Rekha Mondal @ Singh vs State of West Bengal

Arun Kumar Bhattacharya, J.—The present appeal is directed against the judgment and order of conviction and sentence passed by the ld. Additional Sessions Judge, 3rd Court, Krishnanagar, Nadia in Sessions Case No. 8 of March, 1999 (Sessions Trial No. VI on May, 1999) on 18.08.1999.

Briefly stated, the prosecution case is that on 22.05.1996 after return to house at about 10.00 a.m. the de facto complainant (P.W. 1) did not find his wife Sandhya Das, daughter Mamani Das (P.W. 4), aged about 15 years and son Sujit Das (P.W. 8), aged about 10 years there and the house was under lock and key. He unsuccessfully searched for them and on 01.06.1996 he on 01.07.1996 on getting a message from Shantipur P.S. that police officers had come from Haryana with his son and daughter to Shantipur P.S., he along with local people went there, got back his son and daughter and came to learn from the police officers of Haryana that his wife was murdered on 15.06.1996 in Haryana and her dead body was thrown into a river. His wife who was suffering from severe disease and could not get rid of the same despite treatment, used to go to Jiten Adhikari @ Pir Baba at Lahiri Bagan, Baishnab. Para, Shantipur in order to get rid of her severe disease, as the said Pir Baba used to cure diseases by virtue of mantra. Accused Rekha Mondal, a resident of Bagchi Bagan of No. 2 Rail Gate, Shantipur, who was married at Haryana and had been residing at her father''s house, used to come to Pir Baba who introduced his wife with her for her better treatment. As he came to learn from his son and daughter, on the day of departure for Haryana with the said accused Rekha Mondal, Jiten Adhikari went with his wife and children to Shantipur, Panchanantala and helped them to board on a bus for going to Calcutta on assuring his wife not to worry and she would be cured. After reaching Haryana, Rekha took his wife and children to her house where they stayed for two days. Thereafter she separated his daughter from his wife and son and sold his daughter for Rs. 13,000/-. On the pretext of taking his wife and son to Shantipur, Rekha and her associates boarded on a lorry and after crossing some distance they got them down and kept each of them separately. After sometime his son was thrown into a river on tying his mouth with a napkin, but somehow the said son could come to the bank of the river by swimming. On way he met a milkman who took him to his house and in the morning of the following day he took him to Sadar P.S. of Karnal district. The police of the said P.S. raided the house of Rekha, recovered his daughter and arrested Rekha with three other persons. The police of Haryana came to know from the accused persons that on 15.06.1996 they after committing murder of his wife, threw her dead body into a river, for which a case was started. Hence, accused Rekha Mondal and Jiten Adhikari @ Pir Baba were charged under Sections 364/366/367 IPC.

The defence case, as suggested to P.Ws. and as contended by the accused persons during their examination u/s 313 Cr. PC, is innocence and that accused Rekha did not take away the complainant''s wife and children.

8 witnesses were examined on behalf of the prosecution, while none was examined on behalf of the defence, and after considering the facts, circumstances and materials on record, the ld. Court below while acquitted accused Jiten Adhikari @ Pir Baba, found accused Rekha guilty under Sections 364/366/367 IPC and sentenced her to imprisonment for life and to pay fine of Rs. 75,000/-i.d. to R.I. for five years, S.I. for ten years and fine of Rs. 50,000/- i.d. to S.I. for three years and S.I. for ten years and fine of Rs. 25,000/- i.d. to S.I. for two years respectively.

Being aggrieved by, and dissatisfied with, the said order of conviction and sentence accused Rekha has preferred the present appeal from jail.

All that now requires to be considered is whether the Id. Court below was justified in passing the above order of conviction and sentence.

In the present case, the vital witnesses are P.W. 3 Sujit Das and P.W. 4 Mamani Das.

According to the evidence of P.W. 1 (de facto complainant), about three years back after returning house at about 10.00 a.m. he found his wife Sandhyarani Das, son Sujit (P.W. 3) and daughter Mamani (P.W. 4) were not there and the house was under lock and key. On coming to learn from Shantipur P.S. after eight days that Haryana police brought his son and daughter to Shantipur P.S. from Haryana, he went there and got back his son and daughter. He came to learn from his son (P.W. 3) that accused Rekha kidnapped his wife, who was sick and children and took them away to Haryana. He does not know the other accused Jiten. He lodged an F.I.R. (Ext. 1/1). P.W. 2 scribed the F.I.R. as per instruction of P.W. 1, local people and local club. P.W. 5 who was declared hostile, knows accused Jiten Adhikari whom the local people call Pir Baba and who knows mantra and worships Goddess Kali, Mahadev etc. P.W. 6 who too was declared hostile, stated that accused Jiten used to go to his house as a priest. P.W. 7 after taking up investigation of Shantipur P.S. Case No. 151/96 dated 15.07.1996 on 22.05.1996 consulted GD Entry No. 947 dated 01.06.1996 lodged by P.W.1, examined P.Ws. 3 & 4 and their father P.W.1, visited the P.O. at Panchanantala Bus-stand at Shyamchand, More on NH-34 within Shantipur Town, prepared a sketch map of the P.O. with index (Ext. 2), examined and recorded the statements of witnesses, arrested accused Jiten Adhikari, prayed for shown arrest of accused Rekha who was detained in connection with Sadar Karnal P.S. Case No. 373 dated 18.06.1996 under Sections 302/201/307/120B IPC in Haryana, proceeded to Haryana with production warrant but could not arrest her as trial of the said case was going on and after coming back made over the CD to O.C., Shantipur P.S. on account of his transfer to Krishnaganj P.S. It is his further evidence that according to the GD lodged by P.W. 1, on 25.05.1996 at about 8.00 hrs. his wife and children left house and still did not turn up. P.W. 8 (second I.O.) on taking up further investigation of the case, went to Karnal in Haryana with production warrant, collected a xerox copy of FIR of Sadar Karnal P.S. Case No. 373 dated 18.06.1996 and brought accused Rekha to Shantipur, produced her before the Court of ld. SDJM, Ranaghat and after completion of investigation submitted chargesheet against accused Jiten Adhikari @ Pir Baba and Rekha under Sections 363/366A/367 IPC.

P.W. 3 stated that his mother used to go to Pir Baba to get rid of her disease. About three years back he, his mother and elder sister (P.W. 4) went to Shantipur Barabazar where accused Rekha came, talked with his mother and then took them away in a bus. It took three days by bus and train but he cannot recollect the place. They were brought to the house of Rekha where they stayed for a day. Thereafter they were taken to a house of an old man who used to speak in Hindi. His mother informed Rekha that they were feeling uneasy and as such requested her to bring them back to Shantipur and she will bear the expenditure for the purpose. Rekha told his mother to stay there for a few days and thereafter they would return. On the pretext that his elder sister will return to Shantipur, Rekha sold\\her to a person who married her. On representing that they would return to their house, Rekha with three other persons took them to a place. When his mother expressed to attend nature''s call, one person took her away and later informed that he murdered his mother. Rekha with another man gagged him, tied his mouth with a napkin and threw him in the water of a canal. He somehow came to the bank of the canal and started walking along the field. A milkman took him to his house, heard the episode from him and took him to the P.S. of Haryana where he narrated the incident. Haryana police arrested Rekha who led the police to the house of other accused persons who were then arrested. His sister was recovered from the place where she was married after sale. He and his elder sister were brought by Haryana police to Shantipur P.S. which informed his father (P.W. 1) who then brought them back to house. On the representation of Rekha to his mother that if she goes with her, she would be employed, his mother went with Rekha. He could not identify accused Rekha after a lapse of three years. There is no such evidence on his part that he informed the incident to his father and so, the above evidence of P.W. 1 that accused Rekha kidnapped his wife and children, to Haryana being hearsay cannot be taken into account. The above evidence of P.W. 3 is more or less corroborated by P.W. 4 who deposed that about three years back accused Rekha on the pretext of procuring employment for her mother took her away and they accompanied her and Rekha. They reached Barabazar, Shantipur where they boarded on a bus, and then a train and it took three days to reach Haryana. Rekha took them to her house first and therefrom to another house where she started to cry. On the pretext of taking her to house Rekha brought her to another house where the owner of the house informed that she was sold there. From then she did not know the whereabouts of her mother and brother. Police recovered her from that house and she with her brother was brought by Haryana police to Shantipur P.S. wherefrom they were brought back to house by her father and local people.

Mr. Rashbehari Mahato, Id. Counsel for the appellant contended that on the face of the nature of above evidence, the impugned order of conviction and sentence of his client should not be sustained, and Mr. Ashim Roy, Id. Counsel for the State, in his usual fairness supported the above contention.

Abduction by itself is no offence. It is an offence when it is coupled with one of the intentions contemplated by the Indian Penal Code. In order to establish a charge of abduction for murder, when the case is one of abduction by deceitful means, it is not enough for the prosecution merely to prove certain circumstances under which the abducted person was induced to go, nor even to prove a mere misrepresentation. It must be proved that there was a misrepresentation, that that particular misrepresentation was the result of a plan to murder and that it was one by which the abducted person was himself deceived and was induced to go, as was held in the case of Abdul Gaffur Khan v. Emperor, reported in 41 CWN 287. When the evidence of the prosecution is that the person abducted has been murdered by the abductor, there can be no scope for a charge u/s 364 IPC, since the abductor should be charged with murder pure and simple. Reference may be made to the case of Upendra Nath Ghose Vs. Emperor, . In the present case, it is the evidence of P.Ws. 3 & 4 that on the representation of accused Rekha that if their mother goes with her she would be employed, their mother went with Rekha and they accompanied her mother and Rekha which is at variance with the FIR story, according to which she went for curing her severe disease. In the absence of any earlier statement u/s 161 Cr. PC on behalf of P.W. 4 that Rekha took them on the pretext of job at Haryana, as is evident from the evidence of P.W. 7, her said evidence being a contradiction, due to omission cannot be taken into consideration. It is the evidence of P.W. 3 that when his mother expressed to attend nature''s call, a person took her away for the purpose and after coming back the said person informed that he committed murder of his mother. It is his further evidence that after his narrating the incident before Haryana police, accused Rekha was arrested and being led by her other accused persons were arrested. The evidence of P.Ws. 7 and 8 reveal that Rekha faced trial in connection with Sadar Karnal P.S. Case No. 373 dated 18.06.1996 under Sections 302/201/307/120B IPC. The prosecution could call for and produce the record or certified copies of FIR and other documents of the above case, so as to ascertain the fact of that case. The Court is quite in the dark about the fate of the trial of the said case. In other words, if the wife of P.W. 1 was murdered and the trial of accused Rekha and others was involved in the said case, the question of sustaining the charge u/s 364 against accused Rekha does not arise.

As regards, the offence u/s 366 IPC, two ingredients necessary to be established are: (1) kidnapping or abducting any woman and (2) such kidnapping or abducting must be- (a) with intent that she may be compelled or knowing it to be likely that she will he compelled to marry any person against her will, or (b) in order that she will be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse.

If the girl was eighteen or over, she could only be abducted and not kidnapped, but if she was under eighteen she could be kidnapped as well as abducted if the taking was by force or the taking or inducing was by deceitful means. Here, no attempt was made by the prosecution to establish the age of P.W. 4 by way of producing her birth certificate, if any, or school certificate or producing her before radiologist for ossification test, nor P.W. 1 stated her age. P.W. 4 is also silent in this regard. According to the FIR she was aged about 15 years. There is nothing to indicate in the evidence of P.W. 3 or P.W. 4 that P.W. 4 was kidnapped or abducted nor any of the ingredients of the offence has been borne out in the testimony of P.W. 4. So, this charge also fails.

Regarding the offence u/s 367 IPC, the first ingredient that requires to be established is kidnapping or abduction by the accused, which, as discussed above, is absent here, and so this charge too fails.

That apart, neither the GD being No. 947 dated 01.06.1996 lodged by P.W. 1 was produced and proved nor the milkman who took P.W. 3 to Sadar Karnal P.S., Haryana and police officers of Haryana who recovered P.W. 4 and arrested accused Rekha, and the officers who brought P.Ws. 3 & 4 from Haryana to Shantipur P.S. were shown as witnesses in the chargesheet nor examined. How P.W. 7 could take up investigation of Shantipur P.S. Case No. 151/96 dated 15.07.1996 on 22.05.1996 is not understood. When Haryana P.S. brought P.Ws. 3 & 4 to Shantipur P.S., no GD even appears to have been recorded. The incident took place on 22.054996, P.Ws. 3 & 4 were brought by Haryana police to Shantipur P.S. on 01.07.1996 and FIR was lodged on 15.07.1996, and there is no plausible explanation on behalf of the prosecution for this abnormal delay. It is well-settled that delay in lodging FIR (although the police station is nearby) if not sufficiently explained, it creates a doubt in the mind of the Court and it is fatal to the prosecution. Reference may be made to the case of Thulia Kali Vs. The State of Tamil Nadu, .

Considering all the above aspects, the prosecution cannot be held to have brought home the charge against the above accused Rekha beyond all reasonable doubt, and as such the said accused is found not guilty.

Accordingly, the appeal be allowed. The order of conviction and sentence passed by the Id. Court below be set aside. Accused Rekha Mondal @ Singh be acquitted of the charge under Sections 364/366/367 IPC, and she be set at liberty at once.

The accused be released forthwith from custody, if not required in connection with any other case.

Alamats, if any, he destroyed after the period of appeal is over.

Let a copy of this judgment along with the LCR be forwarded to the Id. Court, below at once.

Debiprasad Sengupta, J.

I agree.