Archana Dey @ Sakila @ Samina vs The State Of West Bengal
2022 Latest Caselaw 6995 Cal

Sl. No. 32

                    IN THE HIGH COURT AT CALCUTTA
                 CRIMINAL APPELLATE JURISDICTION
                             Appellate Side


Present:

The Hon'ble Justice Joymalya Bagchi

                 And

The Hon'ble Justice Ajay Kumar Gupta


                           C.R.A. 46 of 2019

                     Archana Dey @ Sakila @ Samina
                                  Versus
                        The State of West Bengal



For the appellant            :     Mr. Sekhar Kumar Basu, Sr. Advocate
                                   Mr. Diptangshu Basu
                                   Mrs. Punam Basu


For the State                :     Mr. Saswata Gopal Mukherji, Ld. P.P.
                                   Mr. Parthapratim Das
                                   Mrs. Manasi Roy


Heard on                      :    14.09.2022



Judgment on                   :    27.09.2022


Ajay Kumar Gupta, J:

1.

Appellant has assailed the judgment and order of conviction and

sentence dated 20.12.2018 and 21.12.2018 passed by the Learned

Additional District and Sessions Judge, Fast Track Court No. II, Bichar

Bhawan, Calcutta in Sessions Trial No. 1 (4) of 2015 arising out of Sessions

Case No. 99 of 2014, thereby convicting the appellant under Sections 3, 4, 5

and 6 of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to

as 'the said Act') and sentencing her to suffer imprisonment for a term of

one year and to pay fine of Rs. 2000/- in default to suffer imprisonment for

another term of two months for the offence punishable under Section 3 of

the said Act, further to suffer imprisonment for a term of one year and to

pay fine of Rs. 1000/- in default to suffer imprisonment for another term of

two months for the offence punishable under Section 4 of the said Act,

further to suffer imprisonment for a term of eight years and to pay fine of

Rs. 2000/- in default to suffer imprisonment for a term of one year for the

offence punishable under Section 5 of the said Act and also to suffer

imprisonment for a term of seven years and to pay fine of Rs. 2000/- in

default to suffer imprisonment for a term of one year for the offence

punishable under Section 6 of the said Act. All the above sentences shall

run concurrently.

2. The prosecution case as alleged against the appellant is to the effect

that in the beginning of 2011 the victim who is originally a resident of village

Doljitpur, P.S. Norail, Dist.- Jessore in Bangladesh fell in love with one

Lavlu, sometimes at the end of April, 2011 while she was going to her

sister's house at Jessore she accidently met Lavlu on the way; Lavlu told her

to go to his sister's house; he took her in a Auto and then on a bus to

Khulna and married her. On the next day he took her to the border on a

bus; from there he took her for some distance on a motor bike. At about 7

o'clock in the evening she was taken to a room occupied by the appellant at

32, Imam Bux Lane, Sonagachi. She came to know later from daughter-in-

law of the appellant that she is in India and she had been sold by Lavlu.

Appellant forcibly locked her in a room, tortured and caused strangers to

come to her room for the purpose of prostitution in exchange of money.

Finally, she was rescued from 32, Imam Bux Lane, Sonagachi by police

officers. On the basis of the victim's statement, F.I.R. was registered being

Burtolla Police Station Case No. 328 dated 12.09.2011 under Section

354/366/366B/372/373/120B, I.P.C. against the appellant and Lavlu.

3. After completion of investigation, charge sheet was submitted against

the appellant under Section 120B/366B/344, I.P.C. Subsequently, charges

were framed against the present appellant under Sections 3, 4, 5 and 6 of

the Immoral Traffic (Prevention) Act, 1956 since the Trial Court held that

Sections 120B, 366B and 344, I.P.C were not applicable as the appellant

had not imported the victim from Bangladesh or conspired, rather her

husband had sold her to the present appellant who forcibly confined,

tortured and put her in prosecution against her will. The appellant pleaded

not guilty and claimed to be tried.

4. Defence case is that the appellant had not committed offence as

alleged, she is innocent and has been falsely entangled into the case.

Defence examined only one witness, Asit Kumar Dey as D.W.1 to disprove

the case of prosecution. In course of trial, prosecution examined seven

witnesses including the victim girl to bring home the guilt of the appellant.

Number of documents and materials brought on record by the prosecution

and those were marked as Exhibits 1 to 10 and material exhibits as I to

IV/2.

5. After appreciation of the oral and documentary evidence, the Trial

Judge, by impugned judgment and order convicted and sentenced the

appellant, as above.

6. Mr. Basu, learned senior counsel appearing on behalf of the appellant,

submitted that the appellant is no way connected with offence, as alleged.

None of the witness proved that the victim girl is a citizen of Bangladesh.

Learned counsel further submitted that the Investigating Officer who had

investigated or rescued the victim had no authority to investigate the case

registered under the Immoral Traffic (Prevention) Act, 1956 because he is

not a Special Officer designated under the Act to investigate the case under

Section 13 of the said Act. Consequently, entire prosecution case is vitiated

and on such ground alone the appellant deserves an acquittal. He relied

State (U.T. Delhi) vs. Ram Singh1 in support of his contention. Further he

argued prosecution case has not been proved beyond reasonable doubt. He

submitted evidence led by the prosecution is not reliable owing to vital

contradictions and/or inconsistency in the manner of bringing victim to

India by her husband namely Lavlu. So-called rescue of the victim is also

shrouded in mystery. Hence, appellant is liable to be acquitted.

7. On the other hand, Mr. Saswata Gopal Mukherji, learned Public

Prosecutor with Mr. Das supported the prosecution case. Referring to R.A.H.

Singuran v. Shankare Gowda Alias Shankara and Another2 he contended

investigation by an officer not authorised by law is irregular. It is well settled

that the invalidity/irregularity in investigation does not vitiate the case

1 (1962) 2 SCR 694

(2017) 16 SCC 126

unless prejudice or a miscarriage of justice has been caused to the

appellant. He further submitted prosecution witnesses have proved the case

beyond doubt.

8. It is germane to garner the evidence as adduced by witnesses during

the course of the trial, to determine how far the prosecution has been able to

establish the essential ingredients of the offences charged against the

appellant beyond the shadow of all the reasonable doubt. For a just and

proper disposal of a criminal appeal, marshalling and appreciation of the

evidence on record is essential.

9. I have gone through the relevant records meticulously and I find from

the evidence of P.W. 7, S.I. at DD, IT Section, Lal Bazar, that he received

source information on 12.09.2011 that a minor girl from Bangladesh had

been confined at the 1st floor of premises no. 32, Imam Bux Lane. Upon

receipt of the information, he informed the O.C. who, in turn, intimated his

superior officer and thereafter under his instruction, he set up a team

consisting of S.I., P.R. Sikdar, L.S.I., T. Mukherjee, L.C., G. Narginari under

leadership of O.C., IT Section they went to the 1st floor of 32, Imam Bux

Lane. Upon knocking the door, a minor girl opened the door. Another

woman in her forties was beside her. He interrogated the minor girl, who

disclosed her name and age. She also disclosed that she was a resident at

Doljitpur, Jessore, Bangladesh. Upon further interrogation she narrated her

ill fated story. She narrated at the end of April, 2011 she had developed a

love affair with one boy namely Lavlu. Subsequently, he married her.

Thereafter in the name of taking her to Lavlu's sister's house, he brought

her to Sonagachi and sold her to the appellant, who confined her in a room,

tortured her and forced her into prostitution against her will.

He recorded statement of victim and other witnesses rescued her after

preparation of rescue memo. He also seized exercise book, electric bill in the

name of appellant and one bag containing the wearing apparels of the victim

girl. Thereafter, he registered FIR being Burtolla P.S. Case No. 328 dated

12.09.2011 under Section 344/366/366B/372/373/120B IPC. He also

arranged for recording statement of the victim under Section 164 of the

Cr.P.C. and her medical examination and finally submitted charge sheet

against Archana Dey @ Sakila @ Samina under Section 344/366B/120B

IPC.

10. The victim girl was examined as P.W. 6. She deposed in the year 2011

she had relationship with Lavlu. Lavlu had taken her to his sister's house at

Narail. Thereafter, he had taken her to Khulna by bus and from there he

took her by motor cycle to an unknown place. She asked him where he was

taking her. When they were passing through a jungle she was became afraid

and started crying. He threatened her to stop crying otherwise he would kill

her and throw her in the jungle. Hence, she kept mum. He then took her to

the appellant's house and kept her there for a month. Appellant's daughter-

in-law told her she is now in India and had been sold by her husband.

Thereafter, appellant took her to Sonagachi for prostitution. She further

tortured her and used to cause strangers to come into her room and forced

her to do bad work. The victim proved her signature in the Rescue Memo,

which was marked as Exhibit 1/2. Her statement was recorded by I.O.

Police seized her wearing apparels and other belongings. She identified her

signature on the seizure list. She had been taken for medical examination.

Doctor had examined her. Her statement was recorded by the Learned

Magistrate (Exhibit 7). She also identified the appellant in Court room.

11. P.W. 1 is a social worker attached with International Justice Mission.

She deposed that the Director, Biju Mathew informed her to accompany the

team in the rescue operation. P.W.1 along with her colleague Sharon Daniel

(P.W. 2) accompanied the rescue team. All of them went to premises no. 32,

Imam Bux Lane, Calcutta 7. At the first floor of the building they entered a

room at the right hand side of the stair case. After entering the room, she

found a middle aged lady and one young girl. Police asked the name of the

girl. She disclosed her name. She also disclosed that she was from

Bangladesh and had been brought by one boy. She further disclosed that

she was sold to Sakila alias Archana Dey in exchange of money. After

rescuing her, police prepared a rescue Memo and seizure list. She put

signatures on both the documents. Police seized one electricity bill, note

book and some cloths of the girl. She proved her signature on the Rescue

Memo marked as Exhibit 1 and the seizure list marked as Exhibit 2. P.W.1

also identified the appellant in the Court.

12. P.W. 2 similarly reiterated the aforesaid facts and corroborated P.W. 1.

13. P.W. 3, A.S.I. posted at the I.T. Section of DD, Lalbazar, was a

member of a rescue team. He stated on 12.09.2011 in the evening officer

Ranjit Chowdhury told him to go out for a raid at Sonagachi. He along with

team went to 32, Imam Bux Lane of Sonagachi. During raid, a minor girl

and one lady was found in a room in the first floor of the said building. On

questioning, the girl narrated that she was a Bangladeshi national and had

been brought there by one Lavlu and sold to the appellant. He identified

Archana Dey in the Court.

14. P.W. 4, a Judicial Officer recorded the statement of the victim girl

under Section 164, Cr.P.C. The V.G. signed her statement. The signature is

marked as Exhibit 6. Upon perusal of exhibit 6, I find she had narrated the

incident before the Judicial Magistrate which corroborates her deposition in

Court as well as the contents of the F.I.R.

15. P.W. 5, Demonstrator of Forensic and State Medicine, deposed that on

16.09.2011 he examined the victim in connection with Burtolla P.S. Case

No. 328 dated 12.09.2011 under Section 120B/344/366/366B/372/373 of

the I.P.C. He stated she was brought and identified by Gunisri Narginari,

lady constable. On examination, he prepared radiological examination report

and opined as follows:

1) She is habituated to sexual intercourse.

2) Regarding recent sexual intercourse and suffering from venereal

disease, opinion is kept pending till receipt of expert's report.

3) Clinically she was not pregnant.

4) There was no injury in her body or private part except in hymen as

noted in the report.

5) Considering the physical findings, dental data and data of

radiological examination together, my opinion is that the girl

identified as Sahanara @ Parul was aged about 18 years but below

20 years at the date of her radiological examination on 20.09.2011.

16. On careful perusal of the depositions of the aforesaid witnesses, I do

not find any vital contradiction regarding selling of victim girl, who was from

Bangladesh national to the appellant. All the witnesses also corroborated

the prosecution case regarding time, place and manner of rescue of the

victim. Moreover, I feel minor discrepancies and/or contradictions, caused

due to memory lapses after some time may occur in genuine cases and

ought to be ignored. In such a situation, I do not find any sufficient reason

to disbelieve the prosecution witnesses.

17. Victim girl (P.W.6) was examined and cross examined from

Bangladesh via video conference by the trial Court. She stated that one

Lavlu being her husband took her from Bangladesh and sold her to the

appellant in exchange of money. Appellant confined her in a room, tortured

and forcibly put her to prostitution against her will. P.W.6 identified

appellant in Court. It is not disputed by the defence that she is not from

Bangladesh and had been rescued from Sonagachi in India. P.W.6 also

proved the contents of the First Information Report. Her version in Court is

consistent with her statement before police and Magistrate. This inspires my

confidence that she is truthful witness.

18. Defence witness i.e., D.W.1 employee of Election Office stated Archana

Dey, wife of Apurba Dey and Jharna Dey, daughter of Archana Dey are both

residents of 32, Imam Bux Lane. They are voters of 166, Shyampukur

Assembly Constituency, Kolkata-6. Till date, they are voters of the said

constituency. Their residential address is mentioned in the published voter

list as 32, Imam Bux Lan.e This corroborated that the place of rescue of

victim is from the residence of the appellant.

19. I am unable to convince myself with the submission made by Mr.

Basu that the trial is vitiated due to lack of authority of the Investigating

Officer. According to him, the officer who had rescued the victim girl,

investigated the case and submitted charge sheet under section 173 of the

Criminal Procedure Code is not a special officer designated under the Act

and is not empowered under Section 13 of the said Act. On the other hand, I

am in agreement with Mr. Mukherji in view of R.A.H. Singuran v. Shankare

Gowda Alias Shankara and Another that investigation by an officer not

authorised by law is irregular and does not vitiate the proceeding. It is well

settled that the invalidity/irregularity in investigation does not ipso facto

vitiate the trial unless it has occasioned miscarriage of justice to the

accused. It is undisputed that the investigation conducted by the Sub-

Inspector of DD, IT Section, Lal Bazar, has not prejudiced the appellant in

any manner and no objection was raised by the defence at the earliest

opportunity.

20. Appellant has not made out a case by reason of investigation

conducted by the Sub-Inspector a serious prejudice and miscarriage of

justice has been caused. Appellant had raised this point first time at the

time of argument before the Trial Court and not before that. The cardinal

principle of law is that the challenge to an irregular proceeding ought to be

raised at the initial stage but this is not the case here.

21. Any defect in investigation, which merely hits at its technicality, would

not render the entire proceeding void as has been laid down in the H.N.

Rishbud v. State of Delhi3 and Dr. M.C. Sulkunte v. The state of Mysore4 by

the Apex Court. Thus, I am not convinced that investigation conducted by

A.I.R. 1955 SC 196

A.I.R. 1971 SC 508

P.W. 7 had caused serious prejudice or miscarriage of justice to the

appellant. Consequently, it would not vitiate the trial.

22. In the light of the aforesaid discussion and findings, I hold

prosecution case against the appellant have been proved beyond reasonable

doubt. Conviction and sentence of the appellant are upheld.

23. Appeal is, thus, dismissed.

24. Period of detention suffered by the appellant during investigation,

enquiry and trial shall be set off from the substantive sentence imposed

upon the appellants in terms of Section 428 of the Code of Criminal

Procedure.

25. Lower court records along with copies of this judgment are to be sent

down at once to the learned Trial Court as well as the Superintendent of

Correctional Home for necessary compliance.

26. Photostat certified copy of this judgment, if applied for, is to be given

to the parties on priority basis on compliance of all formalities.

I Agree.

(Ajay Kumar Gupta, J)                                       (Joymalya Bagchi, J)




P. Adak (P.A.)