IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
The Hon’ble Mr. Justice Joymalya Bagchi
C.R.A. 1 of 2009
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
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
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
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
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
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
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
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