Calcutta High Court (Appellete Side)
Amirul Gazi vs The State Of West Bengal on 28 January, 2022
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Bibhas Ranjan De
C.R.A. No. 168 of 2017
Amirul Gazi
Vs.
The State of West Bengal
For the appellant: Mr. Rajdeep Mazumder, Adv.
Mr. Moyukh Mukherjee, Adv.
Mr. Pritam Roy, Adv.
For the State: Ms. Anasuya Sinha, Adv.
Mr. Pinak Kumar Mitra, Adv.
Heard on : 07.01.2022
Order on : 28.01.2022
Bibhas Ranjan De, J.:-
By this appeal under section 374 (2) of Code of Criminal Procedure
Code, 1973, the appellant has challenged the Judgment dated
12.01.2017
/13.01.2017, passed by 7th Additional Sessions Judge,
Barasat, 24 Parganas (North) in Sessions Trial No. 02 (02) of 2013
whereby, the appellant has been convicted for the offences punishable
under section 376, 363 and 366A of the IPC and sentenced to 7 years
RI for the Offence Under Section 376 with fine of Rs. 20.000/- and
default RI for 10 months and sentenced to 5 years RI for the offence
under Section 363 with fine of Rs. 5000/- and default RI for 3 months
and also sentenced to 8 years RI for the Offence under section 366A of
IPC with fine of RS. 20,000/-and default RI for 10 months, all the
sentences are to run concurrently.
2. Prosecution case is that on 03.11.2010 victim, minor daughter
of the complainant Shri Kalyan Kr. Ghosh, resident of village Ranihati,
Deganga, Barasat, was kidnapped by the appellant while she had gone
to answer nature's call at around 3 A.M. Complainant searched in all
possible places but could not find her out.
3. On receipt of the written complaint on 03.11.2010 at about
22.45 hours instant case was registered as Deganga P.S case no 355
dated. 03.11.2010 u/s 363/366A I.P.C. During investigation I.O (PW-
19) visited place of occurrence and prepared sketch map. I.O arrested
two persons namely Jahangir Kabir Gazi and Manirul Gazi and they
were taken to police custody. I.O. examined witnesses and recorded
their statements u/s 161 Cr.P.C. During investigation I.O raided
several places and finally on 20.04.20211 arrested the appellant and
recovered the victim from Balagarh in the District Hooghly. I.O. also
recorded the statements of witnesses namely Sk. Ohidur Rahaman
(PW- 17), Sk. Raju (PW-14) and victim (PW-11) recorded u/s 164
Cr.P.C. After completion of investigation I.O. submitted charge sheet
u/s 363/366A/120B/376/34 I.P.C against nine (9) accused including
appellant before the Ld. Chief Judicial Magistrate, who then
committed the case to the Ld. Sessions Judge, Barasat. The case was
transferred to the Ld. Addl. Sessions Judge, Barasat, for trial.
4. Ld. Addl. Sessions Judge framed charge u/s 363/ 366A/120B
I.P.C against all nine (9) accused including the appellant and also
framed a separate charge u/s 376 against the appellant. In course of
trial prosecution examined 19 witnesses and proved a good number of
documents marked as ext. 1 to 13. On behalf of defence, three memos
of arrest marked as ext. A to C were exhibited in course of cross-
examination of I.O (PW-19). After recording evidence of all witnesses,
appellant was examined u/s 313 Cr.P.C.
5. The trial Court after considering the evidence of the victim and
other relevant witnesses found that the charges against the appellant
are proved. Accordingly, the trial Court has convicted and sentenced
the appellant in the manner indicated above. Co-accuseds were,
however, acquitted of the charges levelled against them.
Arguments advanced
6. Mr. Rajdeep Mazumder, Ld. Counsel for the appellant, submits
that the Ld. Trial Court has committed an error relying on evidence of
PW-14, 16 & 17 who contradicted one another. It is further contended
that the victim herself did not state about any kidnapping in course of
her statement u/s 164 Cr.P.C Mr. Mazumder has tried to persuade
this court that there was a love affair between the victim and the
appellant. Mr. Mazumder also referred to the evidence of the mother of
victim (PW-2) who stated the age of her daughter (victim) was more
than 18 years. He also referred to the ext. 5/a and submits that
ossification test report shows the age of victim as more than 17 years
but less than 19 years. Accordingly, he submits victim, a major lady,
had voluntarily left her residence and the charges levelled against the
appellant had not been proved beyond doubt.
7. In opposition to that Mrs. Anasuya Sinha, Ld. Counsel for
the State, submitted that the offences have duly been proved and the
appeal does not have any merit.
Decision with reasons:-
8. Having heard the Ld. Counsels for the parties and on perusal
of evidence on record it is noticed undisputedly the victim is the
daughter of the complainant, Shri Kalyan Kr. Ghosh (PW-1). I have
gone through the evidence of PW-1 (Complainant), PW-2 (mother of the
victim), PW-3 (brother of the victim) and I find that these four
witnesses stated about the incident when the appellant kidnapped the
victim in early morning on 03.11.2010 while the victim came out of the
home to answer nature's call. PW-4 (neighbor), also corroborated the
factum of kidnapping of victim by the appellant. That apart, PW-6
stated in his evidence that on the alleged date of incident he came to a
tea stall in the early morning and he found one Maruti van passing
away and at the same time he heard a sound of crying from the house
of complainant. PW- 5,7,8,9 & 10 could not say anything about the
incident. Pw-11 (victim) stated that on the alleged date of incident
when she came out of their house for collecting water from the tube
well she was forcibly taken away by the appellant in a Maruti Car. PW
11 also stated about her kidnapping by the appellant, in her statement
u/s 164 Cr.P.C. before the Magistrate.
9. Though there may be minor discrepancies in the evidence of
PW-1, 2, 3, 4 and 11 but those discrepancies, in my opinion, are
inconsequential and do not make any dent in the prosecution case of
forcible kidnapping of PW11. It may be pertinent to note that the
appellant in response to question no. 7 in course of examination u/s
313 Cr.P.C, stated as follows:-
"I did not kidnapped the victim. On the aforesaid
date victim's mother called me and handed over
the victim and told me to took away her because
victim's father arranging the marriage of the
victim"
10. According to defence theory, mother of the victim (PW-2)
handed over the victim to the appellant for taking her away.
Unfortunately on behalf of the appellant neither any evidence adduced
nor even any suggestion put to any of the witnesses during cross-
examination to probabilise such weak and flimsy of defence.
11. Therefore by no stretch of imagination I can come to
conclusion that the appellant did not kidnap the victim. That apart
nowwhere from the evidence I find that the appellant took away the
victim either with her consent or that of her lawful guardian.
12. Next I propose to come to the issue of age of the victim. In this
regard Mr. Mazumder Ld. Counsel for the appellant, referred to the
ossification test report and the evidence of mother of the victim (PW2).
13. With regard to age of victim, P.W1 father of the victim,
categorically deposed that at the time of occurrence his daughter was
aged about 15 years and a few months. That apart, exhibit -2 shows
that original birth certificate of the victim was produced by PW-1 for
its seizure on 06.11.2010. Ext.2 shows the date of birth of victim as
28.03.1995.
14. Pw-2, mother of victim, in her examination- in-chief stated that
age of her daughter was more than 18 years but in cross-examination
she clearly denied the suggestion that her daughter was 18 years of
age. It is further noticed that PW-2 was cross-examined on the same
day leaving no chance of tutoring. It is trite law evidence of a witness
is to be read as a whole. It would be incorrect to cull out a single
sentence and read it out of context without reference to other portions
of the evidence. If the evidence of PW2 is read as a whole, it can safely
be inferred that it was a slip of tongue when she stated her daughter's
age as 18 during examination-in-chief and promptly corrected herself
duly in cross-examination by denying similar suggestion put to her.
15. Determination of the age of a person based on ossification test
cannot be conclusive proof as the results are not accurate, and it does
not indicate the exact age of the person concerned. It cannot be lost
sight of that the opinion of the doctor regarding age determination is
not conclusive, and has corroborative value only. In this case, I find
the direct evidence of the father of the victim, PW1, regarding her age
as 15 years is corroborated by the birth certificate which shows her
date of birth as 28.03.1995. These pieces of evidence clearly
establishes the fact that the victim was below 16 years at the time of
commission of offence.
16. Next I come to the offence of rape punishable u/s 376 I.P.C. In
this regard, evidence of victim is very important. PW-11 (victim)
specifically stated in her evidence that she was taken to different
places and confined her and appellant had sexual intercourse with her
against her will. In response to the suggestion that the appellant did
not have sexual intercourse against her will, victim categorically
denied the same.
17. From the evidence of PW-14 and Pw-16 it appears that the
appellant and victim resided together at different places as tenant, for
a considerable period. Both the witnesses let out rooms to the
appellant and victim to reside together. In reply to question nos. 22,
25 & 26 in section 313 examination, appellant appears to have
admitted the fact of his residing in tented accommodation with the
victim. Besides, Pw-18 Dr. Ranjit Kr. Mandal attached to Barasat
District Hospital, who had examined the victim found the following :-
"On examination o f the victim I found:
1. no external injury mark seen any here in the body ; 2)
breast - normal ; 3) axillary hairs - normal ; 4) pubik hairs -
normal ; 5) menstrual histry - cycle regular, LMP - 19.04.1 ;
6) vulva - normal ; 7) clitoris - normal ; 8) hymen - old
hymentear present ; 9) vagina plus uterus bloody mucoid
discharge was present due to period ; 10) vaginal discharge
/ bleeding as mentioned earlier ; 11) fourchette - normal ;
12) examination was easy and two examining fingers were
admitted easily."
18. From the evidence of the victim (PW-11), Medical evidence and
other attending circumstances it is clear that after having kidnapped
her, the appellant cohabited with the victim at different places. With
regard to the issue whether the victim was a consenting party, I note
such plea is of little consequence. As discussed above, the prosecutor
has established she was below16 years at the time of the incident and
her consent was immaterial in view of 6th clause of section 375 IPC. In
the backdrop, even if we assume that sexual intercourse was with the
consent of the victim, we cannot consider such consent as a valid one
as the age of the victim as below 16 years. Hence, the offence of rape is
proved beyond doubt.
19. Now I come to the offence alleged to have been committed u/s
366A of I.P.C. A reading of Section 366A shows that in order to attract
the said provision, a minor girl below the age of 18 years must be
induced to go from place to place or to do any act with the intent that
she will be forced to do illicit intercourse with another person. It is
clear from a reading of the said provision that it is attracted when a
minor girl is procured by one person for the seduction of sexual
intercourse by a third person. If a person induced a minor girl to go
along with him and sexual intercourse with her, Section 366A cannot
have any application. Here, in our case, this is not the prosecution
case that any third person other than the appellant intercoursed with
the victim far to speak of any evidence thereof.
20. In this factual backdrop, though I am of the view the order of
conviction u/s 366A I.P,C. is not maintainable, the offences u/s
363/376 I.P.C. are clearly made out against the appellant for which he
has been rightly convicted.
21. In the aforesaid view of the matter, I am inclined to set aside
the order of conviction and sentence u/s 366A I.P.C. However,
conviction and sentence for the offences u/s 376 and u/s 363 I.P.C
are hereby affirmed. Both the sentences shall run concurrently. It is
further directed that the fine amount, if realized, be given to the
victim, as compensation.
22. The period of detention of the appellant, if any, during
investigation, enquiry and trial shall be set off within the meaning of
Section 428 Cr.P.C.
23. Thus the appeal is partly allowed.
24. Let a copy of this Judgment along with the Lower Court record
be communicated to the trial Court at once.
25. All parties shall act on the server copies of this judgment duly
downloaded from the official website of this Court.
26. Urgent photostat certified copy of this order, if applied for, be
supplied expeditiously after complying with all necessary legal
formalities.
I agree,
(Joymalya Bagchi, J.) (Bibhas Ranjan De, J.)
