The State vs Sameer Kujur

Shib Sadhan Sadhu, J.—The instant appeal by the State is directed against the judgement dated 26th September, 2013 of acquittal of the respondent who was prosecuted for the offences under Sections 363 and 376 of the Indian Penal Code by the learned Additional Sessions Judge, Andaman and Nicobar Islands, Port Blair in Sessions Case No. 11 of 2011/Sessions Trial No. 27 of 2011.

Briefly stated the relevant facts are that on 15.11.2010 the defacto complaint Sounder Rajan accompanied by his son Karthick Raj had been to P.S. Baratang and lodged complaint to the effect that his daughter Kumari Karthika who was 14 years old and who was a student of class IX went to Oralkatcha School at about 8.30 a.m. for Childrens'' Day programme on 14.11.2010. After closure of the school other students returned home, but his daughter did not return and so they searched for his daughter at South Creek and Oralkatcha but could not find her out. They also made query from her class mates but they could not say anything about her whereabouts. Thereafter they came to know that the cleaner of Getanjali bus eloped with his daughter to Port Blair. Thereafter he came to Police Station and reported the incident, on the basis of which Baratang P.S. Case No. 41 of 2010 dated 15.11.2010 under Section 363 of the Indian Penal Code (hereinafter referred to as IPC for the sake of brevity) was registered. That case was investigated into and on completion of investigation charge sheet was submitted under Sections 363/376 of the IPC against the respondent/accused Sameer Kujur.

The case being Sessions triable the learned Chief Judicial Magistrate, Mayabunder committed the case to the court of learned Sessions Judge, Port Blair who transferred the same to the court of learned Additional Sessions Judge, Port Blair for trial.

The learned Additional Sessions Judge framed charge under Sections 363/376 IPC against the respondent/accused and the same was read over and explained to him. He however, pleaded not guilty and claimed to be tried.

Prosecution examined as many as 22 witnesses in support of the charge. During his examination under Section 313 Cr.P.C. the accused pleaded denial and innocence. No evidence was adduced on behalf of the defence.

The learned Additional Sessions Judge after having gone through the evidence adduced by the prosecution and upon appreciating the same has found that the prosecution has failed to establish the guilt of the accused beyond all reasonable doubt and therefore he extended benefit of doubt to the accused and thereafter he was acquitted of all the charges. Challenging this judgement of acquittal of the learned Additional Sessions Judge, the state has come forward with this appeal.

We have heard Mr. S.K. Mandal, the learned Public Prosecutor appearing for the appellant/state and Mr. Alokesh Sarkar, the learned counsel appearing for the respondent/accused at length and we have perused the entire materials available on record with special attention to the impugned judgement under challenge.

Mr. S.K. Mandal, learned Public Prosecutor argued that this is a case in which a young girl of 14 years has come to the court to depose about the sexual assault committed on her by the respondent/accused after taking her away from her school at Baratang to Port Blair by inducement. Ample evidence was adduced by the prosecution especially by PW 1, PW 2, PW 8, PW 17, PW 19 and PW 22 which is clinching and established both the charges of kidnapping as well as rape. He contended further that even if it is assumed for the sake of argument that the charge of rape was not proved beyond doubt, in that event too the accused cannot have absolute escape and he should have been punished for the offence under Section 354 IPC. But unfortunately the learned Additional Sessions Judge failed to appreciate such evidence by proper application of judicial mind and thereby came to an erroneous conclusion and recorded an unmerited acquittal which is liable to be set aside and the respondent accused should be convicted accordingly.

On the other hand, Mr. Sarkar, learned counsel appearing for the respondent/accused has reiterated the reasonings given by the Learned Trial Judge and supported the impugned judgement. He further submitted that the period of detention suffered by the accused during investigation and trial be set off. He concludingly submitted that the impugned judgment be upheld.

Having regard to the rival submission and contention advanced by the learned counsel appearing for the parties we would like to say at the very out set that the law is well settled that the power of the High Court while sitting in the appeal against an order of acquittal is the same as the power while sitting in the appeal against the conviction and the High Court, therefore, could be fully entitled to re-appreciate the materials on record and in coming to its own conclusion. The only compulsion on the part of the appellate court is to bear in mind the reasons advanced by the learned Sessions Judge, while acquitting the accused and indicate as to why those reasons cannot be accepted. So keeping in view this parameter for exercise of power while entertaining an appeal against the order of acquittal let us now proceed to examine the evidence on record in order to see how far the order of acquittal is justified.

PW 1, the defacto complainant and Father of the victim girl deposed that on 14.11.2010 his daughter (PW 2) went to school near Baratang Jetty. She was studying in Class IX and she was only 14 years old. The school was over by 11 a.m. and all the students except his daughter returned home. He then searched for her and met with the other girls but she did not return till evening. On 15.11.2010 in the evening he received telephone call from one Mr. Subramanium of Port Blair informing him that his daughter was seen with the cleaner of Getanjali Bus which plies between Mayabunder to Port Blair. Thereafter he along with his son came to Baratang P.S. and reported the matter and on the basis of his complaint the First Information Report (exhibit 1) was registered. Thereafter police visited his house and seized a group photograph of his daughter and an attested copy of the birth certificate (exhibit 3) of is daughter. He further deposed that on 16.11.2010 during night Police brought his daughter to the P.S. and called him to the P.S. and handed over his daughter to him.

In cross examination PW 1 stated that his daughter comes to school by herself and he does not come with her. He failed to say whether there was any love affair between his daughter and the accused. He further disclosed that original birth certificate of his daughter was kept in his custody and he did not give it to Police, but he gave only its attested copy.

PW 2, the victim girl deposed that on 14.11.2010 she was student of class IX in Govt. Senior Secondary School at Oralkatcha, Baratang and on that day it was Childrens'' Day and she attended the school. The accused was a cleaner of bus which used to ply along the road run by the side of the school and he used to see her and once he stated to her that he had started loving her and he would elope/take away her from her school as she had not become major. It is her further evidence that on 14.11.2010 the accused came to her, took away her by means of "behla-fusla ke" i.e. by means of inducement and he took her inside the Getanjali bus in which the accused was working as cleaner and by that bus he took her to Sippighat or Naya Saher in the house of his uncle. On the next morning the accused brought her to Port Blair at Gandhi Park and inside the Gandhi Park he started applying force on her and by applying force he committed sexual intercourse with her by taking her inside the bush inside the Gandhi Park and thus the accused did "Galat Kaam" with her and thereafter at about 4.15 p.m. he took her inside the bus which was proceeding towards Sippighat. At that time Police came and caught hold of the accused and took him to the P.S. alongwith her. Then Police from Baratang P.S. came and took the accused and her to Baratang P.S. and in the next morning she was taken for medical examination and thereafter Police sent her to her father in their house.

In cross examination PW 2 stated that she did not like to maintain any physical relation with the accused, but he did it by force. She never wanted to marry the accused. She further stated that the accused boarded the bus with her at about 11 a.m. and bus reached Port Blair around 3/3.30 p.m. That was Getanjali bus in which there were many passengers. She further disclosed that as the accused called her, she came with him and the accused threatened her that he had given her mobile phone and if she did not accompany him he would open the matter of giving her telephone in her house. She admitted that she did not disclose the matter to any one in the bus and that she also did not raise cries in the bus. She denied the suggestion that she came with accused at her own will. In course of her further cross examination she disclosed that in Gandhi Park she saw persons sitting at different places. When the accused started trying to apply force on her then she raised cries and as soon as she raised cries the accused took her away from that place and then the accused did not establish any physical relation with her. From the bus Police took her and the accused to P.S.. Police kept her and the accused at different places and after that she was taken to Baratang P.S.. After that accused could not have any physical relation with her. She stated yet further that when the accused expressed to take her away she stated to him that she was a minor girl child.

PW 3 who was posted as a Staff Nurse of Primary Health Center at Baratang and PW 4 who was posted as Ward Attendant in G.B. Pant Hospital on 17.11.2010 are the witnesses of seizure but they stated that no pubic hair of the victim girl and that of the accused were seized in their presence.

PW 5 is Head Constable who was posted as Station Writer at Baratang P.S. on 15.11.2010. He recorded the oral statement of PW 1 and registered the FIR and he identified it which was already marked exhibit 1.

PW 6 is a Police Constable who was posted at Baratang P.S. on 15.11.2010. He deposed that on that day as per direction of SHO he along with the other Police personnel took the victim girl and the accused to Pahargaon P.S. from Baratang P.S.

In cross examination he stated that he did not see the TR ticket which is used in convoy or the ticket for return journey nor the Register for convoy entry.

PW 7 is a Sub Inspector of Police who was posted as SHO at P.S. Baratang at 15.11.2010. He stated that after registration of the case he endorsed it to ASI A.K. Pandey and after verification of the case diary he filed the charge sheet.

In cross examination he stated that the FIR was a missing report.

PW 8 is the Medical Officer who examined the victim girl and the accused on 17.11.2010 at Primary Health Center Baratang. On examination she found that hymen of the victim girl was ruptured and that she was habituated to sexual intercourse and that she did not find any mark of violence or stray hair in her private parts. She also did not find any external injury on the body of the accused. She identified the report prepared and signed by her and that was marked exhibit 7.

In cross examination she stated that according to the statement given by the victim girl she was not subjected to forcible sexual intercourse by the accused and the sexual intercourse took place between the victim girl and the accused on consent.

PW 9 is the Up-Pradhan of Sundergarh Gram Panchayat. She deposed that on 17.11.2010 being called by Police she went to Baratang P.S. and saw the victim girl and the accused at P.S. and in her presence Police handed over the victim girl to her parents.

In cross examination she failed to say how the accused kidnapped the victim girl.

PW 10 is a lady Constable posted at Baratang P.S. who along with PW 6 and others took the victim girl and the accused to Pahargoan P.S.

PW 11 is a PRI member of Sundergarh Gram Panchayat, Baratang who deposed that on 17.11.2010 being called she had been to P.S. and the victim girl was given to custody of her father in her presence.

PW 12 is a witness of seizure of the group photograph and the birth certificate of the victim girl.

PW 13 is a lady Home Guard of Baratang P.S. who on 17.11.2010 along with other Police personnel took the victim girl and the accused to Baratang Primary Health Center for their medical examination.

PW 14, PW 15, PW 16, PW 18 and PW 21 were merely tendered by prosecution for cross examination which was declined by the defence.

PW 17 is a cleaner of Getanjali Bus. He deposed that on 14.11.2010 he was coming from Diglipur to Port Blair by that bus and when it reached at Middle Strait around 11 a.m. they started waiting with the bus. At that time the accused came to the bus with one girl and being asked the accused stated to him that the girl was his relative and that they would go up to Garacharma.

In cross examination he stated that the girl was sitting in that bus and nobody forced her to do so. There were other passengers in the bus. He failed to say the route of the Gentanjali bus in which the accused worked as a cleaner. He further stated that the accused performed duty in the entire month of November.

PW 19, son of PW 1 and elder brother of PW 2 is a cleaner in a Cargo Truck bearing Registration No. AN 01 B6842 belonging to R. Veera Raj of Mohanpura. He deposed that on 14.11.2010 at 6.30 p.m. his mother informed him over telephone about the incident and accordingly he went to his residence in the morning of 15.11.2010 by bus and searched for his sister, but she was not available. Thereafter Mr. Subramanium a truck driver informed him over telephone that he saw his sister going with the cleaner of Getanjali bus by Getanjali bus at Middle Strait Jetty on 14.11.2010 at 11 a.m.

In cross examination he stated that he did not see anything with his eyes.

PW 20 is a witness of the seizure of the attested copy of birth certificate of the victim girl. He identified his signature appearing on the seizure list which was already marked exhibit 2/3.

PW 22 being the Investigating Officer is an important witness. He deposed that on 15.11.2010 he was posted in Baratang P.S. as ASI and on that date he took up investigation of the case as per the order of the SHO. He proceeded to the PO on 15.11.2010 at 8.20 hrs. The PO is at South Creek, and it is the house of the complainant and the victim girl and he seized the attested copy of the birth certificate of the victim girl and one group photograph of the victim girl in presence of witnesses under a proper seizure list duly attested by the witnesses. He identified the seizure list (exhibit 2) and the attested copy of birth certificate (exhibit 3) and the group photograph (exhibit 4). On 16.11.2010 he inspected the spot and prepared site plan (exhibit 8). He examined the witnesses and recorded their statements under section 161 Cr.P.C. Since the victim girl who was kidnapped was not available on search he sent a signal to all SHO's of Andaman and Nicobar Islands and IC Officer for search of the victim girl and the accused who was also found to have absconded and on the same day at about 17.00 hrs. an information was received from Pahargaon P.S. that they had located victim girl with the accused and apprehended them and took them to Pahargaon P.S. He then along with other Police Personnel proceeded to Pahargaon P.S. at about 17.30 hrs. and reached there at about 21.05 hrs. and took the victim girl and the accused into custody and reached Baratang P.S. on 17.11.2010 at about 05.30 hrs. Thereafter he got the victim and the accused medically examined and collected their medical reports. On the very date he arrested the accused at about 14.00 hrs and around 14.45 hrs he handed over the victim girl to her father in presence of witnesses. Thereafter on completion of investigation he handed over the case file to the SHO for filling charge sheet.

In cross examination PW 22 stated that he did not see any documents regarding the entry in the register of his vehicle while he proceeded to Port Blair from Baratang taking the victim girl.

Giving a close and critical look into the entire evidence, it is seen that there are serious infirmities in the statement of the victim girl PW 2 so far as the allegation of commission of rape is concerned. Her statement on this score has not been corroborated by any evidence, not even by the evidence of the Doctor (PW 8). In examination-in-chief although she alleged that the accused committed sexual intercourse by applying force upon her inside the bush in Gandhi Park, but in cross examination she falsified such version by stating that in Gandhi Park she saw persons were sitting at different places and when the accused started to apply force on her she raised cry and then the accused took her away from that place and then he did not establish any physical relation with her. Therefore it is totally unsafe to convict the respondent/accused on such bald, inconsistent and unreliable statement of PW 2. Consequently we subscribe to the view expressed by the learned Additional Sessions Judge and we are of the opinion that in the facts and circumstances of the present case he was fully justified in recording an order of acquittal so far as the offence under section 376 IPC is concerned.

We further find that PW 2 did not allege that the accused had tried to outrage her modesty. Also it was not the prosecution case that the accused had committed only indecent assault on the victim girl. Therefore it was either an act of rape or no rape at all. In an offence under section 354 IPC the intention of the accused is the crux of the matter and the accused cannot be convicted only on surmises and conjunctures. In the instant case PW 2 has not stated that the accused had made any indecent assault or attempted to outrage her modesty. On the other hand she clearly stated that the accused did not establish any physical relation with her. Thus offence under section 354 IPC is not made out and the question of convicting the respondent/accused under section 354 IPC does not arise at all.

From the prosecution evidence especially from that of PW 2, PW 17 and PW 22 it stands well proved that the respondent/accused Kidnapped the victim girl who was minor aged about 14 years from the lawful guardianship by inducing and threatening her to go with him without the consent of the guardian of the victim girl. The reasoning recorded by the learned Additional Sessions Judge to the effect that since the victim girl did not tell anybody in the bus that the accused induced her and brought her against her will from the lawful custody of her guardian nor even she did cry and therefore the offence of kidnapping was not proved. We are surprised to see such erroneous appreciation of evidence made by the learned Additional Sessions Judge as he ought to have considered that since the victim girl was a minor, her consent or willingness is wholly immaterial. The reasoning is not at all sound and cannot be accepted.

On going through the judgement of the learned Additional Sessions Judge, we find that the learned Additional Sessions Judge erroneously excluded the status of minority of the victim girl altogether from the purview of consideration and therefore we are justified in interfering with the order of acquittal. If the order of acquittal is, based upon the grounds, not sustainable, the Appellate Court would be justified in interfering with the said order of acquittal. Therefore the findings of the learned Additional Sessions Judge for acquittal of the respondent/accused has to be set aside and he is found guilty for offence under section 363 IPC and is convicted there under.

As the occurrence had taken place more than five years back when the accused was about 19 years old we feel that a lesser punishment would be sufficient to meet the ends of justice. Accordingly the respondent/accused is sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 5000/- in default to suffer rigorous imprisonment for two months more. The period of detention during investigation and trial be set off from the period of sentence.

The order of acquittal so far as it relates to the charge under section 376 IPC is affirmed but the order of acquittal in respect of the charge under section 363 IPC is hereby set aside. In the net result, therefore, this appeal is allowed in part.

The respondent/accused is directed to surrender himself to custody within a period of fortnight in order to serve out the sentence, failing which the learned Chief Judicial Magistrate, Mayabunder shall be at liberty to take coercive measure to secure his custody in accordance with law.

Let the lower court records be sent to the court below alongwith a copy of this judgement forthwith for information and compliance.

Certified photostat copy of this judgement be given to the learned counsel for the parties upon compliance of usual formalities.

Nadira Patherya, J.

I agree.