ABUL KALAM KHAN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal arises out of judgment and order of conviction and sentence passed by Learned Additional Sessions Judge, Fast Track Court No.3, Barrackpore, in Sessions Trial No.3(1) of 2008 arising out of Sessions Case No.24(6) of 2007, by which the appellants were sentenced to suffer imprisonment for 7 years for the offence under Sections 363/34 of the Indian Penal Code, imprisonment for 7 years for the offence punishable under Sections 366/34 of the Indian Penal Code, imprisonment for 7 years for the offence punishable under Sections 368/34 of the Indian Penal Code and imprisonment for 7 years for the offence punishable under Sections 372/34 of the Indian Penal Code - with direction that the appellants will serve all the sentences concurrently.

(2.) The backdrop of conviction and sentence of the appellants is as follows: (a) One Niva Sarkar, mother of the victim girl filed written complaint before the Officer -in -charge of Jagatdal Police Station for registration of FIR of Jagatdal Police Station Case No.410 dated December 13, 2003. It is alleged in the written complaint that the victim Pratima Sarkar aged about 14 years was engaged in the house of one Sona Guha for working as maid servant. On March 10, 2003, victim Pratima Sarkar was found missing from the house of Sona Guha. On March 16, 2003 one missing diary was lodged with Jagatdal Police Station, but the victim could not be traced out. When the mother of the victim girl doubted about the involvement of Sona Guha in kidnapping the victim Pratima, she filed the written complaint praying for registration of FIR and causing investigation. (b) The police investigated the case and submitted charge sheet against the appellants and Sona Guha. The trial court also framed charge against the appellants and Sona Guha on the allegation of commiting offence under Sections 363/366/368/372/376 of the Indian Penal Code. I am informed that the appellants were detained in custody during the trial of the case from February 1, 2007 to January 10, 2008 and they are detained in custody from April 27, 2012 till this date. The said judgement and order of convictin and sentence is under challenge in this appeal at the instance of the appellants.

(3.) Mr. Partha Sarathi Bhattacharya, Learned Counsel appearing on behalf of the appellants, contends that there is delay of almost nine months in reporting the incident to the police for registration of the FIR and this delay has not been explained to the satisfaction of the court. By referring to the evidence of the victim girl, Mr. Bhattacharya submits that the victim girl voluntarily accompanied the appellants and she was never enticed by the appellants and as such the offence of kidnapping has not been established from the evidence on record. He argues that three Investigating Officers investigated the case, but no investigation was done to discover the facts alleged by the victim about her illegal confinement in a room at Bombay to compel her to illicit intercouse. By referring to the omission of some facts in the evidence of the victim girl and omission of some facts in the statement of the victim girl recorded under Section 164 of the Code of Criminal Procedure, Mr. Bhattacharya submits that the evidence of the victim girl may not be relied upon to convict the appellants for the offence of kidnapping and human trafficking. He argues that the prosecution has failed to adduce any evidence to establish how the victim came back from Bombay to Shyamnagar where she was residing with her mother, particularly when the person who accompanied the victim girl from Bombay to Shyamnagar has not been examined by the prosecution. Mr. Bhattacharya has relied on the decision of the Supreme Court in "Rajendra V. State of Maharashtra" reported in 1997 SCC (Cri) 840 in order to put forward the argument that the appellants cannot be convicted for the offence under Sections 363/34 of the Indian Penal Code, when they have been convicted by the trial court for the offence under Section 366 of the Indian Penal Code, which is higher penal provision of law. The last submission of Mr. Bhattacharya is that the amount of sentence imposed on the apellants may be reduced as the appellants are about 54 to 55 years old and they have served the sentence for about 6 years out of total sentence of imprisonment for 7 years.