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Item 737/Aloke/AB

IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side

BEFORE:

The Hon’ble Mr. Justice Joymalya Bagchi

C.R.A. 1 of 2009

MANTU ANSARI
VS
THE STATE OF WEST BENGAL

For the appellant : Mr. Himangsu De, Advocate
Mr. Navnil De, Advocate

For the de facto complainant : Mr. Mritunjay Chatterjee, Advocate

For the State : Ms. Anusua Sinha, Advocate

Heard on : April 18, 2017

Judgement on : April 18, 2017

Joymalya Bagchi, J. :

The Appeal is directed against judgement and order dated 16.12.2008

passed by the learned Additional District Sessions Judge, 5th Fast Track Court,

Malda convicting the appellant for commission of offence punishable under

Section 376 of the Indian Penal Code and sentencing him to suffer rigorous
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imprisonment for five years and to pay a find of Rs.500/-, in default, to suffer

simple imprisonment for one month.

The prosecution case, as alleged, against the appellant is to the effect that

on 27.12.2006 the victim lodged a complaint against the appellant with the

Officer-in-Charge, Pukuria Out Post, P.S. Ratua alleging that three years ago a

relationship developed between them and both of them had cohabited on a

number of occasions on the promise that the appellant would marry her.

Subsequently the appellant refused to marry her. On the complaint of the victim

Ratua P.S. Case No. 234/06 dated 27.12.2006 under Sections 493/376 of the

Indian Penal Code was registered for investigation. In conclusion of investigation

charge-sheet was filed in the instant case under Sections 493/376 of the Indian

Penal Code and the case was committed to the Court of Sessions and transferred

to the Court of learned Sessions Judge, 5th Fast Track Court, Malda for trial and

disposal.

Charges were framed under Sections 493/376 of the Indian Penal Code.

The appellant pleaded not guilty and claimed to be tried.

In the course of trial prosecution examined 17 witnesses.

The defence of the appellant was one of innocence and false implication.

In conclusion of trial the trial court by judgment and order dated

16.12.2008

convicted and sentenced the appellant as aforesaid.

Mr. De, learned senior counsel appearing for the appellant submits that

appellant was a minor at the time of commission of offence. Drawing my

attention to the Admit Card issued by the West Bengal Board of Secondary
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Education in favour of the appellant, he submits that the date of birth of the

appellant was 27th April, 1988 and accordingly he was below the age of 18 years

at the time of commission of the incident. It is further submitted that the victim

and the appellant were of the same age and there is nothing to show that they

had cohabited together on the false promise of marriage.

Ms. Sinha, learned counsel appearing for the State submits that the

aforesaid document was not proved during trial. She however admits that the

appellant disclosed his age as 20 years during his examination under Section

313 Cr.P.C. i.e. in 2008. She, however, submits as the victim girl was below 16

years at the time of incident, that is, 3 years prior to registration of FIR, consent

of the girl to the sexual intercourse was immaterial.

Mr. Chatterjee, learned counsel appearing for the de facto complainant

submits that his client does not have any grievance against the appellant as he

was a minor at the time of commission of the offence.

From the evidence on record particularly that of P.W.1 the victim, it

appears that 2-3 years prior to the registration of the first information report the

victim had cohabited with the appellant on a number of times. However, dates on

which they had cohabited have not been specifically mentioned. The age of the

appellant as it appears from his examination under Section 313 Cr.P.C. held on

2008 as well as during his medical examination (Exbt. 4) in 2007 is 20 and 19

years respectively. It is, therefore, evident that the appellant who was 18 years

old at the time of lodging of FIR in 2006 and was a minor at the time when he

cohabited with the victim which was 2-3 years prior to the registration of FIR. It
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is also true that the victim who was born on 14th April, 1988 as is evident from

the evidence of P.W. 17, the Headmistress of Araidana R.N.G. Balika Vidyalay

where she was a student, which would render her below the age of consent, i.e.

16 years at the time of the incident which occurred 2-3 years prior to the

registration of first information report in 2006.

Hence, I am of the view that the cohabitation by and between the appellant

and victim irrespective of whether the appellant had held out a promise to marry

or not amounted to a case of statutory rape punishable under Section 376 IPC.

Hence, the conviction of the appellant under Section 376 IPC is upheld.

Coming to the issue of sentence, I find that there is material on record to

show appellant was a minor at the time of occurrence, that is, 2-3 years prior to

registration of FIR. Section 7A of the Juvenile Justice (Care and Protection) Act,

2000 entitles an accused to raise the issue of juvenility at any stage of the

proceeding including the appellate stage. The appellant has accordingly raised

such issue of juvenility which from the materials on record appears to be a

convincing one.

Accordingly, I hold that the appellant was a juvenile at the time of

commission of the offence. However, the appellant had been tried, convicted and

sentenced by an ordinary court as if he was an adult. In view of the law declared

in Jitendra Singh vs. State of U.P. (2013) 11 SCC 193 undu such

circumstances while maintaining the conviction of the appellant, sentence

imposed upon him is to be set aside and the matter is to be sent to the Juvenile
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Justice Board for imposition of fine in terms of Section 20 read with Section 15 of

the aforesaid Act of 2000.

Hence, I uphold the conviction recorded against the appellant under

Section 376 IPC but set aside the sentence imposed upon him as the appellant

was a juvenile at the time of commission of offence. However, as the appellant

has suffered detention for a period of time during the investigation, trial and

pendency of this appeal and the de facto complainant is not willing to proceed

with the matter, I refrain from remitting the matter to the Juvenile Justice Board

for imposition of fine and compensation upon the appellant.

The appeal is partly allowed.

The appellant shall be discharged from his bail bond under Section 437A

Cr. P.C. after six months from date.

Copy of the judgement along with LCR be sent down to the trial Court at

once for necessary compliance.

(Joymalya Bagchi, J.)

Item No. 737
Aloke/ AB