Subrata Ghosh vs State Of Tripura

Heard Mr. A. C. Bhowmik, learned senior counsel assisted by Mr. D. Sarkar, learned counsel appearing for the appellant as well as Mr. S. Debnath, learned Addl. P.P. appearing for the state.

At the outset of the hearing, Mr. Bhowmik, learned senior counsel has raised two serious objections and we find sufficient substance in one of objection, jurisprudential in nature that the trial has taken place in the wrong premises under the provisions of Protection of Children from Sexual Offences Act, 2012 (POCSO Act, in short).

There is no dispute that the alleged offence occurred on 04.11.2012, but the POCSO Act was given effect by the Central Government by the Notification No.S.O.2705(E) dated 09.11.2012 from 14.11.2012. Hence the offence was committed before the POCSO Act came into force. The charge under Section 4 of the POCSO Act is therefore, interfered with and set aside as the act did not exist on the day of occurrence of the offence. As consequence of that observation the judgment of conviction under Section 4 of the POCSO Act is set aside and the appellant is discharged from criminal liability under Section 4 of the POCSO Act. As consequence of the said finding, the sentence as imposed under Section 4 of the POCSO Act stands quashed and set aside. But the appellant was as well charged under Section 376(1) and Section 366 of the IPC separately. It is to be noted here that along with the appellant, three other co-accused persons were charged and they are charged under Section 366, 109 read with Section 376(1) of the IPC and Section 17 read with Section 4 of the POCSO Act and all these co-accused persons stood acquitted on completion of the trial. But the appellant, by the judgment dated 20.07.2017 as delivered in Special (POCSO) 24 of 2015 has been convicted under Section 366 and Section 376(1) of the IPC. It may be reiterated that the appellant was convicted under Section 4 of the POCSO Act. We have interfered that finding for the reason as noted above. As a consequence of the said conviction, under Section 366 and Section 376(1) of the IPC the appellant was sentenced to suffer rigorous imprisonment for 10(ten) years and to pay a fine of Rs.10000/- with default stipulation under Section 366 of the IPC. Thereafter, on awarding the sentence for commission of offence under Section 4 of the POCSO Act, the trial judge had observed as follows:

"Since Subrata Ghosh is convicted for the offence punishable under section 4 of the Protection of Children from Sexual Offences Act, 2012, I refrain to convict him under section 376(1) of the Indian Penal Code."

This note requires some explanation. The word 'convict' is inappropriate to convey the meaning particularly, in the context of the judgment where the trial judge has observed as under:

"In the result, I find and hold that prosecution has successfully proved the charges under section 366 and 376(1) of the Indian Penal Code and also the charge under section 4 of the Protection of Children from Sexual Offences Act, 2012 against accused Subrata Ghosh and accused Subrata Ghosh is found guilty of those offences."

It appears to this court that the word 'convict' is a typographical mistake. It has to be 'sentence' and in exercise of power under Section 42 of the POCSO Act, the trial judge has refrained from giving sentence as that provision under Section 42 provides the alternative punishment where an act of commission constituted as offence punishable under POCSO Act and also under sections of the IPC including Section 376, notwithstanding anything contained in any law for the time being in force, the offender if is found guilty of such offence shall be liable to be punished under the POCSO Act or under the Indian Penal Code and the sentence, which is greater in degree under either of the Acts be awarded. So it is a clear mandate of law that under both sections and the sentence cannot be awarded. The trial judge has to brood over and prefer the greater sentence if both the charges for identical nature of offence under POCSO Act as well as the charge under the IPC are proved. Having that aspect in consideration it appears that the trial judge has given sentence under Section 4 of the POCSO Act which provides strict and harsh punishment. Thus, it is transparently clear from reading of the statute that once the charge under Section 4 of the POCSO Act is interfered for inappropriate exercise of jurisdiction under the POCSO Act, the court would be within its power to sentence the convict under Section 376(1) of the IPC as the charge under that section has been established by the prosecution, as observed by the trial judge. Having noted that, this court would like to lay the relevant fact which would be essentially required to examine the grounds as taken in the memorandum of appeal.

On the basis of the complaint [Exbt.2] filed by one Narayan Debnath on 18.12.2013 at about 0805 hours to the Officer-in-Charge, Panisagar police station Panisagar P.S. case No.85 of 2013 under Sections 366A/376/109 of the IPC and also under Section 4 of the POCSO Act was registered and taken up for investigation. From the complaint [Exbt.2], it revealed that the daughter of the complainant was returning from the music school and she was kidnapped from the road by the appellant with aid of the driver of the vehicle [the co-accused]. They took her to a secret place. It has been also revealed that the victim was threatened by the appellant, if she had revealed or if any case was filed against the appellant, she would be killed. For that reason the informant had stated that he did not lodge any complaint. It had been further revealed that the appellant forced her daughter to wear conch bangle and vermillion. Later on, he raped her. After about one/two months, the victim was taken to the appellant's house and they started living there as the married couple. The victim was, according to the said complaint abducted on 04.11.2012 and as such it is apparent that the complaint was filed after more than one year of the occurrence. In the latter part of the complaint, the complainant has stated that the appellant started both physical and mental torture on her daughter on unlawful demand. On 18.11.2013, the victim got a chance to escape from the clutches of the appellant. In the complaint apart the name of the appellant, the complainant had disclosed the names of three other accused persons namely Samiran Ghosh, Suman Ghosh and Smt. Shilpi Ghosh. On completion of the investigation, the final police report was filed against the appellant and the other co-accused. After the final report was filed in the court of the Special Judge (POCSO), the charges were framed against all the accused persons as stated before. All of them, including the appellant had denied the charge and claimed to be tried in accordance with law.

The prosecution, in order to substantiate the charges, adduced as many as 9(nine) witnesses including the victim [PW-1], whose name is withheld for protecting her identity, the informant [PW-2], the victim's mother [PW-3] and the doctor who carried out the ossification test [PW-9]. After recording the evidence of the prosecution, the appellant and otherwise examined under Section 313(1)(b) of the Cr.P.C. for having their response to the incriminating materials those surfaced in the record of evidence. Now onwards reference will only be made to the appellant inasmuch as the other accused persons have acquitted on culmination of the trial. The appellant reiterated his plea of innocence and stated that the evidence as led by the prosecution are handiwork of concoction. Thereafter, having due regard to the arguments made by the counsel of the parties, the trial judge convicted the appellant as stated above and acquitted the other accused from criminal liability.

Mr. Bhowmik, learned senior counsel appearing for the appellant has made a robust attempt to show before us that the victim had voluntarily accompanied the appellant and they got married and stayed together as husband and wife in the same village within the knowledge of the informant [the complainant as referred before]. Even for a fortnight, after few days of their marriage, they stayed in the house of the informant. But no complaint was filed. According to Mr. Bhowmik, learned senior counsel, the appellant denied to live a life of resident husband in the house of the informant. All the allegations had been fabricated to create a huge pressure on him, as it was perceived that the appellant would not be able to such pressure. After a year the case has been lodged to implicate the appellant and harass him extremely. That apart, Mr. Bhowmik, learned senior counsel has submitted that the age of the victim has not been proved to the hilt. As such, her consent and willingness cannot be questioned. According to Mr. Bhowmik, learned senior counsel, the birth certificate which has been introduced in the evidence by dint the informant [PW-2], actually does not exist in the record. The site map as prepared by the Investigating Officer [PW-6] is Exbt.4 in the record. That certificate [shown as Exbt.4] has been compiled by the registry while preparing the paper book by giving a note that the date of birth certificate does not bear any exhibit mark on its body but it is incorporated in the paper book since it has been mentioned as admitted in the judgment [at page 53 of the paper book].

Mr. Bhowmik, learned senior counsel has further submitted that it would be apparent from the said certificate of birth that it is duplicate and PW-2 has given explanation without any supporting paper. The name of the victim has recorded therein as male by prefixing before her first and second name 'Sri'. Mr. Bhowmik, learned senior counsel has further submitted that this part of the evidence has not been clarified by the Investigating Officer [PW-6]. PW-6 has stated in her deposition that she had seized the original birth certificate at the first instance and thereafter she caused the seizure of the duplicate birth certificate which according to her is Exbt.4. Mr. Bhowmik, learned senior counsel has raised a serious question as to what necessitated the duplication of the birth certificate as what has been explained by PW-2 should not be believed by this court. In absence of the original birth certificate and other supporting documents by which the original birth certificate was corrected a duplicate certificate cannot be relied. If the original birth certificate was seized, it was the duty of the investigating agency to place the same in the evidence for appreciation by the court. In absence whereof, the court would have come to a conclusion that the date of birth has been manipulated by such duplication not otherwise. Moreover, regarding admissibility, Mr. A. C. Bhowmik, learned senior counsel has raised further objection by contending that unless the person who made entry in the register of date of birth is examined. The date of birth cannot be held proved unless that process is observed scrupulously, inasmuch as the prosecution is duty bound to prove before this court on the basis of what the date of birth was registered in the register of births under the provision of the Registration of Births and Deaths Act, 1969, else the said document would carry any value. For the appellant, the said objection had been raised but that had not been accepted by the trial judge.

Mr. Bhowmik, learned senior counsel has submitted further that if the birth certificate is not believed it has to be noted by this court that even though both the parents had deposed in the trial, but they did not reveal a single word about her age in the trial. Only the document that is available to decide that age is the report of the ossification doctor [PW-9] who has observed that her age should be 16 to 17 years and as such by applying the principle that has been accepted by the apex court that the plus (+) 2 and minus (-) 2 may be applied to understand the real age of the person put under such age. If plus (+) 2 is applied with 16/17 according to Mr. Bhowmik, learned senior counsel, the age of the victim would be more than 18 (eighteen) years and therefore the benefit should be granted to the appellant. That apart, Mr. Bhowmik, learned senior counsel has submitted that the victim cannot believed by the court as all along she had been telling the lie. Both PW-2 and PW-3 have categorically stated in the cross-examination on the 2nd or 3rd day, the victim called on them and informed that she was living with the appellant. But they did not take any action and if it was a case of abduction, it was only natural that such action was only natural. Not only that, before filing of the complaint, both the victim and the appellant stayed in the house of the complainant for a fortnight and that have been corroborated by PWs 2 & 3. The narrative so setup is visited by a serious doubt and the court should not go therefor by the statement of the victim (PW-1) whatever has been stated by the victim [PW-1]. That apart, Mr. Bhowmik, learned senior counsel has drawn our attention to the statement of Dr. Dilip Kumar Das [PW-8] who had however no role in examining the victim, but through him the report of the two doctors who examined the victim and the appellant to determine nature of the sexual assault and potency of the appellant.

Mr. A. C. Bhowmik, learned senior counsel has pointed out that in the examination-in-chief, PW-8 has stated as follows:

"The report of the Lipika Paul (the Medical Officer who examined the victim) shows that she recorded a history as per statement of the mother of the victim wherein victim stated that she willfully went out to the FIR named accused person (eloped away) and also got married about one year back i.e. in the month of last Kartika from the date of issuing that certificate. She also stated that she stayed there in her husband's house for seven months and since then she had been torturing her (sic) Last Menstrual Period (LMP) was report on 15.12.2013 and after clinical observation the Medical Officer opined that sexual intercourse of assault upon the victim could not be rolled (sic, ruled) out. But there is no sign of recent rape or intercourse was found."

To further justify his contention that the victim cannot be trusted, Mr. Bhowmik, learned senior counsel has taken the court to the cross-examination of the victim [PW-1] where she has stated that:

"It is true that there were opportunities for me for escaping from the custody of the accused. But once he had made physical relationship with me I thought that it was better to endure everything and try to live with him instead of escaping from his custody."

Mr. Bhowmik, learned senior counsel in his submission has placed emphasis that the word 'physical relationship' is quite an ambiguous word. It can connote so many aspects but exactly what happened to her, the victim did not state and that too, according to her, the physical relation took place only once which is absolutely contrary to the content of the complaint and the examination-in-chief of the victim [PW-1].

Having stated so Mr. Bhowmik, learned senior counsel has urged this court that the prosecution case is visited by the serious doubt and as such this court would interfere with the judgment of conviction.

While repelling the said submission of Mr. Bhowmik, learned senior counsel appearing for the appellant, Mr. S. Debnath, learned Addl. P.P. appearing for the state has submitted that the contention of Mr. Bhowmik, learned senior counsel cannot be accepted for a simple reason that the ossification doctors have examined the victim in 2013, meaning after a year of the occurrence, and as such when he has stated 16/17 years, it would be read or understood by this court as 15/16 years and thus even if the plus(+) or the minus(-) further is applied then also the victim's age would be below 18 years on the day of the occurrence. Further Mr. Debnath, learned Addl. P.P. has submitted that the minority of the victim cannot be challenged. Even the consenting age cannot be questioned by the appellant. According to Mr. Debnath, learned Addl. P.P. when a certificate is issued by a Public Officer, who is statutorily authorized to issue the certificate of birth under the Registration of Births and Deaths Act, 1969, the said certificate being a public document can be admitted by the court without any formal proof. According to Mr. Debnath, learned Addl. P.P. the certificate that has been issued is the original certificate issued by the Addl. District Registrar. According to him, the word that has been fixed on the top of the certificate 'duplicate' is only for purpose of indicating that there were some mistakes noticed in the earlier certificate and that has been corrected by issuing a fresh certificate. Therefore, there is no question of infirmity in admitting that document as Exbt.4. That has been admitted by PW-2 [the informant]. That apart, Mr. Debnath, learned Addl. P.P. has tried to impress upon us stating that when someone is minor do lack in extending consent, her accompaniment will not take away the scourge of the act prohibited by the law. The law shall follow its harsh course to protect the minor or the children or the women below of consenting age. There is no denial of the fact that if it is admitted that she had lived with the appellant that will prove that there was kidnapping for an illicit sexual intercourse and as such, the conviction under Section 366 of the IPC cannot be faulted with. In the event, even though there is no direct evidence of sexual assault but the victim has stated that she had the sexual intercourse with the appellant and such sexual intercourse has to be deemed to have without any consent inasmuch as the victim being minor had no capacity to give her consent and as such there is no infirmity in the entire judgment of conviction. Even if the conviction under Section 4 is already been interfered by this court, the charge under Section 376(1) of the IPC stand unscathed. Further Mr. Debnath, learned Addl. P.P. has pointed out to the aspect which had all through been the case of defence that the victim stayed with the appellant as husband and wife as they married after they eloped to a destination.

In this regard, this court would note the legislative change made in Section 375 by virtue of the Criminal Law (Amendment) Act, 2013. In Section 375 the consenting age was earlier 16 years of age and that has been changed to 18 years [see 6th description provided below the Section 375 of the IPC]. The said Amendment Act has commenced with effect from 03.02.2013. Therefore, in the case of offence of rape, the consenting age so far this case is concerned, should be 16 years. Even if the argument of Mr. Debnath, learned Addl. P.P. is totally accepted that the ossification doctor's opinion that the age of the victim would be between 15/16 years, benefit must go in favour of the appellant. Now only two pertinent questions those are left to be determined by this court are:

(i) Whether the age of the victim has been established by the prosecution being below 16 years? and

(ii) Whether the victim's statement can be relied by this court for affirming the conviction?

In this regard we have scrutinized the entire records and the relevant part of the testimonies which have been reflected before, while recording the submission of the learned counsel for the parties. According to us, the admission of the Exbt.4 is under penumbra. This court cannot believe in oral statement of an incompetent person regarding the correction of a public document. If any correction has to be proved, the Public Officer who corrected the document must come before the court and state the context what had necessitated to correct it. For this purpose let us look on the statement of the Investigating Officer, Smt. Rinki Debbarma [PW-6] as she was very candid and has stated that:

"I also collected the birth certificate of the victim which I seized and as per birth certificate her date of birth was 18.10.1999. I seized the birth certificate by the seizure list dated 19.12.2013 on production by the informant. This is the said seizure list on identification marked as exhibit-3/1."

In the cross-examination, she has admitted that it is true that the said certificate was issued second time by mentioning the same as duplicate. She has refrained to state in the trial why the duplicate certificate was issued. This court can infer that if she knew the purpose of issuance of the duplicate certificate, she would have directed in the course of the investigation to explore why such duplicate certificate was issued. Such statement would otherwise imply that PW-2 had never stated to the Investigating Officer why the duplicate certificate was issued.

Be that as it may, we are inclined, in the context of the case, to hold that the issuance of the duplicate certificate since has not been proved by the competent authority, the integrity of the certificate cannot be accepted as un-affected. Therefore, we are inclined to infer on the age of the victim and we have already noted that the victim's age as determined by the ossification doctor, Dr. Shatarupa Das [PW-9] would only benefit the accused person as at the relevant time the consenting age was 16 years. In such circumstances, we are bound to hold that the victim was within the consenting age and as she has categorically stated in the cross-examination that she went voluntarily with the appellant and had the sexual intercourse, if any, that cannot be brought within the category of rape. Whether the victim went voluntarily with the appellant or not would be evident from the testimony of PW-2, Narayan Debnath, the father of the victim. He has stated that:

"My daughter called me from the mobile and informed me that she was in the house of the accused. I received such call from my daughter 2/3 days after the occurrence. Immediately I informed my relatives and my neighbor Manoranjan Debnath. 2/3 months thereafter I came to know that my daughter was living with accused Subrata at Chamtila. Again I informed my neighbours. But I could not arrive [at] any settlement."

It shows whereabouts of the victim was known to PW-2 and the victim had informed the same on 2nd or 3rd day of the occurrence. But PW-2 did not claim that the victim alleged anything against the appellant. Similarly, PW-3 has repeated the same story, but she has added that once Subrata (the appellant) lived with her daughter in their house voluntarily for about 10/15 days.

These aspects are so vital indicators to the true nature of the alleged culpable act that we are inclined to disbelieve the statement of PW-1, the victim and all the narratives those have originated from the statement of the victim. According to us, the appellant is entitled to the benefit of doubt. As consequence of such observation, the appellant is acquitted from the charge under Section 376 (1) and Section 366 of the IPC.

In the result, the judgment and order of conviction and sentence as challenged in this appeal stand set aside and quashed. The appellant be released forthwith, if he is not wanted in any other case.

The appeal therefore is allowed. Send down the LCRs forthwith.