great care and caution. His evidence does not inspire confidence for the reasons that (a) though he was a party to the civil suit as a defendant along with deceased Daya Nand, he falsely stated that it was deceased Daya Nand who filed the suit, when as a matter of fact it was the accused no. 1 Sohan, who had filed the suit. (b) he had made a wrong statement as to the possession of the disputed land but he was forced to admit the possession of accused Sohan in the cross- Page 18 of 47
examination. (c) he stated, "When the Draftsman came to the spot I was not there". PW-6, the draftsman clearly stated in his evidence that he prepared the site plan Ext. PN on the pointing out of PW-7 and Sumer (not examined by the prosecution). (d) he stated, "We had picked up Daya Nand from the spot on our hands. Our clothes had got bloodstained in this process". He further stated, "I had not shown my bloodstained clothes to the police. I had changed my clothes before leaving for Bhiwani."
[20] For appreciation of the submission advanced by the counsel for the parties, it appears essential that a short survey is carried out of the evidence recorded in the trial.
[21] PW-1, Shanti Rani Nath had lodged the complaint (Exbt-1). In the trial, she has stated that the victim was born in the year 1999 perhaps in the month of September. On 15.04.2016 her daughter (the victim) left the house for going to the Grameen Bank at Dasda at about 10-10.30 a.m. but when she did not return till 12 at noon she got anxious and asked one neighbouring boy namely Amarta Das to find out the victim. Amarta came back and informed her that the victim was not available in the Grameen bank. Her husband was not present in the station as he was at Agartala. So she started searching the victim to all known places including the Page 19 of 47 relatives houses. Then she had visited Kanchanpur Police Station, but the police did not take her allegation seriously. Thereafter, she had filed a written complaint, drafted by one deed writer, in the said police station. That was written at her dictation. The name of the appellant did surface in the said complaint. [22] PW-1 has stated that she had visited to the house of Ripan, but she was not available there. The friends of Ripan did not disclose his whereabouts. After 15-16 days of the occurrence, she received a call on her mobile asking her whether she needed her daughter or not. The conversation did not continue long. On the next morning, the same person called her asking whether she was interested to talk to her daughter and then she talked to her daughter when she told her that she need not worry. She was well with the appellant. PW-1 has provided in the trial the said mobile number. But shortly thereafter, she corrected her statement by stating that the victim kept informing her. The appellant tried to contact with her. The appellant used to disturb her daughter.
Page 20 of 47[23] PW-1 apprised the Kanchanpur Police Station with all the information alongwith particulars of „phone number‟ etc. They had shared those information with all police stations including Badarpur, Assam. Few days thereafter, she received a call from Kanchanpur Police Station that her daughter had appeared there. But her daughter did not agree to stay with them and preferred to go with him [the appellant]. Her medical examination was carried out and PW-1 was present at the time of examination. Even she was brought in the court of Judicial Magistrate at Kanchanur for recording her statement. After a few days, again the victim‟s statement was recorded by the Chief Judicial Magistrate, Dharmangar. She has informed the court that the victim was living in the home. By the order of the court, the victim started living with her family. She was shifted to house of maternal uncle at South Deocharra under Panisagar PS and she got admitted in a local school there. She has stated further that she came to know that one Kanai Das took her to Karimganj and in Karimgang, two other persons from her locality namely Chitta Pal and Page 21 of 47 Ratish Debnath induced her to write against her parents. All the suggestions were denied by her in the course of the cross-examination.
[24] PW-2 Pradip Malakar is the scribe who wrote the complaint.
[25] PW-3, Bikas Das is the witness of seizure of the Aadhar card and the school certificate on 24.05.2016 by preparing the seizure list (Exbt-2). [26] PW-4, Benit Purkayastaa from whom the birth certificate [Exbt.-3] of the victim was seized on 18.06.2016.
[27] PW-5, in the circumstances, appears to be the most important witness. PW-5 (the victim) has stated in the trial on 16.04.2016 that while she was going to Dasda Grameen Bank to open an account, she met the appellant on the way. The appellant approached her to go with him. She has stated that she has liking for the appellant. When she proceeded, the appellant suggested they should elope. After initial hesitation she agreed to. They left the place by riding a bike. The appellant took her to a relative‟s place. There, till night, the victim has Page 22 of 47 stated in the trial, they lived together and had enjoyed sexual intercourse. They went to a different place of stay from Patni. They went to Ramkrishnanagar to stay in the house of the appellant. But they did not stay there. They left for Bagargul by a vehicle. They had spent 3 to 4 days there. From that place, the appellant took her to Asimgangj by a vehicle. In that place, with the help of one Kanai and Ripan he hired one house on rent. They spent 10-15 days as husband and wife even though they did not solemnize formal marriage, but they enjoyed physical relation as if they were husband and wife. In that house, Kanai and two other persons namely, Ratish Debnath and Chitta Paul visited. They asked her to write some letters addressed to the various authorities. She mentioned some facts falsely against her parents and uncle. Initially, she was reluctant and refused but ultimately, she wrote some letters.
[28] They made a video where she made some statement against her parents and uncle. On 13.05.2016, they came to Kanchanpur Police Station arranged by Kanai and took shelter to the house of one Malati Barua, Page 23 of 47 aunt of the appellant. After spending 6 days there she went to the said police station with Ripan "at her own accord". They surrendered before the said police station. The victim has stated that she gave the said statement before the said police station having been tutored by the appellant. She was produced in the court and her statement was recorded under Section 164 of the CrPC before the Judicial Magistrate Kanchanpur. But that statement (Exbt-4) too, according to her, was tutored by the appellant.
[29] She has categorically admitted that she had refused to go with her parents as tutored by the appellant. Thereafter, she was sent for short stay at home and later on to a protective home. During her stay, at that home she realized that she committed a wrong. Then she communicated to the police for arranging recording her statement afresh. Her statement (Exbt-5) was recorded on her request under section 164(5) of the CrPC by the CJM, Dharmanagar. She has admitted that she had refused to be medically examined but on the insistence of Police, she agreed to be medically Page 24 of 47 examined. She introduced her consent letter on for such examination (Exbt-6). She has denied the suggestions projected to her, contrary to what she has stated in the Examination-in-Chief.
[30] PW-6, Mousumi Halder was posted as the emergency Medical Officer at Dharmanagar Hospital on 07.06.2016. She had recorded the history of the victim before her examination. According to her, the victim told that she had three episodes of sex. She had collected blood sample, vaginal swab and sample of pubic hair. The opinion as to the position of hymen was kept pending till availability of the report of the forensic examination. She has identified the victim‟s signature (Exbt-7) on the medical examination report (Exbt-6). Thereafter, she made certain statements in the trial which have relevance in the case in hand:
―That was a case of rape of victim since victim was minor and there was totally a case of raptured in hymen. I did not mention subsequently regarding raptured of hymen since there was no column in the printed proforma. Subsequently, on 17.06.2016 also I examined the said female assisting gynecologist Dr. Apratim Mohan Debbarma and there we mentioned that her hymen was found torn but there was no fresh injury detected. At that time also pubic hair samples was taken, blood sample was taken and vaginal swab was taken. For pregnancy test urine test was also Page 25 of 47 made. Report was negative. In column number 15 we mentioned that the report was not consistent with recent sexual intercourse.‖ There was no effective cross examination. But she has stated that even though it has not been recorded in the medical examination repot (Exbt-6) that the hymen of the victim was found ruptured caused by physical intercourse. PW6 has stated in the trial she had said so from her memory. Thus, a material piece of evidence came under shadow.
[31] PW-7, Dipak Chandra Halder is a seizure witness of a biological sample seized on 07.06.2016 by the seizure list (Exbt-8).
[32] PW-8, Dakshina Nath, the father of the victim, has almost replicated the narrative of PW-1 in respect of the post-occurrence conduct vis-à-vis the victim. There was no cross examination in respect of PW-8 as such. [33] PW-9, Ajay Datta has stated that in the first week of May, 2016, one Krishna Pal who was his neighbour hired his vehicle bearing the registration No.TR02G0421 (Alto). He drove the vehicle from Kanchanpur with Chitta Paul and two other persons Page 26 of 47 namely Ratish and Kanai. He drove the vehicle to Nilambazar, Assam in front of a hotel and after sometimes, all of them returned by his vehicle to Kanchanpur.
No cross-examination was carried out. [34] PW-10, Nityahari Bhowmik was appointed as the emergency Medical Officer at Dharmanagar on 16.06.2016. He had examined the appellant for sexual potency in connection with Kanchanpur P.S. case No. 2016/KCP/027. After examination, he opined that there was nothing to suggest that the appellant was not capable of performing sexual act and he had admitted his report (Exbt -11) in the trial.
No cross examination was carried out.
[35] PW-11, Biswajit Chandra Malakar, a constable of police was the witness of seizure of the birth certificate of the victim carried out by Nanda Dulal Saha, Sub- Inspector of Police on 18.06.2016. In acknowledgment, he put his signature in the seizure list (Exbt3) and that signature was identified in the trial. Page 27 of 47 [36] PW-12, Manikya Chakma first examined on 22.02.2018 and continued to be examined on 26.02.2018. PW-12 was the investigating officer of the case. He has narrated the content of the complaint and thereafter he has stated that he carried out search to trace out the victim. He had prepared the site map with index (Exbt-12). He examined the witnesses on different dates from the day of receiving the complaint till 19.05.2016. He has stated that he continued the investigation till 11.06.2016. On 19.05.2016, the victim and the appellant appeared in the Kanchanpur Police Station. He has stated that he tried to get the victim medically examined but she refused to be examined. She was produced for rerecording the statement under section 164 of the CrPC. He has stated that at the time of occurrence, the victim was aged about 17 years of age and she had appeared in the Madhyamik Examination. According to him, she had love affairs with the appellant for about 3 years. The relationship was known to the parents of the victim. The victim desired that the appellant would take her to any place and accordingly Page 28 of 47 she was taken to Dharmangar. It has been stated by PW- 12 that she got married in Dharmangar Kali Temple with the appellant. Thereafter, they travelled to different places, initially by the bike of the appellant and thereafter, by the other vehicle. PW-12, having perused the case docket, has stated in the trial as follows:
―She also gave an explanation about the cause of her leaving house and mentioned that due to some family dispute she decided to leave with Ripan and she did not feel herself safe at home. According to her, her mother lodged a case of kidnapping against Ripan knowing very well about her affairs. During tenure of my investigation. I visited Ramkrishna nagar and Bagargul. At Bagargul she stayed in the house of Siuli Karmakar. The place of Ramkrishna nagar could not be trace out. So far as investigation I completed, I realized that victim spend number of days with accused Ripan as husband and wife. I did not consider arranging medical examination of the victim to establish section 4 of the POCSO Act. Victim did not state to me in her 161 statements that she was not willing to be examined by medical officers. During my investigation, I did not try to know whether at all her marriage took place at Dharmanagar Kali Temple and if so who was the priest at that time and in that regard I have no explanation.‖ [37] PW-12 has categorically stated that the victim has never stated that any other persons were involved with her leaving with the appellant. There is no allegation against anyone else. After receiving the medical examination report, he made a formal prayer to add Page 29 of 47 section 4 of the POCSO Act as he did not earlier add that section. He has stated that he could not complete the investigation. However, he has stated in the cross- examination that he had arrested the victim and the accused. After such "arrest" the victim was kept in safe custody.
[38] The latter part of the investigation was carried out by PW-13, Nandadulal Saha, a Sub- Inspector of police. He has categorically stated that the former investigating officer‟s "delay" in putting the victim for examination by the medical officer and the appellant for potency test cannot be explained by him. 13 witnesses were examined by PW-12. Out of them, he examined afresh Pradip Malakar (PW-2) and the victim (PW-5). He had examined other witnesses namely Ajoy Datta (PW-
9), Abir Hussain (not examined in the trial), Suman Singha (not examined in the trial) Dr. Apratim Mohan Debbarma (not examined in the trial) and Dr. Mousumi Halder (PW-6). He had seized the video footage from the wife of Ratish Debnath, but according to him the footage had no connection with that case. At his instance, the Page 30 of 47 statement of the victim was recorded for the second time under Section 164 CrPC. He had caused the seizure of the birth certificate of the victim. But, he has strangely stated that 'I have no document that I have seized the birth certificate of the victim'. Even the victim was subjected to ossification test but he did submit the report of ossification test. He has stated in the trial that the victim was 16 years of age. Having found prima facie case, he had submitted the charge-sheet. A specific question was asked for having an explanation from him that why the victim was examined second time under Section 164 of the CrPC. He had given the following explanation by stating in the cross-examination as follows:
"I received the record to verify whether previous IO correctly recorded the statement of the victim or not. I examined the victim and found that there was departure from her earlier statement as recorded by the previous IO and accordingly I made prayer to the court to record statement of the victim u/s. 164 of CRPC again. When I arranged for recording of statement of the victim u/s 164 of CrPC at that time she was brought by her mother. Thus she was in custody of her mother. When the statement of the victim was first recorded u/s 164 of CrPC by SDJM, Kanchanupr at that time she remained in the custody of her parents.‖ Page 31 of 47 [39] The suggestions as put to him, have been generally denied but he has admitted that he did not verify the seized birth certificate by examining the issuing authority and he has clearly stated that he did not verify the age of the victim.
[40] In the medical examination report for sexual assault (Exbt-6) both the examining doctors have given the following opinion.
―15.....
(a)................
(b) Not consistent with recent sexual intercourse/assault
(c).....‖ [41] The appellant has admitted in the cross examination that he spent night with the victim, but in the separate rooms. Other incriminating materials were straight away denied by the appellant by stating he was falsely implicated in the case.
[42] What is apparent is that the appellant has squarely denied of having any sexual intercourse with the victim but had admitted that he spent night with the victim but in the separate room. That apart, what this court has noticed that PW-5 (the victim) had changed her version by stating that she had changed the Page 32 of 47 statement both before the police officer and the Judicial Magistrate as those were tutored by the appellant. The court cannot be oblivious of the fact that at the relevant point of time the appellant was under detention. If she had respect for the truth, she could have stated her own version. Later on, during her stay with her parents, she gave different versions. Even her statement that some friends of the appellant extracted letters blaming her parents and that she had made those statements as per their dictation, no footage of that nature was not placed in the evidence. Even her statement was videographed. [43] In this regard, the prosecution could not find any evidence. That apart, the video footage that was seized from the wife of a co-accused was found to be not material for the case, as assessed by PW-13. The victim, has stated that during the stay at Patni for three nights, they "had enjoyed sexual intercourse". Even the examining doctor (PW-6) has recorded the following statement of the victim "she left her home with the accused person on her own wish and they stayed together and have sexual intercourse with consent of Page 33 of 47 both the victim and the accused person." Nowhere in her statement had she stated that, that statement was tutored by anyone. The Special Judge while appreciating the clinical opinion of PW-6 has observed that the medical examination report (Exbt-6) clearly shows that the hymen of the victim girl was found ruptured, meaning thereby the victim girl had sexual intercourse, though that was not rape in nature inasmuch as the defence did not dispute the rapture of hymen was caused otherwise then due to sexual intercourse. Thus, the trial judge inferred that said clinical opinion supported the statement of the victim girl that she had sexual intercourse.
[44] That apart, the Special Judge has inferred that the age of the victim girl on 16.04.2016 (the day of occurrence) was 16 years. PW-1, the mother of the victim has categorically stated the victim was born in hospital and after a month the birth certificate was issued. Even PW-5 has stated that her date of birth was 04.11.1999. PW-8 (the father of the victim) has testified that the date of birth of her daughter is 04.11.1999. In Page 34 of 47 all the documents namely Aadhar Card, (Exct-10) and the admit card for Secondary Education (Exbt-9), the date of the birth of victim is recorded as 04.11.1999. [45] On that premises, having relied on Harpal Singh vs. State of Himchal Pradesh reported in AIR 1982 SC 361, it has been held that those document are admissible under section 35 of the Evidence Act and it was not necessary to examine its author. Thus, it has been inferred further that the victim girl was taken away from the lawful guardianship and hence and offence punishable under Section 363 of the IPC was committed, but the Special Judge has not appreciated the evidence to gather whether the fact of taking away or enticement or allurement is proved by the evidence. In the course of his appreciation the special judge has clearly observed that there is no evidence against the co-accused and as such they were liable to be acquitted and accordingly they were acquitted.
[46] It is apparent from the face of the record that no charge against the appellant has been framed under Section 363 of the IPC but the Special Judge invoking his Page 35 of 47 power conferred by section 222 (2) of the CrPC has convicted the appellant under section 363 of the IPC being the minor and cognate offence of section 366 of the IPC for which the charge was framed. So far the offence of aggravated penetrative sexual assault is concerned, according to the trial court, as the offence under section 376(1) of the IPC has been proved, the principal accused (the appellant) can be convicted under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act, in short). Aggravated penetrative sexual assault has been defined in section 2(1)(a) of the POCSO Act by stating that "aggravated penetrative sexual assault has the same meaning as assigned to it in section 5. Section 5 is quite a longish provision but for purpose of reference is reproduced hereunder:
5. (a) Whoever, being a police officer, commits penetrative sexual assault on a child - (u) within the limits of the police station or premises at which he is appointed; or
(ii) in the premises of any station house, whether or not situated in the police station, to which he is appointed; or
(iii) in the course of his duties or otherwise; or Page 36 of 47
(iv) where he is known as, or identified as, a police officer; or
(b) whoever being a member of the armed forces or security forces commits penetrative sexual assault on a child-
(u) within the limits of the area to which the person is deployed; or
(ii) in any areas under the command of the forces or armed forces; or
(iii) in the course of his duties or otherwise; or
(iv) where the said person is known or identified as a member of the security or armed forces; or ® whoever being a public servant commits penetrative sexual assault on a child; or
(d) whoever being on the management or on the staff of a jail, remand home, protection home, observation home, or other place of custody or care and protection established by or under any law for the time being in force, commits penetrative sexual assault on a child, being inmate of such jail, remand home, protection home, observation home, or other place of custody or care and protection; or
(e) whoever being on the management or staff of a hospital, whether Government or private, commits penetrative sexual assault on a child in that hospital; or
(f) whoever being on the management or staff of an educational institution or religious institution, commits penetrative sexual assault on a child in that institution; or
(g) whoever commits gang penetrative sexual assault on a child.
Explanation.--When a child is subjected to sexual assault by one or more persons of a group in furtherance of their common intention, each of such persons shall be deemed to have committed gang penetrative sexual assault within the meaning of this clause and each of such person shall be liable for that act in the same manner as if it were done by him alone; or Page 37 of 47
(h) whoever commits penetrative sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance; or (u) whoever commits penetrative sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child; or
(j) whoever commits penetrative sexual assault on a child, which-
(u) physically incapacitates the child or causes the child to become mentally ill as defined under clause (b) of section 2 of the Mental Health Act, 1987 (14 of 1987) or causes impairment of any kind so as to render the child unable to perform regular tasks, temporarily or permanently; or
(ii) in the case of female child, makes the child pregnant as a consequence of sexual assault;
(iii) inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or Infection which may either temporarily or permanently impair the child by rendering him physically incapacitated, or mentally ill to perform regular tasks; or
(k) whoever, taking advantage of a child's mental or physical disability, commits penetrative sexual assault on the child; or
(l) whoever commits penetrative sexual assault on the child more than once or repeatedly; or
(m) whoever commits penetrative sexual assault on a child below twelve years; or
(n) whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child; or
(o) whoever being, in the ownership, or management, or staff, of any institution providing services to the child, commits penetrative sexual assault on the child; or Page 38 of 47
(p) whoever being in a position of trust or authority of a child commits penetrative sexual assault on the child in an institution or home of the child or anywhere else; or
(q) whoever commits penetrative sexual assault on a child knowing the child is pregnant; or ® whoever commits penetrative sexual assault on a child and attempts to murder the child; or
(s) whoever commits penetrative sexual assault on a child in the course of communal or sectarian violence; or
(t) whoever commits penetrative sexual assault on a child and who has been previously convicted of having committed any offence under this Act or any sexual offence punishable under any other law for the time being in force; or (u) whoever commits penetrative sexual assault on a child and makes the child to strip or parade naked in public, is said to commit aggravated penetrative sexual assault.‖ [Emphasis added] [47] It is apparent that no provision under Section 5 has any relevance in order to establish aggravated penetrative sexual assault except what has been provided under Section 5(l) of the POCSO Act, what has been underlined above. The observation of the special judge that unless the contradiction is brought out with the first statement of the victim made under section
164)5) of the CrPC, this court is not bound to take any exception. The said observation is hardly relevant in the present context, inasmuch as the victim (PW-5) has Page 39 of 47 clearly admitted that she made a completely different version of the occurrence having been tutored by the principal accused. In this regard, this court records its observation, but not with much emphasis that the order of acquittal of the other co-accused has not been question by the state. As such the findings relating to the acquittal remained unchallenged. Moreover, the finding cannot otherwise be faltered with as there is no evidence of worth to hold them guilty of the charge. Thus, some relevant parts of the statement of the victim again get visited by doubt. Even the Special Judge [the trial judge] has not exposited impact of juxtaposition. [48] From analysis of the evidence as produced by the prosecution in respect of age of the victim and having special regard to the statement of mother of the victim (PW-1), this court finds the age of the victim as determined by the special Jude is not affected by any infirmity. Therefore, the age of the victim has been proved to be below 18 years for purpose of her minority for purpose of section 361 of the IPC and for her being the child within the meaning of section 2(1)(d) of the Page 40 of 47 POCSO Act and for purpose of consent under Section 375 of the IPC. Now, two pertinent questions fall for consideration of this court. They are: (1) whether the victim was taken or enticed away or allured away from the lawful guardianship for purpose of determining whether the appellant has committed kidnapping punishable under Section 363 of the IPC? and (2) whether the appellant has committed "rape" within the meaning of Section 375 of the IPC or the aggravated penetrative sexual assault within the meaning of Section 5 of the POCSO Act making him liable to be punished respectively under Section 376(1) of the IPC or under Section 366 of the PCSO Act or whether he has committed any lesser and incognate offence of those offences op cit.
[49] In Rex Vs. James, Judge Jelf has narrated the law to the jury, thus:
―Although there must be a taking, yet it is quite clear that an actual physical taking away of the girl is not necessary to render the prisoner liable to conviction; it is sufficient if he persuaded her to leave her home or go away with him by persuasion or blandishments. The question for you is whether the active part in the going away together was the act of the prisoner or of the girl; unless it was that of the prisoner, he is entitled to your verdict. And, even if you do not believe that he did what he Page 41 of 47 was morally bound to do-namely, tell her to return home that fact is not by itself sufficient to warrant a conviction ; for if she was determined to leave her home, and showed prisoner that that was her determination, and insisted on leaving with him or even if she was so forward as to write and suggest to the prisoner that he should go away with her, and he (1) X Cox's Criminal Case, 402 (2) XX Cox's Criminal Cases, 249. Yielded to her suggestion, taking no active part in them matter, you must acquit him. If, however, prisoner's conduct was such as to persuade the girl, by blandishments or otherwise, to leave her home either then or some future time, he ought to be found guilty of the offence of abduction.‖ [50] In that English case, no evidence was found of solicitation by the accused and thus the jury returned a verdict of not guilty. But in Halsbury‟s Law of England 3rd edition, Vol-10, page 758 a clear distinction has been sought to be made in the following manner:
―The defendant may be convicted, although he took no part in the actual removal of the girl, if he previously solicited her to leave her father, and afterwards received and harboured her when she did so. If a girl leaves her father of her own accord, the defendant taking no active part in the matter and not persuading or advising her to leave, he cannot be convicted of this offence, even though he failed to advise her not to come, or to return, and afterwards harboured her.‖ [51] Having relied the Rex vs. James and Bisweswar Misra vs. The king reported in ILR (1949) Cuttack, 194 and in re: Khalandar Saheb : ILR 1955 (Andhra) 294 and Nura Vs. Rex, AIR 1949 Page 42 of 47 Allahabad 710, in S. Varadarajan Vs. state of Madras reported in AIR 1965 SC 942, it has been observed as follows:
―As against this Mr. Ranganadham Chetty appearing for the State has relied upon the, decisions in Bisweswar Misra v. The King and In re : Khalandar Saheb. The first of these decisions is distinguishable on the ground that it was found that the accused had induced the girl to leave the house of her lawful guardian. Further the learned Judges have made it clear that mere passive consent on the part of a person in giving shelter to the minor does not amount to taking or enticing of the minor but the active bringing about of the stay of the minor in the house of a person by playing upon the weak and hesitating mind of the minor would amount to "taking" within the meaning of s. 361. In the next case, the act of the accused, upon the facts of the case was held by the Court to fall under s. 366, I.P.C. and the decision in Nura v. Rex on which reliance has been placed on behalf of the appellant is distinguished. Referring to that case it was observed by the Court : "Reliance is placed upon the decision of Mustaq Ahmed J. in Nura V. Rex wherein the learned Judge observed that where a minor girl voluntarily leaves the roof of her guardian and when out of his house, comes across another who treats her with kindness, he cannot be held guilty under section 361, Indian Penal Code. This decision cannot help the accused for, on the facts of that case, it was found that the girl went out of the protection of her parents of her own accord and thereafter went with the accused...In the present case it is not possible to hold that she is not under the guardianship of her father. In either contingency, namely, whether she went out to answer calls of nature, or whether she went to the house of the accused pursuant to a previous arrangement, she continued to be under the guardianship of her father. On the evidence, it is not possible to hold that she abandoned the guardianship of her father and, thereafter, the accused took her with him." After pointing out that there is an essential distinction between the words "taking" and "enticing" it was no doubt observed that the mental attitude of the minor is not of relevance Page 43 of 47 in the case of taking and that the word "take" means to cause to go, to escort or to get into possession. But these observations have to be understood in the context of the facts found in that case. For, it had been found that the minor girl whom the accused was charged with having kidnapped had been persuaded by the accused when she had gone out of her house for answering the call of nature, to go along with him and was taken by him to another village and kept in his uncle's house until she was restored back to her father by the uncle later. Thus, here there was an element of persuasion by the accused person which brought about the willingness of the girl and this makes all the difference. In our opinion, therefore, neither of these decisions is of assistance to the State.‖ [52] The law has been further fine-tuned in State of Haryana Vs Rajaram reported in AIR 1973 SC 819 while interpreting the words „takes‟ or „entices‟ any minor under 16 years of age if a male, or under 18 years of age if a female or of person of unsound mind out of the keeping of the lawful guardian of such minor or person of unsound mind without the consent of such guardian, it has been observed in Rajaram (supra) as follows:
―The object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor out of the keeping of the lawful, guardian of such minor" in s. 361, are significant. The use of the word "keeping" in the context connotes the idea of charge, protection, maintenance and control, further the guardian's charge and Page 44 of 47 control-appears to be compatible with the independence of action and movement in the minor, the guardian's protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial : it is only the guardian's consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have, been by means of force, or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section.‖ [53] Let us see whether there was any persuasion by the appellant for creating willingness in the mind of the minor in the case in hand. In this regard, the victim (PW-5) has stated when the appellant asked her to go with him forever, first she did not agree but due to repeated approach she had agreed. There had been no cross examination by the defence over that aspect.
However, during his cross examination under section 313 of the CrPC he denied that fact. Hence, this court has to hold that having read that piece of evidence with the other parts of the testimonies of the victim and the testimony of PW-1 in particular, it has to be held that there was persuasion on behalf of the appellant and as such there is no infirmity in the finding of conviction Page 45 of 47 under section 363 of the IPC but this court is of the view, having due regard to the entire circumstances of the case, that the sentence should be reduced to 2 years rigorous imprisonment and to pay fine of Rs.3,000/- and in default of payment of fine, the appellant has to suffer simple imprisonment for two months. Accordingly, it is ordered.
[54] So far the conviction under section 376(1) and section 6 of the POCSO Act is concerned, primarily the prosecution had the burden of proving the element of penetration. It appears that unless the victim is entirely believed no charge under those sections can be held to have been proved. The finding as returned by the Special Judge is entirely on the fact reported in the medical examination report (Exbt-6) that the victim had ruptured hymen at the time of examination. Even PW-6 has recorded history of the victim quite descriptively. Despite that she held that the clinical examination is not consistent with recent sexual intercourse/assault. The prosecution did not make any endeavour to take any clarification of the word "recent". We have noticed the Page 46 of 47 conduct of the victim how she had changed her versions in different points of time. As such, under the circumstances, relying on her solitary statement in respect of „penetration‟ would not be safe.
[55] The appellant had taken a categorical stand that he did not build up any sexual relationship. The victim only has stated that they had "sexual intercourse"
and stated that they enjoyed "sexual intercourse".
Hence, we are persuaded to hold that the finding of conviction under Section 376(1) of the IPC or under Section 6 of the POCSO Act, cannot stand the test of law inasmuch as, canons of appreciation as expounded in State of Maharashtra vs. Chandraprakash Kewalchand Jain reported in (1990) 1 SCC 550 or State of Punjab vs. Gurmit Singh and Ors (supra) cannot be applied in this case. In Gurmit Singh (supra), what the apex court has observed, apart from what has been relied by Mr. Bhowmik learned counsel for the appellant is as follows:
―If evidence of the prosecutrix inspirers confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance Page 47 of 47 on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice.‖ [Emphasis added] [56] Hence, the findings of conviction under Section 376(1) and Section 6 of the POCSO Act are set aside and the appellant is acquitted from the said charges on benefit of doubt. The appellant shall serve out the sentence as stated above for committing the offence punishable under Section 363 of the IPC.
[57] Notwithstanding what has been observed before, the detention that the appellant has suffered during investigation, trial and post-trial stage shall be set off from the substantive imprisonment under Section 428 of the CrPC.
In the result, the appeal is partly allowed.
Send down the LCRs forthwith.
JUDGE JUDGE Dipak