Calcutta High Court (Appellete Side)
Ajoy Das & Ors vs The State Of West Bengal on 21 January, 2020
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Suvra Ghosh
CRA 239 of 2018
Ajoy Das & Ors.
-Vs-
The State of West Bengal
With
CRA 306 of 2018
Mahesh @ Pappu Sharma & Anr.
-Vs-
The State of West Bengal
For the Appellant in : Mr. Debasis Roy,
CRA 239 of 2018 Mr. Avik Ghatak,
Mr. Amit Ranjan Pati
For the Appellant in : Mr. A.K. Das,
CRA 306 of 2018 Mr. Sukhendu Bikash Mukherjee
For the State : Mr. Saibal Bapuli, Ld. A.P.P.,
Mr. Arani Bhattacharyya,
Heard on : 21st January, 2020
Judgment on : 21st January, 2020
Joymalya Bagchi, J. :-
These appeals are directed against the judgment and order dated
14.03.2018passed by the learned Additional District & Sessions Judge, Fast Track Court No.I, Purulia in Sessions Trial No. 7(8)15 arising out of Sessions Case No.340/2014 convicting the appellant(s) for commission of offence punishable under Section(s) 365/366/370/376(g)/417/212 of the Indian Penal Code and sentencing them to suffer simple imprisonment for ten years each and pay a fine of Rs.5,000/- each, in default, to suffer simple imprisonment for a further period of six months each.
Prosecution case alleged against the appellants is to the effect that co- accused Birsingh Mandi had on 06.04.2014 met the victim, daughter of Chepulal Soren (PW 1) in a marriage ceremony in the house of Raghunath Soren. An acquaintance developed between them. As a result, the victim (PW 6) used to converse with Birsingh Mandi over mobile phone, even after he had left the village. Birsingh Mandi promised to marry the victim and told her that he would talk to her parents about the matter. On 01.08.2014 Birsingh Mandi asked the victim to meet him at Purulia. The victim met Birsingh at Purulia Railway Station along with her friend P.W. 7. Birsingh Mandi took the victim in a train to Tata and thereafter to Madhya Pradesh. At Madhya Pradesh he sold her to a person. As the victim went missing, her father (P.W. 1) lodged written complaint against Birsingh Mandi and others at Purulia Police Station Case No. 118 of 2014 dated 24.08.2014 under Sections 417/363/366A/372/120B of the Indian Penal Code. In the course of investigation the investigating officer, (P.W. 22), visited Madhya Pradesh and interrogated Mahesh @ Pappu Sharma and Manu Sharma who stated that victim was sold to a person named Mastram in Burononera of Rajasthan. Accordingly, investigating officer proceeded to the village Burononera in Rajasthan along with the said accused persons and on their showing recovered the victim girl from the house of Mastram. Investigating agency seized mobile phones and SIM Cards from the residences of the accused persons. Call detail records were also collected in the course of investigation. In conclusion of investigation, charge-sheet was filed against the appellants and Birsingh Mandi. Charges were framed under Section 365 of the Indian Penal Code against Birsingh Mandi and Ajoy Das, under Section 366 of the Indian Penal Code against Birsingh Mandi, Ajoy Das and Haripada Kumar and under 370/376(2)(g)/417/212 against the Birsingh Mandi and all the appellants. Accused persons pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 28 witnesses and exhibited a number of documents. In conclusion of trial, the trial Judge by the impugned judgment and order dated 14.03.2018 convicted and sentenced the appellants, as aforesaid.
Mr. Roy, learned advocate appearing for the appellants argued there is no legally admissible evidence connecting them with the alleged crime. P.W. 6, the victim, has neither named the appellants nor has she identified them as her abductors/traffickers in Court and in the course of investigation. In the absence of direct evidence, telephonic communications between the appellants are of no significance. Independent witnesses with regard to seizure of the mobile phones, SIM cards have not been examined. No investigation was done to establish that mobile phones or SIM cards belonged to the appellants. No question was put to the appellants during their examination under section 313 of Code of Criminal Procedure with regard to the aforesaid telephonic conversations made between themselves during the period the victim had been abducted and subjected to prostitution. Hence, the appellants are entitled to an order of acquittal.
On the other hand, learned Additional Public Prosecutor along with Mr. Bhattacharya, learned advocate appearing for the State argued that the evidence of prosecution witnesses particularly the victim, P.W. 6, shows that Birsingh Mandi had abducted the victim and sold her at Madhya Pradesh for prostitution. P.W 22 interrogated Mahesh @ Pappu Sharma and Manu Sharma and on their showing recovered the victim from the house of Mastram in Rajasthan. There were repeated telephonic conversions between the appellants during the period the victim was abducted and was subjected to prostitution. Mobile phones and SIM cards used for such telephonic communications were seized from the possession and control of the appellants. Accordingly, the prosecution case is proved beyond doubt.
I have gone through the entire evidence on record including that of the victim. Although the victim has deposed with regard to her abduction by Birsingh Mandi who forcibly trafficked the victim to a person in Madhya Pradesh, there is no whisper with regard to the roles of the appellants in the incident. Under such circumstances, prosecution has relied on the seizure of mobile phones and SIM cards from the residence of the appellant by the investigating officer, P.W. 22, and the call detail records (exhibits 43, 44 and 46) of some of the mobile phones so seized have been exhibited to establish telephonic communication between Birsingh Mandi, Ajoy Das and Mahesh @ Pappu Sharma at the time occurrence. Seizure lists relating to seizure of mobile phones and SIM cards from the houses of Mahesh @ Pappu Sharma, Manu Sharma, Ajoy Das and Birsingh Mandi have been marked as Exhibits 31, 31/1, 33/1 and 33 respectively. Call detail record of mobile contact no. 9570141187 which was recovered from the residence of Birsingh Mandi and stood in the name of Hiralal Mardi has been exhibited as Exhibit-43. Exhibit 44 is the call detail records of mobile connection no. 9801349653 which was seized from the residence of Ajoy Das as appearing from Exhibit-33/1. Exhibit 46 is the call detail records of mobile connection numbers 35641010443370 and 911231850372700 which were recovered from the residence of Mahesh @ Pappu Sharma vide exhibit-31.
Analysis of the call detail records would show the following inter se communications between Birsingh Mandi, Ajoy Das and Mahesh @ Pappu Sharma:-
IN RE: C.R.A 239 OF 2018 & C.R.A. 306 OF 2018 (DATE & TIME CHART) DATE TIME BIRSINGH MANDI (9570141187) AJAY DAS (9801349653) WITH WITH AJAY DAS (9801349653) MAHESH @ PAPU SHARMA (8818930644) 30-JUL-2014 8:34:01 x X √ √ 8:49:59 15:41:49 20:43:37 31-JUL-2014 20:48:25 22:17:04 x X √ √ 1-AUG-2014 6:40:28 7:29:17 x X √ √ 7:29:44 13:27:01 2-AUG-2014 11:35:38 x X √ √ 9-AUG-2014 10:05:56 20:16:30 x X √ √ 10-AUG-2014 18:14:38 √ √ x x 19:13:11 x X √ √ 12-AUG-2014 6:20:44 x X √ √ 13-AUG-2014 19:56:30 x X √ √ 17-AUG-2014 10:22:29 √ √ x x 20:20:44 x X √ √ 19-AUG-2014 19:32:00 x X √ √ 20-AUG-2014 12:07:31 √ √ x x 7:40:22 7:42:25 x X √ √ 20:08:03 From the aforesaid chart it appears that there were some communications between Birsingh Mandi and Ajoy Das and between Ajoy Das and Mahesh @ Pappu Sharma in and around the time when the victim was abducted and, thereafter, subjected to prostitution. Relying on these materials and the deposition of P.W 22, prosecution has sought to establish a case against the appellants. I am of the view such bits and pieces of stray evidence even if believed to be true, are not sufficient to establish the prosecution case against the appellants beyond reasonable doubt. None of the mobile phones or SIM cards stand in the name of the appellants. Although P.W 22 deposed the aforesaid mobile phones and SIM cards were recovered from the residences of Ajoy Das and Mahesh @ Pappu Sharma, no independent witness to the said seizure has been examined. Even if one accepts the ipse dixit of the police officer regarding the aforesaid seizures from the residences of the appellants, a couple of telephonic exchanges between Birsingh Mandi on the one hand and Ajoy Das and Mahesh @ Pappu Sharma on the other hand without anything more cannot establish a charge of conspiracy far less the substantive offences alleged in the present case. In this regard reference may be made in the case of State (NCT of Delhi) Vs. Navjot Sandhu, (2005) 11 SCC 600, wherein one of the accused persons had been acquitted of the charge of conspiracy to wage war insipite of having telephonic conversations with a co-accused at the time of incident. (see paras 324 to 327) It is also pertinent to note that the aforesaid telephonic conversations have not been put to the appellants as incriminating circumstances in course of their examination under section 313 Cr.P.C and they had no opportunity to respond to such evidence.
In this backdrop, I am loath to come to a finding of guilt against the appellants relying on the aforesaid telephonic exchanges alone. The other piece of evidence is that the appellants Mahesh @ Pappu Sharma and Manu Sharma had led P.W 22 to the house of Mastram at Rajasthan wherefrom the victim was recovered. This circumstance does not appear to be proved beyond doubt. No leading statement of the aforesaid accused persons has been exhibited in the instant case to corroborate the version of P.W.22. Victim (P.W 6) has also not identified the aforesaid accused persons as those who were present at the time when she had been recovered by the police. No independent witness is also coming forward to corroborate the evidence of the investigating officer in this regard.
In view of such flimsy and weak piece of evidence on record I am of the opinion that the benefit of doubt may be extended to the said appellants also.
In the light of the aforesaid discussion, I am constrained to extend the benefit of doubt and acquit the appellants or the charges levelled against them.
The appeals are, accordingly, allowed. Appellants Ajoy Das, Haripada Kumar @ Hari Pada Kumar, Shankar Tanti in CRA 239/18 and Mahesh @ Pappu Sharma and Manu Sharma in CRA 306/18 shall be forthwith released from custody if not wanted in any other case, upon executing a bond to the satisfaction of the trial court for a period of six months in terms of section 437A of the Code of Criminal Procedure.
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. I agree.
(Suvra Ghosh, J.) (Joymalya Bagchi, J.)