Mokshedul Mia & Ors vs State Of West Bengal

Rajarshi Bharadwaj, J.

Both the appeals arose out of a common judgement and order dated 7th January, 2009 and 9th January, 2009 passed by the learned Additional District

and Sessions Judge, 3rd Fast Track Court, Cooch Behar in Sessions Case no. 211 of 2008 convicting the accused/appellants under Section 365/109 of

the Indian Penal Code and sentencing them to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- each; in default, to suffer

simple imprisonment for a further period of three months.

The prosecution case in short is that one Shyamal Barman, brother of the victim lodged a written complaint on 23rd February, 2007 before Kotwali

Police Station alleging that his sister Sathi Barman aged about 14 years and 6 months went to her school at Konamali Santaradevi Adarsha High

School on 20th February, 2007, but she did not return back to the house. At the time of incident she studied in class VIII. The complainant along with

other persons searched for her and came to know that on the date of incident his sister’s friend Salema came to their house at about 6.30 a.m.

and talked with his sister and his sister went out from the house with Salema. They also came to know that the victim girl was returning from the

school with Salema and at that time Salema’s cousin Makshedul Mia and his friend Aminoor Mia came there and induced his sister with ill motive.

It was his firm conviction that they induced his sister dishonestly and hidden her elsewhere and the complainant expressed his doubt that damage

might be caused to his sister.

On the basis of the said complaint, a criminal case, being Kotwali P.S. Case No. 85 of 2007 dated 23rd February, 2007 was initiated against the

accused/appellants under Sections 363/365/366/376/511/109 of the Indian Penal Code. Investigation was started and during investigation the

Investigating Officer examined available witnesses and recorded their statements under Section 161 of the Code of Criminal Procedure. Thereafter,

he arrested the accused Makshedul Mia and recovered the victim, who was sent to the hospital for medical examination and vaginal swab and

wearing apparels of the victim were sent to the R.F.S.I., but no sign of rape could be established. The victim in her statement under Section 164 of the

Code of Criminal Procedure stated that attempt was made to rape her by the accused persons. During investigation one motorcycle was seized and

the Investigating Officer arrested Rajjakul Haque and forwarded him to the Court and collected ossification test report of the victim. Thereafter, the

Investigating Officer was transferred and the case was introduced to another Officer, who submitted the charge sheet against the accused persons

namely, Yakub Ali, Rajjakul Haque and Aminoor Mia under Sections 363/365/366/109 of the Indian Penal Code and the case was started against the

accused Makshedul Mia under Sections 363/365/366/376/511/109 of the Indian Penal Code. The accused persons pleaded not guilty and claimed to be

tried.

On completion of the prosecution evidences the accused/appellants were examined under Section 313 of the Code of Criminal Procedure and the

appellants pleaded innocence by defending themselves on examining witnesses in their defence.

Mr. Moloy Bhattacharya, learned advocate appearing on behalf of the appellants except the appellant Aminur Mia in CRA 83 of 2009 submitted that

the instant case is based on circumstantial evidence and the prosecution has failed to complete the chain of circumstances to establish the guilt of the

appellants. He further submitted that the prosecution examined 13 witnesses, out of which 3 witnesses were declared hostile, 3 witnesses were the

family members of the victim and other did not support the prosecution case. At the time of occurrence Salema Khatoon, who was accompanying the

victim, was the only eyewitness, but Salema and the father of the victim had never been examined. The victim girl narrated the incident before the

Magistrate under Section 164 of the Code of Criminal Procedure and as per her deposition the alleged Maruti car was never seized, but the brother of

the victim deposed the presence of Ambassador car. Therefore, the statements of the victim and her brother were contradictory to each other. There

was also contradiction regarding time of the alleged incident because the victim girl deposed that she was forcibly taken on a motorcycle while

returning from school, whereas the Investigating Officer deposed that the alleged incident took place on the way to the school. There was no

independent witness cited by the Investigating Officer from the place of recovery of the victim girl in Sikkim to corroborate the testimony of the victim

girl.

It has been further argued that the victim girl identified the appellants at the trial for the first time, whereas it is a settled principle of law that the

evidence of identification for the first time in Court was inherently of weak character and could not be relied upon, as identification in Court must be

preceded by T.I. parade. In support of his submission, he has relied on a decision of the Supreme Court in the case of Govindaraju @ Govinda â€"vs-

State reported in (2012) 4 SCC 722.

He has submitted that for determination of the age of the victim Rule 12 of the Juvenile Justice (Care and Protection of Children), Act, 2007 has to be

followed. But the prosecution failed to prove the actual age of the victim girl, as the Headmistress of the school did not support the prosecution story.

As per the ossification test of the victim and the evidence of Dr. Chatterjee (P.W.4), the age of the victim girl was 17 years and above. In support of

his submission he has relied on a decision of the Supreme Court in the case of Ravinder Singh Gorkhi â€"vs- State of Uttar Pradesh reported in (2006)

4 SCC 337.

He has also submitted that the prosecution failed to prove charges against the appellants under Section 376 of the Indian Penal Code, as the deposition

of Dr. Malabika Begam (P.W.3) contradicted the statements of the victim girl. Moreover, the Investigating Officer deposed that he had no document

showing that he took permission from local police station at Gangtok nor there was any such kind of record which was produced to that effect leaves

a credible doubt about the presence of the appellants at the spot of recovery of the victim girl from Sikkim. Hence, the prosecution failed to prove the

case beyond reasonable doubt and the charge under Section 365 of the Indian Penal Code was not legally sustainable.

He has lastly submitted that the alleged offence took place on 20th February, 2007, whereas the written complaint was lodged on 23rd February, 2007,

i.e. after 48 hours and such delay was not explained by the prosecution. The names of the accused Yakub Ali and Rajjakul Haque @ Riyanul were

not in the FIR and the prosecution failed to prove the charges against them. The learned Trial Judge failed to appreciate that there was suspicion

regarding the appellants’ complicity with the alleged offence. In support of his submission, he has relied on a judgement of the Rajasthan High

Court in the case of Madho Singh & Ors. â€"vs- State of Rajasthan reported in (1997) Criminal Law Journal 2641.

Mr. Jayanta Narayan Chatterjee, learned Counsel appearing for the appellant Aminur Mia @ Islam in CRA 83 of 2009 supported the submission of

Mr. Moloy Bhattacharya, learned advocate for the appellant in CRA 97 of 2009 and submitted that the victim girl was recovered from Sikkim and only

Mokshedul Mia was arrested at the time of recovery of the victim girl. Mr. Chatterjee further submitted that the presence of Aminur Mia in the whole

incident has not been established. The factum of his presence has not been mentioned by any of the prosecution witnesses and such absence even

from the deposition of the victim raised serious doubt about the prosecution case. Learned advocates for the appellants prayed for setting aside the

impugned order of conviction and sentence and to acquit the appellants of the charges framed against them.

Learned advocate for the State submitted that since there was no injury on the private parts of the victim girl and the hymen was intact, the case of

rape could not be established in this case in absence of any concrete evidence, but there was an attempt of rape as per the statement of the victim

girl. As the case of attempt of rape was not established, the case for kidnapping and abducting the victim girl against the accused persons under

section 365 of the Indian Penal Code was proved beyond all reasonable doubt. He has further submitted that the victim girl was taken by the accused

person, namely Mokshedul from the path of the school by a motorcycle and he was accompanied by Rajjakul and Yakub and Aminur who assisted

him in kidnapping and abducting her from Khagrabari to Siliguri and lastly to Sikkim, where from the victim girl was rescued by the police. Therefore,

the charges were proved beyond all reasonable doubts for committing offence under Sections 365/366/376/511/109 of the Indian Penal Code. He has

lastly submitted that the impugned order of conviction and sentence may be upheld and prayed for dismissal of the appeal.

Heard learned advocates for the parties. The prosecution has examined as many as thirteen witnesses to substantiate the charges against the accused

persons. P.W.1 Shyamal Barman, brother of the victim girl as well as the complainant in this case deposed in his evidence that he was an employee of

a medicine shop. On the date of incident he was working in the medicine shop and his father told him by phone that his sister Sathi went to school but

had not returned home. His father went to the house of Salema, but she was not found there. On 21st February, 2007 one Aminur Mia eloped her by a

motorcycle driven by Makshedul Haque and took her to Khagrabari. Thereafter, they took her to Hamiltanganj by Ambassador car and the police

found her in Sikkim at Gangtok. Thereafter, he lodged a complaint to the Kotwali Police Station and he identified the accused persons. He also

deposed that at the time of incident his sister was aged about 14 years and 6 months. He heard the entire incident from his sister and the police seized

one red-coloured motorcycle marked as exhibit 2.

During cross-examination P.W.1 stated that he went to his house with permission of the owner of the shop and came to know that his sister was

missing and thereafter, they searched her in the house of Ujjal Prodhan, Rajesh Barman, Tejen Batman and Dalim Barman. P.W.2 Sathi Barman was

the victim girl who deposed that she read up to class VIII. On 20th February, 2007 at about 4 p.m. when she was returning home from the school

along with her friend Salema, one boy named Makshedul was standing on the culvert with a motorcycle and he lifted her on the motorcycle forcibly.

He took her to Khagrabari and thereafter, he lifted her in a Maruti Van. There were four persons in Maruti Van. When she regained her sense, she

found that she was lying in a broken house at Hamiltonganj. Thereafter, they took her to Sikkim, where four persons tried to commit rape upon her.

She was rescued by the police and gave her statement before the learned Magistrate. Police seized her wearing apparels and prepared seizure list

marked as Exhibit 3. She was medically examined by the doctor and she identified all the accused persons.

During cross-examination she stated that when she was returning from school, Mokshedul took her to Khagrabari by motorcycle. Thereafter, she was

forcibly taken to Hamiltanganj by a Maruti Van. They went to Jaigaon and Siliguri by bus and thereafter by Maruti Van. P.W.3 Dr. Malabika Bagani

deposed that on 5th March, 2007 she examined the victim girl and she found that hymen was intact but her vagina easily admitted two fingers. She

might have sexual relationship and no injury was found in her private parts. She advised for chemical examination of vaginal swab and the report was

marked as Exhibit 6. During cross-examination P.W.3 stated that the age of the victim girl was 14 & ½ years.

P.W.4 Dr. Subhasish Chatterjee deposed in his evidence that on 7th March, 2007 he examined the victim girl to determine her age on ossification test

and gave his opinion that the age of the victim girl was above 17 and below 19 years. The report was marked as Exhibit 7. P.W.5 Smt. Lopamudra

Seal was the teacher of Konamali Santaradebio Adarsha High School, where the victim girl was studying. She deposed in her evidence that on 20th

February, 2007 she taught her in Class VIII. She heard the incident on the next date that Sathi Barman fled away with a boy. On the date of the

incident at about 3 or 4 p.m. she along with her colleague namely Sharmistha Roy was returning by cycle from the school and she saw one boy and

one girl were going by a motorcycle but she could not say exactly the name of the boy and the girl. This witness was declared hostile by the

prosecution.

P.W.6 Chandra Sekhar Dhar deposed that he did not know the incident personally but heard when police van came to their village, Sathi’s father

stated to him that Sathi fled away with a boy. This witness was also declared hostile by the prosecution. P.W.7 Tapan Barman deposed in his

evidence that he knew Sathi and her brother Shyamal Barman. He also stated that one incident was happened regarding Sathi before one and half

year. When Sathi went to school, one Makshedul kidnapped her from the school.

P.W.8 Chandan Kar deposed in his evidence that he knew Sathi Barman and her brother Shyamal Barman and heard the incident regarding missing

of Sathi from the school. Sathi left with Makshedul. P.W.9 Bhabani Biswas deposed in his evidence that he came to know about the incident when the

police van came to their village. He heard that Makshedul took the victim girl away or she left with him. This witness was declared hostile by the

prosecution.

P.W.10 Sharmistha Roy deposed in her evidence that on the date of incident when she along with Lopamudra were returning from the school, they

saw a motorcycle, which was hurriedly passed away through the road. On the next date she heard that one girl was abducted from their school.

P.W.11. Srabani Majumder, Headmistress of the said school deposed in her evidence that the victim girl Sathi Barman was a student of their school

and according to admission register, her date of birth is 10th July, 1992. Her father admitted her in the said school in Class V and transfer certificate

was issued by one Amal Kumar Roy. According to the attendance register, on 20th February, 2007 Sathi was present in the school.

P.W. 12 Nikhil Saha, Sub-Inspector of Police deposed in his evidence that on 23rd February, 2007 S.I.S. Thakuri was Officer-in-charge of Kotwali

Police Station and on that date one Shyamal Barman lodged a written complaint against three accused persons, namely Mokshedul, Salema Khatoon

and Aminoor Mia. Thereafter, the Officer-in-Charge started Kotwali P.S. Case no. 85 of 2007 dated 23rd February, 2007 under sections

363/365/366/109 of the Indian Penal Code and the said case was endorsed to him for investigation. During investigation he visited the place, prepared

rough sketch map, recorded statements of the available witnesses under section 161 of the Code of Criminal Procedure and recovered the victim girl

and forwarded her to the learned Magistrate for recording her statement under Section 164 of the Code of Criminal Procedure. He seized one red

coloured Bajaj Motorcycle and investigated the case from 23rd February, 2007 to 7th May, 2007. He arrested one accused person namely Makshedul,

forwarded the victim girl for her medical examination to the doctor, collected the report of the same and prepared seizure list marked as Exhibit 13.

During cross-examination, P.W. 12 stated that the names of Altab and Rajjakul were not mentioned in the FIR and he rescued the victim girl on 4th

March, 2007. P.W.13 Suraj Thakuri deposed in his evidence that he received a complaint from Shyamal Barman and he endorsed the case for

investigation to S.I. Nikhil Saha. During investigation the I.O. raided the accused persons, but could not arrest them. Thereafter, the Investigating

Officer submitted charge sheet against the accused persons namely, Makshedul Mia, Yakub ali, Rajjakul Haque and Aminoor Mia under Sections

363/365/366/376/511/109 of the Indian Penal Code.

These are all the oral evidences adduced by the prosecution witnesses. P.W.5, P.W.6 and P.W.9 were declared hostile. It appears from the evidence

on record that the victim girl was a student of class VIII and according to her date of birth written in the admission register of the school, she was a

minor on the date of incident, but the ossification test shows that the girl was above 17 years but below 19 years. The evidence of P.W.1 and P.W.2

shows that Sathi Barman was returning home from the school along with her friend Salema on 20th February, 2007 and on the way she was

kidnapped by Mokshedul. There was a culvert on the path and Mokshedul was standing on the culvert with a motorcycle. He lifted her on the

motorcycle forcibly. Her breathing was disturbed out of fear and she could not recover herself to shout. He took her from there to Khagrabari and

thereafter, he lifted her in a Maruti Van. Mokshedul, Rajjakul, Yakub Ali and Aminoor Mia were in the Maruti Van. When she regained her sense,

she found that she was lying in a broken house at Hamiltonganj. Thereafter, she was taken to Sikkim where those four persons tried to commit rape

upon her. She was rescued by the police and brought to Cooch Behar and Mokshedul was arrested.

Reliance has been placed by the learned advocate for the appellants in the case of Govindaraju @ Govinda (supra) regarding Test Identification

Parade which has not been made but identification of the appellant Mokshedul Mia was made at Court. In the instant case the appellant Mokshedul

Mia was arrested from the same place from where the victim girl was recovered. Not only the victim girl but also other witnesses identified

Mokshedul. Under such circumstances, the absence of Test Identification Parade is not a ground to disbelieve the prosecution case. He has also relied

upon a decision of the Rajasthan High Court in the case of Madho Singh & Ors. (supra), which is also not applicable in this case as kidnapping and

abduction of the victim girl by the accused person has been proved beyond reasonable doubt and the said authority is distinguishable from the facts of

the instant case.

It appears from the evidence of P.W.9, P.W.10 and P.W.12 that Sathi Barman was kidnapped and abducted by Mokshedul Mia and confined her at

Hamiltonganj as well as Sikkim, where from police recovered her and arrested the accused Mokshedul Mia. As per evidence of P.W.5 Lopamudra

along with Sharmistha saw one boy and one girl were going by a motorcycle, but they could not say exactly the name of the boy and the girl. The

victim girl gave statement that she was kidnapped and abducted by the accused person and he attempted to commit rape upon her. The victim girl had

not admitted that Mokshedul committed rape upon her. So it is proved beyond reasonable doubt that the victim girl was kidnapped and abducted by

Mokshedul Mia and there is no ground to disbelieve the victim girl. Therefore, the charge against Mokshedul Mia is proved beyond all reasonable

doubts for commission of offence under Section 365 of the Indian Penal Code.

From the depositions of other witnesses I find no evidence on commission of offence against the accused Rajjakul Haque @ Riyanul, Yakub Ali and

Aminur Mia @ Islam. P.W. 5 saw one girl and one boy in a motorcycle and the victim girl identified the boy as Mokshedul, who had kidnapped her on

the fateful day. The Investigating Officer while recovering the victim girl arrested Mokshedul only. Thus, I am inclined to extend the benefit of doubt

to the above appellants and acquit them from their charges levelled against them.

In view of the aforesaid discussion, I uphold the conviction imposed on the appellant Mokshedul Mia, but the order of conviction and sentence imposed

upon other appellants namely, Rajjakul Haque @ Riyanul, Yakub Ali and Aminur Mia @ Islam is set aside. Coming to the issue of sentence of

Mokshedul Mia @ Hossain, I find that the incident occurred on 28th February, 2007 and the appellant is in bail. Under the facts and circumstances of

this case, sentence imposed upon the appellant is modified to the extent that the appellant is sentenced to suffer rigorous imprisonment for 5 years

instead of 7 years for the offence punishable under Section 365 of the Indian Penal Code and to pay a fine of Rs. 5000/-; in default to suffer further

rigorous imprisonment for six months.

Period of detention suffered by the appellant Mokshedul Mia @ Hossain during investigation, enquiry and trial shall be set off from the substantive

sentence imposed upon him in terms of Section 428 of the Code of Criminal Procedure. Bail bonds of the appellant Mokshedul Mia @ Hossain are

cancelled and he is directed to surrender forthwith before the trial court to serve out the sentence in accordance with law. If he fails to do so, the trial

court shall resort to appropriate measures to execute the sentence in accordance with law.

The appellants namely, Rajjakul Haque @ Riyanul, Yakub Ali and Aminur Mia @ Islam are acquitted and discharged from their bail bonds.

Accordingly, the appeal, being CRA 83 of 2009, is allowed and the appeal, being CRA 97 of 2009, is partly allowed. Copy of the judgment along with

LCR be sent down to the trial court at once for necessary compliance. Urgent Photostat Certified copy of this order, if applied for, be supplied

expeditiously after complying with all necessary legal formalities.