Calcutta High Court (Appellete Side)
Abul Kalam Khan & Anr vs The State Of West Bengal on 10 June, 2016
Author: R. K. Bag
Bench: R. K. Bag
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
Hon'ble Justice R. K. Bag, J.
C.R.A. No. 359 of 2012 Abul Kalam Khan & Anr.
V.
The State of West Bengal
For the Appellant : Mr. Partha Sarathi Bhattacharya,
For the State : Mr. Ayan Bhattacharya,
Heard on : 12th May, 2016
Judgment on : 10th June, 2016
R. K. Bag, J.
This appeal arises out of judgment and order of conviction and sentence passed by Learned Additional Sessions Judge, Fast Track Court No.3, Barrackpore, in Sessions Trial No.3(1) of 2008 arising out of Sessions Case No.24(6) of 2007, by which the appellants were sentenced to suffer imprisonment for 7 years for the offence under Sections 363/34 of the Indian Penal Code, imprisonment for 7 years for the offence punishable under Sections 366/34 of the Indian Penal Code, imprisonment for 7 years for the offence punishable under Sections 368/34 of the Indian Penal Code and imprisonment for 7 years for the offence punishable under Sections 372/34 of the Indian Penal Code - with direction that the appellants will serve all the sentences concurrently.
2. The backdrop of conviction and sentence of the appellants is as follows: (a) One Niva Sarkar, mother of the victim girl filed written complaint before the Officer-in-charge of Jagatdal Police Station for registration of FIR of Jagatdal Police Station Case No.410 dated December 13, 2003. It is alleged in the written complaint that the victim Pratima Sarkar aged about 14 years was engaged in the house of one Sona Guha for working as maid servant. On March 10, 2003, victim Pratima Sarkar was found missing from the house of Sona Guha. On March 16, 2003 one missing diary was lodged with Jagatdal Police Station, but the victim could not be traced out. When the mother of the victim girl doubted about the involvement of Sona Guha in kidnapping the victim Pratima, she filed the written complaint praying for registration of FIR and causing investigation.
(b) The police investigated the case and submitted charge sheet against the appellants and Sona Guha. The trial court also framed charge against the appellants and Sona Guha on the allegation of commiting offence under Sections 363/366/368/372/376 of the Indian Penal Code. I am informed that the appellants were detained in custody during the trial of the case from February 1, 2007 to January 10, 2008 and they are detained in custody from April 27, 2012 till this date. The said judgement and order of convictin and sentence is under challenge in this appeal at the instance of the appellants.
3. Mr. Partha Sarathi Bhattacharya, Learned Counsel appearing on behalf of the appellants, contends that there is delay of almost nine months in reporting the incident to the police for registration of the FIR and this delay has not been explained to the satisfaction of the court. By referring to the evidence of the victim girl, Mr. Bhattacharya submits that the victim girl voluntarily accompanied the appellants and she was never enticed by the appellants and as such the offence of kidnapping has not been established from the evidence on record. He argues that three Investigating Officers investigated the case, but no investigation was done to discover the facts alleged by the victim about her illegal confinement in a room at Bombay to compel her to illicit intercouse. By referring to the omission of some facts in the evidence of the victim girl and omission of some facts in the statement of the victim girl recorded under Section 164 of the Code of Criminal Procedure, Mr. Bhattacharya submits that the evidence of the victim girl may not be relied upon to convict the appellants for the offence of kidnapping and human trafficking. He argues that the prosecution has failed to adduce any evidence to establish how the victim came back from Bombay to Shyamnagar where she was residing with her mother, particularly when the person who accompanied the victim girl from Bombay to Shyamnagar has not been examined by the prosecution. Mr. Bhattacharya has relied on the decision of the Supreme Court in "Rajendra V. State of Maharashtra" reported in 1997 SCC (Cri) 840 in order to put forward the argument that the appellants cannot be convicted for the offence under Sections 363/34 of the Indian Penal Code, when they have been convicted by the trial court for the offence under Section 366 of the Indian Penal Code, which is higher penal provision of law. The last submission of Mr. Bhattacharya is that the amount of sentence imposed on the apellants may be reduced as the appellants are about 54 to 55 years old and they have served the sentence for about 6 years out of total sentence of imprisonment for 7 years.
4. Mr. Ayan Bhattacharya, Learned Counsel appearing for the opposite party State, has pointed out from the evidence on record that the victim girl was aged about 14 years and she accompanied the appellants, as the appellants wanted to provide better job to the victim. With regard to the omissions of some facts in the evidence of the victim girl and in the statement of the victim girl recorded under Section 164 of the Code of Criminal Procedure, Mr. Bhattacharya submis that those omissions of facts are quite natural when the victim is giving evidence after almost 5 years of the incident and she belongs to the lower strata of the society. According to Mr. Bhattacharya, the evidence adduced by the victim girl, her mother and other prosecution witnesses unerringly points out that the appellants are guilty of committing offence punishable under Section 363/366/368/372/34 of the Indian Penal Code. He also submits that the trial court has already shown much leniency in imposing the sentence on the appellants and as such, the sentence imposed on the appellants may not be reduced further.
5. For proper appreciation of the contentions made by Learned Counsel representing the respective parties, I would like to scan the evidence adduced before the trial court. The mother of the victim girl (PW1) lodged the written complaint treated as FIR on December 13, 2003, though the victim Pratima was found missing from the house of Sona Guha on March 10, 2003. The written complaint treated as FIR (Exhibit-2) was proved by the scribe Biplab Haldar who was examined as PW6 by the prosecution. There is delay of about 9 months in reporting the incident to the police. The question which calls for determination of the court is whether delay of 9 months has been properly explained to the satisfaction of the court. It appears from the said written complaint (Exhibit-2) that the mother of the victim girl lodged one missing diary bearing no.1007 dated March 16, 2003 in Jagatdal Police Station. The cross-examination of the mother of the victim girl (PW1) reveals that she made extensive search to trace out her missing daughter in the house of her relatives for several days and thereafter she went to the police station to lodge diary about the missing of her daughter on March 16, 2003. It transpires from the evidence of the mother of the victim girl (PW1) that she started specific case by following written complaint when she doubted about the involvement of Sona Guha in kidnapping her daughter. PW1 (mother of the victim girl) engaged the victim girl in the house of Sona Guha as maid servant. The mother of the victim girl is illiterate and poor. From the above evidence on record I can safely hold that delay of 9 months in reporting the incident to the police has been explained to the satisfaction of the court and this delay is not fatal to the prosecution.
6. It is established from the evidence on record that the victim Pratima was engaged in the house one Sona Guha as maid servant about one and half month before the date of her missing on March 10, 2003. The victim Pratima Sarkar was admitted in Chalk Gurdaha Junior Basic School at Shyamnagar on May 11, 1996. Smt. Aditi Mukhopadhyay Chowdhury (PW8) the Headmistress of Chalk Gurdaha Junior Basic School has proved the date of birth of Pratima recorded in the admission register of the said school. It appears from the entries made in the attested copy of admission register of the school (Exhibit-4) that the date of birth of the victim Pratima Sarkar is August 12, 1989. PW8, the Headmistress of the school has stated in evidence that the date of birth of Pratima was recorded in the admission register on the basis of her birth certificate. The birth certificate (Exhibit-A) indicates that one girl child of Niva Sarkar (PW1) and her husband Pintu Sarkar was born at Dipti Nursing Home on August 12, 1989. The cross-examination of PW8 reveals that she was not present at the time of admission of the victim Pratima Sarkar in Chalk Gurdaha Junior Basic School at Shyamnagar. It is not possible for the Headmistress of a school to be personally present at the time of admission of a student. This aspect of evidence of PW8 cannot be a ground to discard her evidence as contended by Learned Counsel for the appellants. The oral testimony of PW8 and the entries made in the admission register of Chalk Gurdaha Junior Basic School (Exhibit-4) coupled with attested copy of birth certificate (Exhibit-A) go to establish that the date of birth of victim Pratima is August 12, 1989. It has thus been established from the evidence on record that the victim Pratima was aged about 14 years on the date of the incident.
7. It is elicited from the evidence of the victim girl (PW2) that she was shifted from the house of Sona Guha to the house of the appellants at Behala and thereafter to Bombay by alluring her to provide better job. A poor girl aged about 14 years who is working as maid servant in the house of others cannot be expected to protest against her employer who has allured her to provide better job. The argument advanced on behalf of the appellants that the victim girl voluntarily accompanied the appellants from one place to another place cannot be expected by this court. The victim girl (PW2) has given vivid description of how she was kept in the house of the appellants at Behala and how she was shifted from one place to another place and ultimately to one house at Bombay where she was kept confined in a room for the purpose of prostitution. It also transpires from the evidence of the victim girl (PW2) how the appellants collected money by selling out the victim girl and how they used to collect money from the person at Bombay in whose custody the victim girl was compelled to earn by prostitution. It is also elicited from the evidence of the victim girl (PW2) how she was compelled to undergo the trauma of illicit sexual intercourse with various persons during her confinement in a room in Bombay. The victim girl (PW2) has also stated in evidence how she came back from Bombay to Shyamnagar with the help of one person by name Raju. Non- examination of Raju by the prosecution cannot be a ground to discard the evidence of the victim girl (PW2) as contended by Learned Counsel for the appellants. On an analysis of the evidence of the prosecution witnesses and on consideration of the docoments proved by the prosecution I have no hesitation to hold that the trial court is justified in holding the appellants guilty of the charge under Section 363/34, 366/34, 368/34 and 372/34 of the Indian Penal Code.
8. Relying on the decision of the Supreme Court in "Rajendra V. State of Maharashtra" reported in 1997 SCC (Cri) 840 Learned Counsel for the appellants contends that the appellants cannot be convicted under Section 363/34 of the Indian Penal Code when they have already been convicted under Section 366/34 of the Indian Penal Code. In this report the Supreme Court has held that the appellant who is convicted for the offence punishable under Section 366 of the Indian Penal Code cannot be convicted for the offence punishable under Section 363 of the Indian Penal Code, which is a minor offence. By following the above decision of the Supreme Court I would like to hold that the appellants need not be convicted for the offence punishable under Section 363/34 of the Indian Penal Code, when they have already been convicted by the trial court for the offence punishable under Section 366/34 of the Indian Penal Code.
9. The last submission on behalf of the appellants is that the appellants are aged persons and they have already served the sentence for about 6 years and as such they may be set at liberty by imposition of sentence of imprisonment which they have already undergone. The appellants have been convicted by the trial court not only for the offence punishable under Section 366 of the Indian Penal Code, but they have been convicted for the offence punishable under Section 368 and the offence punishable under Section 372 of the Indian Penal Code. The maximum term of imprisonment for the offence punishable under Section 368 of the Indian Penal Code is 10 years and maximum punishment for the offence punishable under Section 372 of the Indian Penal Code is also 10 years of imprisonment. The trial court has already shown leniency by imposing sentence of imprisonment of seven years on both the appellants who enticed a poor girl of 14 years of age for illicit sexual intercourse for earning money. So, I am not inclined to show any more leniency by reducing the sentence imposed on the appellants by the trial court.
10. In view of my above observation, the judgment and order passed by the Learned Additional Sessions Judge, Fast Track Court No.3, Barrackpore in Sessions Trial No.3(1) of 2008 is modified to the extent that the appellants are convicted under Section 366/34, under Section 368/34 and under Section 372/34 of the Indian Penal Code and each of the appellants is sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.5,000/-, in default to suffer imprisonment for six months more for the offence punishable under Section 366/34 of the Indian Penal Code, rigorous imprisonment for seven years and to pay fine of Rs.5,000/-, in default to suffer imprisonment for six months more the offence punishable under Section 368/34 of the Indian Penal Code and rigorous imprisonment for seven years and to pay fine of Rs.5,000/-, in default to suffer imprisonment for six months more for the offence punishable under Section 372/34 of the Indian Penal Code. The appellants will serve the sentences concurrently. The period of imprisonment undergone by the appellants as undertrial prisoner will also be set off under Section 428 of the Code of Criminal Procedure.
11. The criminal appeal is, thus, disposed of.
Let a copy of this judgment and order be sent down to the Learned Court below along with Lower Court Record for favour of information and necessary action.
The urgent photostat certified copy of the judgment and order, if applied for, be given to the parties on priority basis after compliance with all necessary formalities.
(R. K. Bag, J.)