Research › Search › Judgment

Calcutta High Court · body

2010 DIGILAW 1328 (CAL)

Mahasin Alam @ Pappu v. STATE OF WEST BENGAL

2010-11-12

ASHIM KUMAR ROY

body2010
JUDGMENT 1. THIS statutory appeal is arising out of a judgement and order passed by the Learned Additional District and Sessions Judge, Sealdah, South 24 - Parganas, convicting the appellant no. 1 under Sections 376/511 of the Indian Penal Code and the appellant no. 2 under Section 376 of the Indian Penal Code simplicitor and sentencing them thereunder to suffer rigorous imprisonment for 4 years and rigorous imprisonment for 7 years respectively and to pay fine with default clause. 2. IN the trial the appellant Atin Mullick was called upon to answer the charge under Section 376 of the Indian Penal Code, which is read as follows: "That you, on or about the 4th day of June, 2009 at about 10.30 P.M. at 5D, Abinash Chowdhury Lane, Kolkata - 46 under P.S. Topsia committed rape on Sangita Jaiswal and thereby committed on offence punishable under Section 376 of the Indian Penal Code, and within the cognizance of this court of session And hereby direct that you be tried by the said Court on the said charge. The Charge is read over and explained to the accused who pleads not guilty and claims to be tried." Whereas, the appellant Mahasin Alam was charged under Sections 376/511 of the Indian Penal Code and same is read as follows; "That you, on or about 4th day of June, 2009 at about 10.30 P.M. at 5D, Abinash Chowdhury Lane, Kolkata - 46 under P.S. Topsia attempted to commit rape upon Sangita Jaiswal and in such attempt did certain acts towards the commission of the said offence, to wit you became completely naked, you lied upon Sangita etc. and thereby committed on offence punishable under Section 376 of the Indian Penal Code read with S. 511 I.P.C. and within the cognizance of this court. And I hereby direct that you be tried by the said Court on the said charge. The charge is read over and explained to the accused who pleads not guilty and claims to be tried." After perusal of the materials on record, more particularly the evidence on records, since I am of the opinion that the order of conviction and sentence cannot be sustained and an order of retrial is to be made inasmuch as framing of charge was not proper and in accordance with law, there is no need to go into the details of the case. 3. 3. IN the case at hand, having gone through the First Information Report, which was lodged by the defacto-complainant herself, and her deposition in Court, I have no doubt that a prima facie case of an offence of gang rape punishable under Section 376 (2)(g) of the Indian Penal Code has been made out and accordingly they should have been charged thereunder. 4. THE relevant portion of the First Information Report extracted below would certainly justify such conclusions; "At last Atin told that he wanted to finalise the matter and headed towards his friend’s house with me by a bus. At first he made me get down in Chittaranjan hospital stoppage and took a rickshaw and got down at Darapara (with me) and took me to a slum area. Over there he took me to the room of a person by the name of Mohsin Alam. Mohsin was alone over there. THE address of that room was 5D, Abinash Chowdhury Lane, Calcutta - 46. At about 10.30 P.M. that Mohsin brought bread and "tadka" (a preparation of lenfils) from outside. After that Atin and Mohsin drank some intoxicating drinks. They offered me but I refused to drink. As I did not eat anything from the morning, felt like throwing up. I ate one bread forcibly. There were two rooms in Mohsin’s house. Mohsin sat in the outer room Atin Mallick took me inside the inner room and made me sit on the bed and forcibly tied to open my clothes. THE clothes worn by me was my official dress black trousers and white shirt. I got very puzzled and vocally expressed my objection. At that time Atin pressed by mouth. I am a person of petite frame and Atin is very well built and very strong. Though I tossed about, Atin and Mohsin opened all my clothes. After that Mohsin went to the outer room and Atin did all sexual acts with me totally against my wishes. Now I have pain on my lips, breasts and vaginal area. After that Mohsin came to me and wanted to perform the same act. I started crying. In the meantime loud knocking sounds were heard on the door. There was a window in that room. I saw faces of some men who were looking at us and shouting. Now I have pain on my lips, breasts and vaginal area. After that Mohsin came to me and wanted to perform the same act. I started crying. In the meantime loud knocking sounds were heard on the door. There was a window in that room. I saw faces of some men who were looking at us and shouting. At that time Mohsin left me." Similar would be the position, if evidence of the defacto-complainant is now taken into consideration. THE relevant portion of the evidence is reproduced below; "Thereafter Atin Mallick started removing my wearing apparels from my body and when I shouted Atin Mallick caught hold of my mouth and Mahasin took out my pant and Atin Mallick undressed me wholly. I tried to rescue from the clutches of Atin Mallick but I could not as because I was weak. Thereafter he forcibly raped me and I suffered pain injuries on my lips because he caught hold of my mouth forcibly. When Atin Mallick raped me Mahasin caught hold my legs. After completing of rape by Atin Mallick Mahasin Alam also tried to rape me and caught hold my mouth like Atin Mallick and at that time outsiders knocked the door and I found that through the window many persons are watching me." In this regard it would be very relevant to refer the Explanation-1 to sub-section (2) of Section 376 of the Indian Penal Code which defines "gang rape". "Section 376 (1) ……. Section 376 (2) …….. Explanation-1:- Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention each of the persons shall be deemed to have committing gang rape within the meaning of this sub-section." 5. THUS, on the face of the allegations the Trial Court, should have framed charge under Section 376 (2)(g) of the Indian Penal Code against the appellant, instead of charging one accused under Section 376 IPC, simplicitor and another under Section 376/511 IPC. That apart, even after recording of the evidence of the defacto-complainant, when such evidence supports and satisfy a prima facie case under Section 376 (2)(g) IPC, still the Learned Trial Judge, for the reasons best known to him did not proceed against him in terms of the provisions of Section 216 of the Code. The approach of the Trial Court is wholly illegal and erroneous. 6. The approach of the Trial Court is wholly illegal and erroneous. 6. THE Learned Judge will be well advised to know what is meant by gang rape. According to the Explanation-1 to Section 376 (2) of the Indian Penal Code, even if a woman is raped by one, out of two in a group, acting in furtherance of their common intention each of them shall be deemed to have committed gang rape. In legal parlance act done by one or more persons in furtherance of common intention includes series of acts as a single act. THE acts committed by different confederate in the criminal action may be different but all must in one way or other participate and engage in the criminal enterprise. It may be that one accused facilitate the execution of common design by the other, even then such a person also commits such act as his co-participant actually committed, i.e. the planned crime. It is essential for application of the principal act done by the several persons in furtherance of common intention that the person, who instigated or aided the commission of the crime must be physically present at the spot and actively took part in facilitating or promoting the offence, which is the aim of the joint crime venture. Such persons of those, who in one way or other facilitate execution of the common design, itself tantamount to actual participation in the crime. THE essence of such provisions is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result, such consensus can be developed at the spot and intended by all of them or by both. In this case at the venue of the crime both the appellants were present. They both took part in undressed the victim. According to the victim when one of the accused Atin Mullick raped her other accused Mahasin Alam caught hold of her legs and after accused Atin Mullick raped her the other accused Mahasin Alam also tried to rape her in the same manner as Atin did. Therefore, the Learned Judge has committed gross mistake either by not framing charge against both the accuseds for the offence of gang rape and then after recording of evidence of the victim girl by not altering the charge. Therefore, the Learned Judge has committed gross mistake either by not framing charge against both the accuseds for the offence of gang rape and then after recording of evidence of the victim girl by not altering the charge. It is strange enough the Learned Judge framed charge against one of the accuseds for an offence of rape simplicitor and against another for attempting to commit rape. In view of the aforesaid patent infirmities the impugned order of conviction and sentence cannot be sustained and accordingly the same are set aside. The case is sent back to the Court below for retrial. The Trial Court is directed to proceed with the trial either by framing of charge afresh or by taking recourse to Section 216 of the Code of Criminal Procedure. The Trial Court is further directed to conclude the trial within six months from the date of communication of this order strictly in terms of Section 309 of the Code of Criminal Procedure. Pending conclusion of the trial the appellants be released on bail to the satisfaction of the Learned Chief Judicial Magistrate, 24-Parganas (South), on a bond of Rs. 10,000/- each of two sureties, one of whom must be local and on further condition on each day of the trial they must be present in Court, unless their appearance is not possible due to some unforeseen reason. The Trial Court shall be at liberty, to cancel the bail and to proceed with the trial of the accuseds by taking them into custody, if it is found, either they are deliberately delaying the trial or are absent in Court, without any further reference to this Court. This appeal thus stands disposed of. The Office is directed to communicate this order at once to the Trial Court. The Lower Court Records be sent down immediately. Criminal Section is directed to deliver urgent Photostat certified copy of this Judgement to the parties, if applied for, as early as possible.