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2018 DIGILAW 59 (CAL)

Salema Bibi v. State of West Bengal

2018-01-09

JOYMALYA BAGCHI, RAJARSHI BHARADWAJ

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JUDGMENT : JOYMALYA BAGCHI, J. 1. The appeal is directed against the judgment and order dated 29th/30th November, 2011 passed by the learned Additional Sessions Judge, 4th Fast Track Court, Jangipur, Murshidabad in S. Sl. No.67 of 2009 (S.T.No.230/Dec./2009 convicting the appellant no.2 for commission of offence punishable under Sections 364/120B of the Indian Penal Code and the appellant Nos.1, 3 to 8 for commission of offence punishable under Sections 120B of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for 8 years each and to pay fine of Rs.5,000/- in default to undergo rigorous imprisonment for six months more. 2. Prosecution case, as alleged, against the appellants is to the effect that on 14.05.2006 at about 4.30 hours, minor daughter of the defacto complainant Abdul Basir, P.W.2 who had gone to the field to attend nature’s call was dragged away by appellant no.2 to his residence. Other appellants abetted the appellant no.2 in the said act. Later on, defacto complainant went to the house of the appellants who, however, refused to disclose the whereabouts of the victim. Thereafter, the defacto complainant informed the incident to the police but they did not take any action. Under such circumstances, the defacto complainant was constrained to take out an application under Section 156(3) of the Code of Criminal Procedure against the appellants under Section 364/34 of the Indian Penal Code. In the meantime, appellant no.6 admitted that his son, appellant no.2, had killed the victim. It is also alleged that the appellant no.2 had admitted in a salish that he had killed the victim. The victim, however, could not be recovered till date. 3. In conclusion of investigation, charge sheet was filed against the appellant no.2 for commission of offence plunishable under Section 364/120B of the Indian Penal Code and against the appellant Nos.1, 3 to 8 under Section 120B of the Indian Penal Code. The case was committed to the Court of Sessions and transferred to the Court of the learned Additional Sessions Judge, 4th Fast Track Court, Jangipur, Murshidabad for trial and disposal. Charges were framed under Sections 364/120 B of the Indian Penal Code against the appellant no.2 and under Sections 120B of the Indian Penal Code against the appellant nos.1, 3 to 8. The appellants pleaded not guilty and claimed to be tried. Charges were framed under Sections 364/120 B of the Indian Penal Code against the appellant no.2 and under Sections 120B of the Indian Penal Code against the appellant nos.1, 3 to 8. The appellants pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined eight witnesses in support of its case and exhibited a number of documents. The defence of the appellants was one of innocence and false implication. In conclusion of trial, the trial court by its judgment and order dated 29th/30th November, 2011 convicted and sentenced the appellants, as aforesaid. 4. Learned Advocate appearing for the appellants submitted that there is delay in lodging the First Information Report. There is no independent witness with regard to the alleged kidnapping of the victim girl. He submitted that involvement of the appellants in the alleged offence has not been proved beyond reasonable doubt and he prayed for acquittal of the appellants. 5. Learned Advocate appearing for the State argued that the evidence of the prosecution witnesses clearly depict that the appellant no.2 had kidnapped the victim with the assistance of the other appellants. Victim had not been recovered till date. P.W.7 stated that he had last seen the appellant no.2 with the victim. The appellant no.2 subsequently confessed that he had killed the victim. The delay in lodging the First Information Report has been explained in the instant case. She prayed for dismissal of the appeal. 6. P.W.2, father of the victim and the defacto complainant in the instant case. He deposed that on 14.5.2006 at about 4.30 A.M, appellant no.2 kidnapped her daughter aged about 13 years with the assistance of the other accused persons when she had gone to attend the nature’s call. He asked the accused persons to hand over her daughter. They declined to do so. After that he went to the police station but police did not take any action. He filed written complaint before the learned Court against the accused persons under Section 156(3) of the Code of Criminal Procedure (Ext.3). Nasiruddin, father of Sabu Sk. admitted that his son had murdered the victim. He recorded his confession on a tape recorder. 7. PW3, Isha Mahammad is the brother-in-law of PW2. He has corroborated the evidence of the de-facto complainant. Nasiruddin, father of Sabu Sk. admitted that his son had murdered the victim. He recorded his confession on a tape recorder. 7. PW3, Isha Mahammad is the brother-in-law of PW2. He has corroborated the evidence of the de-facto complainant. He also deposed that there was a salish in the village and in the salish appellant no.2 confessed his guilt. He deposed that he made a statement before the learned Magistrate. 8. PW4, Jiaure Rahaman is another brother-in-law of PW2. He has corroborated the evidence of PW3. 9. PW5 is the mother of the victim. She deposed that 3 years 7-8 months ago around 4:30 A.M. when her daughter had gone to the field to answer nature’s call there was a hue and cry. Hearing that she and her husband came out and found that the appellants were dragging her daughter towards their house. Para people also assembled there. They requested the appellants to hand over their daughter but they refused. Two months later Nasir, father of appellant no.2 came to their house and confessed that Sabu had killed their daughter. 8-9 months later a salish was held at the Panchayat. Even in the salish Sabu confessed that he killed the victim. 10. In cross-examination, she stated that she had not been examined by the police. 11. PW7 is the grandfather of the victim. He deposed that 3 years and 5-6 months ago around 4-4:30 A.M. the victim had gone to the field to resolve herself when Sabu Sk. forcibly dragged her towards his house. At that time other accused persons were present and abetted him. On hearing alarm parents of the victim and other villagers rushed to the spot. They requested Sabu Sk. to return the girl but he refused. Thereafter, at about 5:00 A.M. while he was proceeding towards his land, he saw two persons were proceeding down the road. He recognised them as the appellant no.2, Sabu Sk. and the victim. Sabu replied that they were going to the village Islampur to see his relative. They left the village. Two months later Nasir stated that Sabu had killed the victim. In a salish Sabu admitted his guilt. He made statement before the Magistrate. 12. In cross-examination, he stated that he deposed in several cases in different courts at Jangipur. 13. PW8, Md. Nabiul Islam is the Investigating Officer in the instant case. They left the village. Two months later Nasir stated that Sabu had killed the victim. In a salish Sabu admitted his guilt. He made statement before the Magistrate. 12. In cross-examination, he stated that he deposed in several cases in different courts at Jangipur. 13. PW8, Md. Nabiul Islam is the Investigating Officer in the instant case. He deposed that he received the FIR and drew up the formal FIR (Exhibit-4). He visited the PO and examined witnesses. He arrested the accused persons. He, however, could not recover the victim girl and submitted police report. 14. PW1 is the Judicial Magistrate who recorded the statements of PW3 & 7 under Section 164 of the Code of Criminal Procedure. 15. From the aforesaid evidence it appears that on 14th May, 2006 in the early morning when the victim had gone out to relieve herself appellant no.2, Sabu Sk. had dragged her into his house. This was witnessed by her parents namely, PW2 & 5 as well as her grandfather i.e. PW7. Other relations of the victim have also corroborated such fact. Subsequently, PW7 had seen that the appellant no.2 along with the victim was going away from the village. On query, appellant no.2 stated that they were going to Islampur to meet a relation. Thereafter, the victim could not be traced out. 16. It is true that the appellant no.2, Sabu Sk. had made an extra-judicial confession in a village salish has not been corroborated by the de-facto complainant (PW2). It is also doubtful as to whether appellant no.6, had made a statement implicating his son namely, Sabu Sk., appellant no.2 in committing the crime as the tape recorder version of the statement has not been produced in Court. Hence, I am not inclined to rely on the aforesaid extra-judicial confessions purportedly made by the appellant nos.2 and 6 due to lack of corroboration, as aforesaid. 17. However, in view of the consistent and corroborative version of the witnesses with regard to the kidnapping of the victim girl by the appellant no.2 and the fact that the appellant no.2 was last seen with the victim girl before she could not be traced out, I am of the opinion that the prosecution has been able to prove its case beyond reasonable doubt. 18. 18. With regard to the implication of the other appellants, who are the family members of the appellant no.2, I find that the prosecution evidence is general and does not attribute any specific role to them. 19. In view of the acquittal of the co-accused persons and the clear evidence on record with regard to the role played by the appellant no.2 in the kidnapping of the victim, who has not been traced out till date, I am of the opinion that the ingredients of the offence punishable under Section 364 IPC have been made out against the appellant no.2 in the factual matrix of the case. Hence, I convert the conviction of the appellant no.2, namely, Sabu Sk., from Section 364 IPC read with Section 120B IPC to Section 364 IPC simplicitor. In view of the fact that the appellant no.2 is the principal accused, such alteration in the conviction without reframing of charge, in my considered opinion, does not prejudice him or occasion failure of justice. 20. Hence, appellant no.2 is convicted for commission of offence punishable under Section 364 of the Indian Penal Code. Appellant No.1 and appellant Nos.3 to 8 are acquitted of the charge levelled against them. 21. Coming to the issue of sentence, I find that at the time of admission of the appeal, Rule for enhancement of sentence had been issued. In view of the fact that the victim, who is a minor girl and had been kidnapped and has not been recovered as yet, I am inclined to enhance the sentence of the appellant no.2, namely, Sabu Sk. and direct that he shall suffer rigorous imprisonment for ten years and shall pay a fine of Rs.5,000/-, in default, to suffer rigorous imprisonment for one year more. 22. However, in view of the acquittal of the appellant no.1 and appellant nos.3 to 8, rule for enhancement of sentence is discharged so far as they are concerned. 23. The appeal and rule for enhancement of sentence are allowed in part. 24. The appellant no.1 and appellant nos.3 to 8 shall be discharged from their bail bonds after six months from date in terms of Section 437A of the Code of Criminal Procedure. 25. 23. The appeal and rule for enhancement of sentence are allowed in part. 24. The appellant no.1 and appellant nos.3 to 8 shall be discharged from their bail bonds after six months from date in terms of Section 437A of the Code of Criminal Procedure. 25. The period of detention, if any, undergone by the appellant no.2 during the period of investigation, enquiry and trial shall be set off against the substantive sentence, as aforesaid, in terms of Section 428 of the Code of Criminal Procedure. 26. The lower court records along with a copy of this judgment be sent down at once to the learned trial court for necessary action. 27. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities. Rajarshi Bharadwaj, J. - I agree.