Calcutta High Court (Appellete Side)
Jamaluddin Mallick vs The State Of West Bengal & Anr on 7 August, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Ravi Krishan Kapur
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
&
The Hon'ble Justice Ravi Krishan Kapur
C.R.A. 690 of 2016
Jamaluddin Mallick
-vs-
The State of West Bengal & Anr.
For the appellant : Mr. Debasish Roy, Sr. Adv.
Mr. Imtiaz Ahmed, Adv.
Md. Ibrahim, Adv.
Mr. Hasan Shams, Adv.
Ms. Shaila Afrin, Adv.
For the State : Mr. Saswata Gopal Mukherjee, ld. P.P.
Mr. Arun Kumar Maity, learned A.P.P.,
Ms. Trina Mitra, Adv.
Heard on : 07.08.2018
Judgment on : 07.08.2018
Joymalya Bagchi, J.:
The appeal is directed against the judgment and order dated 27.09.2016 and 28.09.2016 passed by the learned Additional Sessions Judge, Fast Track Court No.1, North 24-Parganas in S.T. 1(4)2012 convicting the appellant for commission of offences punishable under Sections 363/365/366/326/307/376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs.50,000/-, in default to suffer rigorous imprisonment for five years more for the offence punishable under Section 326 of the Indian Penal Code, to suffer rigorous imprisonment for five years and to pay fine of Rs.5,000/-, in default to suffer rigorous imprisonment for six months more for the offence punishable under Section 363 of the Indian Penal Code, to suffer rigorous imprisonment for five years and to pay fine of Rs.5,000/-, in default to suffer rigorous imprisonment for six months more for the offence punishable under Section 365 of the Indian Penal Code and to suffer rigorous imprisonment for ten years and to pay fine of Rs.10,000/-, in default to suffer rigorous imprisonment for six months more for the offence punishable under Section 366 of the Indian Penal Code and to suffer rigorous imprisonment for life and to pay fine of Rs.10,000/-, in default to suffer rigorous imprisonment for six months more for the offence punishable under Section 376(2)(n) of the Indian Penal Code. All the sentences to run concurrently.
Prosecution case as alleged against the appellant is to the effect that the victim is a young girl aged about 22 years who hailed from a needy family. Four years prior to the incident the appellant, a married man and the father of the victim's friend, sought to take advantage of their poverty and prior to establish a relationship with her. Her parents disliked such advances and requested the appellant not to come to the house. On 30.11.2010 acid was thrown on the face of the victim and she was severely injured. On the pretext of helping with her treatment, the appellant again entered into her life. Unable to fund the expensive treatment, father of the victim was compelled to agree to his assistance. On 22.12.2011, when the victim along with her mother and sister had gone to the chamber of Dr. Arindam Sarkar at Deshpriya Park, Rash Behari, Kolkata for her treatment, the appellant met them took them for a trip to Digha. On 24.12.2011 on their way back the appellant forcibly threw out the mother and sister of the victim from the vehicle on Krishnannagar Road at Kachari More under Amdanga Police Station. Thereafter, the appellant took the victim to an empty flat of his friend owned by Subhas Dutta and detained her. On the false promise of marriage, the appellant cohabited with her. Initially, the victim kept quiet but when she realised that the appellant did not intend to marry her she informed the incident to her parents who rescued her with the help of police. On the next day, that is 02.01.2012 the victim lodged complaint resulting in registration of Amdanga Police Station Case No. 3 dated 03.01.2012 under Sections 365/366/ 363/506/323/376 of the Indian Penal Code. In conclusion charge-sheet was submitted against the appellant and the case was transferred from the Court of learned Additional Sessions Judge, Fast Track Court No. 1, North 24-Parganas to the Court of the learned Chief Judicial Magistrate, North 24-Paganas, Barasat for trial and disposal of the case. Charges were framed under Sections 307/363/ 365/366/376 of the Indian Penal Code and the appellant pleaded not guilty to the said charges. The prosecution examined 21 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. It was the specific defence that the appellant that he had been falsely implicated in the instant case as he had demanded a share from the compensation paid to the victim due to her acid burn injuries as he had borne her medical expenses. He, however, did not examine any witness to probabilise such case. In conclusion of trial, the trial judge by judgment and order dated 27.09.2016 convicted and sentenced the appellant, as aforesaid.
Mr. Roy, learned senior Counsel appearing for the appellant, at the outset, argued that the conviction of the appellant under Section 376(2)(n) of the Indian Penal Code was illegal as the incident had occurred in 2011 when the aforesaid offence was not in the statute book. There cannot be retroactive operation of penal law in terms of Article 22(1) of the Constitution and the conviction was, therefore, not only illegal but unconstitutional. He criticized the prosecution case on the ground that the victim had made a completely different case in Court when compared to her narration in the F.I.R. Throwing of acid by the appellant on the victim is an afterthought which is neither alleged in the F.I.R. nor appears from the attending facts and circumstances of the case. It was argued that the victim and her mother and sister were forcibly taken to Digha against their will is contrary to her version in F.I.R. It has also been brought to my notice that no contemporaneous complaint was lodged by the mother and sister of the victim although it is alleged that they were forcibly thrown out of the vehicle while returning from Digha. Medical evidence does not support the prosecution case of forcible rape and, therefore, the appellant is entitled to an order of acquittal.
On the other hand, Mr. Maity, leaned Additional Public Prosecutor, submits that the appellant who claimed to be a "Good Samaritan" was, in fact, "wolf in sheep's clothing". He wanted to sexually exploit the victim and, therefore, had thrown acid on her face to jeopardise any future prospect of marriage. Thereafter, taking advantage of the penurious state of the victim, he kept her in his control. He had taken the victim and others to Digha and on the way back the appellant abducted her to an apartment where she was ravished on the false promise of marriage. Victim informed her parents who with police assistance recovered her from the said apartment. Hence, the evidence on record clearly establishes the guilty of the appellant and the appeal is liable to be dismissed.
I have given anxious consideration to the rival submissions of the parties. P.W.1, Dipti Mondal, is the victim in the instant case while P.W.2, P.W.3 and P.W.4 are her relations. P.W.1, deposed that on 30.11.2010 at about 9.30 A.M., the appellant had thrown acid on her face at Maslandapur Railway Station. The appellant's daughter Papia Mallick was her classmate and the appellant used to visit their house. She completed her graduation in the year 2011 and her marriage was arranged with one Chandranath Haldar of Dum Dum. In order to prevent her to marry Chandranath, the appellant threw acid on her face. She was admitted at Kalpataru Hospital, Barasat and thereafter at S. S. K. M. Hospital, Kolkata and Calcutta Medical College and Hospital. Subsequently, she was admitted in a Nursing Home at Ikbalpur, Kolkata and had been treated at Parkside Nursing Home, Gariahat, Kolkata. At the time of throwing acid, the appellant threatened her that if she disclosed the incident he would kill her. She did not inform the police. After treatment, she came back home around February, 2011. The appellant used to visit her house in the absence of her parents although she asked him not to do so. On 22.11.2011, she had gone to visit Dr. Arindam Sarkar at Deshapriya Park, Rashbehari, Kolkata for her treatment. She was accompanied by her mother and sister. Near the doctor's chamber the appellant was standing with his vehicle along with 2/3 persons. The appellant forcibly pushed them inside the vehicle and took them to Digha where they were confined in a room. On the next day, her mother rang up her father by using the phone of a hotel staff that they were confined in a hotel at Digha. Her mother told her father not to inform the police otherwise the appellant would kill them. On 24.11.2011 at about 10.30 A.M. the appellant took them a vehicle and reached Kolaghat. The appellant assaulted and threw her mother and her sister out of the vehicle at Amdanga Kachari More. Thereafter, she was taken to a flat situated at Sodepur. The appellant threatened to kill her and confined her in the flat for 9 days. She was forcibly raped. The appellant also told her that he would throw acid on her face. On 2nd January, 2012 her mother rescued her from the flat with the help of police at around 2/2.30 A.M. In cross-examination she stated that the appellant threw acid while she was standing at the bus stop at Maslandapur. She did not disclose the name of the accused at the medical institutions where she was treated. She was confronted with regard to the contradictions between her deposition in court and the first information report.
P.W.2, Dipak Mondal, is the father of the victim. He deposed that on 30.11.2010, the appellant had thrown acid on his daughter at Maslandapur Railway Station. His daughter was treated at various medical institutions. The accused threatened to destroy his family if she lodged complaint. On 22.12.2011, the appellant forcibly took his daughters and wife to Digha when they had gone for treatment of P.W.1 at Deshapriya Park, Kolkata. On 23.12.2011 his wife informed him that they have been forcibly taken to Digha and requested him not to inform the police. On the next day, his wife told him that she and her younger daughter were forcibly thrown out of the car at Amdanga Kachari More. Thereafter, the appellant threatened him not to inform the police otherwise he would kill his daughter. On 25.12.2011 he informed the village people regarding the incident. On the advice of villagers, he contacted the Superintendent of Police, North 24-Paraganas, Barasat and narrated the incident to him. S. P. sent them to another police officer to recover his daughter from the flat at Sodepur. On 02.01.2012 at about 2/2.30 A.M victim was recovered. On the next day, Jamaluddin's brother, Tajuddin Mallick and Nizamuddin Mallick came to Amdanga Police Station and talked with the police officer who recovered his daughter. Police officer brought out a blank sheet and compelled the complaint to write as per his dictation. Complaint was signed by his daughter, Exihibit.1/1. After arrest, the appellant and his men set fire on his agriculture produce and pan barad.
P.W.3, Smt. Manjushree Mondal, is the mother of the victim. She deposed that on 22.12.2011 when she along with her youngest daughter Tripti had accompanied Dipti (P.W.1) to the chamber of Dr. Arindam Chakraborty at Deshapriya Park, Kolkata for treatment, she saw Jamaluddin and 2/3 men were standing in front of the chamber in a black vehicle. They forced them to board the vehicle and took them to Digha. On the next day, she informed her husband over telephone and requested him not to disclose the same to anybody. They were confined in a room in the hotel. On the next day, they returned in the vehicle of the appellant and at Kachari More, Amdanga she and her younger daughter were forcibly pushed out from the vehicle. The appellant took away P.W.1. He threatened over telephone not to disclose the incident to anyone. Subsequently, she informed their neighbours. As per advice of local people, they met Superintendent of Police, North 24-Paraganas, Barasat who sent them to one police officer, Joy Biswas and thereafter to another police officer viz., Anupam Chakraborty. On the night of 02.01.2012 at 2.30 A.M., Anupam Chakraborty and other police officers recovered her daughter from a flat at Sodepur. She had been detained for 8/9 days and repeatedly raped by the appellant. Subsequently, Tajuddin and Nizamuddin, two brothers of the appellant came to Amdanga police station and gave a blank paper to P.W.2 and asked him to write as per his dictation and P.W.1 to sign the same. She further deposed that Jamaluddin's daughter Papia Mallick is the class-mate of the victim, The appellant had made arrangements for her engagement as a cook in ICDS Project. Two/three months later, he raped her by showing a pistol. She had narrated the incident to the police and Magistrate.
P.W.4, Tripti Mondal, has substantially corroborated the evidence of P.Ws.1 to 3.
In cross-examination, she, however, admitted that Jamaluddin provided her mother with work in ICDS Project.
P.W.s 1 to 8 and 12 are local people who, however, were declared hostile and had cross-examined in respect of their previous statement from which they had resiled.
P.W.15, Shyamal Kumar Mondal deposed that he took the victim to Gobardanga Primary Health Centre on 30th November, 2010 for treatment after she had suffered acid burn injuries. He further deposed that the victim had told him that the appellant had thrown acid on her body.
P.W.16, Haradhan Mondal deposed that upon hearing that Dipti had suffered injuries he along with Shyamal Mondal went to the place of occurrence and took her to Gobardanga Primary Health Centre. On being asked by Shyamal, the victim said that Jamaluddin had thrown acid at her face.
P.W.17, Dr. Arindam Sarkar deposed that he is an associate professor of plastic surgery at SSKM Hospital. He has a chamber at 37D, Lansdown Terrace, Kolkata - 700026. On 6th December, 2010 he examined victim-Dipti Mondal. He proved his prescription dated 6th December, 2010 (Exhibit-4/20). Upon his advice Dipti was admitted at Parkside Nursing Home and was discharged on 13th December, 2010. He proved the medical reports. He proved the bed head ticket.
In cross-examination, he stated that the patient did not make any statement to him as to who threw acid on her body.
P.W.18, Santanu Ganguli was the Manager of Narayanan Speciality Hospital, Barasat. Dipti Mondal was admitted on 30th November, 2010 at Jubilant Kalpatru Hospital and discharged on 1st December, 2010. Patient suffered from acid burns. He proved the patient's Admission Form (Exhibit-9).
In cross-examination, he stated that there is no history of assault in the Discharge Risk Bond Clinical Summary (Exhibit-10).
P.W.19, Sandip Karmakar took photographs of the victim on 09.05.2012 and proved the said photographs.
P.W.11, Soumen Mukherjee deposed that he was an A.S.I. of police who was a member of Special Operation Group, Barasat. He along with S.I., Anupam Chakraborty, the then Officer-in-charge of S.O.G., Barasat, Constable- Tuhin Subhra Raha, Constable-Bikash Mondal and Constable- Goutam Roy arrested a male and a female from Rita Apartment and handed them over to S.I., Amalendu Mondal. He identified the appellant in court. He stated that Dipak Mondal made a phone call at S.O.G. office disclosing that his daughter, Dipti Mondal had been kidnapped by someone.
P.W.13, Asit Bez received written complaint from Dipti Mondal at the police station. He filled up the formal FIR.
In cross-examination, he stated that Dipti had come to the police station with the written complaint.
P.W.10, Dr. Asraf Ali held medical examination of the victim. After her recovery the victim told him that the appellant took her away with some persons on 27th December, 2011 to a place where she was confined and had intercourse with her against her will 3-4 times. Last intercourse took place on 2nd January, 2012. He examined the victim. However, no conclusive evidence of intercourse on the victim. He proved the medical report.
P.W.14, Sangram Saha was the Judicial Magistrate who recorded the statement of the victim (P.W.1), her mother (P.W.2) under Section 164 of the Code of Criminal Procedure.
P.W.20 & 21 are the Investigating Officers in the instant case. P.W.20, Amalendu Mondal deposed that he examined the complainant and arrested the appellant. He had also examined other witnesses. He drew sketch map of the P.O. with index near Kachari More under Amdanga P.S. He forwarded the victim and her mother for recording statement under Section 164 of the Code of Criminal Procedure. He held medical examination of the victim. He submitted charge-sheet.
In cross-examination, he stated that he did not examine Dr. Arindam Sarkar. He did not collect the number of the Scorpio vehicle. The victim did not tell him that the accused had threatened to kill her at the time of throwing acid. Dipak Mondal did not tell him that the accused threw acid on the face of the victim.
P.W.21, Monirul Islam Sarkar seized the medical papers relating to the treatment of the victim and exhibited the same in the instant case. He submitted supplementary charge-sheet.
From the evidence on record it appears that the daughter of the appellant, Papia Mallick and the victim were classmates. As a result, the appellant had been on visiting terms with the family of the victim. The appellant also appears to be more economically sound than the family of the victim. On 30th December, 2010 the victim suffered acid burn injuries while she was standing at Maslandapur Railway Station. She was taken to Gobardanga Primary Health Centre and thereafter to Kalpataru Hospital, Barasat. From Kalpataru Hospital she was shifted to S.S.K.M. Hospital, Kolkata. She was treated by Dr. Arindam Sarkar (P.W.17) and upon his advice she was admitted at Parksite Nursing Home wherefrom she was discharged on 13th December, 2010. It is the version of the victim that the appellant who had made advances towards her and had thrown acid on her face on 30.12.2010 in order to spoil her matrimonial prospects so that he could enjoy her.
Learned advocate appearing for the appellant has criticised such evidence of the victim on the ground that she never came out with such story before the medical personnel at the aforesaid medical institutions. There is no reference to the name of the appellant as an assailant in the medical reports exhibited in the instant case. FIR is also silent with regard to the role of the appellant in causing injury on the victim.
On the other hand, learned advocate appearing for the State drew my attention to the fact that P.W.s 2 & 3 claimed that the FIR had been lodged under the dictates of the brothers of the appellant. In her subsequent statement under Section 164 of the Code of Criminal Procedure the victim named the appellant as the person who threw acid on her. P.W.s 15 & 16 also stated that the victim had divulged the name of the appellant while she was being taken to Gobardanga Primary Health Centre for treatment. Although some evidence has come on record from the mouths of P.W. 2 & 3 that FIR was registered under the dictates of the brothers of the appellant at the police station, I note that P.W.1 has not supported such story. She unequivocally admitted that she had herself recorded the written complaint at the police station and her version is corroborated by ASI of Police (P.W.13) who received the written complaint at the police station and stated that the victim had come with a drafted complaint. Hence, I am unable to accept the prosecution story that the written complaint was prepared at the police station under the dictates of the family members of the appellant, as alleged. Perusal of the aforesaid written complaint which is treated as FIR (Exihibit.1) shows that the victim did not divulge the name of the appellant as one who threw acid on her face. She is also silent with regard to the fact that the appellant had subsequently confided in her about such incident. Perusal of the medical reports also show that the appellant had not been named as the person who threw acid at the victim. On the other hand, there is ample evidence on record that after the incident the appellant used to visit the house of the victim and also extended financial assistance relating to her treatment. In the backdrop of the aforesaid facts, I am unwilling to accept the prosecution story that it was the appellant who had thrown acid at the victim in order to mar her matrimonial prospects in future so that he could sexually exploit her.
I am also unwilling to accept the prosecution case to the extent that the appellant had forcibly abducted the victim with her mother (P.W.3) and sister (P.W.4) and had taken them to Digha and had thrown out the said witnesses from the vehicle on their way back at Kachari More, P.S.-Aamdanga, as alleged. Had it been so the said witnesses would have immediately reported the matter to the police. Learned Counsel for the State argued that in the face of threats held out by the appellant the prosecution witness could not muster up courage to lodge complaint immediately. It is most improbable that P.W.s 3 and 4 would keep quiet when they were allegedly thrown out of the vehicle and the victim was taken away by the appellants to an unknown place. On the other hand, it appears to be more credible that the parties had consensually gone to a trip to Digha and thereafter on the way back after dropping P.W.s. 3 and 4 at Kachari More the appellant had taken away the victim to a flat at Sodepur. It is from this juncture that the conduct of the appellant requires deeper scrutiny in order to determine his culpability. The appellant had extended his helping hand to the victim and her family at an hour of need and had befriended them. When the evidence of the prosecution witnesses are examined from the said premise, it is clear why neither the family members nor the victim initially protested when she was taken away by the appellant to the flat at Sodepur. However, when the appellant forcibly ravished the victim against her will, she somehow contacted her parents and the latter after overcoming their initial trepidation in the backdrop of the might of the appellant, who admittedly was a moneyed and powerful man of the locality, approached the police officer and recovered the victim from the said flat as would be evident from the evidence of P.W.11. The fact that the victim had to be recovered from the apartment at Sodepur by police intervention leaves no doubt in my mind that she was not a consenting party and had been wrongfully detained and ravished against her will in the said premises. Defence of the appellant that the case had been falsely foisted upon him as he had demanded a share of the compensation money awarded to the victim on account of her acid burn injuries is rendered improbable in the face of the recovery of the victim from the apartment where she was kept confined by the appellant. The aforesaid circumstances lend credence to the version of the victim the appellant had forcibly ravished her. Learned Counsel for the appellant sought to improbabilize such version on the ground that there was no injury on her private parts and no conclusive opinion of rape could be expressed by P.W.17 who medically examined the victim. The victim had been seduced and wrongfully confined in a room against her will. She was repeatedly ravished by the appellant on a number of days. The victim was in the clutches of the appellants and it was beyond her capacity to resist the appellant as any resistance may have endangered her own life. Helpless surrender of a victim to her sexual predator cannot be construed as consent and absence of injuries in her private parts in the factual matrix of the case does not militate against her version of lack of consent. On the other hand, the fact that she had been wrongfully confined in the apartment by the appellant and had been recovered through police intervention strongly corroborates the prosecution case that the victim was wrongfully detained and sexually exploited in the said apartment against her will. When the Court is called upon to decide whether cohabitation between two persons was consensual or not, assessment of attending circumstances touching the free will of the victim are relevant to come to a finding whether the victim consented to such intercourse or not. Conduct of the appellant in keeping the victim in confinement against her will is therefore a strong circumstance which improbabilizes any consensual cohabitation and supports the prosecution version of forcible rape. Mere close and intimate relationship between the victim and the appellant as may be evident from their social association including extending of financial aid also does not militate against the truthfulness of the prosecution case. It is not uncommon that sexual aggressors are ordinarily persons who are known to the victim including family members. National Crime Records Bureau reports consistently indicate that more than 90% of sex survivors are victims of sexual exploitation by known persons including relations. The instant case is a classic example where the appellant being a moneyed person extended financial support and aid to the family of the victim in order to create an impression of trust in him and thereby seduced the victim to accompany him to the apartment where she was wrongfully confined and sexually assaulted.
In the light of the aforesaid discussion, while I am inclined to acquit the appellant of the charges under Section 326/363 of the Indian Penal Code as the victim was not a minor and the evidence that he threw acid on her appears to be an afterthought, I am inclined to believe the prosecution case of abduction and rape of the victim and hold that the appellant is guilty of the offences punishable under Sections 365/366/376 of the Indian Penal Code. I am, however, in agreement with the learned Counsel for the appellant that trial Court was wholly unwarranted in convicting the appellant under Section 376(2)(n) of the Indian Penal Code which had not been enacted at the time of occurrence. Conviction of the appellant for the offence under Section 376 of the Indian Penal Code instead of the charged offence is wholly justified in the factual matrix and would not cause prejudice to him or occasion failure of justice as they are cognate offences and the former entails less rigorous sentence than the latter one. Accordingly, I record an order of conviction against the appellant under sections, 365, 366 and 376 of the Indian Penal Code.
Coming to the issue of sentence, I find that the appellant had not thrown acid on the body of the victim. No doubt, he had ensnared the victim through a false show of compassion and support in order to sexually exploit her. But keeping in mind the facts and circumstances of the case and that the appellant does not have any criminal antecedent, I am inclined to modify the sentences imposed upon him and I direct that the appellant shall suffer rigorous imprisonment for five years and to pay a fine of Rs.5,000/-, in default to suffer further rigorous imprisonment for six months more for the offence punishable under Section 365 IPC, to suffer rigorous imprisonment for seven years and to pay a fine of Rs.10,000/-, in default to suffer further rigorous imprisonment for one year more for the offence punishable under Section 366 IPC and to suffer rigorous imprisonment for seven years and to pay a fine of Rs.50,000/-, in default to suffer further rigorous imprisonment for five years more for the offence punishable under Section 376 of the Indian Penal Code. All the sentences to run concurrently. Fine amount, if realised, shall be paid to the victim as compensation.
The period of detention suffered by the appellant during investigation, enquiry or trial shall be set off under section 428 of the Code of Criminal Procedure.
The appeal is allowed to the aforesaid extent.
Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(Joymalya Bagchi, J.) I agree.
(Ravi Krishan Kapur, J. )