Calcutta High Court (Appellete Side)
Ruksana Bibi vs 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
C.R.A.41 of 2016
With
C.R.A.N.4390 of 2019
Ruksana Bibi
-Vs-
State of West Bengal
With
C.R.A.767 of 2015
Bimala Thapa @ Tamang
-Vs-
State of West Bengal
For the Appellant : Mr. Deepak Kumar Prahaldka, Adv.
For the State : Mr. Saswata Gopal Mukherjee, P.P.
Mr. Partha Pratim Das, Adv.,
Mr. Aniket Mitra, Adv.
Heard on : 21st January, 2020.
Judgment on : 21st January, 2020.
Joymalya Bagchi, J. :-
Both the appeals are before us assailing the judgement and order dated
26.11.2015and 27.11.2015 passed by the learned Additional Sessions Judge, Fast Track Court-II, Diamond Harbour, South 24-Paraganas in Sessions Trial No.2(1)12 arising out of Sessions Case No.19(2)10 convicting the appellant in C.R.A. 41 of 2016 viz., Ruksana Bibi and other accused persons for commission of offence punishable under Sections 363/366A/372 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for five years and to pay fine of Rs.5,000/- each, in default, to suffer rigorous imprisonment for one year more for the offence punishable under Section 363 of the Indian Penal Code, to suffer rigorous imprisonment for seven years and to pay fine of Rs.5,000/- each, in default, to suffer rigorous imprisonment for one year more for the offence punishable under Section 366A of the Indian Penal Code and to suffer rigorous imprisonment for seven years and to pay fine of Rs.5,000/- each, in default, to suffer rigorous imprisonment for one year more for the offence punishable under Section 372 of the Indian Penal Code; all the sentences to run concurrently. Appellant in C.R.A.767 of 2015 viz., Bimala Thapa @ Tamang was convicted for commission of offence punishable under Section 373 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs. 10,000/-, in default, to suffer rigorous imprisonment for one year.
Prosecution case, as alleged, against the appellants and other co-accused persons is to the effect that on 25.10.2009 at around 3.30 P.M., the minor victim had been kidnapped by the appellant (in C.R.A.41 of 2016) viz., Ruksana Bibi along with co-accused persons viz., Nurul Huda Mondal @ Raju and Sariful Gazi @ Bapi. Over such issue first information report was registered by P.W.1, viz., Mohabbat Mondal, father of the victim being Usthi Police Station Case No.359 of 2009 dated 29.10.2009 under Sections 363/364/366A/372 of the Indian Penal Code against Nurul Huda Mondal @ Raju, Ruksana Bibi, Sariful Gazi @ Bapi and unknown others. In the course of investigation, evidence came to light that the victim was sold to a brothel in Pune where she was subjected to prostitution by Bimala Thapa (appellant in CRA 767 of 2015). She was recovered and her statement was recorded before the Magistrate. In conclusion of investigation, chargesheet was filed and charges were framed under Sections 363/366A/372 of the Indian Penal Code against Nurul Huda Mondal @ Raju, Ruksana Bibi, Sariful Gazi @ Bapi and under Section 373/120B of the Indian Penal Code against Bimala Thapa @ Tamang. The accused persons pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 19 witnesses and exhibited number of documents. In conclusion of trial, trial court by judgment and order dated 26.11.2015 and 27.11.2015 convicted and sentenced the appellants, as aforesaid.
Mr. Pralhadka, learned Advocate appearing for the appellants submitted that Bimala Thapa @ Tamang had already served out the substantive sentence imposed on her and has been released from custody upon payment of fine. Other appellant viz., Ruksana Bibi is about to complete the substantive sentence imposed on her. He pressed the appeals so far as the convictions recorded against the appellants are concerned. He submitted there is no legally admissible evidence that the victim was a minor. Ossification report of the victim had not been produced. School certificate was also not exhibited in the instant case. He relied on an unreported judgment dated 13th February 2017 of this Court in C.R.A.572 of 2012, Bina Das Vs. State of West Bengal, in support of his contention. He also argued there is no evidence that the victim had been subjected to prostitution by appellant Bimala Thapa @ Tamang. She had not been recovered from the brothel but from a rescue home. He accordingly prayed for acquittal of the appellants.
Mr. Saswata Gopal Mukherjee, learned Public Prosecutor along with Mr. Partha Pratima Das drew our attention to the evidence of the victim, P.W.2 who had unequivocally narrated the woeful story of being abducted by the appellant Ruksana Bibi along with Nurul Huda Mondal @ Raju and Sariful Gazi @ Bapi and finally being sold to a brothel controlled by Bimala Thapa @ Tamang. Her evidence is corroborated by other witnesses. Hence, the appeals are liable to be dismissed.
I have given anxious consideration to the rival submissions of the parties. Evidence of the victim graphically narrates the manner in which she had been abducted by Nurul Huda Mondal @ Raju, Sariful Gazi @ Bapi and Ruksana who were her co-villagers by making her consume food mixed with intoxicating substance and sold to unknown persons who took her to Pune. There she was sold to Bimala Thapa @ Tamang who utilised her for prostitution. She was finally recovered by the local police and kept in a home. Police from Usthi Police Station found her in the home and produced her before the Magistrate. Her statement was recorded before the Magistrate. She was medically treated. Her deposition is corroborated by her parents viz., P.W.1 and P.W.3 and other witnesses including, P.W.17, Sibani Das @ Kabita. The said witness corroborated version of the victim and stated that the latter had been kept in a brothel owned by, Bimala Thapa @ Tamang and had been subjected to prostitution.
P.W.19, Tamal Das, one of the investigating officers in the instant case who deposed that pursuant to the statement of Sibani Das @ Kabita (PW 17), they raided the brothel but could not recover the victim. She was finally produced from the home and her statement was recorded before the Magistrate.
The other investigating officer, P.W.18, Gopal Chandra Saha deposed upon recovery of the victim, she was medically examined at Diamond Harbour Sub Divisional Hospital. Ossification test has been done but the report has not been produced. He submitted a xerox copy of the school certificate of the victim wherein her date of birth is stated as 10.8.1993.
P.W.15, Anup Kumar Das, the third investigating officer completed the investigation and filed police report.
On an analysis of the evidence on record, I find no reason to disbelieve the version of the trafficked victim viz., P.W.2. She has narrated the manner and circumstance in which, Ruksana Bibi along with Raju and Bapi abducted her by administering intoxicating substance and sold her to a brothel in Pune. PW 2 disclosed, Bimala Thapa @ Tamang, the owner of the brothel, utilized her for prostitution. She also narrated the manner in which she was recovered by another investigating agency and was kept in the rescue home wherefrom P.W.19 had recovered her. Her version is corroborated by P.W.17, Sibani Das @ Kabita who deposed she had identified the victim to P.W.19 upon being shown a photograph and stated that the victim had been utilised for prostitution in the brothel owned by Bimala Thapa.
Hence, ample evidence has come on record to corroborate the version of the trafficked victim.
However, I am in agreement with the submission of the learned Counsel appearing for the appellants that forensic evidence with regard to age of the victim has not been adduced. For reasons best known to the prosecution, her ossification report was not produced in Court. Neither was the school certificate exhibited. Hence, I consider it unsafe to come to a conclusive opinion that the victim was a minor on her mere ipse dixit or the evidence of her parents. However, in the light of the evidence on record, I am of the opinion that the ingredients of the lesser offence punishable under Sections 366 of the Indian Penal Code have been proved against the appellant viz., Ruksana Bibi.
Section 366 of the Indian Penal Code reads as follows:-
"366. Kidnapping, abducting or inducing woman to compel her marriage etc. - Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid."
Although the age of the victim has not been established, evidence has come on record to show that Ruksana Bibi along with other accused persons had abducted her with the knowledge that she would be forced to illicit intercourse. Ingredients of the offence punishable under Section 366 of the Indian Penal Code are, therefore, clearly established against the said appellant and as such offence is a minor offence to Section 366A of the Indian Penal Code, I am of the opinion that appellant Ruksana Bibi, may be convicted for commission of such offence without reframing of charges.
From the evidence on record it appears that Bimala Thapa@ Tamang knowingly received the abducted girl and subjected her to prostitution. Under such circumstances, I am of the view Bimala had abetted the abduction of the victim for illicit sexual intercourse and her conviction may be converted from Section 373 of Indian Penal Code to one under section 366/114 of Indian Penal Code. As the substratum of the accusation remains the same, alteration of conviction of Bimala, as aforesaid (without refraiming the charge) would not cause prejudice to her or occasion a failure of justice.
Although, I am in respectful agreement with the ratio laid down in Bina Das (Supra) it is relevant to note that the said judgment is not an authority for the proposition whether the offender in the facts of the present case could be convicted for commission the lesser offence, as aforesaid. It is trite law that a judgement is not an authority for a proposition which is neither raised not decided therein [Rajput Ruda Meha and Ors. Vs. State of Gujarat, AIR 1980 SC 1707].
In the light of the aforesaid discussion, Ruksana Bibi (appellant in C.R.A 41 of 2016) is convicted for commission of offence punishable under section 366 of IPC and sentenced to suffer rigorous imprisonment for seven years and pay a fine of Rs. 5000 in default to suffer rigorous imprisonment one year more and appellant Bimala Thapa @ Tamang (appellant in C.R.A 767 of 2015) is convicted for commission of offence punishable under section 366/114 of IPC and sentenced to sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.10,000/-, in default, to suffer rigorous imprisonment for one year more.
The appeals and connected application are accordingly disposed of. I note with utmost concern the poor quality of investigation and prosecution in the present case. For reasons best known to the investigating agency, police officer attached to Pune who had recovered the victim (P.W. 2) from the brothel had not been examined. Although in view of evidence of the victim (P.W 2) corroborated by P.W 17, non-examination of such officer does not affect the unfolding of the instant case, his examination would have certainly bolstered the prosecution case and established its foundation on surer footings. As age of the victim was of paramount importance in the present case, it was incumbent on the prosecuting agency to prove the ossification report or the school certificate. The prosecution was completely slack and failed to discharge such duty. Under such circumstances, it was incumbent on the trial court to invoke its power under Section 91/311 of Cr.P.C. to ensure production and proof of the ossification report or the original school certificate. The Court also appears to have failed to undertake such exercise which was essential for a just decision and to unravel the truth in a serious case involving interstate trafficking in women.
Copy of the judgment along with lower court records be sent down to the trial court at once for necessary compliance.
Urgent photostat certified copy of this order, if applied for, shall be given to the parties, as expeditiously as possible on compliance of all necessary formalities.
I agree.
(Suvra Ghosh, J.) (Joymalya Bagchi, J.)