SHRI. KUNJI MOHAMMED Vs. THE STATE

JUDGEMENT

(1.) This appeal at the instance of the convict/appellant has been filed challenging the judgment and order dated 28th February, 2018 and 5th march 2018 passed by the court of the learned Session Judge, Port Blair, in connection with the Sessions Case No. 59 of 2010 corresponding to Sessions Trial No. 90 of 2010 thereby, inter alia, convicting the appellant for commission of offence under Section 218 of the Indian Penal Code, 1860 (hereinafter referred to as the IPC) and sentencing him to suffer rigorous imprisonment for 03 years and also to pay a fine of Rs. 50,000/- (Rupees Fifty Thousand Only) in default to suffer rigorous imprisonment for three months further, for the offence punishable under Section 218 of the IPC. The case by its own facts is of a very peculiar nature whereby while dealing with a complaint of a lady alleging outrage of her modesty, the Station House Officer himself has been convicted. The prosecution case is based on a written letter of complaint dated 24th May, 2007 which was registered against the appellant in the form of Central Crime Station case (CCS) Case No. 551 of 2007 dated 24th May, 2007 under Sections 302/342/218/201 of IPC, 1860 and ultimately charge sheeted through a purported report under Section 173 hereinafter referred to as the said charge sheet of the Code of Criminal Procedure, 1973 being Charge Sheet No. 224 of 2010 dated 28th February, 2010 under Sections 306/330/342/218/201 of the IPC. As it appears from the said complaint sent by Purna Barla to the Hon'ble Lieutenant Governor, Andaman and Nicobar Islands with a copy to the Chief Secretary, Andaman and Nicobar Islands, Secretary National Human Rights Commission, Inspector General of Police of Andaman and Nicobar Islands and others regarding committal of murder of his son, Suprian Barla since deceased by Sub Inspector Kunji Mohammed, Ex-Station House Officer (SHO) of Police Station, Kadamtala alleging that he had been accused of misbehaving with a girl being Mary Prabha Kujur on 16th April, 2007, after which Mary Prabha Kujur had gone to the Police Station and lodged a Non Cognizable First Information Report (hereinafter referred to as NC-FIR) No. 08 of 2007 under Sections 324/504/506 of the IPC, as a result of which the said Suprian Barla was arrested and brought to the Police Station. The said Suprian Barla after being arrested various persons went to the police station tried to get him released, but, the SHO refused and at about 6 a.m. on the following morning it was found that Suprian Barla escaped from the police lockup in the night and he was found hanging from the roof of his own hut. The father, Pruna Barla by his complaint claimed that proper investigation should be made through neutral and or independent reliable agency like Central Bureau of Investigation and further demanded a sum of Rs. 7 Lakhs as compensation and gave out threat that if such demand is not fulfilled he would move Hon'ble High Court seeking appropriate reliefs. After committal of the case by the Chief Judicial Magistrate the Court of Sessions by an order dated 6th October, 2010 took cognizance of the said offences and the case was transferred to Additional Sessions Judge, Port Blair for trial and disposal. Trial of the said case commenced with framing of charges by an order dated 23rd September, 2013 under Section 302/330/342/218/201 of the IPC and the contents of the said charges were read over and explained to the appellant to which he pleaded not guilty and claimed to be tried.

(2.) As many as 23 witnesses including the complainant were examined by the prosecution. Defence adduced no witness and his specific case is one of absolute innocence and false implication. All throughout the trial the appellant was under bail granted by Courts. After facing a long protracted trial over a span of eight years, owing to delay and lacunae on the part of the prosecution in conducting the trial the appellant under compulsion moved the Hon'ble High Court in WPCT No. 329 of 2016 wherein the Hon'ble High Court by an order dated 16th November, 2016, inter alia, directed that the trial should be completed positively within November, 2017, and the Sessions Court delivered the judgment on 28th February, 2018.

(3.) At the end of the trial on consideration of what has been borne out from the oral testimony of the prosecution witnesses the learned Sessions Judge held that none of the charges framed against the accused could be sustained save and except that the charge of Section 218 of the IPC. The conclusion of the learned Sessions Judge is as follows "Having regard to the evidence on record and giving anxious consideration to the facts and circumstance of the case this court is of the view that the prosecution has been able to prove the charge under Section 218 of the IPC against the accused person beyond all reasonable doubt. But the prosecution failed to prove the charges under Sections 302/330/342/201 of the IPC. Accordingly, it is held that the accused is guilty of the charge under Section 218 of the IPC and he is liable to be convicted." The learned Sessions Judge in support of his order of conviction arrived at a finding "admittedly, the accused is a police officer and at the time of commission of the alleged offence he was posted as Station House Officer of Kadamtalla Police Station. Therefore, he is covered by the definition of Public Servant and he was solely responsible for conduct of the business of the Police Station. There is enough evidence that when the incident of commission of a cognizable offence by the deceased was reported to the Police Station the matter was brought to the notice of the SHO (accused) and he instructed his subordinate to register a NC-FIR. There is no denial of this fact. Instead of registering a case against the deceased under proper section of law he caused to have registered Challan No. 06 of 2007 of date 17th April, 2007 under Section 107/116(3)/151 of the Criminal Procedure Code. This cannot be treated as ignorance of law. Moreover, ignorance of law is no excuse. This is clearly a violation of Section 218 of the IPC. He knowing fully well the allegation against the deceased implicated him in another case not alleged to have been committed by him. The accused made an endorsement to this effect on the post-mortem report (exhibit 7) as the Station House Officer. All the witnesses to the occurrence have clearly and unequivocally deposed that the girl attended the Police Station and lodged complaint against the deceased alleging that her modesty was out raged by the deceased. There is absolutely no reason to disbelieve this evidence."