Calcutta High Court (Appellete Side)
Atiar Rahaman Mallick vs The State Of West Bengal on 16 January, 2014
Author: Tapen Sen
Bench: Tapen Sen
HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
(APPELLATE SIDE)
CRA 189 / 2011
Atiar Rahaman Mallick
-Vs-
The State of West Bengal
CORAM: HON'BLE MR. JUSTICE TAPEN SEN
HON'BLE MR. JUSTICE SHIB SADHAN SADHU
For the Appellant : Mr. Sudipto Moitra
Mr. Ashok Das
For the State : Mr. Manjit Singh, Ld P.P.
Mr. Soumik Ganguly
C.A.V on : 10.01.2014
Judgment Delivered on : 16.01.2014
JUDGMENT
Tapen Sen J. :
This appeal is directed against the judgment and order of conviction dated 5/2/2011 and 7/2/2011 passed by the Ld. Additional District and Sessions Judge, Fast Track Court - I, Uluberia in the District of Howrah in Sessions Trial No. 477 of 2006 whereby and whereunder he was pleased to convict the appellant under Sections 363 / 366A of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for 7 years together with a fine of Rs. 3,000 and in default, to suffer further rigorous imprisonment for 3 months for the commission of offence punishable under Section 363 of the Indian Penal Code. So far as Section 366A is concerned, the appellant was convicted under that Section and was sentenced to undergo rigorous imprisonment for 10 years with a fine of Rs. 5,000 and in default, to suffer further rigorous imprisonment for 4 months. Both the sentences were directed to run concurrently.
2. The Ld. Trial Judge also convicted another co-accused under Sections 363, 366A and 376 of the Indian Penal Court but this appeal is not concerned with the said other co-accused namely Sk. Nazimul. This appeal is concerned only with the appellant Atiar Rahaman Mallick.
3. The instant case arises out of a written report dated 31/3/06 made by one Sk. Noor Islam. The informant lodged a written report before the Officer-In- Charge, Shyampur Police Station at Howrah and accordingly a case was registered, being Shyampur P.S. Case No. 41 of 2006 dated 31/3/06 under Sections 363 and 366A of the Indian Penal Code. The said written report was in relation to an occurrence alleged to have taken place 6 days earlier i.e. on 25/3/06. It alleged, inter-alia, that his daughter, Sabina Khatoon, aged about 15 years and studying in Class-VI went missing from the Bagandabazar in the evening of 25/3/06. Since she could not be located even after search, a missing diary was registered at the Shyampur Police Station on 29/03/06 vide G.D. No. 1942 dated 29/3/06. It was further alleged that since the matter was known to all the villagers, they (the villagers) "nabbed" 2 persons namely (1) Sk. Nazimul, S/o Sultan & (2) Atiar Mollah, S/o Allauddin, resident of village Secunderpur, P.S. Mandirbazar. According to the informant, these 2 persons admitted the incident when they were quizzed by the villagers and therefore it was the firm belief of the informant that these 2 persons had hidden his daughter with ill motives. He also believed that they had eloped with his daughter for marriage by seducing her with false words.
4. The informant further stated that subsequently, these 2 persons had disclosed that his daughter would be found if they searched for her at Mandirbazar, Secunderpur, South 24 Pgs.
5. On the basis of the aforementioned written report, Shyampur Police Station Case No. 41 as stated above, was registered. Thereafter, A.S.I. Santosh Kumar Biswas of Shyampur P.S. took up the investigation and after completing the same, he submitted a charge-sheet under Sections 363 / 366A of the Indian Penal Code against 4 accused persons namely (1) Sk. Nazimul, (2) Atiar Rahman Mallick, (3) Kalam Sardar, (4) Rupban Bibi.
6. The case was then committed to the Court of the Ld. District and Session's Judge, Howrah where after the case was transferred to the Court of the Ld. Additional District and Session's Judge, Fast Track Court - I, Uluberia for trial and disposal. The Ld. Trial Judge framed charges under Sections 363 / 366A and 376 of the Indian Penal Code against Sk. Nazimul and under Sections 363 / 366A against Kalam Sardar, Rupban Bibi and the appellant (Atiar Rahaman Mallick).
7. 11 witnesses were examined on behalf of the prosecution. Certain documents were also exhibited in respect of the prosecution case. We will now deal with the different witnesses of this case.
8. P.W 1 is Sk. Noor Islam (the complainant / informant). He stated that at the time of the incident, his daughter Sabina was a student of Baganda Jatadhari High School and was 14 years old. On the date of the incident his daughter Sabina along with his brother's wife, Sufia Khatoon (P.W 3) had gone to the Baganda Market at about 5 P.M. Around 7 P.M., the said Sufia Khatoon returned home and told the informant that she could not find Sabina in the market and that Sabina had gone somewhere. A search was conducted by the informant and other villagers but they failed to trace her out. Thereafter the informant went to one Nikhil Mondal, a local Panchayat member where he narrated the facts relating to the missing of his daughter. Subsequently and after 2 days of the incident and as per the instruction and advice of the said Nikhil Mondal, the informant along with Nikhil Mondal went to Shyampur Police Station where a missing diary was lodged. In other words the missing diary was lodged on 27/3/06.
9. The informant continued the search for his missing daughter and came to learn from Sufia that Sk. Nazimul and Atiar Mallick (the appellant) had taken away his daughter. The informant then searched for the said Nazimul and Atiar and called them from their house and upon interrogation they disclosed before the informant as well as before the villagers that they had taken his daughter to village Secunderpur under Mandirbazar Police Station in the District of South 24 Pgs.
10. Subsequently, the Panchayat member namely Nikhil Mondal informed the Shyampur Police Station over telephone and then they arrested Sk. Nazimul and Atiar Mallick. He further stated that subsequently he along with other villagers went to Shyampur Police Station and there, in the presence of villagers as well as in the presence of the "Darogababu", these 2 persons told them that his daughter had been taken to Secunderpur where she was in the custody of Kalam Sardar and a female person.
11. It was further stated by P.W 1 that as per direction of the "Darogababu", he along with his brother, Panchayat member, Sk. Nazimul and a police force went to village Secunderpur and entered into the house of Kalam Sardar. They found Kalam Sardar and a lady inside the room but they could not find Sabina. They then arrested Kalam Sardar and the lady and came back to the police station. P.W 1 further stated that after they were arrested, the father of Kalam Sardar apparently informed the place where the informant's daughter was kept and acting on the basis of the said information, they went to Mandirbazar Police Station from where they recovered Sabina. Thereafter the informant along with Sabina, went back to Shyampur Police Station and produced his daughter on the next day at Uluberia Court. When Sabina returned to the house she disclosed that Nazimul along with another person (Atiar Rahaman Mallick) had taken her away from Bagandabazar market to Secunderpur.
12. Though in the statement, P.W 1 has been stated that his daughter disclosed that Nazimul along with "a person who is wearing yellow coloured shirt" took away his daughter from Bagandabazar market to Secunderpur it would be relevant to mention that he had stated that Atiar Mallick who was in the cage of the Court was wearing "light yellow coloured check shirt". Therefore, the reference of the other person is obviously to that of Atiar (the appellant).
13. Sabina also informed that Sk. Nazimul and others kept her inside the house of Kalam Sardar at Secunderpur. Subsequently and on the basis of his direction and dictation Nikhil Mondal wrote out the written report on behalf of the informant as he was himself an illiterate person.
14. In his cross-examination P.W 1 stated that the accused, Nazimul, was the maternal uncle of Sabina and that he was on visiting terms with the informant. He also stated that he could not say as to whether Atiar (appellant) had previously visited his house or not. He also stated that he had never seen Atiar in their house. Another important fact which he stated was that in their society, marriage between maternal uncle and niece was not prohibited. He also stated that he made the written report after 2 days from the date his daughter had gone missing. However, from the F.I.R it is evident that the report was made on 31/3/06 i.e. after 2 days of the lodging of the missing diary. He also stated that he did not know Atiar and Rupban Bibi and that prior to the incident he had never seen Kalam Sardar and Atiar Rahman.
15. Upon reading the entire evidence of P.W 1 we have noticed that there is no direct evidence so far as the appellant Atiar is concerned save and except to record that he came to learn from his brother's wife that Sabina had been taken away by Sk. Nazimul and Atiar. But strangely, when we will deal with the evidence of Sufia, we will notice that this is not what she had stated and on the contrary, she had not mentioned the name of Atiar at all.
16. P.W 3 is Sufia. She has stated that on the date of the incident while she was in the Bagandabazar with Sabina they met Nazimul and in her presence Nazimul told her that he wanted to talk to Sabina. Nazimul started talking with Sabina and she further stated that Nazimul was the maternal uncle (Mama) of Sabina. Seeing them conversing with each other she continued with her shopping and after completing the shopping when she turned around she did not see either Sabina or Nazimul at the bazaar. She searched for Sabina but could not trace her out. She then returned to her house and stated everything to the father of Sabina (the informant). Sabina could not be traced out inspite of efforts of the villagers and the informant. She has stated that Sabina's father lodged the missing diary after 4 days from the date of the incident. In other words, the missing diary, according to Sufia, was lodged on 29/03/06. Thereafter, she stated that subsequently however, the villagers apprehended Nazimul and Atiar and in the presence of the villagers and in the presence of Sabina's father, Sk. Nazimul and Atiar are said to have disclosed that they had taken away his daughter and had kept her in the house of Kalam Sardar at 24 Pgs. She has further stated that after 8 days from the date of the incident Sabina was recovered.
17. Upon reading the evidence of this witness we notice that she specifically stated that in the bazaar she and Sabina met Nazimul who expressed a desire to talk to Sabina and while he was talking, Sufia went away for shopping and when she turned around and came back she did not find Nazimul and Sabina. Her evidence does not implicate Atiar by attributing a specific overt act played by him. An important fact and / or and important aspect of her evidence is that she has stated very emphatically in her cross-examination that on 30/3/06 Sabina was seen moving around when with her relative Nazimul. This statement was made in Bengali which reads as follows ---
"goto Eng. 30.03.06 tarikhe Sabinake amaderi ek attiyo Najimul er sahit ghurtey dekha giyachhe".
18. From this witness again we notice that save and except a general allegation to the effect that Nazimul and Atiar had kidnapped the daughter there is no specific allegation as against Atiar and on the contrary, specific allegations are there against Nazimul. Moreover, she has also stated that while Nazimul is her step brother, her father had got married 3 times. She has further stated till today their paternal property had not been partitioned and that Sk. Nazimul and his brothers are in possession of the entire property left by her father. She has also stated that she came to learn that Nazimul and Atiar had kidnapped Sabina after 2 days of the incident and that after 2 days from the date of the incident, she came to learn that Nazimul and Atiar had taken away their daughter. At the conclusion of her evidence she had stated that she cannot say about the activities of Atiar Rahman in connection with this case.
19. P.W 2 is Sabina Khatoon herself and her evidence is important to be considered. She has stated that on the way back to their house from Bagandabazar, Nazimul had called her and upon his calling her she had gone up to him and all of a sudden Sk. Nazimul and another person standing in the cage of the Court with a yellow stripe shirt, closed her mouth with a handkerchief and thereafter, the 2 persons brought her near the high school and took her inside a hired taxi.
20. She has stated that these 2 persons took her to a house in Secunderpur and kept her in the house of a family whose members were also present in the Court and in that house, Sk. Nazimul stated before them that Sabina was his legally married wife. She stated that Nazimul had raped her against her will and without her consent. Thereafter Nazimul and Atiar brought her to Kolkata where they kept her in a rented house where she stayed for 4 days. In the mean time her father lodged a missing diary and informed the Police. Having come to learn about all these facts she was released at Kolkata from where she came to Mandirbazar along with a lady where she was "arrested by the police". At Mandirbazar Police Station she narrated the entire facts to a Police Officer. It was then that Mandirbazar Police Station informed the Shyampur Police Station whereafter her father along with other Police Officers came to the Mandirbazar P.S and from there she was sent to the Uluberia Court. Thereafter her father took her in his custody from the Uluberia Court. She was also sent for medical examination at the S.D. Hospital at Uluberia.
21. In her cross-examination however, she has stated that Nazimul was her maternal uncle and that he was on visiting terms at their residence. She has also stated that they did not have good relation with the family of Nazimul and before the incident her mother did not like to talk to Sk. Nazimul. She has further stated that on the date of the incident, Nazimul called her and on his call she went to the nearby Jatadhari High School where a taxi was waiting near the said school. A maruti car was waiting near the said Jatadhari High School and 2 persons were waiting inside the said maruti car. She stated that she was taken inside the maruti car and she was inside the said maruti car for 4 hours. In this cross-examination her statement that the other persons wearing a yellow stripe shirt had put a handkerchief on her mouth is sharply contradicted and therefore, her evidence with regard to her having a handkerchief put on her mouth becomes doubtful. Another important aspect which makes us doubt her statements is that, in her cross-examination, she has attempted to build up a new case by saying that she was forcibly taken in a maruti car by 4 persons and that when she narrated the entire facts at Mandirbazar Police Station, the 'Darogababu' started the instant case on the basis of such a statement. It is necessary to mention that this case was initiated not on the basis of her statement but on the basis of the F.I.R lodged by her father on 25/3/06. She has further stated in the same cross- examination that the person wearing a yellow coloured stripe shirt in the Court (meaning thereby Atiar) had gone to her house on only one occasion with Nazimul.
22. Thus the statement that the other person standing inside the cage had closed her mouth with a handkerchief becomes a statement which was "not a fact". She has also stated specifically that she had narrated the facts of rape by Nazimul to her mother and that save and except Nazimul, she did not know any other person on the date of the incident. Another important feature in her cross-examination is that she says that after 2 days from the incident (i.e. after 25/3/06), she informed the mother of Nazimul by telephone. In other words by the 27th of March, 2006 she was in a position to talk on telephone and it is unbelievable that if she could talk to the mother of Nazimul, she could not talk to her own people at home. She also stated that on the date of the incident accused Nazimul and his friends had kidnapped her. This is a vague statement and it does not implicate Atiar in so many words. While concluding she has stated that she made a call from the public telephone booth but it is strange to notice that she also says that she did not narrate the facts about her being kidnapped to anybody who were present at the said public booth.
23. Another startling fact that comes out in this case is that in her statement under Section 164 the victim girl Sabina Khatoon has specifically named Nazimul but she had not named this appellant. Her statement under Section 164 in Bengali is quoted below ---
"tumi ekhon bolo ki hoyechhilo, ja bolbe tai lekha hobe - :- goto 25/3/06 shanibar ratri 7ta nagad ami amar kakima Sufia Begum er sathe amar pishir chheler biyer jonyo Baganday kenakata korte ashi. Amar mama Najibul okhane amake dake ebong Baganda High School er pichhone niye jay, sekhane 2to chhele, Najibul ebong anya ekta chhele amake mukhe rumal tipe dhore ekta trekker e kore Uluberia station e niye ashe tar pore train kore Howrah station hoye niye jay ebong Salam der iter ektala barite niye jay. Oi barite Salam o or bou chhilo oder bole ami naki or bou, tobe sunechhi amake naki amar mama oderke 25,000 takate bikri korechhe ebong amake oi barite rakhe. Ami sekhan theke amar didimake phone kori ebong sab boli kintu didima kichhu koreni tarpor 5 din kete gelo ebong shuni oder Bapi dhorechhe erpor ami Mandirbazar thanay _____ hoi. Oi thana sekhan theke amake diye jay. Amar sathe karor bhab bhalobasa nei. Ami baritey baba / maa er kachhe thaktey chai ebong oder saja chai.
--- Sabina Khatoon (31/4/06)"
24. P.W 4 is Sale Begum who is the mother of Sabina. Her evidence is not important at all because all that she has said is that the incident had taken place about 2 years 10 months ago and that her daughter was a student of class VI at the Jatadhari High School and that during investigation of the case she had furnished the certificate of her daughter issued by the said school. She has also stated that she went to the Police Station with her husband and Nikhil Mondal.
25. P.W 5 is one Sk. Saha Alam who is the brother of Sk. Noor Islam (the informant). He was declared hostile.
26. P.W 6 is Nikhil Prasad Mondal, the member of the Panchayat. He has stated that he wrote out the complaint etc.
27. P.W 7 is the Police Constable who proved the G.D entry of the missing diary.
28. P.W 8 is the Head Master of the Jatadhari High School and the only relevant fact which is worth taking into consideration in his evidence is that there are 15 to 20 shop rooms within 100 meters from the entrance gate of the school and if any incident takes place infront of the entrance of the school, then it would be visible to all the shop owners. No shop owner has come out in favour of the prosecution.
29. P.W 9 is the Head Mistress of one Katakhola Primary School who has spoken about the date of birth of Sabina being 10/9/92.
30. P.W 10 is the Medical Officer who conducted the medical examination. He found her hymen ruptured. She had complained before the Doctor that she had intercourse with a person for four days.
31. P.W 11 is the Investigating Officer of the case. He has stated the steps that he had taken while investigating the case. He has very categorically stated that at the time of recording her statement under Section 161 of the CrPC the victim girl had not stated before him the name of Atiar Rahaman. From his evidence also, the complicity of Atiar Rahaman is not made out.
32. From a perusal of the aforementioned facts and circumstances it is thus evident that the case in so far as this appellant is concerned becomes doubtful and no case can be said to have been made out either under Section 363 or under 366A of the Indian Penal Code. It is a clear case that Sabina went on the call of Nazimul and thereafter she is said to have been taken away. Therefore a case of kidnapping from lawful guardianship by Atiar is not made out. The evidence of Sabina, even if it is taken into consideration, would only indicate that Nazimul and another person had taken her away. Now in the examination in chief she has clearly stated that Nazimul and Atiar brought her to Kolkata. In other words she knew Atiar by name and yet she states that 2 persons brought her near a hired taxi and that Nazimul and another person put a handkerchief on her mouth. If Sabina knew Atiar by name then there is no explanation as to how and why she did not name Atiar as the person who had put the handkerchief on her mouth. From the evidences therefore on record, we notice that the involvement of the appellant has not been specifically attributed by any of the prosecution witnesses. Therefore this case stands on similar footing as that of Kalam Sardar and Rupban Bibi who were not found guilty on the charges under Section 363 and 366A.
33. Consequently the finding of guilt in so far as this appellant is concerned, in the opinion of this Court, is not proper. The appellant Atiar Rahaman Mallick is therefore not found guilty under Sections 363 and 366A of the Indian Penal Code and the judgment in so far as this appellant is concerned is accordingly set aside.
34. As a consequence of this judgment, let the appellant who is in custody be released forthwith and be set at liberty at once if not wanted in any other case. The department is directed to send down the Lower Court Records forthwith.
35. The Appeal stands Allowed.
(Tapen Sen J.) I agree (Shib Sadhan Sadhu J.) A.F.R / N.A.F.R S.G