Amirul Mondal @ Aminul vs State Of West Bengal
2021 Latest Caselaw 5882 Cal

Form J(2)
                    In the High Court at Calcutta
                    Criminal Appellate Jurisdiction
                             Appellate Side

Present : The Hon'ble Mr. Justice Bibek Chaudhuri

            IA No.: CRAN/1/2018 (Old No.: CRAN/82/2018)
                             in
                       CRA 14 of 2018

                    Amirul Mondal @ Aminul
                              -Vs.-
                     State of West Bengal

For the appellant       :     Mr. Arnab Chatterjee, Adv.,
                              Mr. Jisan Iqubal Hossain, Adv.


For the respondent      :     Mr. Saswata Gopal Mukherjee,Ld.P.P.,

Ms. Faria Hossain, Adv., Ms. Ayantika Ray, Adv.

Heard & Judgment on :         30.11.2021.



        Bibek Chaudhuri, J.:

Judgment and order of conviction and sentence dated 15 th

September, 2017 and 18th September, 2017 passed by the learned

Additional Sessions Judge, 3rd Fast Track Court, Berhampore convicting

the appellant under Sections 366/34 of the Indian Penal Code is under

challenge in the instant appeal.

During night of 8th/9th April, 2004 at about 1.00 a.m., minor

daughter of the de facto complainant was kidnapped by the appellant

and one Abdus Salam forcibly on gunpoint. The daughter of the victim

girl could not raise any hue and cry out of fear.

The father of the victim girl lodged a written complaint to the

Officer-in-Charge, Domkal Police Station on 9 th April, 2004. On the

basis of the said complaint, police registered Domkal Police Station

Case No. 72 of 2004 under Sections 363/366 of the Indian Penal Code

and took up the case for investigation.

During investigation, the victim girl was recovered by police on

11th April, 2004. She was medically examined. Her statement was got

to be recorded by the learned Magistrate under Section 164 of the

Code of Criminal Procedure. The Investigating Officer examined the

witnesses under Section 161 of the Code of Criminal Procedure.

Wearing apparels of the victim girl were seized. She was medically

examined. A motor bike on which the accused persons allegedly

kidnapped the victim girl was seized. Then, on completion of

investigation police submitted charge-sheet against the appellant and

his elder brother, namely, Abdus Salam under Section 366 of the

Indian Penal Code.

As the offence under Section 366 of the Indian Penal Code is

exclusively triable by the Court of Sessions, the case was transferred

to the Trial Court for trial and disposal.

The learned Judge in Court below framed charge against the

accused persons under Section 366 of the Indian Penal Code. As the

accused persons pleaded not guilty trial of the case commenced.

In order to bring home the charge against the accused

persons, prosecution examined 10 witnesses. Amongst them, P.W. 6

is the victim girl, P.W. 1 is the father of the victim, other witnesses

being P.W. 2, P.W. 3 and P.W. 4 are the close relatives of the victim

girl, P.W. 8 and P.W. 9 are the Medical Officers and P.W. 10 was the

Investigating Officer of this case.

The learned Trial Judge on appreciation of evidence on record

found the appellant and the said Abdus Salam guilty for committing

offence under Sections 366/34 of the Indian Penal Code and convicted

and sentenced accordingly.

The said judgment and order of conviction is assailed in the

instant appeal.

Before dealing with the ingredients of offence under which the

appellant was convicted, let me consider the evidence on record

independently because this Court of appeal is the last Court of finding

of fact. From the Cross-examination of the father of the victim girl, it

is ascertained that he gave marriage of his daughter with one Hasibur

and on the date of cross-examination, i.e., on 15 th May, 2010, the

victim girl used to reside with her husband, Hasibur. It is admitted by

the father of the victim girl that before Hasibur, she married to one

Sentu Mondal and prior to her marriage with Sentu Mondal, the victim

girl was allegedly kidnapped by Amirul Islam in the year 2004.

Learned advocate for the appellant tries to impress upon this

Court on production of the evidence of father and mother of the victim

girl that initially, the victim girl was given marriage to the appellant.

However, this Court does not find any such evidence on record.

During cross-examination of P.W. 1 and 2, a question was put to them

as to whether they could mention the date of pronouncing 'talak' to

Amirul. Both of them answered in the negative. However, no

suggestion was put by defence that initially, marriage between Amirul

and the victim girl was held according to Mohammedan rites and

customs.

In the instant case, the evidence of P.W. 6, i.e., the victim girl

is of prime importance. According to her, on the date of her alleged

kidnapping she was aged about 15/16 years and a student of class -

IX. On the date of occurrence, the appellant and his brother came to

her house in a motor cycle and brandishing a pistol took her away in

the said motor cycle and confined her in a house. She was recovered

after 2/3 days by police. In her cross-examination, she admitted of

making a statement before the learned Magistrate under Section 164

of the Code of Criminal Procedure. Thus, the statement of the victim

girl under Section 164 was brought to the evidence on admission by

the victim girl. In her statement recorded under Section 164 of the

Code of Criminal Procedure, she candidly admitted that she had love

affair with the appellant. The appellant wanted to marry her but she

refused her proposal on the ground that she would first complete her

studies and then marry the appellant. Subsequently, the appellant

and his brother forcibly took her away to another place. However, she

further admitted that she was not subjected to illicit intercourse or any

improper behaviour by the appellant and his brother. In cross-

examination, the victim girl also stated that the appellant forcibly took

her signature on a 'kabilnama' on 9th April, 2004. The said fact was

not narrated by her to the learned Magistrate or to her father when he

lodged written complaint against the appellant and his brother in the

local Police Station. Therefore, execution of 'kabilnama' not being

stated in the FIR or the previous statement made by her, such

statement can conveniently be held to be an afterthought and ought

not to have been considered by the Trial Court.

In order to prove the charge under Section 366 of the Indian

Penal Code, the prosecution is under obligation to establish -

(1) that the accused kidnapped or abducted the woman;

(2) the accused intended or knew it likely that -

(a) the woman abducted or kidnapped would be

compelled to marry any person against her own will, or

she would be forced or seduced to illicit intercourse.

The second part of Section 366 lays down the following

ingredients-

(1) accused induced any woman to go from certain place

(2) accused did it by criminally intimidate her;

(3) he did so by abuse of his authority or;

(4) he did so by any method of compulsion;

(5) the accused intended or knew it likely that such

woman would be forced or seduced to illicit

intercourse.

In the instant case, the alleged offence took place at about 1

a.m. in the night of 8th /9th April, 2004. According to the

prosecution, the time was about 1 a.m. at night. It is very natural

that at such late hours of night, the victim and her family members

were sleeping. It is also very natural that in order to get the person of

the victim girl, the appellant had to knock at the door of the house of

the de facto complainant. Surprisingly enough, the victim girl alone

got up hearing the call of the appellant and no other person in her

house came to know about the said fact. Such circumstance gives rise

to a question as to whether the victim girl willingly left with Amirul

specially when she admitted that she had love relation with Amirul, the

appellant herein.

Another important aspect should not be lost sight of. The

victim girl stated in her evidence that she was aged about 15/16 years

on the date of occurrence. No birth certificate or school admission

register or any other document were seized by the Investigating

Officer to prove her age. On the contrary, the ossification test report

of the victim girl suggests that she was aged about 20 years on the

date of her examination. The ossification test was conducted on 17th

June, 2004, i.e. approximately about two months after the incident.

In the absence of any other documents, this Court has no other

alternative but to hold that the victim was at least more than 18 years

of age on the date of occurrence applying the theory of plus minus two

with the ossification test report to calculate the age of the victim girl.

In such case, no charge of kidnapping stand. This would be a

case of abduction. In case of abduction, prosecution requires to prove

that the victim girl was forced or compelled or by any deceitful means

induced to go from one place to another. Moreover, it is held by the

Hon'ble Supreme Court in Vishwanath -Vs.- The State of Uttar

Pradesh reported in AIR 1960 SC 67 that abduction simpliciter is not

an offence under the Code. Only abduction with certain intent to

specify in the Code is punishable as an offence. Coming to the instant

case, it appears to this Court on holistic appreciation of entire evidence

on record that the victim was abducted by the appellant and his

brother with intent to wrongfully confine her in a room for two days till

she was recovered by the police or produced by Abdus Salam to the

police attached to Jalangi Police Station.

For the reasons stated above, the appellant cannot deny his

liability for committing offence under Section 365 of the Indian Penal

Code. The learned Trial Judge did not appreciate the evidence on

record in proper perspective of the facts and circumstances revealed in

the case. On the contrary, he narrated the evidence on record and

then went on to record the established sermons regarding criminal

jurisprudence and the ratio laid down in various decisions of the

Hon'ble Supreme Court though such ratio is not applicable in this case.

For the reasons stated above, this Court is of the view that the

learned Trial Judge erred in holding the appellant guilty for committing

offence under Sections 366/34 of the Indian Penal Code. However,

the evidence on record suggests that the prosecution was able to

establish the ingredients of Section 365 of the Indian Penal Code

against the appellant and his brother.

In view of the above discussion, the judgment and order of

conviction and sentence passed by the learned Additional Sessions

Judge, 3rd Fast Track Court (In-Charge), Berhampore in Sessions

Serial No.558/2006 is set aside. However, the appellant is held guilty

for committing offence under Section 365 of the Indian Penal Code and

he is convicted and sentenced to suffer simple imprisonment for six

months and to pay fine of Rs.5,000/-, in default, to suffer simple

imprisonment for one month for the offence punishable under Section

365 of the Indian Penal Code.

The fine amount, if realized, shall be deposited in the fund of

the District Legal Services Authority, Murshidabad.

The period of detention, already suffered by the appellant, if

any, shall be set of from the substantive sentence under Section 428

of the Code of Criminal Procedure.

A copy of the judgment be sent to the learned Court below

forthwith along with the lower court below.

Let a copy of this judgment be supplied to the learned

Advocate-on-record of the instant appeal free of cost duly certified to

be true copy by the Assistant Court Officer of this Court.

Urgent photostat certified copy of this order, if applied for, be

given to the learned advocates for the parties on usual undertakings.

(Bibek Chaudhuri, J.)

Srimanta/Mithun A.Rs. (Court)