Ratan Das vs State Of Tripura

The appellant, by means of filing the present appeal has questioned the legality and validity of the judgment of conviction and order of sentence dated 13.09.2018 passed by the learned Special Judge, South Tripura, Belonia in connection with case No. Special (POCSO) 6 of 2015 wherein the appellant has been convicted under Section 4 of the POCSO Act, 2012 and section 451 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 7(seven) years and to pay a fine of Rs. 5,000/- with default stipulation and also to suffer rigorous imprisonment for 3(three) months and to pay a fine of Rs. 500- with default stipulation under Section 451 of the IPC.

The prosecution case was set in motion with the complaint dated 13.02.2015 lodged by the prosecutrix (name withheld) stating inter alia that on 13.02.2015 at night at around 12 o‟clock (2400 hours) she came out of her dwelling hut to attend nature‟s call. All on a sudden, one of her neighbours i.e. the appellant herein, had embraced her from behind and fastened her mouth with a „gamcha‟ (napkin) and dragged her to the kitchen and forcefully had fallen her on the ground against her will and, thereafter by way of tearing her wearing apparels, the appellant had raped her. At that time on her alarm, her elder brother had appeared there to rescue her from the clutches of the appellant. She has further stated in the complaint that there was a scuffling between the appellant and her elder brother and out of that scuffling the appellant had suffered head injury. Hearing hue and cry, the inmates of the appellant as well as his relatives came there and started altercation with her parents therein. However, the appellant had fled away. She has further stated that the appellant was irritating her since long.

On receipt of the complaint (Exhibit-1), the Officer-in-Charge of PR Bari police station had registered a case against the appellant under FIR No. 2015 PRB 013 dated 14.02.2015 under Sections 451/452/376(2)(i)/506 of the IPC read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short, POCSO Act) (Exhibit-11). Being endorsed, the investigating officer visited the place of occurrence, recorded the statement of the available witnesses, arranged for medical examination of the victim, arrested the accused-person who was also medically examined. The investigating officer also seized the wearing apparels of the prosecutrix as well as some articles like two mobiles, headphones and the alleged wearing apparel of the appellant. The investigating officer also had arranged the examination of the prosecutrix and her elder brother under Section 164(5) Cr.P.C. and their statements were accordingly recorded by the Chief Judicial Magistrate, South Tripura, Belonia. After completion of investigation, the investigating officer submitted charge-sheet against the appellant and two others, namely, Balaram Das and Bimal Das

Being committed, the learned Special Judge, South Tripura, Belonia had framed charge against the appellant under Sections 451/376(1) and 506 of the IPC and also under Section 4 of the POCSO Act. The learned Special Judge had further framed charge against the other two accused, namely, Balaram Das and Bimal Das under Section 451/323/506/34 of the IPC, to which the appellant and 2 others pleaded not guilty and claimed to be tried.

To substantiate the charges, the prosecution had examined 15 witnesses and introduced some documents including medical examination report of the prosecutrix (Exhibit-13 series), school certificate and birth certificate of the prosecutrix (Exhibit-MO 2 series) including the report of TSFSL (Exhibit 9). After completion of recording of prosecution evidences, the accused persons were examined under Section 313 Cr.P.C. where they repeated the plea of their innocence. After hearing argument of both the parties, the learned Special Judge had acquitted the accused persons, namely, Balaram Das and Bimal Das from the charges levelled against them. However, the appellant herein, was convicted under section 451 IPC and also under Section 4 of the POCSO Act and sentenced him as aforestated. Hence, the appellant has preferred this appeal.

I have heard Mr. S. Sarkar, learned counsel for the appellant as well as Mr. S. Debnath, learned Additional PP appearing for the State-respondent.

Mr. Sarkar, learned counsel appearing for the appellant has contended that the judgment of conviction passed against the appellant is not sustainable in law. The prosecution has miserably failed to fulfill the essential requirements to establish the charge under Section 4 of the POCSO Act. According to Mr. Sarkar, learned counsel, the medical report does not support the story of rape, as projected by the prosecution. Learned counsel has further contended that neither the school certificate nor the birth certificate of the prosecutrix have been proved in accordance with the settled principles of law. Further, he has contended that the integrity of the prosecutrix is doubtful for the reason that the doctors who medically examined her have clearly opined that the prosecutrix was capable of admitting two fingers into her vagina "without discomfort". Moreover, according to him, if it was at all a case of forceful rape then there would definitely be injury. It is not clear from the report whether the hymen which was found to be torn was fresh or old. In this situation, conviction of the appellant for committing offence punishable under Section 4 of the POCSO Act should not sustain.

On the other hand, Mr. S. Debnath, learned Additional PP has supported the finding as returned by the learned Special Judge while declaring conviction and sentence upon the appellant.

In view of the aforesaid submission, let me have a survey of the evidence and the materials brought on record.

PW-1, is the prosecutrix (name withheld). In her examination-in-chief, she deposed that at around 12 pm at night of 13.02.2015 she went out of her dwelling hut due to nature‟s call. She requested her younger sister to accompany her but, she refused as she was suffering from fever. When she went out, the appellant herein had caught hold of her fastening her mouth by a „gamcha‟ (napkin) and dragged her to the kitchen, and raped her. Somehow, she cried out and on hearing such cry, her elder brother had rushed to the kitchen and took control over the appellant. At that time, the appellant was found in naked condition. Hearing their cry, the parents of the prosecutrix, her younger brother and sister woke up. She had also deposed that the appellant had given a blow on the face of her brother. She further deposed that in that meanwhile, the aunt of the appellant came to their house. Simultaneously, the parents of the appellant had also arrived at the spot and snatched him away from the clutches of the inmates of the prosecutrix. According to her deposition, the father of the appellant, namely, Balaram Das and his brother Bimal Das had assaulted her parents while snatching him away. She further deposed that there after she told her parents about the incident of rape. Proceeding further, the prosecutrix deposed that soon after the incident, one Babul Das, her cousin brother who was a Member of the gram panchayat came to the pot and he told that whatever action would be taken it would be taken in the morning. Thereafter, her parents and brothers went to the house of Pradhan, namely, Smt. Jayanti Das who advised them to go to the police station.

Accordingly, they went to the police station and her oral complaint was reduced into writing by a woman Constable where she put her signature (Exhibit-1). Thereafter, she was taken to Niharnagar hospital for medical examination and the doctor of Niharnagar hospital examined her. On that day, she was brought to Belonia Court for giving statement before the Magistrate and, accordingly she gave her statement where she put her signature (Exhibit-2 series).

Being confronted with the cross-examination, the prosecutrix stated that she had no love affairs with the appellant and she had no earlier experience of co-habitation or incident of rape.

PW-2, Sri Bachchan Das, is the brother of the victim. He deposed that on hearing the cry, he went to their kitchen and found the appellant was committing rape upon his sister in the kitchen and he was found in complete naked condition. He further deposed that when he tried to catch the appellant, the appellant gave a blow on his face. However, he along with his parents ultimately caught hold of the appellant and detained him inside one of their huts. The aunt of the appellant came to their house who informed the parents of the appellant. He further deposed that the parents and brothers of the appellant after coming to their house had assaulted the parents of the victim and snatched the appellant away from their custody. One Babul Das, a Member of gram panchayat, their cousin brother, also came to the spot. Thereafter, they went to the house of Pradhan, Smt. Jayanti Das who advised them to lodge complaint before the police. He accompanied his sister in the police station. He further deposed that the police had seized a red colour napkin, one jacket, one mobile head phone and two mobiles and one pair of hawai chappal and one chain with locket which were left by the appellant in their kitchen. He identified the articles in course of his examination and his signature in the seizure list. He also identified the birth certificate and the school certificate of the prosecutrix which were seized by the police.

In his cross-examination, nothing material was elicited.

PW-3, Sri Shanti Das, is the father of the victim. He deposed that hearing the cry of his son Bachchan, he ran towards the kitchen and found his son scuffling with the appellant. At that time, his son told him that the appellant had raped his sister. He further deposed that on arrival of the parents of the appellant, they snatched him away from their clutch. He advised his son Bachchan to accompany the prosecutrix to the police station.

In his cross-examination, nothing material was elicited.

PW-4, Smt. Parbati Das, is the mother of the victim. In her examination-in-chief, she repeated the statements made by PW-1, PW-2 and PW-3.

In her cross-examination, she stated that after the incident they first went to the house of Pradhan, Smt. Jayanti Das and thereafter they went to the office of Narisamity and thereafter they went to Rajnagar (PR Bari) police station. She further stated in her cross-examination that it was about 4.00 am when they were sitting at Rangamura outpost and at that time darogababu of Rangamura outpost went to their house keeping them in the outpost. She further deposed that thereafter they were brought to the PR Bari police station where FIR was lodged.She further revealed in her cross-examination that when they went to Rajnagar police station, their complaint was not entertained and they were informed that before their reaching to Rajnagar police station, the appellant and his inmates went to the police station and lodged a complain of assault upon the appellant against them.

PW-5, Sri Babul Das, is the cousin brother of the prosecutrix. He deposed that while he was sleeping suddenly Bimal Das, brother of the appellant came to his house and told him that the appellant was detained in the house of Shanti Das and he was assaulted by them. Accordingly, he went to the house of Shanti Das when he was told by Shanti Das that the appellant had committed rape upon his daughter after pressing her mouth. He further deposed that he advised Shanti Das that he will look into the matter in the morning.

In his cross-examination, PW-5, stated that he had no opportunity to meet with the prosecutrix during that night.

PW-6, Smt. Babli Nath was posted as Woman Constable at PR Bari police station who had recorded the oral ejahar of the prosecutrix. She deposed that on 14.02.2015, darogababu seized the vaginal swab etc. of the prosecutrix by a seizure list.

PW-7, Sri Dilip kumar Tripura is the seizure witness of the school certificate (MO-ii).

PW-8, Sri Subrata Shil is the seizure witness of the articles like red colour napkin, one jacket, mobile headphone, two numbers of mobile phone, one pair of hawai chappal and a chain with locket (Exhibit MO 1 series).

PW-9, Sri Chandrajoy Reang, is the seizure witness of penial swab of the prosecutrix.

PW-10, Dr. Sabyasachi Nath was posted as Senior Scientific Officer cum Assistant Chemical Examiner at the relevant time. He deposed that, he could not detect any seminal stain/spermatozoa of human origin in any of the articles seized by the police. Further, he did not find any blood stain on the articles.

PW-11, Dr. Amaresh Bhowmik, was posted as Medical Officer at Rajnagar PHC. He deposed that he did not find any external injury on the forehead of the person.

PW-12, Sri Narendra Das, PW-13, Sri Sudhangshu Das are the neighbours of the prosecutrix. They deposed that on hearing hue and cry they entered into the house of the prosecutrix and found the appellant in naked condition. However, in their cross-examination they categorically stated that they found the appellant bleeding profusely from his face.

In their cross-examination, they further stated that they did not see the prosecutrix.

PW-14, Sri Bimal Baidya, is the investigating officer who investigated the case, recorded the statement of the prosecution witnesses, seized the material articles and submitted the charge-sheet.

In his cross-examination, he has stated that at the time of arrest, he found injury marks on the body of the appellant. However, he stated that he did not collect the injury report of the appellant.

PW-15, Dr. Santanu Das who was posted as Medical Officer at Niharnagar PHC and on that date he had medically examined the prosecutrix. He deposed that he submitted the report in four sheets where he put his signature. In his examination-in-chief, after perusal of the report (Exhibit 13 series), he opined that there were sign of vaginal penetration and signs of forcing on her present.

In his cross-examination, PW-15 stated that his report is not conclusive. He further stated that he mentioned that the movement of the victim was normal.

Now, having due regard to the submission of the learned counsel appearing for the parties to the lis, and the evidence relied upon the prosecution as well as by the learned Special Judge (POCSO), it is necessary to carefully and cautiously examine the evidentiary value of the prosecution witnesses coupled with the medical evidence.

To examine the fact in issue that there was penetrative sexual assault upon the prosecutrix, I have carefully perused her deposition. She has deposed that the appellant had forcefully dragged her to the kitchen fastening her mouth by „gamcha‟ (napkin). I find force in the submission of learned counsel appearing for the appellant that if the mouth of the prosecutrix was at all fastened, then, there must be some sort of abrasion or some kind of impression/wound on her face around her mouth because she was medically examined soon after the incident. In view of this submission, I have perused the medical report of the prosecutrix and I do not find any indication wherefrom it would be revealed that the mouth of the prosecutrix had suffered any sign of abrasion. In absence of such mark or sign, it would be very difficult for this court to believe the statement of the prosecutrix that the appellant came from behind and forcibly fastened her mouth by a „gamcha‟ (napkin) and dragged into the kitchen. Furthermore, she has not stated in her evidence that how she has suffered or who has caused abrasion wounds in her right elbow, right knee and bite mark at her right breast as are found in her medical examination report. In absence of categorical statement about how and who caused that injury, it would not be safe to arrive at a finding that it was the appellant only who had caused those injuries on her elbow or other parts of her person.

The prosecutix in her evidence only has stated that the appellant had „raped‟ her. Rape is a legal terminology. Section 375 of the IPC defines the word „rape‟. It reads as under:

"375. Rape- A man is said to commit "rape" if he-

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a child or makes the child to do so with him or any other person; or

(c) manipulates any part of the body of the child so as to cause penetration into the vagina, urethra,anus or any part of body of the child or makes the child to do so with him or any other person; or

(d) applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so with him or any other person, under the circumstances falling under any of the following seven descriptions-

First- Against her will,

Secondly- Without her consent.

Thirdly- With her consent when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt,

Fourthly- With her consent, when the man known that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married,

Fifthly- With her consent when, at the time of giving such consent by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent,

Sixthly- With or without her consent, when she is under eighteen years of age,

Seventhly- When she is unable to communicate consent".

In State of Madhya Pradesh vs. Basodi, reported in (2009) 12 SCC 318, the Apex Court explaining the definition of „rape‟ have observed thus:-

"5. 7.The offence of rape occurs in Chapter XVI of IPC. It is an offence affecting the human body. In that Chapter, there is a separate heading for `Sexual offence', which encompasses Sections 375, 376, 376-A, 376-B, 376-C, and 376-D. `Rape' is defined in Section 375. Sections 375 and 376 have been substantially changed by Criminal Law (Amendment) Act, 1983, and several new sections were introduced by the new Act, i.e. 376-A, 376-B, 376-C and 376-D. The fact that sweeping changes were introduced reflects the legislative intent to curb with iron hand, the offence of rape which affects the dignity of a woman. The offence of rape in its simplest term is `the ravishment of a woman, without her consent, by force, fear or fraud', or as `the carnal knowledge of a woman by force against her will'. `Rape' or `Raptus' is when a man hath carnal knowledge of a woman by force and against her will (Co. Litt. 123-b); or as expressed more fully,' rape is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will' (Hale PC 628). The essential words in an indictment for rape are rapuit and carnaliter cognovit; but carnaliter cognovit, nor any other circumlocution without the word rapuit, are not sufficient in a legal sense to express rape; 1 Hon.6, 1a, 9 Edw. 4, 26 a (Hale PC 628). In the crime of rape, `carnal knowledge' means the penetration to any the slightest degree of the organ alleged to have been carnally known by the male organ of generation (Stephen's "Criminal Law" 9th Ed. p.262). In `Encyclopedia of Crime and Justice' (Volume 4, page 1356) it is stated "......even slight penetration is sufficient and emission is unnecessary". In Halsbury's Statutes of England and Wales (Fourth Edition) Volume 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse. It is violation with violence of the private person of a woman-an-outrage by all means. By the very nature of the offence it is an obnoxious act of the highest order".

The Protection of Children from Sexual Offences Act, 2012 (POCSO, for short) is a significant advancement in the field of sexual offences which is a special law enacted for protection of the children from sexual offences. The Act will be applicable to a child victim and an adult offender. There is a large area of congruence in the field of the provisions of Indian Penal Code and this special enactment. The definition of the „child‟ is a person less than 18 years of age and being gender neutral, the Act uses instead of the expression „rape‟ under Section 375 of the IPC, the expression that „penetrative sexual assault‟ i.e. applicable also to a male victim.

According to Section 4 of the POCSO Act, whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than ten years but, which may extend to imprisonment for life and shall also be liable to fine. So, the most important or principle ingredient to frame charge under Section 4 of the POCSO Act are:

"4. Punishment for penetrative sexual assault: (1) Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.

(2) Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine.

(3) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim."

Section 3 of the POCSO Act, defines the word „penetrative sexual assault‟, which reads as under:

Penetrative Sexual Assault: A person is said to commit "penetrative sexual assault" if--

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person".

Whoever commits penetrative sexual assault on the child is liable to be punished under Section 4 of the POCSO Act, 2012. Thus, penetration of penis or insertion of any object to the organ of a child, as specified in Section 3 of the POCSO Act, to whatever extent or degree is liable to face charge under Section 4 of the POCSO Act. However, in order to constitute penetration, there must be evidence, clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the victim, no matter how little. Even a slight penetration in vulva region is sufficient to constitute the offence. Similarly, even a slight penetration in labia majora or labia minora is sufficient to constitute the offence of rape. Complete penetration of penis with emission of semen and rupture of hymen is not necessary.

Section 7 of the POCSO Act, defines the word „sexual assault‟, which reads as under:

"7. Sexual assault: Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault".

Section 11 of the POCSO Act, defines the word „sexual harassment, which reads as under:

"11. Sexual harassment: A person is said to commit sexual harassment upon a child when such person with sexual intent,--

(i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or

(ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or

(iii) shows any object to a child in any form or media for pornographic purposes; or

(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or

(v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or

(vi) entices a child for pornographic purposes or gives gratification therefor.

Explanation.--Any question which involves '[sexual intent" shall be a question of fact.".

Here, in criminal justice system, a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. [Emphasis supplied]

To attract any of the provisions under the POCSO Act, the age of the woman child must be below 18 years and when it is proved beyond any reasonable doubt that the woman child victim was attaining the age of below 18 years at the time of commission of the offence, then, only the accused committing such crime against the woman child can be convicted under the provision of the POCSO Act. In the instant case, it is necessary to examine whether the prosecution has been able to prove the age of the prosecutrix that at the time of commission of the offence she was below 18 years.

To prove the age of the prosecutrix, the prosecution has introduced one school certificate and one birth certificate (Exhibit MO-2 series). In Alamelu and another versus State, represented by the Inspector of Police reported in (2011) 2 SCC 385 [SCC pp 395, 396, paras 40,42,43], the Apex court has held as under:

"40. Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined.

Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit [1988 Supp SCC 604], observed as follows:- (SCC pp 618-19 para 14)

"14. ..... The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined..... Merely because the documents Exts. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents have no probative value and the dates of birth as mentioned therein could not be accepted."

The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal [(2003) 8 SCC 745], where this Court observed as follows: (SCC p.751, para 16)

"16.....The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue‟."

Applying the aforesaid principle, I have taken into account as to how the school certificate and the birth certificate have been taken into proof by the prosecution. Firstly, there should not be any doubt that the school certificate is admissible in evidence, but, would not carry much evidentiary value what is required under the law. To prove the school certificate, the prosecution has produced the Headmaster of the school (PW-7) who only deposed that the school certificate reveals the date of birth of the prosecutrix was on 26.05.1998, but, he did not adduce any evidence who made the original entry on the basis of which he issued the certificate or under whose instruction the said date of birth was recorded in the relevant register. In absence of such evidence, it cannot be said that the school certificate of the prosecutrix has been proved in accordance with law. Secondly, there is no doubt, the certificate of birth issued by the Births & Deaths Registrar under the Registration of Births & Deaths Act, 1969 is a public document and is admissible in evidence, but, the contents of the document are required to be proved. The prosecution has failed to produce any such witness to prove the contents of the document. More importantly, the parents and elder brother of the prosecutrix at the time of adducing evidence have not stated anything regarding the date of birth of the prosecutrix. They even did not confirm this certificate. In this situation, in my opinion, the prosecution has failed to prove the school certificate as well as the birth certificate in view of the principle as drawn in the case of Alamelu (supra) to support the age of the victim as 15 years at the time of occurrence of the alleged offence.

Coming back to the instant case, what transpires from the medical examination report of the prosecutrix is that the prosecutrix was medically examined on the same date of the occurrence of the incident. It is revealed that signs of STD and discharge were found to be absent and blood was not seen. No injury was found in her private parts. No foreign hair was seen. From her prevaginal examination it was fund that her hymen was torn but, it is not clear that whether it was fresh or old. The prosecutrix admitted two fingers without any discomfort and vaginal canal and fornices were found to be spacious and both anterior and posterior forcines were found to be enlarged. In cross-examination, the doctor (PW-15) has stated that the movement of the victim was found to be normal. The learned Special Judge has also framed charge under Section 376(1) of the IPC and in the charge the age of the prosecutrix was recorded as 17 years on the date of commission of the offence in accordance with the date mentioned in the birth certificate of the prosecutrix.

As I have stated earlier that neither the prosecutrix nor her parents have stated a single word regarding the age of the prosecutrix at the time of commission of the offence. As such, the age of the prosecutrix cannot be said to be 17 years beyond reasonable doubt at the time of commission of the offence. I have also noticed that, at the time of recording her age when she was medically examined by PW-15, she disclosed her age as 15 years as on 14.02.2015. Later on at the time of appreciation of evidence by this court it is found that she told lie and from her birth certificate, though not proved, it is revealed that she was attaining the age of 17 years. So, from the very beginning the prosecutrix had tried to develop the story implicating the appellant with a serious crime.

Having not considered the age of the prosecutrix is below 18 years, I now proceed to test the integrity of the prosecutrix, I have noticed that she in her cross-examination has stated that "I had no earlier experience of cohabitation or incident of rape". Since, even slightest degree of penetration falls within the purview of the definition of „rape‟ under Section 375 of the IPC, I have carefully scanned the Medical Examination Report of the prosecutrix. Now, keeping in view of this specific statement made by the prosecutrix, if we take into account the findings of the doctor during medical examination of her private parts, it would reveal that she was capable of admitting two fingers without any discomfort and vaginal canal and fornices were found to be spacious and both anterior and posterior forcines were found to be enlarged. Moreso, her movement was normal. The prosecutrix has categorically stated that she was "raped" and it was for the first time. As I said earlier, that „rape‟ is a legal term which is said to occur when certain statutory requirements are fulfilled.

Needless to say, if a woman is raped for the first time, and if the victim of such rape is examined soon after the incident, then, some signs of fresh injuries or wound even at its simplest form, would be found at least in the vulva region. If the woman or girl had no prior experience of sexual intercourse, then, there is no question of admitting two fingers and it would be difficult to allow even a single finger. In this circumstance, there is enough space to doubt the integrity and trustworthiness of the statement of the prosecutrix. I find no ingredient of „rape‟ or „penetrative sexual assault‟ upon the prosecutrix caused by the appellant. On overall assessment of the evidence and considering the totality of the circumstances the charge under Section 376(1) of the IPC has also not been proved against the appellant.

However, from the evidence of the prosecutrix coupled with her medical examination report, I find the prosecution has been able to prove the ingredients of Section 354 of the IPC and Section 354(A) of the IPC, which are reproduced hereunder:

"354. Assault or criminal force to woman with intent to outrage her modesty.-Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.

354-A. Sexual harassment and punishment for sexual harassment- (1) A man committing any of the following acts-

(i) physical contact and advances involving unwelcome and explicit sexual overtures; or

(ii) a demand or request for sexual favours; or

(iii) showing pornography against the will or a woman; or (iv) making sexual coloured remarks, shall be guilty of the offence of sexual harassment.

(2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.

(3) Any man who commits the offence specified in clause (iv) of sub-section

(1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both."

„Assault‟ is defined in Section 351 of the IPC. It reads as under:

"Assault- Whoever makes any gesture, or any preparation intending or knowing. it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault".

A plain reading of the aforesaid provisions of law and the facts which have come to the fore that the appellant was found naked at the kitchen of the house of the prosecutrix. In this situation, it can be said that the appellant by his said gesture has committed offence under Section 354 of the IPC as he went to the extent of outraging the modesty of the prosecutrix by way causing assault and criminal force and, in furtherance thereof, he came in physical contact and made advances involving unwelcome and explicit sexual overtures coupled with a demand or request for sexual favours. Thus, attracts the provision of clause (i) and (ii) of sub-section 1 of Section 354-A of the IPC.

In the ultimate analysis of the entire episode and the facts and circumstances thereof, the conviction and sentence of the appellant under Section 4 of the POCSO Act, 2012 cannot sustain and, accordingly, the conviction and sentence as returned by the learned Special Judge under Section 4 of the POCSO Act, 2012 is set-aside and quashed. The appellant is acquitted from the charge of committing offence under Section 4 of the POCSO Act, 2012.

I have said earlier that the charge under Section 376(1) of the IPC levelled against the appellant has not been proved for the reasons as discussed above. But, on the basis of proven facts, the ingredients of Sections 354 and 354(A) of the IPC are fulfilled, the charge framed under Section 376(1) of the IPC is reduced to Section 354 and 354(A) of the IPC, being the minor offences.

At this juncture, tt is brought to my notice a decision of this court in Pulin Bihari Roy vs. State of Tripura, (2012) 6 GLR 138 : MANU/GH/0648/2012 : 2012(5) GLT 58, wherein, the learned Single Judge after taking into account the provision of law under Section 222 of the Code of Criminal Procedure has held that when a charge under Section 376 of IPC has been framed, in that case, the court cannot convert the sentence into Section 354 IPC for the reason that no charge has been framed under Section 354 IPC. The learned Single Judge has further observed that "Composition of offence under Section 354 of IPC is different from the formation of the offence under Section 376 of IPC and hence, the former cannot be regarded as a minor offence vis-à-vis the latter."

I have seen, while arriving at this finding the learned Single Judge has relied upon the observation made by the Supreme Court in the case of Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577 and the learned Single Judge had particularly relied upon para 16 of the judgment, which reads as under:

"16. What is meant by "a minor offence" for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major 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 main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-à-vis the other offence."

I have given my thoughtful consideration to the decision of the learned Single Judge of this Court, passed in Pulin Bihari Roy(supra). I have noticed that while deciding the case of Pulin Bihari Roy(supra), the Court was not noticed about the decision of the Apex Court in the case of Tarkeshwar Sahu vs. State of Bihar(now Jharkhand), (2006) 8 SCC 560, where the Apex Court had faced with similar situation. It was also a case where the trial court convicted the appellant under Sections 376/511 of IPC and the appeal being preferred, the High Court had dismissed the appeal.

On scrutiny of the evidence on record, the Apex Court came to the finding that the essential ingredients of Section 376 of IPC were not fulfilled and having found the ingredients of Sections 354 and 366 of IPC, the appellant was convicted under Sections 354 and 366 of IPC and awarded sentence accordingly. At para 8 of the decision of Tarkeshwar Sahu(supra), the Supreme Court observed thus:-

"8. Looking to the gravity of the offence, we have ourselves examined the entire evidence and documents on record. Even on close scrutiny and marshalling of evidence, we could not persuade ourselves to take a different view than that taken by the courts below as far as the conviction of the appellant is concerned. In our considered view, the prosecution version is both truthful and credible. We are clearly of the view that the appellant had forcibly taken the prosecutrix to the gumti to outrage her modesty but before he could do anything, on raising an alarm by the prosecutrix, the father of the prosecutrix and other villagers had assembled there and she was rescued."

Then, the Supreme Court had considered the definition of „rape‟ under Section 375 of IPC. Thereafter, at paragraphs 22, 23, 24 and 25, the Supreme Court observed thus:

"22. In the backdrop of settled legal position, when we examine the instant case, the conclusion becomes irresistible that the conviction of the appellant under Sections 376/511 IPC is wholly unsustainable. What to talk about the penetration, there has not been any attempt of penetration to the slightest degree. The appellant had neither undressed himself nor even asked the prosecutrix to undress so there was no question of penetration. In the absence of any attempt to penetrate, the conviction under Sections 376/511 IPC is wholly illegal and unsustainable.

In the instant case, the accused has been charged with Sections 376/511 IPC only. In the absence of charge under any other section, the question now arises-whether the accused should be acquitted; or whether he should be convicted for committing any other offence pertaining to forcibly outraging the modesty of a girl. In a situation like this, we would like to invoke Section 222 of the Code of Criminal Procedure, which provides that in a case where the accused is charged with a major offence and the said charge is not proved, the accused may be convicted of the minor offence, though he was not charged with it. Section 222 CrPC reads as under:

"222. When offence proved included in offence charged.-

(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.

(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.

(3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.

(4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied."

In this section, two illustrations have been given which would amply describe that when an accused is charged with a major offence and the ingredients of the major offence are missing and ingredients of minor offence are made out then he may be convicted for the minor offence even though he was not charged with it. Both the illustrations given in the said section read as under:

"(a) A is charged, under Section 407 of the Penal Code (45 of 1860), with criminal breach of trust in respect of property entrusted to him as a carrier. It appears, that he did commit criminal breach of trust under Section 406 of that Code in respect of the property, but that it was not entrusted to him as a carrier. He may be convicted of criminal breach of trust under the said Section 406.

(b) A is charged, under Section 325 of the Penal Code (45 of 1860), with causing grievous hurt. He proves that he acted on grave and sudden provocation. He may be convicted under Section 335 of that Code."

In Lakhjit Singh v. State of Punjab [1994 Supp (1) SCC 173] this Court had an occasion to examine the similar question of law. In this case, the accused was charged and tried under Section 302 of the Penal Code but the ingredients of Section 302 were missing but the ingredients of Section 306 were present, therefore, the Court deemed it proper to convert the conviction of the appellant from Section 302 to Section 306 IPC. In this case, it was urged that the accused cannot be tried under Section 306 IPC because the accused were not put to notice to meet a charge under Section 306 IPC and, therefore, they are prejudiced by not framing a charge under Section 306 IPC; therefore, presumption under Section 113-A of the Evidence Act cannot be drawn and consequently a conviction under Section 306 IPC cannot be awarded. According to this Court, in the facts and circumstances, Section 306 was attracted and the appellants' conviction under Section 302 IPC was set aside and instead they were convicted under Section 306 IPC."

Further, in Tarkeshwar Sahu(supra), the Supreme Court had taken into account the decision of the Apex Court in Shamnsaheb M. Multtani(supra) on which the learned Single Judge of this Court had relied upon. The Supreme Court observed thus:

"26. A three-Judge Bench of this Court in Shamnsaheb M. Multtani v. State of Karnataka [(2001) 2 SCC 577] had an occasion to deal with Section 222 of the Code of Criminal Procedure. The Court came to the conclusion that when an accused is charged with a major offence and if the ingredients of major offence are not proved, the accused can be convicted for minor offence, if ingredients of minor offence are available. The relevant discussion is in paras 16, 17 and 18 of the judgment, which read as under: (SCC p. 584)

"16. What is meant by „a minor offence‟ for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major 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 main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-à-vis the other offence.

The composition of the offence under Section 304-B IPC is vastly different from the formation of the offence of murder under Section 302 IPC and hence the former cannot be regarded as minor offence vis-à-vis the latter. However, the position would be different when the charge also contains the offence under Section 498-A IPC (husband or relative of husband of a woman subjecting her to cruelty). As the word „cruelty‟ is explained as including, inter alia, „harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand‟.

So when a person is charged with an offence under Sections 302 and 498-A IPC on the allegation that he caused the death of a bride after subjecting her to harassment with a demand for dowry, within a period of 7 years of marriage, a situation may arise, as in this case, that the offence of murder is not established as against the accused. Nonetheless, all other ingredients necessary for the offence under Section 304-B IPC would stand established. Can the accused be convicted in such a case for the offence under Section 304-B IPC without the said offence forming part of the charge?"

After considering the case of Shamnsaheb M. Multtani(supra), the Supreme Court in the case of Tarkeshwar Sahu(supra) observed thus:

"27. On careful analysis of the prosecution evidence and documents on record, the appellant cannot be held guilty for committing an offence punishable under Sections 376/511 IPC. According to the version of the prosecution, the appellant had forcibly taken the prosecutrix to his gumti for committing illicit intercourse with her. But before the appellant could ravish the prosecutrix, she raised an alarm and immediately thereafter, her father PW 1 Ram Charan Baitha and other co-villagers residing in the vicinity assembled at the spot and immediately thereafter, the appellant and the prosecutrix came out of the gumti. In this view of the matter, no offence under Sections 376/511 IPC is made out."

Having held so, the Supreme Court held that:

"28. In this view of the matter, it has become imperative to examine the legal position whether the offence of the appellant falls within the four corners of other provisions incorporated in the Penal Code relating to outraging the modesty of a woman/girl under Sections 366 and 354."

On evaluation of the entire evidence and materials on record, the Supreme Court in Tarkeshwar Sahu(supra) invoked the provisions of Section 222 of the CrPC and held that:

"36. .............................................................The appellant was charged under Sections 376/511 IPC but on invoking the provisions of Section 222 of the Code of Criminal Procedure, the accused charged with major offence can always be convicted for the minor offence, if necessary ingredients of minor offence are present."

Having observed thus, finally, the Supreme Court had returned the finding of conviction under Sections 354/366 of IPC.

It is noticed that while deciding the case of Pulin Bihari Roy(supra), the learned Single Judge of this Court did not notice the discussions made by the Supreme Court in Shamnsaheb M. Multtani(supra) to trace out the distinction on application of Section 222 of CrPC which are as under:

"17. The composition of the offence under Section 304-B IPC is vastly different from the formation of the offence of murder under Section 302 IPC and hence the former cannot be regarded as minor offence vis-à-vis the latter. However, the position would be different when the charge also contains the offence under Section 498-A IPC(husband or relative of husband of a women subjecting her to cruelty). As the word "cruelty" is explained as including, inter alia, "harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand".

So when a person is charged with an offence under Sections 302 and 498-A IPC on the allegation that he caused the death of a bride after subjecting her to harassment with a demand for dowry, within a period of 7 years of marriage, a situation may arise, as in this case, that the offence of murder is not established as against the accused. Nonetheless, all other ingredients necessary for the offence under Section 304-B IPC would stand established. Can the accused be convicted in such a case for the offence under Section 304-B IPC without the said offence forming part of the charge?"

I have meticulously gone through the decision of the judgment in Shamnsaheb M. Multtani (supra). In that case, the trial was proceeded only on the charge of Section 302 of IPC for committing murder to his wife. The trial court acquitted all the three accused including the husband of the deceased-wife. The State of Karnataka had preferred appeal before the High Court of Karnataka. The High Court "after reaching a cul-de-sac, swerved over to a different offence i.e. dowry death and convicted one of them (the husband) under Section 304-B of the Penal Code, 1860 and awarded the maximum sentence of life imprisonment prescribed thereunder on him besides Section 498-A IPC." Before the Supreme Court the question of law arose as the appellant was not charged under Section 304-B of IPC. "The question raised is this: Whether an accused who was charged under Section 302 IPC could be convicted alternatively under Section 304-B IPC, without the said offence being specifically put in the charge".

The crux of the matter, as I find in Shamnsaheb M. Multtani (supra) is that Section 304-B cannot be said to be a minor offence than that of Section 302 of IPC. While the basic constituent of an offence under Section 302 IPC is homicidal death, that of Section 304-B IPC is dowry death and in view of Section 113-B of the Evidence Act, if the prosecution succeeds in showing that soon before her death she was subjected by the husband to cruelty or harassment for or in connection with any demand for dowry and that her death had occurred(within seven years of her marriage) otherwise than under normal circumstances "the court shall presume that such person had caused the dowry death". Again under Section 4 of the Evidence Act "whenever it is directed by this Act that the court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved". So the court has no option but to presume that the accused had caused dowry death unless the accused disproves it. It is a statutory compulsion on the court. However it is open to the accused to adduce such evidence for disproving the said compulsory presumption, as the burden is unmistakably on him to do so. He can discharge such burden either by eliciting answers through cross-examination of the witnesses of the prosecution or by adducing evidence on the defence side or by both."[Shamnsaheb M. Multtani(supra), SCC p.586, para 18].

In this circumstance, the Supreme Court in Shamnsaheb M. Multtani (supra) has held that since the accused-husband was not given any opportunity to defend himself to rebut the presumption as may be drawn by the court under Section 113-B of the Evidence Act, and as he was defending charge under Section 302 of IPC alone, that caused grave miscarriage of justice when he was alternatively convicted under Section 304-B of IPC and sentenced thereunder on the basis of the evidence that attracted the ingredients of Section 304-B of IPC. In that eventuality, the Supreme Court sent the case back to the trial court to afford opportunity to the accused to defend his case and to decide the case in accordance with law.

Thus, in view of the law laid down in Tarkeshwar Sahu (supra) and since it was not brought to the notice of the learned Single Judge, the findings returned by this Court in Pulin Bihari Roy (supra) appears to be not persuasive to this Court, in the context of the present case.

The learned counsel appearing for the appellant has not raised the plea of prejudice of such conviction to the minor offences, as aforestated. In the instant case, it cannot be said that the appellant did not get opportunity to defend himself or, in other words, the court did not afford him opportunity, which would render failure of justice. According to me, the cardinal principle which the court must endeavour to find the truth, and if some elements of the major offences and, in this process, if the court finds that all elements required to prove the major offences, are not found, but, some elements attract the provision of minor offences, then, there is no impediment to reduce the conviction into that minor offence(s), to meet the ends of justice.

To attract Section 376 IPC, penetration to whatever extent or even at the slightest degree is a sine qua non. However, on the given facts of a particular case, if it is proved that there was preparation and other acts related to recognized sexual offences under the Indian Penal code without the essential requirements of "rape", then, inference can easily be drawn that the appellant also has got the opportunity to defend against accusations of all of his acts which acts/conducts are also to be proved to attract the major offence(s) under Section 376 of the IPC. As such, in that case, question of „prejudice‟ for non compliance of principles of natural justice does not arise and on the proven facts, the charge of major offence(s) should be reduced to a minor offence(s) without altering/adding the requisite charge(s). The decision of the Apex Court in Bhimanna vs. State of Karnataka, reported in (2012) 9 SCC 650 also approves said principle after taking into account the case of Shamnsaheb M. Multtani (supra). [emphasis supplied]

In Bhimanna (supra), the Apex Court has held that mere raising a plea by the accused of „failure of justice‟ or „prejudice‟ would not suffice. The Apex Court has observed thus:

"24. In such a fact-situation, a question also arises as to whether a conviction under any other provision, for which a charge has not been framed, is sustainable in law. The issue is no longer res integra and has been considered by the Court time and again. The accused must always be made aware of the case against them so as to enable them to understand the defence that they can lead. An accused can be convicted for an offence which is minor than the one, he has been charged with, unless the accused satisfies the Court that there has been a failure of justice by the non-framing of a charge under a particular penal provision, and some prejudice has been caused to the accused. (Vide : Amar Singh v. State of Haryana, (1974) 3 SCC 81).

Further the defect must be so serious that it cannot be covered under Sections 464/465 Cr.P.C., which provide that, an order of sentence or conviction shall not be deemed to be invalid only on the ground that no charge was framed, or that there was some irregularity or omission or misjoinder of charges, unless the court comes to the conclusion that there was also, as a consequence, a failure of justice. In determining whether any error, omission or irregularity in framing the charges, has led to a failure of justice, this Court must have regard to whether an objection could have been raised at an earlier stage, during the proceedings or not. While judging the question of prejudice or guilt, the court must bear in mind that every accused has a right to a fair trial, where he is aware of what he is being tried for and where the facts sought to be established against him, are explained to him fairly and clearly, and further, where he is given a full and fair chance to defend himself against the said charge(s).

This Court in Sanichar Sahni v. State of Bihar [(2009 7 SCC 198], while considering the issue placed reliance upon various judgments of this Court particularly in Topandas v. State of Bombay [AIR 1956 SC 33]; Willie (William) Slaney v. State of M.P. [AIR 1956 SC 116]; Fakhruddin v. State of Madhya Pradesh [AIR 1967 SC 1326]; State of A.P. v. Thakkidiram Reddy [(1998) 6 SCC 554]; Ramji Singh & Anr. v. State of Bihar [(2001) 9 SCC 528]; and Gurpreet Singh v. State of Punjab [(2005) 12 SCC 615], and came to the following conclusion: [Sanichar Sahni v. State of Bihar [(2009 7 SCC 198 p 204,para 27]

Therefore,...... unless the convict is able to establish that defect in framing the charges has caused real prejudice to him and that he was not informed as to what was the real case against him and that he could not defend himself properly, no interference is required on mere technicalities. Conviction order in fact is to be tested on the touchstone of prejudice theory."

A similar view has been reiterated in Abdul Sayeed v. State of Madhya Pradesh, [(2010) 10 SCC 259].

In Shamnsaheb M. Multtani v. State of Karnataka [ (2001) 2 SCC 577], this Court explained the meaning of the phrase „failure of justice‟ observing that the superior court must examine whether the issue raised regarding failure of justice is really a failure of justice or whether it is only a camouflage. The court must further examine whether the said aspect is of such a nature, that non- explanation of it has contributed to penalising an individual, and if the same is true then the court may say, that since he was not given an opportunity to explain such aspect, there was „failure of justice‟ on account of non compliance with the principles of natural justice. The expression „failure of justice‟ is an extremely pliable or facile an expression which can be made to fit into any situation of a case".

In the light of the aforesaid settled legal proposition, the Apex Court in Bhimanna (supra) has convicted the appellant under Section 304 Part II of the IPC instead of Section 302 IPC. Since, the court held that the murder was not seemed to be caused to be a pre-determined or pre-meditated and it was happened on the spur of the moment upon a hitted exchange of war between the parties.

In the ultimate analysis, both on factual and legal aspects, in my opinion, there is no legal embargo to convert or reduce the conviction from section 376 IPC to section 354 of the IPC or any other related offence(s).

Accordingly, the appellant has been declared to be convicted under Sections 354 and 354-A of the IPC and also under Section 451 of the IPC. However, considering the extent and gravity of the offence, the appellant is sentenced to suffer imprisonment for the period he has already undergone. It transpires that the appellant has been in custody since the date of the judgment which was passed on 13.09.2018. Hence, the period of imprisonment, he has already suffered is set off and the appellant is set at liberty. Consequently, the appellant is discharged from his bail bond. The surety is also discharged from his liability.

The instant appeal stands allowed in part, in the above terms. Issue the release warrant forthwith.

Send down the LCRs.