Calcutta High Court (Appellete Side)
No.11 ( Moquebul Mia vs The State Of West Bengal) on 27 April, 2016
Author: Shivakant Prasad
Bench: Shivakant Prasad
1
2016 C.R.A. 39 of 2009
No.12
No.11 ( Moquebul Mia vs. The State of West Bengal)
Mr. Sourav Chatterjee
Mr. Utsav Ghosh ... for the appellant
Mr. Sudip Ghosh
Mr. Pratick Bose ... for the State
Shivakant Prasad, J.
Heard Mr. Chatterjee, learned counsel, who has been appointed by this Court to argue on behalf of the appellant by means of order dated 15.01.2016 as well as Mr. Ghosh, learned standing counsel at length.
The appeal is directed against judgment and order of conviction dated 05.04.2008 passed by the learned Additional District & Sessions Judge, Fast Track 2nd Court, Alipurduar, Jalpaiguri, in Sessions Trial No.46/2006 arising out of Sessions Case No.142 of 2006 convicting the appellant for commission of offence punishable under section 376 of the Indian Penal Code and under section 235 of the Code of Criminal Procedure and sentencing him to suffer for life and to pay fine of Rs.10,000/- in default to suffer rigorous imprisonment for one year.
The prosecution case as alleged against the appellant is as follows:
On the basis of complaint of Smt. Rahima Bibi, wife of Moquebul Mia, P.S. Alipurduar, District-Jalpaiguri, Alipurduar police station case no.12/06 dated 22.01.2006 under section 376 of the Indian Penal Code was registered for investigation. In conclusion of investigation, the Investigating Officer submitted charge sheet being charge sheet no.63 of 2006 dated 01.05.2006 under section 376 of the Indian Penal Code against the appellant, Moquebul Mia.
The case, being a sessions triable one, was transferred to the Court learned Additional District & Sessions Judge, Fast Track 2nd Court, Alipurduar for trial and disposal. Charge was framed under section 376 of Indian Penal Code against the appellant. In the course of trial, the prosecution examined as many as 14 witnesses including the defacto complainant, investigating officer as well as the Doctor and exhibited a number of documents. After closure 2 of the prosecution evidence, the accused was examined under section 313 Cr.P.C. to which he pleaded innocence. Thus, his defence case is one of denial of charge levelled against him which has come out from the evidence of the prosecution witnesses. After having heard both the prosecution and the defence, the learned Trial Judge held that the accused namely, Moquebul Mia, is guilty for commission of offence punishable under section 376 I.P.C. The appellant was heard on the question of sentence after giving him an opportunity to address the Court on the point of sentence as required under section 235(2) Cr.P.C. The learned Judge after giving due hearing to the accused/appellant convicted the appellant for commission of offence punishable under section 376 of the I.P.C. and sentenced him to suffer for life and to pay fine of Rs.10,000/- in default rigorous imprisonment for one year without giving any direction for set off the pre-trial detention in connection with the sentence as the provision of section 428 Cr.P.C. was not available in the case like this.
Being aggrieved by such order and judgment for conviction and sentence, the appellant has preferred the appeal.
The prosecution case as evident from the written complaint and other materials on record is that the defacto-complainant, Smt. Rahima Bibi, lodged a complaint to this effect that on last Bengali Calendar of 29th Bhadra, 1412, her husband sent her to matrimonial house at Khochabari village in the District of Coochbehar. After three days i.e. on 1st Ashwin, she came back and then her minor daughter, the victim, who was then 15 years old, told her that in her absence her father, Maqbul Mia, committed rape upon her thrice at night on last 29th Bhadra and also on the next day i.e. on 30th Bhadra and she was again subjected to rape by her father in the house at noon.
Delay in lodging the complaint as also the FIR resulting thereon was due to consequence of disclosing the fact to the people regarding the victim daughter and being the mother to save herself from social stigma and the delay as explained in the written complaint was thus well proved during trial. Charges have also been proved on evidence in corroboration with the statement of the victim who had made the statement before the learned Judicial Magistrate about the consequences, which she suffered due to the commission of rape on her, as a result, she became pregnant.3
Mr. Chatterjee, learned amicus curiae, has urged before us that if the charge is taken into consideration as to the date of commission of offence, it would reveal that the victim might have been subjected to intercourse by some other person as there is no D.N.A. test held by the prosecution to show that the child born was fathered by the appellant. Since he was in custody it was not possible for him to take up step for D.N.A. test to ascertain the paternity of the child born to the victim girl.
Such contention was not addressed before the learned Trial Judge disputing and denying the facts of commission of rape on the victim resulting in her pregnancy. The victim girl was subjected to rape by her own father in absence of her mother which is evident from the written complaint and evidence on record that the appellant had sent his wife, the defacto complainant to her matrimonial home in order to get an opportunity to commit rape of his own daughter and the intention can be viewed from such an action on his part. There is no denial to this Court and the facts have not been controverted by the accused himself in so far as the prosecuting case is concerned. It was well within his knowledge about his daughter victim to show as to how she became an expectant mother.
Therefore, we are of the considered view that it was the appellant who committed rape on his own daughter in absence of his wife and we agree with the findings of the learned Trial Judge on the issue of conviction of the accused/appellant for the charge punishable under section 376 I.P.C.
Mr. Chatterjee further submits that the sentence as awarded against the appellant may be dealt with lenity by modifying the sentence of life imprisonment for a period of ten years as he has almost suffered incarceration for a period of nine years and odd.
Now let us scrutinized the observations made by the learned Trial Judge while imposing the sentence for life after giving an opportunity of hearing on the question of sentence to this effect that the convict is the father of the victim, the person who is responsible for her well being and existence in this world being a natural guardian. The convict to satisfy his lust has entered into the animal kingdom where there exist no social relationship and as such he did not even spare his helpless minor daughter who was alone and living in his custody at the relevant point of time. The medical evidence normally shows that the prosecutrix was a victim of incest. The crime which the convict has committed being such a grave in nature, he 4 does not deserve any leniency as he is a menace to the society. The learned Judge was of further view that severe exemplary punishment if meted out to the convict would meet the ends of justice. The mental and physical scar and nightmare which he has given to his daughter shall forever haunt her. Accordingly, the learned Trial Judge came to the conclusion and sentenced the convict to suffer life imprisonment with further direction to pay a fine of Rs.10,000/- in default to suffer rigorous imprisonment for one year for the offence under section 376 I.P.C. Question of sentence is a matter of discretion primarily resting with the Trial Court as the discretion has been properly examined ergo, this Court being the Appellate Court should not interfere with the sentence awarded to the Convict, appellant herein, as there is no strong reason to hold that the sentence of life imprisonment amounts to mis- carriage of justice.
Therefore, on giving an anxious consideration to the extenuating circumstances of the case with enormity of crime, we hold that the learned Trial Judge has rightly imposed the sentence for life imprisonment upon the appellant.
We, thus, find no merit in the appeal and the appeal stands dismissed.
A copy of the judgment along with the Lower Court Records be sent down to the Trial Court for necessary action.
( Rajiv Sharma, J. ) (Shivakant Prasad, J. )