Dilip Sahoo vs The State Of West Bengal
2021 Latest Caselaw 6263 Cal

Form J(2)        IN THE HIGH COURT AT CALCUTTA
                    Criminal Revisional Jurisdiction
                             Appellate Side

Present :
The Hon'ble Justice Bibek Chaudhuri

                       C.R.A. 311 of 2014

                                 Dilip Sahoo
                               Vs.
                    The State of West Bengal


For the Appellant      :     Md. Asraf Ali
                             Mr. Sankar Banerjee

For the Respondent :         Mr. Saswata Gopal Mukherjee,Ld. P.P.
                             Mr. Pravas Bhattacharyya
                             Mr. Sandip Chakraborty


Heard on               :     07.12.2021.

Judgment On            :     13.12.2021.




Bibek Chaudhuri, J.

This is an appeal under Section 374(2) of the Code of Criminal

Procedure assailing the judgment and order of conviction and

sentence dated 17th February, 2014 and 18th February, 2014

respectively passed by the learned Sessions Judge, Purba Medinipur in

Sessions Case No.394/December/2012 corresponding to Sessions

Trial No.32/July/2013 thereby convicting the appellant for the offence

under Sections 363/366A/496/376 of the Indian Penal Code and

Section 4 of the Protection of Children from Sexual Offences Act and

sentencing him to suffer rigorous imprisonment for seven years and

to pay fine of Rs.10,000/-, in default, to suffer simple imprisonment

for six months for the offence under Sections 363/366A/496/376 of

the Indian Penal Code and Section 4 of the POCSO Act.

Khejuri P.S. Case No.51 of 2013 was registered on the basis of

a written complaint filed by one Kanailal Das on 7 th March, 2013

alleging, inter alia, that the appellant herein used to induce the minor

daughter of the de facto complainant for some days prior to 10 th

February, 2013. On that date, the appellant eloped her from the

'morum' road situated on the eastern side of the house of the

complainant. On 7th March, 2013 the daughter of the de facto

complainant returned her paternal home. She told her father that the

appellant married to her and used to reside in a rented home as

husband and wife. During their stay the appellant committed sexual

intercourse with the minor daughter of the de facto complainant.

When the appellant brought her to his house, she found that the

appellant had already married having his first wife and a child. Then

she returned to her paternal home and narrated the incident to her

father.

Police took up the case for investigation and on completion of

investigation submitted charge sheet under Section 363/366/376/494

of the Indian Penal Code against the accused. Since the offence

charged is exclusively triable by the Court of Sessions, the case was

committed to the learned Sessions Judge who herself took up the trial

of the case.

The charge was framed against the appellant under Sections

363/366/496/376 of the Indian Penal Code and Section 4 of the

POCSO Act. As the accused pleaded not guilty when the charge was

read over and explained to him, trial of the case commenced.

During trial, the prosecution examined as many as 11

witnesses. Among them the de facto complainant deposed during trial

as P.W.1. P.W.2 is the wife of the de facto complainant and mother of

the victim. P.W.3 is the victim girl. P.W.4 is the younger brother of

the de facto complainant. P.W.5 is the uncle of the victim. P.W.6 is

also a close relative of the victim. P.W.7 is the wife of the appellant

Dilip Sahoo and P.W.8, P.W.9 and P.W.10 are the neighbours of the

appellant. P.W.11 is the Investigating Officer of this case.

Needless to say that in a case of rape or penetrative assault,

sole evidence of the prosecutrix is sufficient to warrant conviction of

the accused if her evidence is found to be trustworthy, cogent,

believable and worthy of credence. No amount of corroboration is

necessary because the evidence of a victim of an offence of rape is at

par with an injured witness. Therefore, Court seldom holds the

evidence of the victim girl as unworthy of credence unless her

evidence suffers from material contradictions. In offence of rape the

evidence of parents of the victim, other relatives and rest of the

witnesses are corroborative in nature and most of the time hearsay

evidence which the Court is not in a position to accept. Therefore, in

such a case it is the evidence of the victim girl who matters most.

Bearing the above principle as to appreciation of evidence of a

victim of sexual assault, let us now consider the evidence of P.W.3

who happens to be the victim of the case. According to P.W.3 she

was aged about 15 years on the date of her deposition i.e., on 29 th

July, 2013. At the relevant point of time she was a student of class-

VIII. It is stated by her that she used to use mobile phone of her

father. One day the appellant contacted her over the said mobile

phone. He told her that he was unmarried; was the only son of his

parents having landed properties and he used to love her. Then on

27th February, 2013 the appellant took her away from the lawful

guardianship of her father from the 'morum' road in front of their

house. He married the victim girl with false assurance and cohabited

with her. Thereafter both of them returned to their village. The victim

went to her paternal home and on the following day she visited the

house of Dilip Sahoo. In his house she saw the first wife and children

of Dilip and seeing them she ran away from his residence. She

narrated the entire incident to her father. It is also stated by her that

she made a statement before the learned Magistrate under Section

164 of the Code of Criminal Procedure. In course of her cross-

examination it is ascertained that the victim was taken to Gorakhpur,

Uttar Pradesh by the appellant.

In her statement recorded under Section 164 of the Code of

Criminal Procedure she did not take the name of the appellant. It is

stated by her before the learned Magistrate that a boy took her away

making some false promise to her. Then he tried to sell her to some

other persons. When she came to know, she told that she would go

to her paternal home. The said boy took her to his house situated in

the same village. There she found that the said boy has his wife and

children. Then she returned to her paternal home and narrated

everything to her father. On the next day her father went to the

house of the appellant. A village 'Salish' was held. But the dispute

was not solved. It is also stated by the victim girl that he performed

bad act against her will.

It appears from the evidence of the de facto complainant that

the appellant induced his daughter through mobile phone and took

her away from his residence on 27th 'Magh' to Gorakhpur, Uttar

Pradesh. The accused married the daughter of the de facto

complainant by putting vermilion on her forehead. Then she returned

with the accused from Gorakhpur and went to his house. She saw the

first wife and children of the appellant in his house. Seeing them she

left the house and informed everything to the de facto complainant on

23rd 'Falgun'. When the de facto complainant saw his daughter with

conch, bangles on her hands and vermilion on her forehead, he

lodged the complaint in the local police station. From the said

complaint it appears that it was lodged on 7 th March, 2013. The

mother of the de facto complainant (P.W.2) corroborated the evidence

of her husband in her deposition.

During investigation police seized one transfer certificate in the

name of the victim girl issued by the school authority of Kultha

Sarada Siksha Sadan. As per the record of the admission register her

date of birth was 3rd December, 1998. The seizure list in respect of

the said transfer certificate was marked as exhibit -2 during trial of

the case. However, the prosecution did not take any attempt to prove

the transfer certificate issued by the school authority on 12 th March,

2013.

The learned Sessions Judge, Purba Medinipur on appreciation of

evidence found that the defence did not challenge the date of birth of

the victim girl during cross-examination of the de facto complainant

or his wife or the victim girl.

I am in agreement with the observation made by the

learned Trial Judge that the victim girl, a minor aged about 15 years

at the relevant point of time was enticed by the appellant and taken

away to Gorakhpur in the State of Uttar Pradesh. There is a

discrepancy between the statement made in the FIR and the

statement of the victim girl regarding the date of her kidnapping.

According to the FIR, the victim girl was taken away by the appellant

from the side of her house on 10 th February, 2013. On the contrary,

the victim while deposing as P.W. 3 stated on oath that she was

enticed by the appellant and taken from her lawful guardianship away

to Gorakhpur on 27th February, 2013. In my considered view, such

discrepancy is absolutely minor in nature and can be overlooked.

During cross-examination of the de facto complainant, a suggestion

was put by the defence on behalf of the accused that the accused

person did not take away his daughter by force. The said suggestion

was promptly denied by P.W. 1 as well as P.W. 3.

From the evidence of P.W. 3, it is found that the appellant

induced her saying that he is the only issue of his parents having

landed property and he was unmarried at the relevant point of time.

The victim girl was induced by such words of the appellant and ran

away from her home. Under such circumstances, the learned Trial

Judge was absolutely justified to hold the appellant guilty for

committing offence under Section 363 of the Indian Penal Code.

Next comes the question as to whether the learned Trial Judge

was justified in holding the accused guilty for committing offence

under Section 366A of the Indian Penal Code.

In order to attract Section 366A of the Indian Penal Code,

essential ingredients are: -

      (i)      that the accused induced a girl;

      (ii)     that the person induced was a girl under the age of 18

               years;

      (iii)    that the accused has induced her with intent that she

may be or knowing that it is likely that she will be

forced or seduced to illicit intercourse;

(iv) such intercourse must be with a person other than the

accused; and

(v) that the inducement caused the girl to go from any

place or to do any act.

In the instant case, the evidence on behalf of the prosecution is

that the appellant kidnapped the minor victim girl and took her to

Gorakhpur in the State of Uttar Pradesh and married her. Thereafter,

he cohabited with the said girl. Therefore, it is not the case of the

prosecution that the victim girl was either forced or seduced to illicit

intercourse with a person other than the accused/appellant. Thus,

the learned Trial Judge was wrong in convicting the appellant under

Section 366A of the Indian Penal Code.

The evidence-on-record, however, establishes beyond any

shadow of doubt that the accused/appellant kidnapped the prosecutrix

with the intention of marrying her in order that she might be forced to

illicit intercourse. So, an offence under Section 366 is committed

when a person has forcibly taken a woman with the intention as

specified in Section 366. The decision of the Hon'ble Supreme Court

in the case of Tarkeshwar Sahu -Vs.- State of Bihar (Now

Jharkhand) reported in (2006) 8 SCC 560 may be relied on in this

regard.

Let me now consider independently on the basis of evidence-on-

record as to whether the learned Trial Court was justified in convicting

the appellant under Section 376 of the Indian Penal Code and Section

4 of the POCSO Act. I have already recorded the evidence of the

victim girl and her parents in detail. During examination of the

accused/appellant under Section 313 of the Code of Criminal

Procedure, he denied the allegations made against him by the de

facto complainant but it is important to note that when the

incriminating material appearing in the evidence of P.W. 5 was

confronted with the accused that he came to know from the de facto

complainant that she stayed for about one month at Gorakhpur with

you as husband and wife and cohabited, the appellant replied that he

has nothing to say about such incident. Thus, the appellant did not

deny that he cohabited with the victim girl. It is also not denied that

the victim girl returned to the village with 'vermilion' on her forehead

and 'conch, bangles' and 'Pala' on her hands. Needless to say that

these are the symbols of a married lady. It is not denied that she

returned to her village with the appellant.

The learned advocate for the appellant vehemently urged with

reference to Section 27 of the POCSO Act that in order to prove a

charge under the POCSO Act medical examination of the child at the

earliest is absolutely necessary. Section 27 of the POCSO Act reads

thus:-

"27. Medical examination of a child.- (1) The medical

examination of a child in respect of whom any offence has been

committed under this Act, shall, notwithstanding that a First

Information Report or complaint has not been registered for the

offences under this Act, be conducted in accordance with Section 164-

A of the Code of Criminal Procedure, 1973 (2 of 1974).

(2) In case the victim is a girl child, the medical examination

shall be conducted by a woman doctor.

(3) The medical examination shall be conducted in the presence

of the parent of the child or any other person in whom the child

reposes trust or confidence.

(4) Where, in case the parent of the child or other person

referred to in sub-section (3) cannot be present, for any reason,

during the medical examination of the child, the medical examination

shall be conducted in the presence of a woman nominated by the

head of the medical institution".

In the instant case, the victim girl was not examined medically

under Section 164A of the Code of Criminal Procedure read with

Section 27 of the POCSO Act. Without such evidence being available

on record, the learned Trial Judge was not justified in convicting the

accused under Section 376 of the Indian Penal Code and Section 4 of

the POCSO Act.

Purpose of Section 27 of the POCSO Act and Section 164A of the

Code of Criminal Procedure is to collect and bring the available marks

of injury due to forcible sexual offence at the earliest to establish as

to whether the victim was subjected to rape or penetrative sexual

assault or not. The purpose behind medical examination of a victim of

the offence of rape or penetrative sexual assault is to collect evidence

or violence, especially sexual violence resulting in several physical and

psychological consequences. However, when the evidence-on-record

suggests that a minor girl was induced to cohabit with the accused

after performing a marriage ceremony, it is not possible to have

marks of violence in the person of the victim girl. During cross-

examination of the victim girl, specific question was put to the effect

that she was not sexually assaulted by the appellant and that there

was no cohabitation between her and the appellant, to which she

promptly denied. It is needless to say that the victim was a minor at

the time of commission of offence. In Ashwani Kumar Saxena -

Vs.- State of M.P. reported in (2012) 9 SCC 750 it is held by the

Hon'ble Supreme Court that age determination test is necessary when

the age of the victim is in doubt and when reliable documentary proof

of age is not available. In the instant case, the victim girl and her

parents stated that she was aged about 15 years at the relevant point

of time. The said fact was not challenged by the accused. Therefore,

even when medical examination report the Court can hold the accused

guilty for committing offence under Section 376 of the Indian Penal

Code and Section 4 of the Protection of Children from Sexual Offences

Act, 2012.

In view of the above discussion, I do not find any scope to spill

ink over the judgment and order of conviction and sentence passed by

the learned Sessions Judge, Purba Medinipore.

Accordingly, the appeal is dismissed on contest. The judgment

and order of conviction and sentence is affirmed.

The appellant is directed to surrender before the learned Trial

Court within two weeks from the date to suffer sentence, else the

learned Trial Judge is at liberty to issue warrant of arrest against the

appellant and forfeit the bail amount submitted by the sureties.

Let a copy of this judgment be sent to the learned Court below

along with the lower court record.

Parties are at liberty to act on the server copy of the judgment.

Urgent photostat certified copy of this order, if applied for, be

given to the learned Advocates for the parties on the usual

undertakings.

(Bibek Chaudhuri, J.)

Suman/Srimanta A.Rs. (Court)