Calcutta High Court (Appellete Side)
Mritunjoy Mondal vs The State Of West Bengal on 8 October, 2021
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
PRESENT:
THE HON'BLE JUSTICE TIRTHANKAR GHOSH
C.R.R. 52 of 2012
(Via Video Conference)
Mritunjoy Mondal.
-vs.-
The State of West Bengal
For the Petitioner : Mr. Sumanta Chakraborty
For the State : Mr. Imran Ali
Ms. Debjani Sahu
Heard on : 27.08.2021, 01.09.2021, 17.09.2021,
22.09.2021, 27.09.2021.
Judgment on : 08.10.2021.
Tirthankar Ghosh, J:-
The present revisional application has been preferred against the
judgment and order dated 28.02.2011 passed by the learned Additional
Sessions Judge, 1st Fast Track Court, Lalbagh, Murshidabad in Criminal
Appeal No. 1/10, wherein the learned Court was pleased to dismiss the
appeal and affirm the order of conviction and sentence passed by the
learned Assistant Sessions Judge, Lalbagh, Murshidabad in Sessions Case
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no. 81/2007 under Section 363/366 of the Indian Penal Code. The sentence
which was imposed by the learned Assistant Sessions Judge, Lalbagh,
Murshidabad by its judgment dated 27.05.2009 was as follows:
(i) The accused Mritunjoy Mondal is sentenced to undergo R.I. for
7 years and to pay fine of Rs.3000/- i.d. to suffer more
imprisonment for six months for the offences punishable under
Section 363 of Indian Penal Code.
(ii) R.I. for 7 years and to pay fine of Rs.3000/- i.d. to suffer more 6
months for the offence punishable under Section 366 of Indian
Penal Code.
The genesis of the case was complaint lodged by one Banomali Mondal
of village Char Doulatpur, P.O. Khamardiar under P.S. Islampore, Dist.
Murshidabad with the Officer-in-charge Islampore P.S. to the effect that on
10.12.2006 at the night hours his daughter namely, Sundari Mondal aged
about 14 years was enticed by Mritunjoy Mondal, with the purpose of
marrying her. On the basis of such complaint dated 02.03.2007 Islampore
police station case no. 25/07 dated 02.03.2007 under Section 363/366 of
the Indian Penal Code was registered for investigation and after completion
of investigation the investigating agency filed charge-sheet no. 24/07 dated
30.03.2007 under Section 363/366 of the Indian Penal Code before the
learned A.C.J.M. Lalbagh on or about 09.04.07. The learned Magistrate was
pleased to take cognizance of the offences and thereafter committed the case
to the Court of Sessions and finally the case was transferred to the learned
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Assistant Sessions Judge, Lalbagh Murshidabad for trial on or about
15.06.2007.
Records reflect that on or about 04.10.07 charge was framed against
the present petitioner under Section 363/366 of the Indian Penal Code and
the substance of the accusation of the said charge-sheet was read over and
explained to the present petitioner who pleaded not guilty and claimed to be
tried.
Prosecution in order to prove its case relied upon 13 witnesses and
number of documents which were marked as Exhibits. On the other hand
defence examined one witnesses in support of its case and for rebutting the
prosecution evidence. The witnesses who deposed on behalf of the
prosecution are PW1, Banomali Mondal, complainant and father of the
victim girl; PW2, Masadul Sarkar, who is the scribe of the letter of
complaint; PW3, Arati Mondal, mother of the victim girl; PW4, Gour
Chandra Mondal, relative of complainant/PW1; PW5, Upen Mondal, an
independent witness; PW6, Prollad Mondal, also an independent witness;
PW7, Dr. Bilas Mukhjerjee, Medical Officer who examined Mritunjoy
Mondal; PW8, Sujit Kumar Bandyopadhyay, Judicial Magistrate who
recorded the statement of the victim girl under Section 164 of the Code of
Criminal Procedure; PW9, Gurupada Mondal, Medical Officer, who examined
the victim girl for ascertaining her age; PW10, Dr. Ranjit Raychoudhury,
Medical Officer, who examined the victim girl; .PW11, Sundari Mondal,
victim girl; PW12, Kalidas Roychowdhury, Investigating Officer of this Case
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and PW13, Modhusudhan Mondal, Head Teacher of Char Doulatpur F.P.
School who produced the date of birth of the victim girl.
The documents which the prosecution relied upon are Ext.1 series,
written complaint and signature thereon; Ext. 2, Medical Test Report of
Mritunjoy Mondal; Ext.3, statement of the victim under Section 164 of the
Code of Criminal Procedure; Ext.4 series X-ray report and X-ray plate, Ext.5,
Medical Test report of victim girl; Ext.6, Formal FIR; Ext.7 series, sketch
map with index; Ext.8, admission register of Char Doulatpur Primary School
in respect of serial no. 27, regarding admission of Sundari Mondal in that
School.
The witness which was tendered by the defence in support of its case
was one Sova Mondal.
Mr. Sumanta Chakraborty, learned Advocate appearing for the petitioner
contested the judgment delivered by both the Court below, firstly regarding the age
of the victim girl, secondly, regarding the statement of the victim girl under Section
164 of the Code of Criminal Procedure, thirdly, regarding the applicability of
Section 363 and Section 366 of the Indian Penal Code in respect of which charges
were framed and the petitioner was held guilty and sentenced. Learned Advocate in
order to substantiate his contention relied upon the following judgments: Ram
Murti -Vs. - State of Haryana, AIR 1970 SC 1029; Govinda Kadtuji Kadam & Ors. -
Vs.- The State of Maharashtra, AIR 1970 SC 1033; Alamelu & Anr. -Vs.- State,
represented by Inspector of Police, AIR 2011 SC 715; Pinninti Venkataramana &
Ors.-Vs.- State, 1976(2) (H.C.)159; Rajendra alias Raju -Vs.- State of Maharashtra,
AIR 2002 SC 3390; K. Prabhakaran -Vs. - P. Jayarajan, AIR 2002 SC 3393;
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Gabbu -Vs. - State of Madhya Pradesh [Appeal (Crl.) 791 of 1998 and Imperator -
Vs. - Haji Baka & Ors., (1909)10 Cri LJ 208.
Mr. Imran Ali, learned Advocate appearing for the State has rebutted the
contentions advanced by the learned Advocate appearing for the petitioner and
submitted that there are overwhelming materials which have been relied upon by
the prosecution to prove that the girl was a minor at the time when the offence was
committed, as such her consent cannot be of any relevance as at the relevant point
of time the dominance of the accused seems to be prevalent from her statement
under Section 164 of the Code of Criminal Procedure. Learned Advocate for the
State supported the findings and the judgment and order of conviction so passed
by the learned trial Court and affirmed by the learned Appellate Court. In order to
appreciate the provision under Section 366 of the Indian Penal Code, the relevant
judgment of the Hon'ble Supreme Court is referrred as follows:
Thakorlal D. Vadgama -Vs.- State of Gujarat, (1973) 2 SCC 413 :
1973 SCC (Cri) 835 at page 420 wherein it has been held that: "10. The legal
position with respect to an offence under Section 366 IPC is not in doubt,
in State of Haryana v. Rajaram [(1973) 1 SCC 544 : 1973 SCC (Cri) 428] this
Court considered the meaning and scope of Section 361 IPC it was said there:
"The object of this section seems as much to protect the minor
children from being seduced for improper purpose as to protect the
rights and privileges of guardians having the lawful charge or
custody of their minor wards. The gravamen of this offence lies in
the taking or enticing of a minor under the ages specified in this
section, out of the keeping of the lawful guardian without the
consent of such guardian. The words 'takes or entices any minor ...
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out of the keeping of the lawful guardian of such minor' in Section
361, are significant. The use of the word 'keeping' in the context
connotes the idea of charge, protection, maintenance and control:
further the guardian's charge and control appears to be compatible
with the independence of action and movement in the minor, the
guardian's protection and control of the minor being available,
whenever necessity arises. On plain reading of this section the
consent of the minor who is taken or enticed is wholly immaterial:
it is only the guardian's consent which takes the case out of its
purview. Nor is it necessary that the taking or enticing must be
shown to have been by means of force or fraud, persuasion by the
accused person which creates willingness on the part of the minor
to be taken out of the keeping of the lawful guardian would be
sufficient to attract the section."
1.
In the case cited reference has been made to some English
decisions in which it has been stated that forwardness on the part
of the girl would not avail the person taking her away from being
guilty of the offence in question and that if by moral force of a
willingness is created in the girl to go away with the former, the
offence would be committed unless her going away is entirely
voluntary. Inducements by previous promise or persuasion was
held in some English decision to be sufficient to bring the case
within the mischief of the statute. Broadly, the same seems to us to
be the position under our law. The expression used in Section 361
IPC is "whoever takes or entices any minor". The word "takes"
does not necessarily connote taking by force and it is not confined
only to use of force, actual or constructive. This word merely
means, "to cause to go", "to escort" or "to get into possession". No
doubt it does mean physical taking, but not necessarily by use of
force or fraud. The word "entice" seems to involve the idea of
inducement or allurement by giving rise to hope or desire in the
other. This can take many forms, difficult to visualise and describe
exhaustively; some of them may be quite subtle, depending for
their success on the mental state of the person at the time when
the inducement is intended to operate. This may work immediately
or it may create continuous and gradual but imperceptible
impression culminating after some time, in achieving its ultimate
purposes of successful inducement. The two words "takes" and
"entices", as used in Section 361 IPC are in our opinion, intended
to be read together so that each takes to some extent its colour and
content from the other. The statutory language suggests that if the
minor leaves her parental home completely uninfluenced by any
promise, offer or inducement emanating from the guilty party, then
the latter cannot be considered to have committed the offence as
defined in Section 361 IPC. But if the guilty party has laid a
foundation by inducement, allurement or threat, etc. and if this can
be considered to have influenced the minor or weighed with her in
leaving her guardian's custody or keeping and going to the guilty
party, then prima facie it would be difficult for him to plead
innocence on the ground that the minor had voluntarily come to
him. If he had at an earlier stage solicited or induced her in any
manner to leave her father's protection, by conveying or indicating
or encouraging suggestion that he would give her shelter, then the
mere circumstance that his act was not the immediate cause of her
leaving her parental home or guardian's custody would constitute
no valid defence and would not absolve him. The question truely
falls for determination on the facts and circumstances of each case.
In the case before us, we cannot ignore the circumstances in which
the appellant and Mohini came close to each other and the manner
in which he is stated to have given her presents and tried to be
intimate with her. The letters written by her to the appellant mainly
in November 1966 (Exhibit P-20) and in December 1966 (Exhibit P-
16) and also the letter written by Mohini's mother to the appellant
in September 1966 (Exhibit P-27) furnish very important and
essential background in which the culminating incident of January
16 and 17, 1967 has to be examined. These letters were taken into
consideration by the High Court and in our opinion rightly. The
suspicion entertained by Mohini's mother is also in our opinion,
relevant in considering the truth of the story as narrated by the
prosecutrix. In fact, this letter indicates how the mother of the girl
belonging to a comparatively poorer family felt when confronted
with a rich man's dishonourable behaviour towards her young,
impressionable immature daughter; a man who also suggested to
render financial help to her husband in time of need. These
circumstances, among others, show that the main substratum of
the story as revealed by Mohini in her evidence, is probable and
trustworthy and it admits of no reasonable doubt as to its
truthfulness. We have, therefore, no hesitation in holding that the
conclusions of the two courts below with respect to the offence
under Section 366 IPC are unexceptionable. There is absolutely no
ground for interference under Article 136 of the Constitution.
I have perused the documents which have been relied upon by the
prosecution in support of the age of the victim. To that effect the medical test report
of the victim girl, the x-ray report and x-ray plates being Ext.4 series and Ext.5 was
also taken into consideration. In addition to the same Ext.8 which was admission
register of Char Doulatpur Primary School in respect of the serial no. 27
regarding admission of the victim Sundari Mondal in that school which was
produced by the Head Master of the said School being PW13.
I am of the opinion that the cumulative appreciation of all the
aforesaid documents taken as a whole cannot compel this Court to take a
different view in respect of the age of the victim than that which has been
accepted by the learned Courts below.
Thus the victim was a minor on the date of commission of the offence.
Therefore, the statement of the victim girl under Section 164 of the Code of
Criminal Procedure is diluted as the Court by exercising its discretion
cannot accept the contention of the defence that a minor intended to marry
on her volition as such the accused should be exonerated of the charges. It
is the settled principle of law that the consent of a minor has got no
relevance and to that effect larger interest of the society is to be taken into
consideration.
On scrutiny of the evidence and the reasons assigned by the trial
Court as well as the Appellate Court in order to arrive at their conclusion of
guilt there is no scope for interference, having regard to the reasons so
assigned by them, the adherence to the settled principles of law and on a
cumulative assessment of the facts of the case in the background of the
charge for which the petitioner was tried.
It would not be out of place to state that this Court while exercising its
revisional jurisdiction against an order of appeal will only re-appreciate the
evidence as a whole provided there is some manifest error which is
appearing in the records of the case or a substantial question of law is
involved which was ignored by both the Courts below before arriving at its
finding. With great respect, I am of the considered opinion that none of the
issues arose in this case for this Court to interfere with the judgment and
order of conviction passed by the trial Court and affirmed by the Appeal
Court.
However, even if the conclusion of guilt arrived at cannot be interfered
with, this Court is of the opinion that the quantum of sentence imposed
upon the petitioner is excessive.
As such so far as the sentenced imposed by the learned trial Court is
concerned, interference is required as the incident is of the year 2007 i.e.,
almost 14 years have passed and the statement of the victim under Section
164 of the Code of Criminal Procedure, although the same was of a minor
and could not be taken into account for the purpose of assessing the guilt of
the accused but the same can be taken as a mitigating circumstance at this
stage when the report which has been received from the concerned Officer-
in-charge of the police station reflects that the victim has already settled in
life with different person. The present petitioner was also young at the
relevant point of time, although he was a major. In view of the aforesaid the
sentence awarded by the learned trial Court and affirmed by the learned
Appellate Court in respect of the offences under Section 363 and under
Section 366 of the Indian Penal Code is reduced from R.I. of 7 years each to
R.I of 2 years each with the fine amount and the default clause in respect of
the fine remaining un-altered.
The petitioner is directed to surrender within a period of 30 days from
the date to serve out the sentence. Records reflect that the petitioner is on
bail, accordingly his bail bond is cancelled.
Both the sentence would run concurrently and the period of sentence
which has been undergone by the petitioner during the stage of
investigation, trial, appeal and revision would be set off from the substantive
sentence so imposed.
Accordingly, the judgment and order dated 28.02.2011 passed by the
learned Additional Sessions Judge, 1st Fast Track Court, Lalbagh,
Murshidabad, in Criminal Appeal No. 1/10 affirming the order of sentence
passed by the learned Assistant Sessions Judge, Lalbagh, Murshidabad in
Sessions Case No. 81/2007 is modified, so far as the sentence is concerned.
Consequently, CRR 52 of 2012 is disposed of.
Pending application, if any, is consequently disposed of.
Department is directed to communicate this order to the Ld. Trial
Court and send the LCR forthwith to the Court below.
All parties shall act on the server copy of this judgment duly
downloaded from the official website of this Court.
Urgent photostat certified copy of this judgment, if applied for, be
supplied to the parties upon compliance with all requisite formalities.
(Tirthankar Ghosh, J.)
