Mangal Das Adhikary vs The State Of West Bengal
2022 Latest Caselaw 5129 Cal

                                                            Page |1



            IN THE HIGH COURT AT CALCUTTA
           CRIMINAL APPELLATE JURISDICTION
                    APPELLATE SIDE



Before: Hon'ble Justice Sugato Majumdar


                        CRA 226 of 2015
                     Mangal Das Adhikary
                                Vs.
                    The State of West Bengal
                                With

                        CRA 210 of 2015
                         Smt. Rita Jana
                                Vs.

                    The State of West Bengal


For the Appellant           :     Mr. Himangsu De,
                                  Mr. Suprakas Misra,
                                  Mr. Subir Sabud.

For the State               :     Ms. Sreyashee Biswas.



Hearing concluded on        :     26/07/2022

Judgment on                 :     08/08/2022


Sugato Majumdar, J.:-


    Both the appeals are directed against the judgment of conviction

dated 26/03/2015 and order of sentence dated 27/03/2015 passed by

the Additional Sessions Judge, 2nd Court, Tamluk, Purba Medinipur in

S.T. No. 05 (04) 2014 whereby the Appellant of CRA 226 of 2015,

Mangal Das Adhikari (hereinafter mentioned as "Appellant no. 2") was

convicted under sections 363/365/366 of the Indian Penal Code and

the Appellant of CRA 210 of 2015 namely Rita Jana (hereinafter
                                                                    Page |2



mentioned as "Appellant no. 1") was convicted under section 363/120B

of the Indian Penal Code. The Appellant no. 2 was sentenced to suffer

imprisonment for five years along with a fine of Rs. 5000/-, in default, a

further simple imprisonment of one and half years for commission of

offence under section 366 of the Indian Penal Code. The Appellant no. 2

was also sentenced to suffer imprisonment of four years with fine of

Rs.2000/-, in default, a simple imprisonment of one year, for offences

under section 363/365 of the Indian Penal Code. The Appellant no. 1

was sentenced to suffer imprisonment of four years with fine of Rs.

2000/-, in default, a simple imprisonment of one year, for commission

of offences under section 363/120B of the Indian Penal Code.


     Genesis of the case was the written complaint dated 24/06/2011 of

the victim girl. It was stated in the written complaint that on

15/05/2011

, at about 01:00 P.M., the Appellant no. 1 called her near

Hari Mandir of the locality. When the victim went there, she found the

Appellant no. 2 was present with a motor cycle. She was forcibly seated

by the Appellant no.1 on the motorcycle on the pretext of visiting a local

fair. In spite of hue and cry of the victim and resistances made, the

Appellant no. 2 took her to an unknown destination where she was kept

inside a room. She was given food but was put on threat by the

Appellant no. 2 that her parents would be killed had she been

disobedient. Three or four days thereafter, with help of other persons,

the Appellant no. 2 put vermilion on her forehead and compelled her to

wear conch bangles. Some photographs were also taken. The Appellant

no. 2 also took away her golden ear rings. The parents and other

relatives of the family of the victim traced out her in the residence of the

Appellant no. 2. Initiatives were taken by the local people of the village

of the Appellant no. 2, organized a "salishi" after which she returned Page |3

home with her father. Her father also put his signature on a blank

paper. It was also stated in the written complaint that the Appellant no.

2 with five to seven persons had been loitering about the residence of

the victim frequently in motor cycles and had been threatening her and

abusing using filthy language. They had also been threatening the other

family members.

The written complaint was received on 25/06/2011 at 13:35 hours

in Tamluk Police Station and was registered as Tamluk Police Station

Case No. 311 of 2011 dated 25/06/2011 under sections

363/365/366/354/506/34 of the Indian Penal Code. Formal F.I.R was

drawn up and investigation of the case was initiated. In course of

investigation, the Investigation Officer visited the place of occurrence,

prepared rough sketch map with index, examined the witnesses, got the

statement of the victim girl recorded under section 164 of the Code of

Criminal Procedure, 1973 before the magistrate, seized the admit card

of the victim from her mother, which was subsequently returned to the

father of the victim on execution of zimmanama and all other incidental

things. On completion of the investigation charge sheet was filed against

both the Appellants under sections 363/365/366/354/506/34 of the

Indian Penal Code.

Before the Trial Court charges were framed against the Appellant

no. 1 under sections 363/365/366/120B of the Indian Penal Code

whereas charges against the Appellant no. 2 were framed under sections

363/365/366/354/506 of the Indian Penal Code. Charges were read

over and explained to the Appellants to which they pleaded not guilty

and claimed to be tried.

Page |4

In course of the trial prosecution examined as many as ten

witnesses including the victim girl and produced various documents

which were marked and exhibited. On behalf of the Appellants one

document was produced in course of the cross-examination of the

witnesses which was also marked and exhibited.

The Appellants' defense was false implication. In course of

examination of the Appellant no. 2 under section 313 of the Code of

Criminal Procedure, 1973, he stated that he had love affairs with the

victim but the parents of the victim were not willing to accept him. He

further stated that his wages were due and payable by the father of the

victim. For all these reasons he was falsely implicated.

The Trial Court, in terms of the impugned judgment convicted the

Appellants and sentenced them accordingly.

On being aggrieved and dissatisfied, the instant appeals were

preferred separately by the respective Appellants.

Mr. De, the Learned Senior Counsel appearing for the Appellants

submitted first that the Trial Court committed serious error both in law

as well as in fact in arriving at the conclusion that the victim was minor.

Nowhere in the written complaint, according to him, it was mentioned

that the victim was minor. Neither the victim nor her parents deposed to

the effect that she was minor at the time of commission of the alleged

offence. The Trial Court made serious error in relying upon the seizure

list to come to a conclusion that the victim was minor. According to

him, the finding of the Trial Court suffers a serious infirmity. In

consequence, conviction under section 363 of the Indian Penal Code is

not tenable. Mr. De relied upon the decisions of State of Karnataka vs. Page |5

Sureshbabu [(1994) C. Cr. L.R (SC) 63] and Shyam & Anr. vs. State

of Maharashtra [1995 SCC (Cri.) 851].

The next point argued by Mr. De is that there was delay in lodging

the written complaint by one month which was unexplained.

Unexplained delay in lodging F.I.R makes the prosecution case

suspicious. The Trial Court ignored this issue in deciding the case as a

result of which the impugned judgment suffers from serious infirmity.

He relied upon the decisions of Ramji Surjya & Anr. vs. State of

Maharashtra (AIR 1983 SC 810), Munna vs. State of Rajasthan

(2008 CR. L.J 3975) and Rajesh Patel vs. State of Jharkhand

[2013(2) AICLR 677].

Next Mr. De argued that the Trial Court, in course of examination

of the Appellants failed to place incriminating material before them in

order to enable them to explain the incriminating circumstances. In

particular, the evidences of P.W. 9 and P.W. 10 were not put to the

Appellant no. 1. According to him, these omissions vitiated the trial. He

relied upon the decisions of Sharad Birdhi Chand Sarda vs. State of

Maharashtra (AIR 1984 SC 1622), Ajay Singh vs State of

Maharashtra (AIR 2007 SC 2188) and Harka Bahadur Rai vs. State

of West Bengal [2003 C. Cr. L.R (Cal.) 346].

Per contra Ms. Biswas, appearing for the State submitted that delay

was sufficiently explained before the court. Delay in this case is not of

such nature as to vitiate the trial.

Next, Ms. Biswas argued that failure to put the incriminating

materials before the accused persons does not, ipso facto, vitiates the

trial. It is necessary to show that such omission caused prejudice to the

accused.

Page |6

Ms. Biswas, however, candidly agreed upon that the prosecution

evidences suffers from contradictions.

I have heard rival submissions.

The Prosecution case is that the Appellants conspired to kidnap the

victim for which Appellant no. 1 asked her to come near a local temple.

She was kidnapped therefrom by the Appellant no. 2 with assistance of

the Appellant no. 1. The victim was taken to an unknown destination

where she was confined in a room. She was provided with food. After

couple of days, the Appellant no. 1 forced her to wear conch bangles

and wear vermillion on forehead symbolizing marriage. Her father

rescued her later from the residence of the Appellant no. 2. He also

signed a blank paper. Since they waited for salishi, there was delay in

lodging the written complaint in the local police station.

Since the Trial Court convicted the Appellants under section 363 of

the Indian Penal Code, it is necessary to examine whether the Trial

Court rightly inferred that the victim was minor at the material point of

time. It is neither in the written complaint nor in the deposition of the

victim or her parents nor in the statement of the victim recorded under

section 164 of the code of Criminal Procedure, 1973 (Ext. 2) that she

was minor at the material point of time. Admit card was seized by the

Investigating Officer in terms of the seizure list (Ext. 4) which was

returned to the father of the victim under one zimmanama (Ext. 8). In

both the documents, date of birth appears to be 9th June, 1993. The

original admit card was not adduced in evidence. There is no

explanation why the same was not produced before the court. Seizure

list is neither primary evidence nor secondary evidence so far as date of

birth of the victim was concerned. Date of birth was noted from the Page |7

original document in both the seizure list (Ext. 4) and the zimmanama

(Ext. 8). Therefore, so far as date of birth of the victim is concerned,

both documents are inadmissible to prove such date of birth. The Trial

Court committed grave error in relying upon Ext. 4 and Ext. 8 to prove

the age of the victim and in coming to a conclusionthat the victim was

minor at the material point of time. In State of Karnataka vs.

Sureshbabu [1994 C. Cr. L.R (SC) 63], referred to by Mr. De, it was

observed by the Supreme Court of India that when the age is in doubt,

then the question of taking the victim away from lawful guardianship

does not arise. Therefore, conviction under section 363 of the Indian

Penal Code is not sustainable and is liable to be set aside.

It is both in the written complaint and in the evidence of the victim

that at the time of alleged offence of abduction, no other persons were

present except the victim herself and the Appellants. Therefore, the

testimony of the victim is important. The victim stated in the written

complaint that the Appellant no. 1 forced her to sit on the motor cycle.

In examination-in-chief, she stated that it was the Appellant no. 2 who

forcefully took her in the motor cycle. In course of cross examination

she stated that the Appellant no. 2 was on the motor cycle and the

Appellant no. 1 caught hold of her and placed her on the motor cycle. In

her statement recorded under section 164 of the Code of Criminal

Procedure, 1973 (Ext. 2) she stated that she was forced to inhale some

perfume after which she became senseless. Statements of the victim

suffer from serious contradictions. In particular, what she stated in Ext.

2 undermines the probability of the incidence. Such contradictory and

inconsistent statements hardly inspire confidence to rely upon. P.W. 3

stated in examination-in-chief that on the day of the incident he found

the victim along with the Appellant no.1 going towards Hari Mandir. He Page |8

heard hue and cry from that place. In cross examination he stated that

he did not go to that place. It is also in his evidence that he never gave

this statement to the Investigating Officer previously. It is clear from his

evidence that he was not an eye witness. His statement cannot

conveniently be relied upon for corroboration.

The victim stated in cross-examination that after forcefully taking

her, the Appellant no. 2 took her to high way wherefrom she was taken

by a bus to unknown destination. She is a grown up girl. She did not

raise any hue and cry or ask for rescue to any person of the bus

including the conductor. She explained her conduct by saying that she

was put on threat. Again she stated in cross-examination that she was

taken to kheyaghat. In Shyam & Anr. vs. State of Maharashtra [1995

SCC (Cri) 851], relied upon by Mr. De, in a similar factual situation

where the victim was alleged to be kidnapped by bicycle, the Supreme

Court of India observed that in absence of any resistance or alarm to

protect heror asking for help, it cannot be said that she was kidnapped.

Rather, she was willing participant.Contradictory statements of the

victim are hardly believable. She was grown up at that material point of

time. Absence of raising any alarm in bus raises serious doubt as to

veracity of her statements. Such statements can hardly be relied upon

to convict the Appellants. Further, P.W. 6 went along with the father of

the victim to the residence of the Appellant no. 2. He found there the

victim as married. She did not disclose to them whether she was

abducted, forcefully taken away by the Appellant no. 2 or she came with

him on her own accord. This appears in the statement of P.W. 6 also

who also escorted the father of the victim to the residence of the

Appellant no. 2. He stated in course of cross-examination that when for

the second time he went with the father of the victim to the residence of Page |9

the Appellant no. 2, the victim was found wearing vermillion but she did

not disclose as to whether she was forcefully taken away by the

Appellant no. 2. Conduct of the victim, as stated by these witnesses

belies the prosecution case of forceful abduction. Had that been so, the

victim should have immediately stated them and complained about.

It is in the written complaint that the father of the victim signed a

blank paper. This appears in the deposition of the victim, P.W. 1 (father

of the victim) and P.W. 5 (mother of the victim). On the other hand P.W.

7 stated in evidence that he drafted Ext.A as per version of the father of

the victim. Ext.A, being an undertaking was signed both by him and

P.W. 6 as witness as well as by the father of the victim. Ext.A contains

statement that there was a marriage between the victim and the

Appellant no. 2 and that the marriage was accepted by the father of the

victim. Conspectus of facts, so discussed, strongly indicate that the

victim willingly went away with the Appellant no. 2 undermining the

very basis of the allegations against the appellants.

Much stress was laid by Mr. De on delay in lodging the written

complaint. Principle of law is no longer res integra. In Thulia Kali vs.

State of T.N., (1972) 3 SCC 393 it was observed by the Supreme Court

of India that delay in lodging the first information report quite often

results in embellishment which is a creature of afterthought. On

account of delay, the report not only gets bereft of the advantage of

spontaneity, danger creeps in of the introduction of coloured version,

exaggerated account or concocted story as a result of deliberation and

consultation. It is, therefore, essential that the delay in the lodging of

the first information report should be satisfactorily explained. In Ram

Jag v. State of U.P., (1974) 4 SCC 201 it was observed whether the

delay is so long as to throw a cloud of suspicion on the seeds of the P a g e | 10

prosecution case must depend upon a variety of factors which would

vary from case to case. Even a long delay in filing report of an

occurrence can be condoned if the witnesses on whose evidence the

prosecution relies have no motive for implicating the accused. On the

other hand, prompt filing of the report is not an unmistakable

guarantee of the truthfulness of the version of the prosecution. The

same principle was reiterated and applied in Ramji Surjya's case

(supra).

In the case in hand, explanation for delay made by the victim is

that they waited for salishi. This is corroborated by other evidences on

record. Contrary to that the father of the victim stated that because of

fear and threat written complaint was lodged belated although he

admitted that he did not make any complain to the police station

alleging the same. On the one hand there are contradictory explanations

for delay. On the other hand, in the facts and circumstances of the case

discussed above, delay clearly imports a strong suspicion of concoction

and afterthought developed after "salishi". The delayed written

complaint, delay being variously explained,creates strong suspicion in

the prosecution case.I agree with the submission of Mr. De in this

regard.

Mr. De argued also that evidences of P.W. 9 and P.W. 10 were not

put to the Appellant no. 1 in course of his examination under section

313 of the Code of Criminal Procedure which vitiated the trial.

In Sharad Birdhi Chand Sharda's case(supra) various

incriminating circumstances were not at all put to the accused person.

Facts of the present case are different. In Ajay Singh's case (supra)

kerosene was found on accused's dress. No question was put in this P a g e | 11

regard to the accused in course of his examination under section 313 of

the Code of Criminal Procedure. Similarly in Harka Bahadur Rai's case

(supra) it was observed by a Division Bench of this Court that there was

no beginning of examination of accused under section 313 of the Code of

Criminal Procedure, nor was there any end of such examination. It was

observed that the learned Judge did not follow the provisions of section

313 of the Code of Criminal Procedure. Factual backgrounds of these

cases were different.

In the present case P.W. 9 was the Investigating Officer and the

P.W. 10 was the Judicial Magistrate who recorded the statement of the

victim under section 164 of the Code of Criminal Procedure, 1973. P.W.

9 in course of deposition identified, among others, the seizure lists (Ext.

4 & 5). P.W. 10 identified the statement of the victim recorded under

section 164 of the Code of Criminal Procedure, 1973. The Trial Court

invited attention to the Appellants in respect of the F.I.R (Ext. 1),

statement recorded under section 164 (Ext. 2) and the seizure lists (Ext.

4 & 5) and asked whether they would like to say anything on the

contents of the said documents. Therefore, in view the settled principles

of law, mere omission to put before the Appellants the depositions of

P.W. 9 and P.W. 10 cannot be said to cause prejudice to the Appellants.

Evidences adduced on behalf of the prosecution suffer from

serious contradictions, incongruences and inconsistencies which the

Trial Court failed to take notice. There was a flawed appreciation of

evidence on the part of the Trial Court. Therefore, the findings demands

interference of this Court and are liable to be set aside.

In nutshell, the instant appeals are allowed. The impugned

judgment of conviction and order of sentence is hereby set aside. The

Appellants are set at liberty and they are released from their bail bonds.

P a g e | 12

Copy of the judgment along with Lower Court Records be send

back to the Trial Court.

Both the appeals are accordingly disposed of along with pending

applications, if any.

(Sugato Majumdar, J.)