High Court
Case Details
Crl.A. 216/2005 BEFORE THE HON’BLE MR. JUSTICE S.C. DAS This criminal appeal filed under Section 374 of CrPC is directed against the judgment and order of conviction and sentence, dated 03.09.2005, passed by the learned Sessions Judge, Morigaon, in Session Case No. 59/2004, whereby learn ed Sessions Judge found the accused appellant guilty of committing offence punis hable under section 354 of IPC and sentenced him to suffer R.I. for 1 (one) year and to pay a fine of Rs. 2,000/-, in default of payment of fine to, suffer fur ther R.I. for 6 (six) months. Heard learned counsel, Mr. A.M. Borbhuiyan, who has been appoint 2. ed as Amicus Curiae by this Court and learned Addl. P.P., Mr. B.S. Sinha, for th e State respondent. The fact of the case may be summarised thus: 3. 3.1 On 14.05.2003, at about 4:00 p.m., the victim prosecutrix (cid:28)Sabit a (cid:29)(actual name kept concealed), a minor girl, aged about 13 years, alongwith her younger cousin sister, Subhadra Mandal, aged about 10 years, went to the paddy field near their house to collect grass. While they were about to leave the fie ld, the accused-appellant, Md. Sultan Ali, suddenly, caught hold of ’Sabita’ and started dragging her towards the paddy field. He caught the mouth of ’Sabita’ a nd therefore, she was not in a position to raise alarm. On seeing the incident, PW3, Shubadra Mandal raised alarm and rushed to their house and informed the inc ident to her mother, PW6, Smti. Saraswati Mandal and PW6 immediately informed th e incident to her husband, PW4 Maniklal Mandal, and, they alongwith neighbours, went to the field. The accused, thereafter, left the place and entered in t he house of Hamed Ali and Kuddush Ali, and when Maniklal Mandal, Saraswati Mand al and others came there to enquire about ’Sabita’, Sultan Ali, Hamed Ali and Ku ddush Ali came out to assault them and out of fear Maniklal Mandal, his wife Sar aswati Mandal and others left the place. 3.2 On 16.05.2003, father of ’Sabita’, lodged an F.I.R. with the O/C , Jagiroad P.S. alleging the incident and, accordingly, Jagiroad P.S. Case No.61 /03 under Sections 376, 511, 506 read with Section 34 of IPC was registered and investigation was taken up. 3.3 In course of investigation, I.O. arranged medical examination of ’Sabita’ in the Civil Hospital, Morigaon and, accordingly, PW7, Dr. Bhogeswar T hakuria, examined the victim girl in the hospital and medical report(Exbt.2) was collected by him.
Facts
3.4 The prosecutrix, her father PW2, Jagabandhu Biswas, PW4, Manikla l Mandal, and PW5, Barun Debnath, were produced before the learned Judicial Magi strate for recording their statements under Section 164 of CrPC and, accordingly , their statements were recorded. In the statements made by the prosecutrix and her father it was disclosed that the accused, Sultan Ali committed rape on the p rosecutrix in the field and when Maniklal Mandal and his wife Saraswati Mandal a nd others reached there the accused fled away. I.O., in course of examination, got the copies of statements rec 3.5 orded under Section 164 of CrPC and also recorded statements of all materials wi tnesses, and thereafter submitted charge sheet against accused, Sultan Ali for c ommission of offence punishable under Sections 376, 511, 506 read with section 3 4 of IPC and did not forward the other two FIR named accused, Hamed Ali and Kudd ush Ali to face the trial and, accordingly, they were discharged. 3.6 On commitment the case to the Court of Sessions, learned Session s Judge, on 17.08.2004, framed charge against the accused Sultan Ali for commiss ion of offence punishable under Sections 376 of IPC to which the accused pleaded not guilty and claimed to be tried. 3.7 Prosecution examined as many as 8(eight) witnesses, namely, PW1 , the victim prosecutrix, PW2, father of the prosecutrix, who was the maker of t he FIR, PW3, Shubadhra Mandal, younger sister of the prosecutrix, a minor girl, who was with the prosecutrix at the time of alleged occurrence, PW4, Maniklal Mandal, father of PW3, PW5, Barun Debnath, a neighbour, PW6, Saraswati Mandal, m other of PW3 and wife of PW4, PW7, Bhogeswar Thakuria, the medical officer, who examined the prosecutrix and PW8, SI Siblal Kumar, the I/O of the case. 3.8 Prosecution witnesses were cross examined by the defence and the accused was examined under Section 313 of CrPC. 4. To my utmost surprise, on going through the Judgment, passed by the learned Sessions Judge, I find that after examination of the accused under S ection 313 of CrPC, learned Sessions Judge did not afford any opportunity to the accused to adduce defence evidence and, thereby, learned Judge utterly ignored the provisions of Section 233 of CrPC and thereafter heard the arguments of both sides and by the impugned Judgment convicted and sentenced the accused as afore said. I further find to my utmost astonishment that the accused was not heard on the question of mitigation of sentence by the learned Sessions Judge observing that it was not necessary since the accused was found guilty under Section 354 o f IPC, which was triable as a summons case. Learned Sessions Judge acquitted the accused from the charge fra med under Section 376 of IPC, holding that prosecution has failed to prove the c harge and that finding has not been challenged. Let us first have a glimpse to the evidence on record. 5. 5.1 PW1, the victim girl, in her deposition has stated that on the d ate of occurrence at about 4:00 p.m., she alongwith her younger cousin sister, w ere in the field about 200-300 meters away from their house to collect grass and after collection of grass when she was about to return home, at that time a boy caught hold of her from her backside covering her face and, subsequently, she c ould see that he was Sultan Ali and the boy laid her on the Æli’ of the field. S he was wearing skirt and pant at that time and the boy removed her skirt and pan ts and put his penis in her private parts. Her sister, Subadhra Mandal raised al arm and ran towards the house and reported the incident to her parents. She coul d not raise any cry as the accused closed her mouth. The accused, thereafter, tr ied to drag her towards the house of Hamed Ali but at that time her maternal unc le and aunty(PW4 and PW6 respectively) arrived there and the accused fled away. Thereafter, she was brought back to her house by her maternal uncle and aunty. S ubsequently, her mother and father reported the incident to the police. She furt her stated that she was taken to the doctor for medical examination and also pro duced before the Magistrate, where she narrated the incident. 5.2 PW3 is the cousin sister of victim prosecutrix, who was with her in the field for collection of grass at the relevant time of occurrence. In her deposition she stated that she alongwith her elder sister, ’Sabita’ went to col lect grass for cows from the field and at that time she saw that a boy caught th e hands and mouth of her sister (prosecutrix) and on seeing the occurrence she c reated ’hulla’ and ran towards their house and informed the incident to her moth er, father and other villagers, who immediately went to the spot and brought bac k her sister, ’Sabita’. 5.3 Evidence of PW7, the medical officer, is very important to decid e the case about the charges. In his deposition, PW7 stated that he examined the prosecutrix on 17.05.2003. She was aged about 13 years at that time. It was sta ted to the doctor that a sexual offence on the previous day (Wednesday) at about 4:00 p.m. occurred with the prosecutrix. The doctor has observed that the prose cutrix had 26 nos. of teeth, breast not developed, auxiliary hair scanty, pubic hair scanty, labia majora and labia minora not developed, vagina not well develo ped, hymen absent, no sign of any injury present at her private part, spermatozo a absent at vaginal smear examination. Radiological examination was then held to confirm her age and it was found that she was aged about 13 years and no sign o f sexual intercourse was detected. He proved the medical report as Exbt.2. In cr oss examination, he stated that there may be some other reasons for absence of h ymen such as jumping, running or self fingering due to irritation, etc. 5.4 Learned Sessions Judge arrived at a finding that the charge unde r Section 376 of IPC was not made out but considering the statements of PW1 and PW3 that the accused Sultan Ali caught the hands of the prosecutrix and tried to drag her towards the house of Hamed Ali, he arrived at a finding that modesty o f the prosecutrix was outraged and, accordingly, held the accused guilty under S ection 354 of IPC and sentenced him accordingly. Had the prosecutrix was dragged by the accused through the paddy field, as alleged, she might sustain at least some superficial injury on her pe rson but medical evidence does not reflect of any such injury. The prosecutrix a nd other witnesses also stated nothing that for the alleged dragging through the paddy field she suffered any sort of injury in her person. 6. Admittedly, trial of the case was taken up by the learned Sessio ns Judge since it was a case of rape and for trial of a Sessions case, learned S essions Judge was supposed to follow the procedure prescribed in Chapter XVIII o f CrPC. Learned Sessions Judge followed the procedure till the recording of pros ecution evidence was over and thereafter dispensed with the procedure prescribed in that Chapter and chosen a procedure not recognised by law. He has totally di scarded the right of the accused of adducing defence evidence and also did not h ear the accused on mitigation of sentence.
Legal Reasoning
The above provision contemplates that after the recording of pro secution evidence will be over, if the Sessions Judge found on examination of th e accused and hearing the prosecution and the defence on any point and considers that there is no offence committed by the accused, the Judge shall record an or der of acquittal. Such examination of the evidence of the prosecution is not an examination for the purpose of recording a judgment but for prima facie arriving at a conclusion as to whether there is any necessity for further proceeding wit h the case. Law requires that the provision of Section 232 shall apply after the recording of prosecution evidence will be over. If no incriminating evidenc e adduced by the prosecution, examination of the accused under Section 313 of Cr PC becomes redundant. Section 232, therefore, prescribed that after the recordin g of evidence for the prosecution is over, the Court should give an opportunity of examining the accused and hearing the prosecution and the defence and if the Court is satisfied that there is no evidence that the accused committed the offe nce he should be acquitted without proceeding further. If the court is satisfied that there are materials in the evidence on record adduced by the prosecution, he should proceed to examine the accused under Section 313 of CrPC. Section 233 of CrPC prescribes thus: (cid:28)233. Entering upon defence.--(1) Where the accused is not acquitted under secti on 232 he shall be called upon to enter on his defence and adduce any evidence h e may have in support thereof. (2) If the accused puts in any written statement, the Judge shall file it with t he record. (3) If the accused applies for the issue of any process for compelling the atten dance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such a pplication should be refused on the ground that is made for the purpose of vexat ion or delay or for defeating the ends of justice. (cid:29) A reading of the above provision makes it abundantly clear that after the recording of prosecution evidence is over and the Judge found material in the evidence on record, in that case after examination of the accused under Section 313 of CrPC, if the accused is not acquitted under Section 232, the accu sed shall be called upon to enter on his defence and adduce evidence if any he m ay have in support thereof. It is further made clear that consideration of prosecution evide nce under Section 232 of CrPC is not for preparation of final judgment of the ca se but for arriving at a conclusion as to whether the court shall further procee d or not. Learned Sessions Judge was absolutely wrong in deciding the case final ly at the stage of consideration of prosecution evidence under Section 232 of Cr PC. 9. It appears that learned Sessions Judge has mingled the procedure s prescribed in Chapter XVIII, XIX, XX and XXI with that of the provisions presc ribed in Chapter XXIV of CrPC. The provisions prescribed in Chapter XXIV is appl icable generally in all trials irrespective of whether it is a Sessions trial or warrant trial or summons trial. Section 313 of CrPC, as prescribed in Chapter X XIV, stipulates that in every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence agains t him, the Court (a) may at any stage, without previously warning the accused pu t such questions to him as the Court considers necessary; (b) shall after the wi tnesses for the prosecution have been examined and before he is called on for hi s defence question him generally on the case. The above provision makes it clear that examination under Sectio n 313 of CrPC should be made after consideration of the prosecution evidence und er Section 232 of CrPC and not before it. Learned Sessions Judge, as it appears, examined the accused under Section 313 of CrPC meaning thereby that he has foun d incriminating material in the evidence on record and, therefore, he proceeded to examine the accused under Section 313 of CrPC and, thereafter, he vaulted his face to Section 232 of CrPC and finally considering the case wrote the judgment without affording opportunity to the accused to adduce defence evidence and tha t has vitiated the trial. As it appears learned Sessions Judge after appreciation of evide nce while acquitted the accused from the charge of the offence triable by the co urt and while found the accused guilty of committing offence under Section 354 o f IPC arrived at a conclusion that since it was a summons trial case, provision of Section 233(1) and 235(2) of CrPC need not be complied with. In paragraph 20 of the judgment, he has held: (cid:28)20. As it reveals, the offence comes down from S.376 I.P.C. to S.354 I.P.C. Tho ugh case is tried in a sessions court, since offence come under summons procedur e, under the circumstance, the procedure laid down S 233(1) and 235(2) Cr.P.C. n eed not be complied with. Since accused deserves his conviction for offence u/s- 354 I.P.C., I convict and sentence accused to undergo rigorous imprisonment for a period of 1(one) year with a fine of Rs.2000/- in default he will suffer for h is offence punishable u/s-354 I.P.C. In the mean time his period in custody shal l be set off from his sentence. His bail bond stands cancelled. (cid:29) The above observation of the learned Sessions Judge is in clear conflict of the provision prescribed by law. While he was trying the case under Chapter XVIII of CrPC, he was supposed to conclude the trial under the provision of that Chapter alone. In the midst of the trial he would not shift to the proc edure prescribed in another Chapter. Even under Chapter XX, for trial for a summ on case, opportunity of adducing defence evidence requires to be afforded to the accused as prescribed in Section 254 of CrPC. Sub-section(1) of Section 254 of CrPC clearly spelt out that the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, an d also to hear the accused and take all such evidence as he produced in his defe nce. Learned Sessions Judge while trying the case neither afforded the opportuni ty as prescribed under Section 233(1) of CrPC nor under Section 254(1) of CrPC a nd a valuable right of the accused prescribed by law has thereby taken away by t he Court. It is further made clear that once a trial is taken up following procedure as prescribed in CrPC either as a Sessions trial or a warrant trial o r a summon trial the Court shall proceed to conclude the trial following the pro cedure unless otherwise required as per law. The next point, that has come up for consideration, is whether S 10. ection 354 of IPC is, and/or may be treated, a minor offence of that of Section 376 of IPC. Chapter XVI of IPC deals with offences affecting the human body in different particular sub-heading such as (i) offences affecting life, (ii) of fences of causing of miscarriage, of injuries to unborn children, of the exposur e of infants, and of the concealment of births, (iii) offences of hurt, (iv) off ences of wrongful restraint and wrongful confinement, (v) offences of (cid:28)Criminal Force and Assault (cid:29), (vi) offences of kidnapping, abduction, slavery and forced l abour, (vii) sexual offences and, lastly (viii) of unnatural offences. It is, therefore, evident that the offence under Section 354 of IPC is a part and parcel of the offences prescribed under the heading of (cid:28)crimin al force and assault (cid:29). Admittedly no charge was framed under Section 354 of IPC, so the question emerges as to whether ingredients of offence under Section 354 of IPC is there or not in the charge framed under Section 376 of IPC for which trial ha s been made. Section 354 of IPC prescribes punishment for outrage of modesty of a woman. Section 354 of IPC reads thus: (cid:28)354. Assault or criminal force to woman with intent to outrage her modesty.-Who ever assaults or uses criminal force to any woman, intending t outrage or knowin g it to be likely that he will thereby outrage her modesty, shall be punished wi th imprisonment of either description for a term which may extend to two years, or with fine, or with both. (cid:29) To prove the ingredients of the offence of outrage of modesty of a women punishable under Section 354 of IPC prosecution has to prove the ingred ients defined in Sections 349, 350 and 351 of IPC, i.e. the ’force’, ’criminal f orce’ and ’assault’. Whereas, the sexual offence has been defined in a different heading and to prove the ingredients of ’rape’ essentially the ingredients of f orce, criminal force or assault are not required to be proved. The definition of rape has been given in Section 375 of IPC which is quite distinguishable to tha t of the definition of force, criminal force and assault. Offence under Section 354 of IPC, therefore, can in no way be said to be a cognate offence of Section 376 of IPC. It cannot be held to be minor offence or rape. The words, ’minor offence’ have not been defined in the criminal law but it has now been settled by the Apex court as well as by judgment of thi s Court. The Apex Court in the case of Shamnsaheb M. Multtani v. State of Karnataka reported in (2001) 2SCC 577 has held that although the minor offence is not defined in the code it can be discerned from the context that the test o f minor offence is not merely that the prescribed punishment is less than the ma jor offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the mai n ingredients are common, the one punishable among them with a lesser sentence c an be regarded as minor offence vis--vis the other offence. In my considered opinion, learned Session Judge was absolutely w rong in holding the accused guilty of committing offence punishable under Sectio n 354 of IPC, in absence of any charge framed under that section. 11. The next point, which has emerged for consideration, is that the accused was not heard on mitigation of sentence. Learned Addl. P.P., Mr. Sinha, has submitted that for ends of ju stice, in every case, when an accused is found guilty, he should be heard about the quantum of punishment and, even, in summons trial case also that opportunity should not be taken away. Learned Amicus curiae also made the same argument. 12. Admittedly, it was a Sessions trial before the learned Sessions Judge triable under Chapter XVIII of CrPC and Section 235 thereunder prescribes that if the accused is convicted the Judge shall unless he proceed in accordanc e with the provision under Section 360, hear the accused on question of sentence and then pass sentence on him according to law. A Sessions Judge, while trying an offence, triable by the Court of Sessions, is empowered to try other offences in the same trial and he should not follow different procedures for different offences punishable under differen t Sections in the same trial. He has to follow the procedures of Session trial a lone, while trying a sessions case from beginning to the end of trial. 13. In the present case, in paragraph 20 of the judgment, learned Se ssions Judge has observed that he has withheld the procedures prescribed in Sect ion 233(1) and 235(2) CrPC, because Section 354 of IPC is a summons trial offenc e. Such an observation of a Sessions Judge cannot be legally accepted and, there fore, it is not tenable in law. 14. The last point, which I would like to point out in this judgment , is that the decision of the Supreme Court regarding non-disclosure of name of the victim of a sexual offence. The learned Sessions Judge mentioned the name of the victim girl in the judgment which has been forbidden by the Supreme Court i n the case of in the case of Bhupinder Sharma v. State of Himachal Pradesh repor ted in (2003) 8 SCC 551 and the learned Sessions Judge as well as the Courts bel ow are advised to take care of it in future. In paragraph 2 of the judgment the Apex Court has observed that Section 228A of IPC makes disclosure of identity of victim of certain offences punishable. Printing or publishing name of any matte r which may make known the identity of any person against whom an offence under Sections 376, 376-A, 376-B, 376-C or 376-D is alleged or found to have been comm itted can be punished. True it is the restriction does not relate to printing or publication of judgment by High Court or Supreme Court. But keeping in view the social object of preventing social victimization or ostracisms of the victim of a sexual offence for which Section 228-A has been enacted, it would be appropri ate that in the judgments, be it of High Court or lower Court, the name of the v ictim should not be indicated. It is expected that the Courts below should follow the direction of the Supreme Court in letter and spirit. In view of the decisions made above, the appeal is allowed. The 15. judgment and order of conviction and sentence, passed by learned Sessions Judge is set aside and quashed. The convict be set at liberty and the bail bond, if an y, executed on behalf of the convict, also stands discharged. Send back the L.C. records along with a copy of this judgment. 16. 17. I should not miss here recording of my appreciation regarding th e assistance rendered by learned counsel, Mr. Barbhuyia, as amicus curiae in thi s case and he should be entitled to a fees of Rs.5,000/-(rupees five thousand).
Arguments
Learned Addl. P.P., Mr. Sinha has submitted that it is an absolu te statutory right of the accused that he should be given the opportunity of add ucing defence evidence and such right cannot be curtailed. He, however, left the matter to the consideration of this Court. 7. Learned Sessions Judge in paragraph 4 of the judgment made an at tempt to assign as to why the accused was not afforded the opportunity to adduce defence evidence, which reads thus: (cid:28)In this case, the prosecution examined as many as 8 PW’s including I/O and M/O whereas the defence examined none so far. Of course, this is not the stage to ex amine the D.W. as provided by law, because after examination of accused u/s -313 CrPC and hearing argument of both the sides if prosecution case is found to be not established nor proved against accused, under the circumstance, Court shall prepare acquittal judgment and if the accused does not deserve his acquittal as provided by afore mentioned provision of law, under the circumstance, accused sh all be called upon to enter into his defence. In this stage, giving a bird’s eye view on evidence on record, it is a tough matter to hold whether accused deserv es his acquittal or not unless we appreciate the evidence on record. If we proce ed to appreciate the evidence on record, under the circumstance, taking point fo r decision, we must proceed to prepare our Judgment. So, in this stage, the poin t for decision will be: (I) Whether on 14.05.2003 at about 4.00 p.m. while Padda Biswas, a minor gi rl aged about thirteen years was cutting grass in the field at Sutradal Pathar a long with another girl Subhadra Mandal by name, at that time, whether suddenly a ccused Sultan Ali arrived in the midst of paddy at the grass cutting place and c ommitted forcible sexual intercourse on the person of Padda Biswas? (cid:29) 8. A bare reading of the above makes it clear that learned Sessions Judge after examination of the accused under Section 313 of CrPC considered tha t after hearing argument if no case is found established he should prepare a jud gment of acquittal and if not the accused shall be called upon to enter into his defence. It appears, learned Sessions Judge could not construe the provisions o f Section 232 of CrPC in its right perspective. The section reads thus: (cid:28)232. Acquittal.-If, after taking the evidence for the prosecution, examining th e accused and hearing the prosecution and the defence on the point, the Judge co nsiders that there is no evidence that the accused committed the offence, the Ju dge shall record an order of acquittal. (cid:29)