Dulal and Others vs The State of West Bengal

Indrajit Chatterjee, J—Two appeals are before us. Both have arisen from the judgment and order of conviction dated 31st January, 2008, passed by the Additional District & Sessions Judge, Fast Track 2nd Court, Uluberia, Howrah, in Sessions Trial No. 31 of 2007, wherein the present appellants before us were convicted in respect of the offence punishable under Sections 366 and 376(2)(g) of the Indian Penal Code (hereinafter called as Code) and directed to suffer rigorous imprisonment for ten years each and to pay fine of Rs. 2000/- each, in default, to suffer simple imprisonment for ten months each for the offence committed under Section 366 of the Code.

In respect of the charge under Section 376(2)(g) of the Code, both the appellants were directed to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 3000/- each in default, simple imprisonment for 12 months each. Unfortunately, there is not note in the judgment or in the order of conviction as to whether both the sentences were to run concurrently or consecutively. It may be noted that both the appellants are now in Correctional Home and serving sentence. The Trial court was however pleased to acquit both the accused appellants in respect of the charge punishable under Sections 379 & 380 of the Code.

As against the common judgement two appeals have been preferred. As the same fact and question of law are involved in both the appeals, both are taken together for hearing.

The case which went to trial can be stated in brief thus, that an F.I.R. was lodged by P.W.2 the mother, with the Officer-in-Charge, Uluberia Police Station on 11th August, 1990 at 6.30 hours (exhibit-8), giving rise to Uluberia Police Station Case No. 158 of 1990 dated 11th August, 1990. In the F.I.R. it was alleged that the de facto complainant used to reside with her daughter and two sons in the place of occurrence (on the side of Bombay road) and she alleged that her daughter, the victim girl, was taken away by four persons and she was also tied with ''saree'' and as such she could not resist the crime. In the F.I.R. she divulged that she could identify Nazu @ Nazrul Mullick and Dulal @ Sk. Hasmat. Those miscreants also took away money from below her bed. She raised alarm, which attracted Purna Mondal, Ajoy Mallick, Naresh Ch. Maity and others. They all went in search of the victim and the victim was located in a nearby brick field in an injured condition, she was found without any clothing on the body and some ornaments were snatched away. The recovery of the victim girl was possible because of apprehension of Nazu, accused appellant, who confessed that Sahabuddin, Sk. Dulal, Khokan @ Asgar Molla and himself committed the crime and the said person also ravished this victim (P.W.1).

Investigation was taken up after the case was registered and during the course of investigation this accused Nazu was arrested and forwarded to Court. A prayer was made by the I.O. for Test Identification Parade in respect of Hasmat and two other accused persons, but the said T.I. parade could not be conducted as at that point of time the de facto complainant and her daughter could not be traced out. Later on other accused persons were arrested by the police who were already detained in other cases. It may be mentioned that on the very date of the incident, Sahabuddin was murdered and the case was filed as against him. The recording shows that during the investigation the other accused Khokon @ Asgar Molla also died and the case against him was filed. The victim girl made a statement under Section 164 of the Criminal Procedure Code and the I.O. of this case submitted charge sheet against the accused persons for the offence punishable under Sections 366 and 376/34 of the Code. The case was committed to the Court of Sessions and it was tried by the Additional District & Sessions Judge, Fast Truck, 2nd Court, Uluberia, Howrah, and we have already noted the result of the trial. The Trial court framed charge against the appellants for the offence punishable under Sections 366, 379, 380 & 376(2)(g) to which the accused persons pleaded not guilty and claimed to be tried.

The defence case as we get from the trend of cross-examination is that the case was engineered to give an alibi to some of the accused persons in the case of Sahabuddin''s murder. The accused persons denied the allegation and claimed to be tried.

During the course of trial 10 prosecution witnesses were examined including the victim and her mother. The defence did not adduce any witness. The prosecution also proved several documents, starting from F.I.R. to the medical report, all of which were marked as exhibits. The statement made by the victim girl under Section 164 of the Criminal Procedure Code was marked as exhibit-6 on consent.

At the time of hearing, counsel appearing on behalf of the accused appellant submitted that evidence on record was not convincing to convict both the accused appellants. He submitted that there are many discrepancies between the F.I.R. and the statement of the witnesses. No T.I. Parade was held in respect of the accused person and identification of Hasmat was made for the first time in Court on dock where two persons were standing, after a gap of 17 long years, thereby suggesting that the learned Trial court erred in coming to the conclusion that both the accused persons committed the crime.

He also submitted that the Trial court erred while passing the sentence in not mentioning whether the sentences will run concurrently or consecutively. Reliance was placed on a decision of the Supreme Court reported in Duryodhan Rout Vs. State of Orissa, (2014) AIRSCW 4604 : (2014) 8 JT 273 : (2014) 3 RCR(Criminal) 700 : (2014) 8 SCALE 96 , wherein the Apex Court candidly held relying on the provisions of the Criminal Procedure Code as laid down in Section 31 that sentences cannot run consecutively if the total term exceeds 14 years.

Learned counsel also placed reliance on a Three Judge Bench decision of the Apex Court reported in O.M. Cherian Vs. State of Kerala, (2014) 4 CCR 473 : (2015) 119 CLT 373 : (2014) 4 Crimes 262 : (2015) 1 JCC 109 : (2014) 4 RCR(Criminal) 922 : (2014) 10 SCJ 571 wherein the said bench considered Section 71 of the Code and also Section 31 (2)(a)(b) of the Cr.P.C. and held that the restrictions imposed under that section of the Cr.P.C. is to be followed while passing the sentence.

Counsel for the State respondent submitted that the evidence on record will prove that both the accused appellants committed the crime and the learned Trial court rightly convicted both of them.

The star witness of this case is P.W.1, i.e. the victim of this case who deposed that she was kidnapped from her house on the date of the incident (she was 13 years) and that she was also ravished by Nazu along with other three persons. The age can be derived from the form of examination of the witness which she came to depose, at that time she was 30 years old and the incident took place 17 years of ago as per FIR. We are not unmindful of the fact that this witness identified the second accused before the trial court on dock and on asking of the Court that accused disclosed his name as Sk. Hasmat, the accused appellant before us in CRA 383 of 2009. Regarding identification of Nazu by this victim we have nothing to discredit this witness, but as regards the identification of Sk. Hasmat in open court after a long 17 years we cannot bank upon such identification to uphold the order of conviction and sentence. We are not unmindful that this witness did not mention in her entire evidence the names of other accused persons who ravished her including Sk. Hasmat. In the statement made under Section 164 of the Criminal Procedure Code the name of Hasmat was not mentioned but the features of that second person who was with Nazu had been mentioned as being a dark and tall person. Unfortunately, the learned Trial court did not note in her evidence as to whether the person whom this witness identified on dock was dark and tall. Two accused persons were on dock before the trial court when such identification was made and it is very natural that in such a case the witness who knows the first accused will have a tendency to identify the other when the trial was going on against two accused persons.

Let us now look at the evidence of P.W.2 i.e. the mother of the victim. From a reading of her evidence it is clear that actually one Nazu was known to her, being her neighbour. She candidly deposed that besides the said Nazu three other persons also entered into her house on that date. She also depicted the story of what happened on that night, but did not take the name of any other accused persons except the name of Nazu. It is also clear from her evidence that the other witnesses came and her daughter was recovered. Accused Nazu was also apprehended by the mob and there was extra-judicial confession made by Nazu implicating himself and some other persons (they). We cannot interpret this ''they'' to mean the other accused persons including Sk. Hasmat. More unfortunately, this extra-judicial confession was not put by the Court to Nazu when this Nazu was being examined under Section 313 of the Criminal Procedure Code and as such, no reliance can be given to the same.

The other witnesses i.e., P.W.3, Purna Mondal, P.W.4, Ajoy Kumar Mondal and P.W.5, Naresh Ch. Maity also did not disclose the name of Sk. Hasmat as the perpetrator of the crime. They only took the name of Nazu. It is true that in his cross-examination P.W.3 stated "It is fact that I stated before I.O. that we caught Nazu and Hasmat on search". Unfortunately, this contradiction was not taken from the evidence of the I.O., who was examined as P.W.10.

The victim was medically examined by P.W.6 and he categorically deposed and found the following injuries:--

"1. face was swelling with scattered bruish over it with tenderness.

both breast were tender with abrasion over it.

fresh abrasion was present over medial part of both thighes/buttock.

valva was oedematous and tender with abrasion.

Hymen was oedematous/tender.

blood stained discharged was present at introitus."

P.W.6, P.M. doctor specifically opined that such injuries may be found if the patient was gang raped and in his cross-examination he also mentioned that the injuries which he noticed were all fresh. He also deposed that such type of injury may occur if the victim was married but he also deposed that the victim stated him that she was unmarried. Other doctors, being P.W.7, P.W.8 & P.W.9 are formal in nature who examined the accused persons to prove their potency and reported that all were potent. P.W. 10 is the I.O. of this case.

We have given our anxious thought on the total examination of the public witnesses but nothing has come out from this witnesses as regards the identification of Hasmat by any witness. We have already mentioned that no T.I. parade was conducted in respect of this accused Hasmat.

Thus, in view of our discussion, so long made, we are of the conclusion that the prosecution had rightly proved the charge on both counts against Nazu @ Nazrul but the prosecution had failed to bring home the charge against the accused appellant in CRA 383 of 2009, Dulal @ Sk. Hasmat on both counts. Therefore, the said convict is fit to be released and we are acquitting him from the charges.

Thus, CRA 383 of 2009 succeeds. The order of conviction and sentence imposed on Dulal @ Sk. Hasmat by the learned trial court is hereby set aside. The accused appellant be released forthwith on receipt of the operative portion of the certified copy of this judgment.

Let a copy of this judgment passed this day be communicated by the concerned department to the concerned Correctional Home, where the accused appellant is serving his term. The accused appellant be set at liberty provided his detention is not required in any other case.

In view of the disposal of CRA 383 of 2009, the connected application being CRAN 3043 of 2014 for suspension of sentence is rendered infructuous and is dismissed as infructuous.

In view of the decisions of the Apex Court noted above, we are of the view that the sentence imposed on the other accused appellant in CRA 690 of 2009, Nazu @ Nazrul Mallick shall run concurrently and not consecutively. The learned trial court definitely erred while passing the sentence as she omitted to mention as to whether the sentence will run concurrently or consecutively. The dictum of the Apex Court is that all the sentences will run concurrently, if the total punishment is more than 14 years taken together.

Thus, the order of conviction and sentence passed by the learned Trial court as against Nazu @ Nazrul Mallick in CRA 690 of 2009 is affirmed and the appeal is allowed in part with the modification only as regards running of the sentence stated above. This convict appellant is entitled to get set off under Section 428 of the Cr. P.C.

Seized articles be destroyed after the period of limitation.

Let LCR be returned to the Trial Court forthwith along with a copy of this judgment.

Criminal Section is directed to supply urgent photostat certified copies of this judgment to the parties, if applied for, upon compliance of all necessary formalities.

Patherya, J.

I agree.