Uttara Das vs State Of West Bengal on 16 November, 2016

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Calcutta High Court (Appellete Side)

Uttara Das vs State Of West Bengal on 16 November, 2016

The F.I.R. was lodged by the father of the victim with the said Police Station on 28-11-2012 wherein he claimed that his daughter, Sumitra Mondal, left her house on 27-11-2011 without informing anyone. Her father and other relations tried to find her out but they failed. In the F.I.R, it was averred that before 7 months of the lodging of the F.I.R., one telephone came from Mobile No. 8017199791 wherein that Sumitra Mondal informed her father that she was well and she would go to her native village during the Kali Puja.

The de facto complainant on receipt of the said call remained idle over the matter and again, made a call in the same number before seven days of the Kali Puja, when the said call was received by one woman and when she was asked as to Sumitra, she told that she was outside and as such, the said Mobile cannot be handed over to Sumitra.

Before one month of the lodging of the F.I.R, one unknown woman made a call to the de facto complainant from one Cell No. 8017801692 and informed that Sumitra is well. Again on 25-11-2012 in the morning that woman also made a ring to the de facto complainant from the earlier Mobile No. 8017199791 and informed him that she will pay him Rs. 30,000/-. She further told the de facto complainant that one girl or woman may be asked to go to the Sealdah Railway Station so that the victim girl, Sumitra Mondal, may be handed over to her.

On 28-11-2012 at about 7 p.m., the de facto complainant made a ring in that Cell No. 8017801692 and one woman received the telephone and when the de facto complainant enquired as regards his daughter, then she told that everything will be disclosed when she will come to Sealdah Railway Station.

All these raised apprehension in the mind of the father of the victim girl and she suspected illegal trafficking of woman and took up the matter with the said Police Station.

When the matter was investigated by the Investigating Officer he came to learn that the Mobile No. 8017199719 belonged to one Uttara Das of 33A, Imam Box Lane, Calcutta and raid was held in that house and the victim girl was recovered on 2nd December, 2012.

The statement of the victim girl was recorded under Section 164 of the Cr.P.C. In that statement, she disclosed that she had love affairs with one Samir Pal and he married her and took her to Murshidabad but there, she was tortured and harassed and she left the matrimonial home. She further claimed that when she was coming from Murshidabad in a train, she came into contact with one woman who disclosed her name to be Sefali Sekhar and that woman allured her that she will engage her in one house as domestic aid but ultimately, she was taken to Sonagachi (one red-light area of the locality) and she was kept in one house. She further disclosed in the 164 statement that the name of that house-owner was Uttara Das and that Uttara kept her confined in a room and she was forced to work as a prostitute. She further disclosed that at that point of time, when she was taken to the house of Uttara, she was four months pregnant but Uttara also aborted that child in the womb.

There was medical examination of the victim held on that same day. This accused-appellant was arrested. The Investigating Officer of the case after completion of investigation submitted charge-sheet against that 4 accused-appellant for the offence punishable under Sections 363/365 and 373 of the Code.

It may be noted that the Investigating Officer could not trace out that Sefali Sekher and Samir Pal whose names the victim girl disclosed in the 164 statement.

The matter was ultimately committed to the Court of Sessions and the Sessions Judge transferred the Sessions Case No. 14(08) of 2012 to the learned Additional District Judge, 15th Court, South 24-Parganas at Alipore. Charge was framed under Sections 365 and 373 of the Code to which the accused pleaded not guilty and claimed to be tried.

The defence did not make out a positive case before the Trial Court and it was a story of denial by the accused.

Before the learned Trial Court as many as 7 witnesses were examined. The witnesses were P.W.-1, father (de facto complainant), P.W.-2 is the victim girl, P.W.-3 is the mother of the victim girl, P.W.-4 is the doctor who examined the victim girl, P.W.-5 is one Netai Mondal, is a neighbour of the victim, P.W.-6 is another neighbour, Bholanath Mondal, who also scribed the F.I.R. and the P.W.-7, is the Investigating Officer of that Sunderban Costal P.S. Case.

The defence preferred not to adduce any oral evidence. 5 On behalf of the prosecution several documentary evidence were proved. The learned Trial Court in internal page 6 of the judgement has given in details the documentary evidence relied upon the prosecution and this Court is not repeating the same. The defence did not adduce any documentary or oral evidence.

Mr. Sengupta the learned Advocate appearing on behalf of the convict/appellant submitted that the victim girl was recovered from Burtala area but not a single witness has been examined by the prosecution to prove the story of recovery even though the said recovery of the victim girl was made in presence of Jhumki Das and Sirin Parvin. He further submitted that one mobile set was also recovered but that was not produce before the court. He further submitted that the requisition which was forwarded to the Officer-in-Charge of Burtala Police Station relates to 05.12.2012 whereas accused convict was arrested on 02.12.2014 and as such the said requisition had no value. He further submitted that not a single witness deposed regarding the cell number from which calls were received by the father of the victim and as such the writings of the cell numbers in the FIR as being not supported by evidence on oath cannot be taken to be substantive evidence.

He further submitted that the sketch map was prepared by the Investigating Officer but that was not in respect of Immam Box Lane, P.S.- 6 Burtala, Kolkata but the said relates to the house of the victim. He further contended that in the report of the doctor (PW 1) there was nothing in the record which can show that the victim girl was forced to do prostitution. He took me to the different facets on the record. As regards the evidence of PW 1 that is the father of the victim, learned counsel submitted that this witness deposed that at the place of recovery police personnel of both Sundarban Coastal P.S. and Kolkata Police personnel were there.

Regarding the evidence of PW 2 that is the victim girl he submitted that this witness did not specifically depose that she was forced to do prostitution he took me to the evidence of that witness "subsequently I was compelled to involve in bad/unholy work" by that he tried to convince this Court that it was not enough to cover a case under Section 373 of the Code. This witness also deposed that she did not make any statement to the Magistrate.

As regards the evidence of PW 3, mother of the victim, he submitted that actually the said witness deposed that one Suchitra was recovered by the police and the name of the victim girl Sumitra, P.W 2 was not mentioned by this witness and that this witness also deposed that two cases were started following the alleged occurrence. Regarding the evidence of PW 4 he submitted that the victim did not disclose anything to the doctor that is the first independent witness to whom the victim was 7 produced. He submitted that 164 Cr.P.C submitted is not a substantial piece of evidence and it can be used only for the purpose of corroboration and contradiction.

Regarding the evidence of PW 5 he submitted that major portion of his evidence is hearsay in nature and as he did not receive any call from woman but he only hear from the father of Sumitra. Regarding the overzealousness of this neighbour of the victim he submitted that this identification cannot be taken to be any identification at all as this man was not present at the time and place of recovery. Regarding the evidence of PW 6 he submitted that only substantive piece of evidence of this witness is that he wrote the FIR as per the instruction of PW 1.

He attacked the version of the Investigating Officer by saying that this witness did not make any endeavour to prove before the court that any call was made from those mobile numbers referred to above and that this witness even did not try to collect the mobile number of PW 1 in which those alleged calls came. He further submitted that this Investigating Officer did not try to take the call records of those mobile numbers mentioned above to prove this aspect that actually calls were made to the de facto complainant.

Thus on aforesaid factual aspect the learned counsel contended that actually the prosecution failed to prove that the victim girl was recovered 8 from the clutches of this accused. He took me to the memo of arrest of the accused dated 02.12.2012 to show that actually the accused was arrested from ½, Imam Box Lane, Kolkata-6 whereas the recovery of the victim girl shows that she was recovered from 33 Imam Box Lane, Kolkata-6. He also attacked the prosecution story on the ground that the Investigating Officer did not try to ascertain in whose name that house stood either by documentary evidence or even by oral evidence.

It was further submitted by Mr. Sengupta by taking me to the decision of the Apex Court as reported in 1984 Cri. L.J. 1738 : AIR 1984 SC 1622 (Sharad Birdhichand Sarda -vs- State of Maharashtra) paragraph nos. 142 and 148 vis-à-vis the 313 Cr.P.C. sheet prepared by the trial court as regards the question no.7 that this question no.7 was not illustrative one to give a picture to the accused as to the evidence of the Investigating Officer what happened during the course of investigation. On this point, he submitted that the prosecution cannot rely on the entire evidence of the Investigating Officer.

He also took me to paragraph 150 of the said judgment wherein the Apex Court held that to prove a case, the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence.

He took me to page no. 7 of the judgment of the trial court that actually, the learned Trial Court relied upon the 164 Cr.P.C. statement of the victim to convict this accused even though P.W. 2 did not depose a single line on it.

Mr. Sengupta took me to the cross-examination of P.W.-2 wherein the P.W.-2 deposed categorically that she was not taken to any Magistrate. He admitted that the 164 Cr.P.C. statement was marked as Exhibit under Section 294 of the Cr.P.C. formal proof being waived. He took me to the entire evidence of P.W.-2 to substantiate his claim that in her entire evidence, she did not use a single word to say as to what she stated to the Magistrate. Mr. Sengupta reiterated that it is a known principle of law that the 164 Cr.P.C. statement can be used only for the purpose of corroboration or for the purpose of contradiction but unfortunately in this case, learned Prosecutor did not use the said statement at all in the proper perspective for which it was meant for.

As regards the explanation one attached to Section 373 of the Code, he submitted that the prosecution must discharge its initial burden and only thereafter the presumption can be made applicable. He took me to the report of the doctor to say that the prosecution cannot rely on the report or evidence of the doctor without substantive or corroborative evidence. 10

He also cited a recent decision of the Apex Court as reported in (2016) 3 C. Cr. LR (SC) 49 (Rajiv Singh -vs- State of Bihar & Anr.) and he read paragraph 72 of the said judgement to convince this Court when the Investigating Officer failed to unearth truth the prosecution case must suffer and the accused-convict is fit to be acquitted.

Mr. Basu, learned Advocate, appearing on behalf of the State submitted admitting the fact that the Investigating Officer of this case practically did not investigate this case in a proper manner. He relied upon the evidence of P.W.7, i.e. the Investigating Officer wherein in cross- examination, this witness deposed - "It is fact that I apprehended victim girl and accused from Imam Box Lane on 02/12/2012". He tried to bank upon the recovery memo or the seizure list but unfortunately for him, those documents were not marked as Exts. except the signature of P.W.1 on the recovery memo and the signature of the P.W. 7 on the arrest memo. This arrest memo has been marked as Ext. 10 and he tried to establish that as per that arrest memo, this accused was arrested from ½, Imam Box Lane, Kolkata - 6. He tried to convince this court that Imam Box Lane is located which is one red light area of the city at 'Sonagachi'. He also took me to the evidence of P.W.2 to say that from her evidence it is clear that one lady sold her at Sonagachi to this convict/appellant whom he identified on dock.

He further submitted by taking me to Section 373 of the Code to say that the said Section also covers "... ..... for any unlawful and immoral purpose". He tried to supplement this to cover up the evidence of P.W. 2 when this P.W.2 did not specifically mention that she was forced to be a prostitute but tried to evade the answer by saying that she was forced to be involved in bad/unholy work. He also submitted that Section 373 of the Code contemplates that if a minor girl is bought or procured for any ill intention or knowledge, then the accused can be roped under Section 373 of the Code. He also took me to the evidence of the doctor and submitted that the doctor wrote the age of the victim girls to be 17 years and that he found evidence of recent sexual intercourse. He further submitted that in fore corners of the cross-examination of this doctor there is no denial that the victim was not minor except the omnibus denial that the report prepared by the doctor was not the report of the victim.

Mr. Basu further supplemented his argument by taking me to the examination-sheet of the accused-convict under Section 313 of the Cr.P.C. to say that if this Court is of the opinion that the learned Trial Court did not put some relevant questions to the accused then this court can examine him further by putting those relevant questions. On this point he cited the decision of the Apex Court as reported in (2015) 1 SCC (Cri) 699 (Nar Singh -vs- State of Haryana) wherein the appellate has been 12 empowered either to examine the learned Advocate appearing on behalf of the accused-appellant on the points by framing fresh questions or by sending the matter back for retrial directing the Trial Court to frame new questions matching with the evidence and to start the trial therefrom or this Appellate Court can also put directly to the accused such questions which were essential but the learned Trial Court did not put such questions in 313 sheet.

He further submitted by taking me to the decision of the Apex Court as reported in (2006) 3 SCC (Cri) 245 (Popular Muthiah -vs- State represented by Inspector of Police) that this Court by exercising power of revision or the power conferred on it by Section 482 of the Cr.P.C. can direct re-investigation of the case, if this Court is satisfied that the Investigating Agency did not investigate the case properly just to shield the accused-appellant.

Mr. Basu further submitted that the statement of the victim girl as recorded by the learned Judicial Magistrate was marked as Exhibit 6 under Section 294 of the Cr.P.C. at the behest of the prosecution and he further submitted that the learned Trial Court duly relied upon such statement in internal page nos. 7 and 10 of the judgment.

He frankly submitted that it is true that sub-section (1) attached to Section 294 of the Cr.P.C. was not complied with by the prosecution but on 13 that score only there cannot be failure of justice as procedural laws are to augment the process of justice and not to retrograde the said procedure.

He submitted by taking me to sub-section (3) of Section 294 of the Cr.P.C. which runs thus :

"Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceedings under this Code ............"

By that he tried to convince me that the learned Trial Court did not err in relying upon the said statement while delivering the judgement. But, in the same breath, he submitted that it is true that no question was put by the learned Trial Court in 313 Cr.P.C. as to the contents of the said Exhibit.

On behalf of the appellant, it was submitted by the learned Advocate in reply that the 164 Cr.P.C. statement being not a substantive piece of evidence it matters little whether it was marked as Exhibit under Section 294 of the Cr.P.C. He submitted that Section 164 Cr.P.C. statement can only be used for the purpose of corroboration or for the purpose of contradiction but unfortunately, the said statement was not put to the victim (P.W.-2) who even deposed that she was not taken before any Magistrate. Thus, he contended that there was no scope of confronting 14 P.W.-2 vis-à-vis the 164 Cr.P.C. statement without declaring the said witness as hostile.

Regarding the examination of the accused under Section 313 of Cr.P.C., it was argued on behalf of the defence that unless the prosecution can establish a case before this Appellate Court, then the decision of the Apex Court in Nar Singh (supra) will not apply. Regarding the decision of Polular Muthiah (supra) of the Apex Court, it was contended by the learned Advocate that in that case before the floor of the Apex Court the accused against whom the Apex Court ordered re-investigation was even not tried but in the present case, the accused has already faced the trial and an order of this Court directing further investigation will lead to filling up of the lacuna of the prosecution and as such, the decision of the Polular Muthiah (supra) will not apply in the facts and circumstances of the case. Learned Advocate prayed for acquittal of the accused-convict reversing the judgment of the learned Trial Court.

Before I proceed further I like to quote here Section 373 of the Code which runs thus:

"Buying minor for purposes of prostitution, etc. - Whoever buys, hires or otherwise obtains possession of any person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any 15 person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. (Emphasis supplied by me) Explanation 1. - Any prostitute or any person keeping or managing a brothel, who buys, hires or otherwise obtains possession of a female under the age of eighteen years shall, until the contrary is proved, be presumed to have obtained possession of such female with the intent that she shall be used for the purpose of prostitution. (Emphasis supplied by me) Explanation 2. - 'Illicit intercourse' has the same meaning as in Section 372."

This Court is not unmindful of the presumption as contemplated in Explanation 1 of that section wherein the legislature in its wisdom categorically legislated that not only the prostitute but any person keeping or managing a brothel will be covered under that explanation and that explanation will cover such persons who buys, hires or otherwise obtains possession of a female under the age of eighteen years.

This accused did not make out a specific case in her examination under Section 313 Cr.P.C. When the evidence as adduced against her was 16 explained to her she only denied the allegation. It is true that the Investigating Officer of this case did not track the call list of any of the mobile numbers 08017199719 and did not investigate that she was the holder of the sim card in respect of the said mobile number. There is reflection in the forwarding report dated 02.12.2012 that during investigation he came to know that the said mobile number belonged to this accused, a resident of 33, Imam Box Lane, Sonagachi, P.S.-Burtalla. It is true that this Investigating Officer in his evidence on oath did not say all these as he wrote in the forwarding report. This is no doubt a defect on the part of the prosecuting agency and regarding this fact that this accused/appellant was in possession of the 'sim card' bearing No.8017199719 has not been proved by any oral evidence. The forwarding report was not marked as exhibit by the prosecuting agency. Forwarding report can be treated as the result of investigation and unless it is proved by substantive evidence then it based on the result of investigation.

This Court is not unmindful of the fact that there are some discrepancies about noting of the numbers of the house of that Imam Box Lane as I have pointed out while noting the argument of Mr. Sengupta. It is also true that the Investigating Officer of this case did not take any trouble to prepare a sketch map in respect of that place of recovery and it is unfortunate to note that the said Investigating Officer only prepared the 17 sketch map in respect of the house of the de facto complainant which was not at all necessary to unearth the crime.

However, defective the investigation may be, the court will have to unearth the truth from the materials as placed before it. The star witness of this case is PW 2 that is the victim girl. As per the prosecution case the age of this witness was 17 at the time of the incident. No ossification test was done to determine her age and no birth certificate was also produced to ascertain her age. She deposed in her cross-examination that she did not make any statement to the Magistrate. She also did not state on oath what was her age at the time of incident. The heading of the deposition sheet which is filled in by the bench clerk cannot be treated as evidence. The parents of the victim that PWs 1 and 3 did not state on oath what was the age of the victim.

The only independent evidence is the medical examination report of the victim, which was marked as Exhibit 4, wherein the age of this girl was written as 17 years. This Exhibit 4 was marked through the evidence of PW 4 and this question of declaration of age was not challenged in the cross- examination except one omnibus denial that the said report Exhibit 4 was not the medical report of the victim girl.

Let me now say what PW 2 deposed. This witness deposed that she left her father's house on 27.10.2012 and thereafter married one Samir 18 Paul and stayed in her matrimonial house for four to five months and ultimately left her matrimonial home as she sensed illicit relationship between her husband and his sister-in-law (boudi). She also deposed that in the compartment of a train she met one woman who handed her at Sonagachi to the present accused and prior to that she was induced to believe that she will secure some employment for her. She duly identified the accused/appellant on dock.

This witness further deposed that subsequently she was compelled to involve in bad/unholy work. It is true that she did not mention specifically that she was forced to do prostitution or illegal intercourse.

Thus, it is apparent from her evidence that she was sold at 'Sonagachi' to the present accused and this witness duly identified the said accused on dock. The Explanation-I attached to Section 373 of the Code though rebuttable one can lead this Court to presume that she (the accused) purchased this victim girl with intent that she shall be used for the purpose of prostitution. The prosecution though the version of PWs 1, 2 and 7 discussed the initial burden. This presumption has not rebutted by the accused/convict either by way of cross-examination or by adducing any witness to that effect. She did not make out a positive defence case even at the time of examination under Section 313, both recorded by this court and by the trial court she only denied the prosecution story. 19

This court is not unmindful of the decision of the Apex Court as reported in (2012) 5SCC 766 (Neel Kumar Vs. State of Haryana) wherein the court held that it is the duty to accused to explain incriminating circumstances proved against him while making a statement under Section 313 of the Cr.P.C and keeping silence and not furnishing any explanation for such circumstance is an additional link in the chain of circumstances to sustain the charges against him.

Thus in view of the decision of the Apex Court the silence of the accused will speak volume against her.

The word used by PW 2 "I was compelled to involve in bad/unholy work" will mean that she was forced to do prostitution. The report of the doctor about which I have already said also shows that when she was examined by the doctor he found "found evidence of recent sexual intercourse". It may not be out of place to mention that she was examined by the doctor on 02.12.2012 and she was recovered on that very date. Thus there was no delay in examination of the victim by the doctor.

Woman as a class are reluctant to say in details how or in what manner she was ravished. Generally we come across that the prosecutrix/victim in some cases refer the act of misbehaviour on her by saying in Bengali language 'Kharap Kaaj Kare'. In English it mean 'bad works' and here in the instant case before this court the victim stated not 20 only bad works but also used the term 'unholy work'. The word unholy was naturally not used in a religious sense considering the facts and circumstances of this case. Here the word 'unholy' can safely be interpreted as illicit. The word illicit in Bengali means 'Nishidhaa'. This word is synonymous to the words "illegal, unlawful, illegitimate, criminal, felonious, outlawed, banned and forbidden".

In India the courts are to separate the grain from the chaff. Some clippings of the evidence of PW-1, )PW-2 and PW-7 may be looked into by the readers of this judgment. From the evidence of PW-1 it is clear that his daughter was found missing from his house. He deposed that he received one call in his mobile from his daughter that she was alright and that she was not in a position to come home. This witness further deposed that after a year before kali puja she rang up her daughter in that number and one lady received the call under whose custody his daughter was staying at that time. This witness also deposed that the said woman asked him to bring a girl at Sealdah with a cash of rupees 30,000/- and that subsequently he received a telephone call from his daughter within a month and his daughter told him to come to Sealdah Station. As per PW-1 he thereafter lodged the FIF. In cross-examination this witness deposed that his daughter was recovered from a place under Burtala PS and in presence of Kolkata Police and Sundarban Coastal Police. 21

The evidence of PW-2 was corroborated by his daughter who deposed inter alia that she left her father house in the year 2011 and that she was sold at 'Sonagachi' to one Uttara Das after four months of that and she further deposed that subsequently she was compelled to involve in 'bad/unholy work'. She corroborated her father that she rang him up and told that she will come home after Kali Puja. This court can take judicial notice that 'Sonagachi' is a red light area of this city. This witness duly identified the convict appellant and that she was recovered from that place by Sundarban Coastal Police with the help of Kolkata Police. There is nothing to disbelieve these two witnesses.

PW-7 deposed that he came to learn during investigation that the victim girl was detained at Imam Box Lane under Burtala Police Station. The Memo of Arrest (marked Ext.10) shows that Uttara Das was arrested from Imam Box Lane. It is true that no witness of the locality came to depose before the court and the Investigating Officer did not cite them as witnesses. The court also did not endeavour to examine them under Section 311 of the Cr.P.C. It is also true that no sketch map of the house from where the victim was recovered was drawn up by the Investigating Officer. The sketch map was however drawn in respect of house of PW.1. The said IO did not venture to collect the call details of the mobile number of the de facto complainant or even the mobile seized at the time of arrest 22 of Uttara Das. The mobile as seized from the custody of the appellant was also not produced. All these are examples of bad investigation as well as bad prosecution. This court is not willing to extend the benefit of the decision of the Apex Court as passed in Rajib Singh (supra) as what was unearthed by the Investigating Officer was enough to submit the charge sheet. This court also cannot say that this is a case in which the decision of the Apex Court as passed in Popular Muthiah (supra) can be pressed into action as in this case the convict appellant was not spared by the Investigating Officer. The defects in the investigation have been duly recorded by this court at the time of noting the argument of Mr. Sengupta. Myself will deal with such matter and also the in action on the part of the court in a separate paragraph.

Thus, on analysing the evidence of PW 2 vis-à-vis the evidence of PW 4 and the medical report this court is satisfied that this victim was a minor and that she was forced to do prostitution or illicit intercourse as defined in Section 372 Explanation-II of the IPC. Relying on the evidence of PW-1, PW-2 and PW-7 this court is satisfied that this minor girl was sold to the convict appellant for the purpose of prostitution, illicit intercourse etc. The only defence taken by the accused is a case of false implication. The question now is why this accused convict was falsely implicated. No story of enmity came out between the de facto complainant, PW-2 and the 23 Investigating Officer (PW-7) in one side and this convict appellant on the other side. There is no story of that they were in hand and glove to falsely implicate the accused. This court is not unmindful of the decision of the Apex Court as reported in 2002 SCC (Cri) Page-1834 : (2002) 7 SCC 691 (Ruli Ram vs. State of Haryana) wherein the apex Court held that when the plea of false implication is raised then the foundation of it must be proved by the person who is raising the same.

This court is however at one with the defence that the learned trial court erred in relying upon 164 Cr.P.C statement of the victim as it is well settled that such a statement can only be used for the purpose of corroboration or for the purpose of contradiction. This court is not unmindful of the fact that this PW-2 who allegedly made the statement before the Magistrate stated in clear tone that she was not taken before any Magistrate, this is being so how the learned trial court could rely upon such statement. It is true that such statement was marked as exhibit under Section 294 of the Cr.P.C but simply because of that the trial court ought not to have relied upon such statement which was not confronted to the maker.

It may be noted that relying on the decision of the Apex Court as passed in Nar Singh (supra) this court examined the convict appellant afresh under Section 313 of the Cr.P.C. and as the argument of the defence 24 that some vital questions were not put to the accused cannot now have any basis.

The Investigating Officer, Tapas Mondal, one Sub-Inspector of Police, who was attached to Sundarban Costal P.S at that time and was examined as PW-7 before the trial court practically did not investigate the case properly and he acted in a callous manner about which Mr. Sengupta rightly pointed out at the time of his argument. The Investigating Officer did not try to locate the husband of the victim where she went at first, he did not examine any witness of Imam Box Lane as witnesses even though in the rescue memo at least one witness of the locality signed namely Jumki Das alias Sirin Parvin. The lady constable Mamoni Sardar, who signed on the recovery memo was also not examined. He did not seize or produce the requisition letter addressed to the Officer-in-Charge of Burtala Police Station as regards recovery of the victim girl and he did not collect the call details of the mobile of the de facto complainant or of the mobile which was seized from the appellant at the time of recovery of the victim girl.

Not only the Investigating Officer was callous but the Presiding Officer's attitude towards the trial was lackadaisical one. The role of the trial court is hereby deprecated as it being even in the rank of Additional Sessions Judge was not active when the evidence of the prosecution was 25 being recorded. The role of the Presiding Officer of the Court is not like that of one umpire. The court in a criminal trial is the overall supervisor of the case before it. In the present society the role of a Presiding Judge must be pro-active so that he can control a situation by making things happen rather than waiting for things to happen. I repeat that the Presiding Officer of a court is not just like an umpire as to see how the defence is bowling or the persecution is bating.

The duty of the court is to see that not only the interest of the accused as per law is protected but also the societal and collective interest is safeguarded (Vinod Kumar vs. State of Punjab) as reported in (2015) 3SCC 220. The Presiding Officer of this Court being Debabrata Mukherjee did not act properly which will be evident from the recording of evidence, marking of exhibits and even examining the accused under Section 313 of the Cr.P.C.

The public prosecutor who also plays a great role in a criminal trial also did not discharge his duties properly I do not know whose interest he was serving. He even did not put vital questions to the star witness of this case that is PW 2. The statement under Section 164 Cr.P.C. was not shown to the said witness by the prosecuting agency.

Thus, the role of the Investigating Officer, the Presiding Officer and also the Public Prosecutor is to be apprised respectively by the 26 Superintendent of Police, South 24 Parganas, by this Hon'ble Court to which this Presiding Officer is subordinate and the Legal Remembrancer, Government of West Bengal, who gave appointment to the said Public Prosecutor. Let a copy of this judgment be forwarded to the Superintendent of Police, South 24 Parganas, for taking suitable action against the Investigating Officer for not investigating the case properly and to the Legal Remembrancer, Government of West Bengal, so that the Public Prosecutor, who conducted the case before the trial court may not allotted any Sessions Case.

Let a copy of this judgment be forwarded to Sri Debabrata Mukherjee, through the Registrar (Judicial Service), High Court, Calcutta, wherever he may be posted to keep in mind the observation of this court as recorded against him. The Registrar (Judicial Service), High Court, Calcutta, must submit a compliance report regarding this before this court on 3rd of January, 2017. Let the record come up in the list on the same date for report of the Registrar (Judicial Service).

In view of the discussion so long made. I find no merit in this appeal which is fit to be dismissed and I do that. The order of conviction, sentence and finding of guilt are hereby confirmed.

The department is directed to communicate this judgment to the learned Registrar (Judicial Service), High Court, Calcutta; learned Legal 27 Remembrancer, Government of West Bengal and the Superintendent of Police, South 24 Parganas.

The department is also directed to transmit a copy of this judgment along with the lower court records to the learned trial court forthwith.

Urgent photostat certified copy of this judgment be given to the parties, if applied for.

(Indrajit Chatterjee, J) 28

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