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2005 Supreme(Cal) 478
High Court Of Calcutta
Debi Prasad Sengupta, Arun Kumar Bhattacharya
REKHA MONDAL @ SINGH - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. R. A. 371 Of 2000
Decided On : 08/01/2005
ASHIM ROY, ASLAM KHAN
Delay in lodging F. I. R. without sufficient explanation creates a doubt in the mind of the court and is fatal to the prosecution.
Headnote:
KIDNAPPING - Ingredients - Abduction - Ingredients - Section 364/366/367, I. P. C. - Ingredients of the offences - Evidence - Appreciation of - Delay in lodging F. I. R. - Effect.
Fact of the Case:
The prosecution case was that the wife and two children of the complainant were kidnapped by the accused Rekha and taken to Haryana. The wife was allegedly murdered and the children were sold. The accused was charged under Sections 364/366/367, I. P. C.
Finding of the Court:
The court found that the prosecution failed to prove the charges against the accused beyond reasonable doubt. The court noted that there was a delay in lodging the F. I. R. and that the evidence of the witnesses was not reliable.
Issues: 1. Whether the prosecution proved the ingredients of the offences of kidnapping and abduction? 2. Whether the delay in lodging the F. I. R. was fatal to the prosecution?
Ratio Decidendi: 1. The court held that the prosecution failed to prove that the accused had kidnapped or abducted the wife and children of the complainant. The court noted that the evidence of the witnesses was not reliable and that there was no evidence to show that the accused had the intention to commit any of the offences under Sections 364/366/367, I. P. C. 2. The court held that the delay in lodging the F. I. R. was fatal to the prosecution. The court noted that the incident took place on 22.05.1996, the children were brought by Haryana police to Shantipur P. S. on 01.07.1996, and the F. I. R. was lodged on 15.07.1996. The court held that there was no plausible explanation for this delay and that it created a doubt in the mind of the court.
Final Decision: The appeal was allowed. The order of conviction and sentence passed by the learned Court below was set aside. Accused Rekha mondal @ Singh was acquitted of the charge under Sections 361/366/367, I. P. C., and she was set at liberty at once.
( 1 ) THE present appeal is directed against the judgment and order of conviction and sentence passed by the learned 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.
( 2 ) 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. 3), aged about 10 years there and the house was under lock and key. He unsuccessfully searched for them and on 1,6. 1996 he on 1. 7. 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. 6. 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 swiming. 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. 6. 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, I. P. C.
( 3 ) THE defence case, as suggested to P. Ws. and as contended by the accused persons during their examination under Section 313, Cr. P. C. , is innocence and that accused Rekha did not take away the complainant's wife and children.
( 4 ) 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 learned Court below while acquitted accused Jiten Adhikari @ Pir Baba, found accused Rekha guilty under Sections 364/366/367, l. P. C. 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. tor 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.
( 5 ) BEING aggrieved by and dissatisfied with the said order of conviction and sentence accused Rekha has preferred the present appeal from jail.
( 6 ) ALL that now requires to be considered is whether
