JUDGMENT GIRISH CHANDRA GUPTA 1. THIS appeal is directed against a judgment dated 18th June, 2008 passed by the learned Additional District and Sessions Judge, Fast Track Court-4, Gangarampore at Buniadpore, District- Dakshin Dinajpore in Sessions Case No. 180 of 2007 connected with Sessions Trial Case No. 27 of 2007 (State of West Bengal Vs. Gour Mondal and two others) by which the learned Trial Court convicted all the three accused persons of an offence punishable under Sections 366, 368 read with Section 34 of the Indian Penal Code. The accused Gour Mondal was alone additionally convicted under Section 376 of the Indian Penal Code. By an order dated 23rd June, 2008 all the three convicts were sentenced to rigorous imprisonment for 10 years each as also to pay fine of Rs. 5,000/- each, in default to suffer further rigorous imprisonment of 2 years for the offence punishable under Section 366 read with Section 34 of the Indian Penal Code. They were also sentenced to rigorous imprisonment for 10 years each as also to pay fine of Rs. 5,000/-, in default to suffer further rigorous imprisonment for 2 years for the offence punishable under Section 368 read with Section 34 of the Indian Penal Code. The convict Gour Mondal was further sentenced to suffer rigorous imprisonment for 10 years as also to pay fine of Rs. 5,000/-, in default to suffer further rigorous imprisonment for 2 years for the offence punishable under Section 376 of the Indian Penal Code. All the sentences were however directed to run concurrently. 2. THE convicts Sukumar and Rabi have preferred the present appeal. The facts and circumstances of the case briefly stated are as follows: The prosecutrix is the daughter of Sachin. The appellant No.1 Sukumar is Sachins sisters husband. The appellant No.2 Rabi is the son-in-law of the said Sukumar. The appellants accompanied by Gouranga Mondal @ Gour Mondal called at the house of Sachin on 12th November, 2006 and they stayed there during the night. In the morning of 13th November, 2006 these three persons took away the prosecutrix ostensibly for the purpose of buying jewellery for her. 3. THEY did not thereafter come back. A missing diary was lodged on 17th November, 2006 which was registered as G.D entry no. 1399. In the morning of 13th November, 2006 these three persons took away the prosecutrix ostensibly for the purpose of buying jewellery for her. 3. THEY did not thereafter come back. A missing diary was lodged on 17th November, 2006 which was registered as G.D entry no. 1399. On 13th November 2006 the prosecutrix was taken by all the three accused persons to the shop of a jeweller but no jewellery was, in fact, purchased. She thereafter was taken to a tea stall where a cup of tea was given to her. She thereafter became senseless and regained her sense only at the house of Sukumar. In the house of Sukumar she was made over to Gouranga. The said Gouranga took her from place to place. He also applied vermilion on her head and a pair of conch in her hands which are signs of a married woman and raped her several times against her will. Ultimately, she met one Kesto, a friend of her cousin, at Malda railway station. Through that Kesto she contacted her cousin Sushanto over cellular phone and narrated the story. Based on the advice rendered by Sushanto the accused Gouranga was duped into believing that the parents of the prosecutrix were willing to accept the marriage and he was invited to attend the boubhat of the said Sushanto. The unsuspecting Gouranga accompanied by the victim attended. Thereafter another diary dated 31st January 2007 was lodged registered as G.D entry no. 1899. Acting thererupon the police reached the house of Sushanto and arrested the accused Gourango. Thereafter a written complaint dated 31st January, 2007 was lodged. 4. THE evidence of the prosecutrix in that regard reads as follows : About eight and half months before the incident took place. On 12.11.2006 accused Sukumar Sarkar, Rabi Saha and Gour Mondal came to our house. Accused Rabi Saha is son-in-law of accused Sukumar Sarkar. Accused Gour Mondal is friend of accused Rabi Saha. They came in the afternoon and stayed in the night at our house. After taking puff-rice and tea I was being taken by the accused persons to market. Accused Sukumar Sarkar disclosed to purchase gold ornaments for me. So, all the accused persons accompanying with me went to Gangarampur Bazar. I was given tea then I became senseless subsequently I was taken by the accused persons but I cannot say exactly where I was being taken. Accused Sukumar Sarkar disclosed to purchase gold ornaments for me. So, all the accused persons accompanying with me went to Gangarampur Bazar. I was given tea then I became senseless subsequently I was taken by the accused persons but I cannot say exactly where I was being taken. I regained my sense in the house of accused Sukumar Sarkar. Accused Sukumar Sarkar and Rabi Saha handed over me to accused Gour Mondal. I was being directed to accompany with Gour Mondal. I was being take to Baharampur, Kerishnanagar and other places. I was being kept in different houses on different dates. Accused Gour Mondal remained with me. Accused forcibly put vermilion on my head and kaunch at my hands. Accused Gour Mondal along with myself remained in hotel and house. I was being raped by accused Gour Mondal on different dates at different places. Subsequently I was being taken to Malda by accused Gour Mondal. Kesto being friend of my cousin brother Sushanta, met with me, there was meeting of Kesto being friend of my cousin brother Sushanta with me. He was a taxi driver. There was meeting with me at Malda railway station. I talked with Sushanta over the mobile of Kesto. Sushanta when made conversation over telephone advised me to make Gour understand and to bring him by managing him. Phone was being given to accused Gour Mondal. It was assured by Sushanta that marriage of Gour Mondal with victim Bandana would be recognized. On 31.01.2007 accused Gour Mondal with myself came to house of my maternal uncle. At Patgola, Sushanta gave information on arrival of ourselves at Patgola to my parents. Then my parents came to Patgola I have narrated the incident in details to my parents. Para people of Patgola came to my maternal uncles house. They have listened the incidents narrated by me. I can not say as to who made telephonic complaint at Gangarampur P.S. myself and accuse Gour Mondal were taken to Gangarampur P.S. by police officer. My parents subsequently went to Gangarampur P.S. I was being examined by police officer on that day. Subsequently I was being examined by police officer. On the following day I was being referred to Ld. A.C.J.M., for recording statement under Section 164 Cr.P.C. I have narrated the incident in details to Ld. My parents subsequently went to Gangarampur P.S. I was being examined by police officer on that day. Subsequently I was being examined by police officer. On the following day I was being referred to Ld. A.C.J.M., for recording statement under Section 164 Cr.P.C. I have narrated the incident in details to Ld. Magistrate regarding my statement under Section 164 Cr.P.C. My statement was duly recorded by Ld. Judicial Magistrate. Buniadpur Court. Contents of the Statement was read over and explained to me by Ld. Judicial Magistrate. Then I have signed on each and every page of the statement recorded by Ld. Judicial Magistrate. These are my signature appearing on the statement under Section 164 Cr. P.C. marke3d Ext-2 series. I was being referred to Gangarampur Sub- Divisional Hospital for medical examination and report. Also I narrated the incident to the attending doctor of Gangarampur S.D.Hospita. I read upto Class-IV, at Gangarampur Dakshin Dinajpur Primary School. Accused persons are present on dock and identified. The statement of the victim recorded by the learned Magistrate under Section 164 of the Code of Criminal Procedure reads as follows : My Jamaibabu, Pisamasai and Jamai friend came to our house, and in the morning took me to a shop i.e. jewellery to buy gold. Then they took me to a tea stall and by force in a bus to Raiganj and then my Jamaibabus friend took me to Krishnanagar and there he forcibly put vermilion on my forehead. He repeatedly threatened me, and then he took me to various places and kept me for about a month. Then, he told me he will take me home and brought me to Malda, there we met our brothers friend, and from him we obtained our brothers phone number and both of us i.e. myself and Jamaibabu friend talked to our brother. Then again he took me a place and then says. I shared my bed with my Jamaibabu friend. 5. I then outwitted him and convinced him that my parents would not oppose to our marriage, that is how I came house and I narrated the entire matter for my mother. Do you want to state any more? Ans :- My jamaibabus friend has ill treated me and my modesty is hampered. Sachin the father of the prosecutrix was the first witness of the prosecution. Do you want to state any more? Ans :- My jamaibabus friend has ill treated me and my modesty is hampered. Sachin the father of the prosecutrix was the first witness of the prosecution. Besides disclosing what he has learnt from his daughter he deposed, inter alia, as follows :- Victim Bandana Sarkar is my daughter. She was aged 12/13 year at the time of incident. Accused Sukumar Sarkar is my brother-in-law. Accused Rabi Saha is son-inlaw of my brother-in-law named Sukumar Sarkar. Accused Gour Mondal is friend of accused Rabi Saha. Accused persons are present on dock and identified. In the last winter season they visited my house. They remain in my house on the day of their visit on the following day they along with victim Bandana went to local market but they did not return to home. We made search hither and thither but could not found them. But ultimately trace out her. After two days of the incident we went to the house of accused Sukumar Sarkar at Raiganj but did not find her. Also accused Sukumar Sarkar was not found at his house. Then I returned to my house. Also my wife was sent to Raiganj in the house of accused Sukumar Sarkar. She also returned to her house without finding victim Bandana Sarkar. My wife diarised the incident of missing victim Bandana Sarkar at Gangarampur P.W. Sushanta son of my brother-in-law informed over telephone about victim Bandana Sarkar. 6. P.W.2, the mother of the prosecutrix, deposed inter alia as follows : Bandana Sarkar was aged 14 years at the time of incident. About eight and half months before the incident took place. Accused Sukumar Sarkar, Rabi Saha, and Gour Mondal visited our house and haulted in our house in the night. They made breakfast at our house. They took my daughter Bandana Sarkar to Local Market. Accused persons as well as Bandana Sarkar did not return to our house. We made search in our para for Bandana Sarkar after awaiting for 2/3 hours. On the following day father Sachin Sarkar went to the house of sukumar sarkar at Raiganj for searching out his daughter Bandana Sarkar. Aslo accused were not found there at. Also I went to the house accused Sukumar Sarkar at Raiganj but failed to rescue Bandana Sarkar. On the following day father Sachin Sarkar went to the house of sukumar sarkar at Raiganj for searching out his daughter Bandana Sarkar. Aslo accused were not found there at. Also I went to the house accused Sukumar Sarkar at Raiganj but failed to rescue Bandana Sarkar. Returning from Raiganj I made a missing diary at Gangarampur P.S. friend of my nephew Sushanta being taxi driver by profession informed Sushanta over telephone that Bandana along with accused Gour Mondal was roaming in Malda Town. Sushanta gave information to victim Bandana to come back with Gour Mondal at her fathers house. Their marriage would be recognized. On 31.01.2007, she along with Gour Mondal came back to the house of her maternal uncles house at Gangarampur. On the occasion of boubhat of Sushanta, victim Bandana along with accused Gour Mondal attended the function at Gangarampur. On getting information from Sushanta I along with my husband went to the house of my elder brother at Gangarampur. It was narrated by victim Bandana Sarkar that she was being taken to different places at different times by accused Gour Mondal. Accused Sukumar Sarkar and Rabi Saha handed over victim Bandana Sarkar to accused Gour Mondal. Accused Gour Mondal used to keep victim Bandana Sarkar in different rented house. Accused Gour Mondal put vermilion on the head of victim Bandana Sarkar. Also he put conch at her hand. After coming to her maternal uncles house she replied that she would not live with accused Gour Mondal. My husband has lodged specific complaint against the accused persons at Gangarampur P.S. Police came to P.O. and arrested accused Gour Mondal and took victim Bandana under safe custody. 7. P.W.5 Sushanto who had played a crucial role in the recovery of the victim besides deposing as regards what he had learnt from the victim deposed, inter alia, as follows :- After 1/1/2 months from the date of incident I have got news over mobile of my friend Kesto Sarkar who is taxi driver by profession. My friend advised me to talk with victim Bandana Sarkar over Mobile. It was reported by victim Bandana Sarkar over mobile. It was reported by victim Bandana Sarkar that three accused persons are not with her but she was being given marriage with accused Gour Mondal by accused Sukumar Sarkar and Rabi Saha. She made telephonic talk from Malda. My friend advised me to talk with victim Bandana Sarkar over Mobile. It was reported by victim Bandana Sarkar over mobile. It was reported by victim Bandana Sarkar that three accused persons are not with her but she was being given marriage with accused Gour Mondal by accused Sukumar Sarkar and Rabi Saha. She made telephonic talk from Malda. Rather I have advised her to make over mobile for talk with accused Gour Mondal. I have requested accused Gour Mondal that we have recognized their marriage. Also they are invited to our house. On the day of marriage also where being invited to our house. My marriage was solemnized on 10th Magh last year. After 3/4 days from the date of marriage i.e., 31.01.2007 accused Gour Mondal along with victim Bandana Sarkar came to my house on the date of boubhat. P.Ws.6 and 7 corroborated the fact that all the three accused persons had called at the house of P.w.1 Sachin and taken away the victim. P.W.10 is the Judicial Magistrate who recorded the statement of the victim under Section 164 of the Code of Criminal Procedure. P.W.14 is Dr. Saha who examined the accused Gouranga Mondal and opined that he was sexually potent. P.W.15 is Dr. Mondal who had examined the victim and reported that her hymen was found ruptured. His report is ext. 7. P.W.16 is the investigating officer. Mr. Mustafa, learned Advocate appearing for the appellants, made a very brief submission. According to him there is no evidence to suggest complicity of the accused Rabi. He merely was present at the house of P.W.1 on 12th November, 2006. He admittedly is the sonin- law of the accused Sukumar. It has been alleged that the accused Gouranga Mondal was a friend of the accused Rabi but that, by no stretch of imagination, is an offence. There is no evidence on the record to suggest any overt act or role played by the accused Rabi. Mr. Mustafa submitted that Rabi, the appellant No.2, deserves an outright acquittal. 8. AS regards the appellant No.1 Sukumar he submitted that the said appellant is now 76 years old. He added that Sukumar did not intend to cause any harm to the victim. He, in any event, is now 76 years old. This court should consider his case in the appropriate perspective by taking into consideration his present age. Mr. 8. AS regards the appellant No.1 Sukumar he submitted that the said appellant is now 76 years old. He added that Sukumar did not intend to cause any harm to the victim. He, in any event, is now 76 years old. This court should consider his case in the appropriate perspective by taking into consideration his present age. Mr. Chakrabarty, learned Advocate appearing for the state submitted that the accused Rabi had accompanied other the two coaccused persons. Therefore, according to him, he is no less an offender. AS regards the culpability and punishment of Sukumar he submitted that based on the evidence an appropriate view of the matter should be taken. The date of occurrence was 13th November 2006. The prosecutrix was born on 5th February 1991 according to the oral and documentary evidence on record. She therefore on the date of occurrence was less than 16 years old. The father and brother of the prosecutrix have both admitted that the marriage of the prosecutrix was settled with a person of Bangarh. But the prosecutrix was not happy with the proposed marriage. The evidence of the P.W.1 the father in that regard is as follows: She expressed her unwillingness to marry with the proposed bridegroom dealing with fishes at Bangarh. P.W.4 the brother of the prosecutrix deposed in that regard as follows: - Marriage of Bandana Sarkar was settled else where. She became mentally upset after settlements of marriage. 9. ON behalf of the defence it was suggested that there was a love affair between the prosecutrix and the accused Gouranga which was denied. The relevant suggestions given to the P.W.2, the mother of the prosecutrix, reads as follows:- Not a fact that during incident my daughter was 14 years or that during incident she was major or that victim Bandana along with accused Gour Mondal was roaming in Malda town or that there was love affairs with accused. 10. P.W.3 the prosecutrix herself was also suggested about the alleged affairs which she boldly denied. She added that:- I did not meet Gour Mondal earlier to the incident. There is no evidence forthcoming on behalf of the defence contrary to what was deposed by the prosecutrix. Therefore, the theory of love affair between the accused and the prosecutrix is altogether unbelievable. She added that:- I did not meet Gour Mondal earlier to the incident. There is no evidence forthcoming on behalf of the defence contrary to what was deposed by the prosecutrix. Therefore, the theory of love affair between the accused and the prosecutrix is altogether unbelievable. Difficulty however arises from the fact that the prosecutrix was taken away from her paternal house on the pretext of buying gold ornaments for her. Why was it necessary for the accused persons to buy ornaments for the victim is a question which no one has answered. The victim herself deposed in that regard as follows: - On 12.11.2006.They came in the afternoon and stayed in the night at our house. After taking puff-rice and tea I was being taken by the accused persons to market. Accused Sukumar Sarkar disclosed to purchase gold ornaments for me. So, all the accused persons accompanying with me went to Gangarampur Bazar. P.W.2 the mother of the prosecutrix during her examination-inchief deposed that they took my daughter Bandana Sarkar to local market. This was also deposed to by the father of the prosecutrix who stated that on the following day they along with the victim Bandana Sarkar went to the local market. Why did the accused Sukumar Sarkar or the rest of the accused persons express their interest in buying jewellery for the prosecutrix was not sought to be unearthed and that we suppose contained a key to the question as to why was she abducted. A better match for Bandana than what the parents of the victim had decided could have been the cause. That might also explain why ornaments were proposed to be purchased. The learned Advocate for the appellant before us did not however try to throw any light on this aspect of the matter. As regards abduction of the prosecutrix, her evidence has already been noticed wherein she disclosed that the accused Sukumar had proposed to purchase gold ornaments for her. Therefore, it is the accused Sukumar who played the most important part in abducting the victim. The only other accused who can be said to have played any part in the entire episode is the accused Gouranga who is not before us. The accused Rabi does not appear to have taken any active role. All that the victim deposed that Sukumar and Rabi handed her over to the accused Gouranga. The only other accused who can be said to have played any part in the entire episode is the accused Gouranga who is not before us. The accused Rabi does not appear to have taken any active role. All that the victim deposed that Sukumar and Rabi handed her over to the accused Gouranga. Rabi did not propose to purchase any ornaments for her. Rabi did not propose to take her out of the house. Therefore, the involvement of the accused Rabi in handing her over to the accused Gouranga does not sound plausible. We find substance in the submissions of Mr. Mustafa that Rabi did not play any role. He merely was present. Mere presence cannot imply sharing of any common intention. We are as such inclined to acquit the appellant No.2 Rabi. 11. AS regards the appellant No.1 Sukumar, there is evidence indicated above that he played active part in the offence. Mere submission that he did not have any bad intention is not enough to wash out evidence staring against him. We are as such unable to interfere with the conviction of the appellant No. 1 Sukumar. From the examination under Section 313 Criminal Procedure Code held on 17th January 2008 it appears that he was on that day 75 years old. That may not be a correct information but there can be no doubt that he is a very aged person. Regard being had to the fact that he is an aged person his sentence is reduced by 50%. In the result, the appeal partly succeeds. The appellant No.2 Rabi is acquitted and the punishment of the appellant No.1 is reduced as indicated above. The learned trial Court shall issue a modified jail warrant and shall take all coercive measures to secure the presence of the appellant no.1. The appellant no.1 is further directed to surrender forthwith to serve out the sentence as modified above. Lower Court Records with a copy of this judgment be sent down to the learned trial Court forthwith. Urgent xerox certified copy of this judgment, if applied for, be delivered to the learned Advocates for the parties, upon compliance of all formalities.