Samir Sardar & Anr vs The State Of West Bengal
2021 Latest Caselaw 5528 Cal

                IN THE HIGH COURT AT CALCUTTA
               CRIMINAL APPELLATE JURISDICTION
                         APPELLATE SIDE


The Hon'ble JUSTICE BIBEK CHAUDHURI


                            CRA 377 of 2016

                           Samir Sardar & Anr.
                                  -Vs-
                       The State of West Bengal

     For the appellant:       Mr. Somnath Banerjee.

     For the State:           Mr. Ranabir Roy Chowdhury,
                              Mr. Mainak Gupta.


Heard on: July 15, 2021.
Judgment on: October 7, 2021.

BIBEK CHAUDHURI, J. : -

1.

One Samita was given marriage with one Samir Sardar on 12th

March, 2005. After marriage Samita was subjected to physical and mental

torture on illegal demand of sum of Rs.10,000/- to be brought from her

father. When such torture became unbearable she returned to her

paternal home. However her father again brought her back to her

matrimonial home with a hope that her daughter would have a happy

conjugal life and cordial matrimonial home in course of time. However,

the aforesaid hope and lofty desire went in vain when Samita again

returned to her paternal home sometimes in the first week of July, 2005.

The father of Samita went to her matrimonial home and requested Samir

not to inflict torture upon her. Samir assured him that there would be no

torture in future upon Samita and took her back on 19th July, 2005. On

24th July, 2005 mother of Samir came to the paternal home of Samita and

informed that she was missing since 23rd July, 2005. The father of Samita

and other relatives conducted thorough search for her but did not find

Samita. He lodged a missing diary in the local P.S on 28th July, 2005.

However police did not take any step to find out and recover the said

Samita. Finding no other alternative, father of Samita lodged a complaint

before the learned Chief Judicial Magistrate at Alipore under Section

156(3) of the Code of Criminal Procedure.

2. The said complain was sent to Bishnupur P.S with a direction to

treat the same as FIR and start a specific case against Samir Sardar and

his parents. Police accordingly registered Bishnupur P.S Case No.57

dated 13th March, 2006 under Section 938A/346/120B/34 of the Indian

Penal Code and took up the case for investigation.

3. On completion of investigation police submitted charge-sheet

against the accused persons/appellants on 22nd November, 2007 under

Section 498A/364/120B/34 of the Indian Penal Code.

4. It took about five years to commit the case to the Court of Sessions

and the learned Sessions Judge received the case record on 14th

September, 2012. The case was subsequently transferred to the 17th

Court of the learned Additional Sessions Judge at Alipore vide order dated

3rd December, 2013.

5. On 17th July, 2014 the defacto complainant filed an application

before the trial court stating, inter alia, that his daughter Samita is alive

and she is residing at Pune, Maharashtra marrying another person,

named, Budyut Saha. Accordingly Samita and her husband were

produced before the trial court. The Investigating Officer of the case filed

supplementary charge-sheet under Section 367/370 of the Indian Penal

Code against the accused/appellants.

6. On completion of trial the learned Additional Sessions Judge, 17th

Court at Alipore convicted the accused Samir Sardar and Yamuna Sardar

for committing offence punishable under Sections 367/370 read with

Section 120B of the Indian Penal Code and they were sentenced to suffer

rigorous imprisonment for seven years and also to pay fine of Rs.10,000/-

each in default, to suffer further rigorous imprisonment for two months

for the offence punishable under Section 367 read with Section 120B of

the Indian Penal Code. The accused persons were also convicted under

Section 370 read with Section 120B of the Indian Penal Code and

sentenced to suffer imprisonment under same description as under

Section 367 read with Section 120B of the Indian Penal Code.

7. The instant appeal is at the instance of the aforementioned convicts

assailing the impugned judgment delivered by the learned trial judge in

the above mentioned case. It is submitted by the learned Advocate for the

appellants that marriage of Samita was solemnised with the appellant

No.1 on 12th March, 2005. After marriage she went to her matrimonial

home. In the FIR, it was alleged by the defacto complainant that after

marriage her daughter was subjected to physical and mental torture on

demand of money of Rs.10,000/- and other gold ornaments. In the month

of July, 2005 she was driven away from her matrimonial home. On 19th

July, 2005 Samir took her back to her matrimonial home. Thereafter on

24th July, 2005 appellant No.2 came to the paternal home of Samita and

informed the defacto complainant that his daughter was missing from her

matrimonial home on and from 23rd July, 2005. It is pointed out by the

learned Advocate for the appellants that the FIR was lodged after about

eight months from the date of occurrence, i.e., on 13th March, 2006. There

was no explanation of delay in lodging the FIR and such unexplained

delay is fatal for the prosecution.

8. Learned Counsel for the appellants further submits that in the FIR

filed by the defacto complainant it was alleged that the daughter of the

defacto complainant was missing from her matrimonial home on and from

23rd July, 2005. The said information was given by the appellant No.2

herself to the defacto complainant. Subsequently, the victim appeared

during the pendency of the case with another person namely, Bidyut Saha

and introduced a new story that she was sold out by her husband to an

unknown woman at Howrah Station. She took her away to Pune in the

State of Maharashtra and sold her in a red-light area. In the said red-light

area she was acquainted with PW5 Bidyut Saha. Bidyut fell in love with

Samita and took her to his house after marrying her.

9. According to the learned Advocate for the appellants, the

subsequent story ought not to have been incorporated in the instant case.

Police submitted supplementary charge-sheet against the appellant after

commencement of trial illegally without taking any permission from the

learned Chief Judicial Magistrate, Alipore for further investigation. In view

thereof the learned trial judge erroneously held the appellants guilty for

committing offence under Section 367 and 370 of the Indian Penal Code

read with Section 120B of the said Act.

10. Last but not the least, it is submitted by the learned Advocate for

the appellant that the appellants suffered sentence for about five years

and two months. Considering the facts and circumstances of the case he

prays for setting off the period of sentence already undergone against the

period of punishment.

11. Learned P.P-in-Charge on the other hand submits that marriage of

appellant No.1 was solemnized with Samita in the year 2005. Within four

months of marriage, Samita was missing from her matrimonial home. The

learned Counsel for the appellant has criticized the judgment passed by

the trial court on the ground that the trial court did not consider delay in

lodging the complaint.

12. In this regard it is submitted by the learned P.P.-in-Charge that

immediately after getting the information from the appellant No.2 that the

daughter of the defacto complainant was missing, he made a missing

dairy in the local police station. However, the police authority could not

trace out the daughter of the complainant. Then on 17th December, 2005

he made an application under Section 156(3) of the Code of Criminal

Procedure before the learned Chief Judicial Magistrate, Alipore with a

prayer to send the said application to the O.C Bishnupur Police Station

and to treat the same as First Information Report and to start a specific

case against the accused persons. The officer-in-charge, Bishnupur Police

Station received the said application on 13th March, 2006 and registered

Bishnupur Police Station Case No.57 dated 13th March, 2006 under

Section 498A/364/120B/34 of the Indian Penal Code. According to him

the victim being the legally married wife of the appellant No.1 was missing

from his house, it was the duty of the appellant No.1 or his parents to

lodge a complaint in the local police station. But they did not take any

legal step. Therefore, the father of the victim lady was compelled to make

an application under Section 156(3) of the Code of Criminal Procedure for

drawing up a specific case against the accused persons. Therefore, the

accused person cannot take shelter under the umbrella of delay in lodging

the FIR when they themselves failed to bring the matter to the knowledge

of the police authority to set the criminal justice system in motion.

13. It is further submitted by the learned Advocate for the state that

during trail, the case took a dramatic twist. Victim Samita appeared in the

scene with another person, named Bidyut Saha. With the permission of

the Court, police took up further investigation and submitted

supplementary charge sheet against the accused persons under Section

367/370/120B of the Indian Penal Code against the appellants. Victim

Samita and Bidyut Saha were cited as witnesses in the supplementary

charge sheet.

14. Samita was examined as PW4. It is learnt from his evidence that

after marriage she was subjected to physical and mental torture by the

accused persons. After four months of marriage, she returned to her

paternal home but her father again took her to her matrimonial home and

kept her there. While she was in her matrimonial home, one day the

appellant No.1 proposed to visit his paternal aunt's house with her.

Accordingly, both of them came to Howrah station. Samir told his wife to

sit with another lady to whom he introduced as the neighbour of his aunt

and left away. Samita was waiting for her husband, but he did not return.

In the mean time, the said lady told her that the train had come to the

station and on her insistence, Samita boarded the train. Thereafter, she

did not know anything as she lost her sense after taking some food given

by the said woman. She was taken to Pune. The said women told her that

her husband sold her to the said woman. She was taken to red-light area

at Budhapet, a red light area at Pune. While working as prostitute at

Budhapet, he met PW5 Bidyut Saha who used to go to the said red light

area. Bidyut Saha proposed her to marry. She married to Bidyut and in

their wedlock Samita gave birth to a male child.

15. Bidyut Saha deposed before the trial court as PW5 and

corroborated the evidence of Samita (PW4).

16. The learned trial judge on due consideration of the evidence on

record found both the appellant guilty for committing offence under

Section 367/370 read with Section 120B of the Indian Penal Code and

convicted and sentence them accordingly.

17. I have carefully gone through the judgment passed by the learned

trial judge.

18. It is not disputed that marriage of appellant No.1 was solemnized

with PW4 Samita. Indisputably, Samita was missing after about four

months of marriage from her matrimonial home. The accused persons

failed to give any explanation as to how and why Samita disappeared from

her matrimonial home. From the evidence of PW4 it is ascertained that

she was sold by her husband to a woman at Howrah Station. The said

woman took her to Pune in the state of Maharashtra and she compelled

her to work as prostitute in the red light area of Pune.

19. PW5 Bidyut Saha corroborated the evidence of PW4.

20. Samita was married to Bidyut at Pune. She had no connection with

the appellant No.1. Moreover, PW5 Bidyut Saha had no interest about the

instant case. Samita is at present living happily with Bidyut and their

only son. Therefore, there is no reason to hold that Samita would depose

falsely against the appellants. It is established from the evidence on

record that Samita was taken to Howrah Station by appellant No.1 on

false promise to take her to his paternal aunt's house. Thus, the appellant

No.1 by deceitful means induced his wife to go from her matrimonial

home to Howrah Station. It is also established that in Howrah Station she

was handed over to a lady by Samir who introduced herself as a

neighbour of the aunt of Samir. Then she was trafficked to Pune for

sexual exploitation.

21. In view of clinching evidence on record, I am of the considered view

that the learned trial judge rightly held the appellant No.1 guilty for

committing offence under Section 367 and 370 of the Indian Penal Code.

There is no reason to alter the order of conviction and sentence passed

against the appellant No.1.

22. However, on careful scrutiny of evidence on record, I do not find any

evidence under Section 367 and 370 of the Indian Penal Code against

appellant No.2 Yamuna Sardar. There is absolutely no evidence that she

conspired with his son, Samir for abduction and illegal trafficking of her

daughter-in-law Samita.

23. In view of the above discussion, the instant appeal is partly allowed

on contest.

24. The judgment and order of conviction and sentence passed against

appellant No.1, Samir Sardar is affirmed.

25. However, the judgment and order of conviction and sentence

against Yamuna Sardar is set aside.

26. Yamuna Sardar be acquitted from the charge set at liberty and

released from her bail bond.

27. Let a copy of this judgment be sent to the learned Court below for

information and compliance forthwith.

(Bibek Chaudhuri, J.)