Sk. Najimul vs State Of West Bengal

Joymalya Bagchi, J

Co-convict Atiar Rahaman Mallick had preferred an appeal before this Court being C.R.A.189 of 2011 and by judgment and order dated 16.01.2014 a Co-ordinate Bench of this Court had acquitted him of the charges levelled against him.

The appeal preferred by the appellant, however, is taken up for hearing today.

The appeal is directed against the judgment and order dated 05.02.2011 and 07.02.2011 passed by the learned Additional District and Sessions Judge, Fast Track, Court-I, Uluberia, Howrah convicting the appellant for commission of offence under Section 363/366A/376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for seven years and to pay a fine of Rs.3,000/- in default to suffer further rigorous imprisonment for three months for commission of offence punishable under Section 363 of the Indian Penal Code and suffer rigorous imprisonment for ten years and to pay a fine of Rs.5,000/- in default to suffer further rigorous imprisonment for four months for commission of offence punishable under Section 366A of the Indian Penal Code and to suffer rigorous imprisonment for ten years and to pay a fine of Rs.5,000/- in default to suffer further rigorous imprisonment for four months for the commission of the offence punishable under Section 376 of the Indian Penal Code. All the sentences shall run concurrently.

The prosecution case is against the appellant and other accused persons to the effect that the victim aged around 14 years and a student of class VI of Jatadhari High School was kidnapped by the appellant and one Atiar Rahaman Mallick from Baganda Bazar on 25.03.2006 around 7 pm. PW 1, father of the victim searched for her in the village but could not trace her out. He lodged a missing diary at Shyampur Police Station on 29.03.2006 being GD No.1942 dated 29.06.2006. In the course of further enquiry the appellant and Atiar Rahaman Mallick admitted before PW1 and others that they had kidnapped the victim and confined her for immoral purposes. Thereafter PW1 lodged First Information Report at Shyampur Police Station and subsequently the victim was rescued from a house which was in control of one Kalam Sarder and Rupban Bibi at Sekenderpur within the jurisdiction of Mandir Bazar Police Station. PW2, victim disclosed that she had been kept detained in the said house and was raped by the appellant. She was medically examined. Her statement was recorded under Section 164 Code of Criminal Procedure. In conclusion of investigation, charge-sheet was filed under Section 363/366A/34 of the Indian Penal Code against the appellant, Atiar Rahaman, Kalam Sarder, Rupban Bibi and under Section 376 of the Indian Penal Code against the appellant alone. Charges were framed in respect of the aforesaid offences against the appellant and the co-accused persons.

Prosecution examined 11 witnesses and exhibited a number of documents. In conclusion of trial, the trial judge by judgment and order dated 05.02.2011 and 07.02.2011 convicted and sentenced the appellant and Atiar Rahaman Mallick for commission of offence punishable under Sections 363/366A of the Indian Penal Code and the appellant under Section 376 of the Indian Penal Code.

Mr. Chatterjee with Ms. Mitra, learned Counsels appearing for the appellant submits that the statement of the victim girl, P.W.2 is at variance to her earlier statement before the Magistrate. Missing diary has not been exhibited in the instant case and the version of P.W.3, Sufia Khatun, aunt of the victim, is contradictory to P.W.1, Sk. Noor Islam, her father, with regard to the circumstances in which the victim girl went missing. No ossification test was conducted on the victim girl and her age has not been established beyond doubt.

Finally, it is argued that co-convict Atiar Rahaman Mallick was acquitted and the same benefit may be extended to the appellant. The appeal may be allowed.

On the other hand, Mr. Maity, learned Additional Public Prosecutor argued that the evidence of the victim girl, P.W.2 is corroborated by her aunt, P.W.3, Sufia Khatun, her father P.W.1, Sk. Noor Islam and other witnesses. Medical evidence also corroborates the offence of rape. Variations in her deposition vis-à-vis to her earlier statement before the court are minor and cannot go to the root of the prosecution case and render the same improbable. Age of the victim has been established from the evidence of P.W.1, her father as well as the school records which were exhibited by P.W. 8 Tarun Samui and P.W.9 Krishna Biswas. Hence, the appeal is liable to be dismissed.

P.W.2 is the victim girl. She deposed on 25.3.2006 while she had gone to Baganda Bazar with her aunt, P.W.3, Sufia Khatun, the appellant and another person who she could not name had taken her away in a hired taxi. They threatened her with dire consequences and took her to Sekenderpur within Mandir Bazar Police Station where they kept her in a house belonging to a lady. In the said house, the appellant raped her against her consent. Thereafter, they shifted her to Calcutta where she was kept in a rented house. In the meantime, her father lodged missing diary and the police rescued her from the said house. She was medically examined and gave statement before the Magistrate.

Her deposition is corroborated by her aunt, P.W.3 Sufia Khatun, who claimed when she accompanied the victim to the market, the appellant who was her maternal uncle, called her. At that time, P.W.3 went inside a shop and thereafter she could not trace out the victim. She narrated the incident to the father of the victim who lodged missing diary. Subsequently, on interrogation the appellant and Atiar Rahaman Mallick admitted that they had kept the victim detained inside the house of Kalam Sardar and the victim was recovered therefrom eight days after the incident.

P.W.1, Sk. Noor Islam, father of the victim deposed that her daughter went missing on 25.3.2006. He searched at various places but could not trace her out. He contacted the local Panchayet Member, Nikhil Prasad Mondal and on his advice lodged missing diary. Subsequently, upon interrogation, appellant and Atiar Rahaman Mallick admitted that they had detained the victim at village Sekenderpur within Mandir Bazar Police Station. He along with others went to Shyampur Police Station and lodged first information report. Thereafter, the police recovered the victim. The statement of the victim was recorded under Section 164 of the Code of Criminal Procedure. She was medically examined. He produced a xerox copy of certificates issued by Headmaster, Jatadhari High School and Khantakhola Primary High School to the police.

Evidences of P.W.1, 2 and 3 have been corroborated by other witnesses viz., P.W.4, Salehar Begam, mother of the victim, P.W.5, Sk. Saha Alam, uncle of the victim and P.W.6, Nikhil Prasad Mondal, local Panchayet Member.

P.W.9, Krishna Biswas Headmistress of Khantakhola Primary High School produced the admission register of the said school from the year 1966 to 1999-2000 session. From the said admission register, it appears that the victim was admitted in the said school on 17.5.1999 and her date of birth was recorded as 10.9.1992. Admission register was marked as Ext.5.

Similarly, P.W.8, Tarun Samui, Headmaster of Jatadhari High School produced the admission register of the sessions 2004-2005 showing that the victim was admitted in the said school in Class V wherein the same date of birth of the victim had been disclosed. He proved the school leaving certificate issued by the Headmaster of the school, marked as Ext.4.

P.W.10, Dr. Biplab Kanti Sikdar, is the Medical Officer who examined the victim and found her hymen was ruptured. She complained that she had sexual intercourse with a person four days ago. No external injury was noted in her private parts. He proved the medical report, marked as Ext.10.

P.W.11, S.I. Santosh Kumar Biswas, is the investigating officer of the case. He deposed he received petition of complaint from P.W.1 and registered first information report. He visited the place of occurrence. He examined witnesses. He found local people had apprehended the appellant and Atiar Rahaman Mallick. He interrogated them. As per their statement, he went to Sekenderpur within Mandir Bazar Police Station along with the accused persons, raided the house of Kalam Sardar and Rupban Bibi and arrested them. On 1.4.2006, telephonic information was received from Mandir Bazar Police Station that the victim had been recovered and was at the said Police Station. He went to Mandir Bazar police station and brought back the victim girl. The statement of the victim was recorded under Section 164 of the Code of Criminal Procedure. She was medically examined and charge sheet was filed.

From the evidence on record, particularly that of the victim girl P.W.2, it is clear that the appellant being the maternal uncle of the victim had kidnapped her away from Baganda Bazar on 25.03.2006 around 3:00 p.m. and had confined her in a room within Mandir Bazar Police Station. Evidence of P.W.2 in this regard has remained unshaken during cross-examination. It further appears that the victim was recovered from a house within Mandir Bazar Police Station corroborating the aforesaid fact. There is no divergence in the deposition of the victim, P.W.2 vis-à-vis her earlier statement recorded before the Judicial Magistrate with regard to the aforesaid facts. Hence, the prosecution case against the appellant for commission of offence punishable under Section 363/366A of the Indian Penal Code has been established beyond doubt.

Coming to the offence of rape, it has been argued that no such allegation was levelled by the victim before the Magistrate. On the other hand, P.W.10, Medical Officer who examined the victim found her hymen was ruptured and she complained of rape by a person. With regard to the failure of the victim in coming out with the allegation of rape by her maternal uncle i.e. the appellant, explanation is offered by P.W.3, her aunt, who stated that the victim upon being recovered had not come out with all the facts. Absence of external injuries in the private parts of the victim is also explained away as she was medically examined number of days after the incident. Age of the victim i.e. 14 years has been proved by the evidence of her father, P.W.1 as well as the admission register, Ext.5 of the Primary School where she was first admitted which is proved by the Headmistress, P.W.9.

It is trite law that the evidence of a minor girl who was subjected to trafficking and rape by a near relation like the appellant has to be treated with due sensitivity and care. Hence, failure on her part to come out with all the facts relating to her sexual violation by her maternal uncle before the Magistrate due to trauma cannot be a ground to throw out the prosecution case where medical opinion shows that her hymen was ruptured and she had confided with the medical personnel that she had been raped. No enmity between the appellant and P.W.2 or her family members are forthcoming to justify a case of false implication of the appellant in this case. Hence, I am of the opinion that the prosecution case of rape against the appellant is also fully established.

With regard to the acquittal of co-accused Atiar Rahaman Mallick in C.R.A.189 of 2011, I am of the opinion that the said appellant does not stand on the same footing with the said accused. Appellant has been specifically named by P.W.2 as her kidnapper who had subsequently raped her. P.w.2 did not name Atiar Rahaman Mallick either in her statement before the Magistrate or even in Court. Accordingly, the Co-ordinate Bench was inclined to extend the benefit of doubt to the said accused which by no stretch of imagination can be extended to the appellant.

In the light of the aforesaid discussion, conviction and sentence of the appellant are upheld.

The period of detention, if any, undergone by the appellant during investigation, enquiry and trial shall be set off against the substantive sentences imposed upon him in terms of section 428 Cr.P.C.

Accordingly, the appeal is dismissed.

The case discloses an unfortunate incident where a 14 year old girl was trafficked for sexual exploitation and rape. In view of her tender age and the trauma suffered by her due to the aforesaid offences, I am of the opinion that adequate compensation ought to be extended to the said victim of crime for her relief and rehabilitation.

Accordingly, I direct that the State shall pay a compensation to the tune of Rs.5 lakhs to the victim, P.W.2 within a month from the date of communication of this order.

Member Secretary, State Legal Services Authority shall take steps for payment of the said compensation as directed.

Copy of this judgement and order be communicated to the Home Secretary, Government of West Bengal as well as the Member Secretary, Legal Services Authority for due compliance.

Let a copy of this judgment along with the lower court records be forthwith sent down to the trial court at once.

Photostat certified copy of this judgment, if applied for, shall be made available to the appellant within a week from the date of putting in the requisites.

I agree.