Arshad @ Ashad Ali Sheikh vs State Of West Bengal
2023 Latest Caselaw 6769 Cal

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              IN THE HIGH COURT AT CALCUTTA
                 Criminal Appellate Jurisdiction
Present: -      Hon'ble Mr. Justice Subhendu Samanta.
                     C.R.A. No. - 55 of 1996
                      IN THE MATTER OF

                     Arshad @ Ashad Ali Sheikh
                              Vs.
                       State of West Bengal.

For the Appellant           : Mr. Prabir Mazumder, Adv.,
                              Mr. Snehansu Majumder, Adv.


For the State               : Mr. Narayan Prasad Agarwala, Adv.,
                              Mr. Pratick Bose, Adv.




Judgment on                   :       05.10.2023



Subhendu Samanta, J.

The instant appeal has been preferred against the order

of conviction and sentence dated 07.02.1996 passed by the

Learned Additional Sessions Judge 2nd Court Nadia in Sessions

Trial No. 2nd November 1995 (Sessions Case No. 21st of March

1995) against the present appellants u/s 376 of IPC and

sentencing of rigorous imprisonment for two years and to pay a

fine of Rs. 1,000/-in default of suffer further rigorous

imprisonment for 06 months.

Charges have been framed against the present appellant

before the Learned Trial Court u/s 417 and 376 of IPC.

The brief facts of the prosecution case need to be

discussed here for the purpose of effective disposal of the

appeal. On 05.03.1994 the victim lodged one written FIR before

the Officer-In- Charge Nakasipara Police station mentioning

inter alia that about 08 months ago she was raped by the

accused during night at about 11: 00 p.m. by inducing her

with a false compromise to marry her. Out of her shyness she

could disclose it to anybody. Thereafter the accused similarly

had sexual intercourse with her on 06 occasions and as a

result she became pregnant. Thereafter she informed the

matter to her parents. A shalish was held at the village wherein

the accused admitted his guilt.

During trial the prosecution has examined 14 witnesses

PW 1 is the victim herself, PW 2 her father, PW 3 her mother,

PW 4, PW 5, PW 6, PW 7 are the witnesses to the Salish held at

the village, PW 8 is the Head Master where the victim was a

student PW 9 was the scribed of FIR, PW 10 and PW 11 are the

formal police witnesses, PW 12 is the IO, PW 13 is a Doctor

who examined the victim and PW 14 is the Head Master of a

primary school, where the PW 1 was admitted and proved her

DOB (as short Date of Birth) through the admission register of

school.

After taking evidences on record the appellant was

examined by the Learned Trial Judge, u/s 313 Cr.P.C. After

recording his statement and after hearing arguments of both

sides the learned Additional Sessions Judge, has passed the

impugned Judgment and sentence against the present

appellant.

Hence this appeal.

Learned Advocate for the appellant submits that the

impugned Judgment passed by the Learned Sessions Judge is

erroneous and the order of conviction is baseless and need be

set aside. He further argued that the Learned Sessions Judge

has failed to appreciate the facts and circumstances of this

case and consequently the scanning of evidences on record are

faulty thus the order of sentence against the present appellant

need be set aside.

A specific argument is made on behalf of the appellant at

the stage that the present appellant was minor at the time of

alleged incident. The appellant being the minor need by tried

according to the Juvenile Justice Act but the trial conducted by

the Learned Sessions Judge is faulty one. He placed his

argument on that score by sighting the statement of the

accused/appellant recorded u/s 313 Cr.P.C. by the Learned

Trial Judge. In the said form the age of the appellant was

mentioned as 18 years. The examination of the accused u/s

313 IPC was held on 12.01.1996. The alleged incident

happened in the year 1993 thus at the time of alleged incident

the appellant was aged about 15 years that he was a Juvenile

at the time of incident. It is the specific argument of the

Learned Advocate for the appellant that the claim of Juvenility

was not raised by the accused before the Trial court but they

have made the claim in the memo of the appeal.

Now considering the entire facts and circumstances of

the appeal in my considered view there are two relevant points

to dispose of the instant appeal.

1. Whether the impugned judgment of sentence and

conviction passed by the Learned Sessions Judge is

justifiable considering the evidences on record.

2. Whether the appellant is entitled to get the benefit

of doubt regarding his alleged age mentioned in the

statement recorded u/s 313 Cr.P.C to be 18 years.

Point No. 1 - it has been argued by the Learned Advocate for

the appellant that de-facto complainant in FIR stated that she

was 15 years of age. Being the minor girl she signed the said

document and on the basis of the same the present case was

initiated. The statement of the minor is itself bad in law and

the instant criminal appeal on the basis of which is also bad in

law.

The de-facto complainant claimed that she was a minor

at the time of occurrence of the incident but no conclusive

evidence to that effect is forthcoming from the side of the

prosecution except the school admission register which was

produced by PW 14. The DOB was appearing on 05.02.1982.

PW 14 stated before the trial judge that the DOB of the victim

girl was declared by one of the guardian but name of such

guardian was not mentioned of the document. Moreover, no

signature of the guardian was available in the respective

column of the said register. It has appeared before the trial

judge, that the electoral role prepared in the name of the victim

thus the victim was major person and she was consenting

party to the alleged Act of sexual inter course. On that score, it

is argued that the Learned Trial Judge has failed to consider

the fact beyond reasonable doubt against the present appellant

and there is a miscarriage of justice. He further argued that the

fact goes to show that appellant married the victim girl so the

victim girl being the married wife of the appellant cannot file

the complaint u/s 376 of IPC. Another criminal case lodged by

the de-facto complainant u/s 498A against the present

appellant which was ended in acquittal and no appeal has been

preferred against the said order of acquittal. The de-facto

complainant did not disclose about the alleged act of rape in

the said proceeding thus it is a clear case that the prosecution

has failed to bring home the charge against the present

appellant beyond of reasonable doubts; and he prayed for

setting aside the impugned judgment.

Learned Advocate for the state argued before the court

that the impugned judgment passed by the Learned Trial Judge

suffers no illegality. Each and every prosecution witnesses has

supported the prosecution case. The victim herself deposed as

PW 1. The other co-related witnesses also supports the victims

version; during the examination the credibility of the witnesses

were not shaken. The evidences on record have justifiably

proved that the appellant has committed the alleged offences of

rape upon a victim girl. On that score the observation of the

Learned Trial Judge is not improper and the conviction is

maintainable.

Heard the Learned Advocates.

In considering the materials on record it appears to me

that the de-facto complainant had sufficient knowledge and

understanding to the facts and circumstances of this case and

there is no legal bar to file a complaint before the police on the

basis of the version of a minor.

To prove the age of the victim girl the document exhibited

before the Learned Trial Judge and were mark as Exhibit 2, 3

and 6. These are the school records sufficiently proved by the

respective head masters of the school. The electoral role was

also exhibited before the Learned Trial Judge as Exhibit- A. The

Learned Trial judge has considered the age of the victim girl on

the basis of the school records. The findings of the Learned

Trial Judge is specific and clear also speaking to that respect. I

find no justification to interfere with the finding of the Learned

Trial Judge regarding the age of the victim at the time of the

alleged incident. The age of the victim appearing in the electoral

role is not justified. The school records are the sufficient proof

of the age of the victim. Thus there is no iota of doubt to the

effect that the victim was aged about 12 to 13 years at the time

of alleged incident of rape. In considering the case of the

prosecution it appears to me the evidence of victim has

sufficiently proved the alleged incident. Other circumstantial

evidences i.e. the relatives of the victim and the lecal witnesses

also support the prosecution case. The investigation of the

police cannot be said to be perfunctory. Discrepancy appearing

in the prosecution case appears to be minor discrepancies thus

I am of a view that prosecution has sufficiently proved the

charge u/s 376 IPC against the present appellant. The order of

conviction and sentence passed by the Learned Trial Judge

against the appellant appears to be justified thus the point No.

1 decided against the appellant.

Point NO.- 2 It has been argued by the appellant that at

the time of alleged incident the appellant aged about 15 years

the said argument has its support is the form of recording of

the statement of the accused person u/s 313 Cr.P.C. wherein

his age was mentioned 18 years.

Learned Advocate for the appellant submits that the

claim of juvenility has been specifically raised at the time of

appeal. The same situation has been raised before the Hon'ble

Supreme Court as well as the Hon'ble High Court in several

times. The Apex Court has decided the issue that the appellant

cannot be convicted by a sessions judge in a sessions trial as

he was a minor at the time of alleged incident. In support of his

contention he has cited some decisions reported in

(1) Najima Bibi Vs. State of West Bengal, (2004) SCC Online

CAL 255

Gopinath Ghosh Vs State of West Bengal, (1984 SUPP) SCC

Pradip Kumar Vs. State of Uttar Pradesh, (1995) (4) SCC

Bhola Bhagat Vs. State of Bihar (1997) 8 SCC 720

Joymala Vs. Home Secretary Government of Jammu &

Kashmir and Ors. (1982) 2 SCC 538.

Learned Advocate for the appellant further argued that

where two views of a story appears to be probable the one that

was contended by the accused should be accepted. The above

observation was passed by the Hon'ble Supreme Court in

Bikramjit Singh Alias Biki Vs. State of Punjab (2006) 12

SCC 306.

On the other hand Learned Advocate for the State

submits that the statement of the accused recorded u/s 313

Cr.P.C is not a substantive piece of evidence the entire trial

cannot be vitiated by mentioning the age of the accused to be

18 years at the said form. The appellant has purposively not

argued the matter before the Learned Trial Judge but as raised

at this appellate stage. It is not permissible in the eye of law.

He further argued that the appellant was never a minor at the

time of alleged incident, only his statement recorded u/s 313

Cr.P.C cannot exonerate him from the criminal charge.

Heard the Learned Advocates.

Perused the observation of the Hon'ble Supreme Court

and the Apex Court. The same issues were raised before the

Hon'ble Supreme Court and High Court at the time of hearing

of the appeal. The Hon'ble Supreme Court has directed the

concern sessions judge to conduct an investigation from the

radiologists to ascertain the age of the accused/appellants. On

the basis of such report the order was passed by the Hon'ble

Apex Court.

The same procedure was adopted by this court and a

specific order was passed directing the sessions Judge of the

concerned district to direct concerned CMOH to form a medical

board to ascertain the age of appellant. The same was done

accordingly. The report was received from the court. From the

report it appears that the age of the appellant could not be

ascertained. Thus the report appears to me in conclusive. I

have perused the statement recorded by the Learned Additional

Sessions Judge. At the time of recording the statement of the

appellant u/s 313 Cr.P.C, at the top of the form, the age of the

appellant was written as 18 years. It is quite impossible to hold

that whether any specific question regarding the age of the

appellant was asked or not. All the statements recorded u/s

313 Cr.P.C was made under question and answer form. Thus,

it appears to me that the Learned Additional Sessions Judge

was very unmindful at the time of writings the age of the

appellant. When the appellant stated his age to be 18 years,

the same must be investigated by the Learned Sessions Judge

before hearing the argument from respective parties. Obviously

the matter regarding confirmation of the age of the appellant at

the time of alleged incident after more than 25 years is a futile

exercise and the report is obviously inconclusive. Thus it

appears to me that the benefit of doubt always stands in favour

of the accused/appellant.

Thus the point No. 2 answered in favour of the appellant.

Considering the same I think it necessary to dispose of

the appeal by holding that, though the impugned Judgment

and sentence passed by the Learned Sessions judge suffers no

illegality but the appellant has a reasonable doubt on fact that

he was minor at the time of alleged incident.

On that score the order of conviction passed by the

Learned Additional Sessions Judge is sustained and the

sentences of imprisonment passed upon the appellant is

hereby reduced to imprisonment for the period already

undergone by him during investigation, enquiry and trial the

appellant is directed to pay a fine of Rs. 10,000/- in default to

suffer simple imprisonment of 06 months.

The appellant is directed to appear before the Learned

Trial Court and pay a fine as aforesaid within 20th of November

2023.

The Criminal Appeal is disposed of.

Parties to act upon the server copy and urgent certified

copy of the judgment be received from the concerned Dept. on

usual terms and conditions.

(Subhendu Samanta, J.)