Calcutta High Court (Appellete Side)
Sk. Sirajul Islam vs The State Of West Bengal on 7 December, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Rajarshi Bharadwaj
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AB
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
And
The Hon'ble Mr. Justice Rajarshi Bharadwaj
C.R.A. 612 of 2007
With
C.R.R. 2675 of 2008
SK. SIRAJUL ISLAM
VS
THE STATE OF WEST BENGAL
Amicus Curiae : Mr. Deep Chaim Kabir, Advocate,
For the State : Mr. Arun Kr. Maity, Ld. APP,
Mr. Anowar Hossain, Advocate,
Heard on : December 7, 2017
Judgement on : December 7, 2017
Joymalya Bagchi, J. :
The appeal is directed against judgement and order dated 14.6.2007 passed by learned Additional Sessions Judge, 1st Court, Hooghly in Sessions Case No.157 of 2004 arising out of Sessions Trial No.6 of 2005 convicting the appellant for commission of offence punishable under Sections 363/366A/376 2 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for five years and to pay a fine of Rs.3,000/-, in default, to suffer simple imprisonment for a further period of two months more for the offence punishable under Section 363 of the Indian Penal Code, to suffer rigorous imprisonment for seven years and to pay a fine of Rs.5,000/-, in default, to suffer further simple imprisonment for three months more for the offence punishable under Section 366A of the Indian Penal Code and to suffer rigorous imprisonment for ten years and to pay a fine of Rs.7,500/-, in default, to suffer further simple imprisonment for six months more for the offence punishable under Section 376 of the Indian Penal Code, all the sentences to run concurrently.
The prosecution case, as alleged against the appellant is to the effect that the minor victim, who was the stepdaughter of P.W.1, Gorachand Murmu, was kidnapped on 12.1.2002 from her residence by the appellant and was taken to Mumbai and subjected to rape by the appellant and others on a number of occasions. The victim tried to contact her parents but failed and finally on 25.1.2002 she somehow managed to escape from the brothel and returned home. She narrated the incident to her father who lodged complaint resulting in Pandua P.S. Case No. 12 dated 26.1.2002 under Sections 363/366A of the Indian Penal Code. The statement of the victim was recorded under Section 164 Cr.P.C. and thereafter Section 376 of the Indian Penal Code was added. 3
In conclusion of investigation charge sheet was filed against the appellant under Sections 363/366A/376 of the Indian Penal Code. The case was committed to the Court of Sessions and charge was framed against the appellant under Sections 363/366A/376(2)(g) of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried.
In the course of trial, prosecution examined 12 witnesses including the victim as P.W.2. In conclusion of trial, the trial court by the impugned judgement and order convicted and sentenced the appellant, as aforesaid.
Nobody appears for the appellant. Mr. Kabir, learned counsel is requested to appear amicus curiae in this matter and assist the court. He argued that the evidence of P.W.2 is most artificial and it is likely that she voluntarily accompanied the appellant. It is also evident that the victim was a free agent and had contacted her mother, P.W.5 and voluntarily returned to Kolkata. Hence, the allegations of kidnapping and forcible sexual intercourse are patently absurd and inherently improbable.
On the other hand, Learned Additional Public Prosecutor with Mr. Hossain submitted that the victim was a minor girl and had been kidnapped by the appellant. She was given stupefying drugs and thereafter sold to a brothel at Mumbai where she was repeatedly raped. She somehow escaped and returned home. Her evidence is corroborated by her parents and other witnesses. Medical 4 evidence also speaks of sexual intercourse perpetrated on her. Hence, the appeal is liable to be dismissed.
P.W.2 is the victim and the most vital witness in the instant case. She deposed that she was a student of Class V and was aged around 12 /13 years. The appellant told her that he had a daughter about her age. He came to the house of the victim and asked whether her mother had gone. The parents of the victim were absent at that time. The appellant put a flower under her nose and she fell dizzy. She followed him to Pandua Railway Station and boarded a local train and came to Howrah Station and thereafter she was taken to Mumbai in an express train. She was in hypnotic condition for four days. Thereafter she regained her senses. She was kept in Kalyan at Mumbai. The appellant tried to sell her. She was raped by the appellant and four other persons. Her hands and legs were tied with rope. She was forced to drink wine. She was taken to a hotel and kept there. She was weeping. The owner of the hotel enquired why she was weeping. She replied that she had been brought there by the appellant. The owner of the hotel telephoned the appellant. Then the appellant kept her in another rented apartment. She was beaten badly by the appellant as she refused to subject herself to prostitution. One day she telephoned her mother and the appellant hurriedly disconnected the line. She could not talk to her mother. Taking advantage of absence of the appellant, she came out of the house and reached VT Station at Mumbai. She had no money with her. She boarded a mail train and hid herself near the toilet of the compartment for two days and two 5 nights. She reached Howrah Station. Then she took a local train to Burdwan and got down to Pandua Railway Station. She had been away from her house for 13 days. She returned and reported the incident to her parents and other neighbours. She reported the matter to the police and Magistrate. Her evidence is corroborated by her parents, P.W.1 and P.W.5. Other neighbours, namely, P.W.3 and 4 have also corroborated her version.
P.W.9 is the medical officer who conducted medical examination of the victim. He found the hymen showed an old tear. He prepared the report (Exhibit
6). He also proved the ossification test report of the victim, which was prepared by Dr. S. Mukherjee.
P.W.6 is the Headmaster of the school who proved the admission register showing that the death of birth of the victim was 31st March, 1991.
From the evidence on record, it appears from the admission register that the victim was a minor. In view of the aforesaid evidence and that of the parents of the victim, I am inclined not to rely on the ossification report which is an approximate assessment of the age of the victim. Under such circumstances, I hold that the victim was minor at the time of occurrence.
She had been lured away by the appellant who was about her father's age and thereafter was kept at various places at Mumbai and raped by the appellant. It has been argued that the victim is a consenting party and her version ought 6 not to be believed. I am unable to accept such contention in view of the fact that the victim was a minor and had full trust on the appellant who was about her father's age. She had been administered stupefying substances. Hence, lack of resistance of the victim against the hostile conduct of the appellant is wholly explained.
In the light of the aforesaid discussion, I uphold the conviction and sentence imposed upon the appellant.
It appears that at the time of admission of the appeal, rule for enhancement of sentence was issued. In view of the fact that the appellant has no criminal antecedent and as two decades have lapsed since the date of occurrence, I am of the opinion that the sentence imposed on the appellant need not be enhanced.
Rule being C.R.R. 2675 of 2008 is, accordingly, discharged treating the same as on day's list.
The appeal is, accordingly, dismissed.
The period of detention suffered by the appellant during investigation, enquiry or trial shall be set off from the substantive sentences imposed upon him in terms of Section 428 of the Code of Criminal Procedure.
I record my appreciation for the able assistance rendered by Mr. Kabir as amicus curiae for disposing of the appeal.
Copy of the judgment along with LCR be sent down to the trial court at once.
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(Joymalya Bagchi, J.) I agree, (Rajarshi Bharadwaj, J.)