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2022 Supreme(Cal) 842
IN THE HIGH COURT OF CALCUTTA
Bibek Chaudhuri, J.
Tapas Mahata And Another - Appellant
Versus
State Of West Bengal - Respondent
C.R.A No. 104 of 2021
Decided On : 07-04-2022
Himanshu De, Advocate, Subhabrata Das, Advocate, Navanil De, Advocate, Rajeshwar Chakraborty, Advocate, Subhrajit Dey, Advocate, Ranabir Roy Chowdhury, Advocate, Faria Hossain, Advocate, Aniket Mitra, Advocate
The central legal point established in the judgment is the determination of the victim's age and the guilt of the accused for kidnapping and rape.
Headnote:
Kidnapping - Minor Girl - IPC 363, IPC 366, IPC 376 - The court discussed the evidence and determined the age of the victim girl, concluding that she was a minor at the time of the offence. The court found the accused guilty of kidnapping and rape, and upheld the conviction and sentences imposed by the trial court.
Fact of the Case:
A minor girl was kidnapped by the appellants, taken to different locations, and subjected to sexual violence. The victim was found and the accused were arrested. The trial took approximately ten years to conclude.
Finding of the Court:
The court found the accused guilty of kidnapping and rape, and upheld the conviction and sentences imposed by the trial court.
Issues: The main issue was whether the victim girl was a minor at the time of the offence and whether the accused were guilty of kidnapping and rape.
Ratio Decidendi: The court determined the age of the victim girl based on evidence from the school register, ossification test, and statements of the victim and her parents. The court concluded that the victim was a minor at the time of the offence and found the accused guilty of kidnapping and rape.
Final Decision: The appeal was dismissed, and the sentences imposed by the trial court were upheld. The principal offender was sentenced to rigorous imprisonment for five years for the offence under Section 376 of the IPC, among other sentences. The substantive sentences of imprisonment were directed to run concurrently, while imprisonment for nonpayment of fine was to run separately.
JUDGMENT
Bibek Chaudhuri, J. - This is an appeal under Section 374(2) of the Code of Criminal Procedure against the judgment and order of conviction dated 23rd February, 2021 passed by the learned additional Sessions Judge, Khatra, Bankura thereby convicting the appellant No.1 under Section 376/366/363 of the IPC and sentencing him to suffer rigorous imprisonment for seven years with fine and default clause for the offence punishable under Section 376 of the IPC. Seven years with fine and default clause for the offence punishable under Section 366 of the IPC and also sentencing him for committing offence under Section 363 of the IPC for rigorous imprisonment for five years with fine and default clause. appellant No.2 was also convicted and sentence to suffer imprisonment for five years with fine and default clause for committing offence under Section 363 of the IPC. Substantive offence of rigorous imprisonment was directed to run concurrently, however, sentence of imprisonment for non-payment of fine was directed to run separately.
2. a minor girl of the de facto complainant was found missing since 8 pm on 23rd april, 2012. The parents of the said minor girl along with other people conducted search throughout the night of 23rd april, 2012 for their minor daughter. However, they did not find her. The father of the victim girl lodged a missing diary at Ranibandh P.S in the district of Bankura. after returning home from the police station the de facto complainant came to know that one Sonali Mahata wife of Sudhir Mahata told the nephew of the de facto complainant that her son took the daughter of the de facto complainant away and the de facto complainant could take any step against her son whatever he liked. On further enquiry he came to know that one Tapas Mahata and his friend Jayanta Mahata kidnapped the minor daughter of the de facto complainant on 23rd april, 2012 at about 8 pm. The parents of Tapas Mahata, namely Sudhir Mahata and Sonali Mahata helped Tapas to kidnap the minor daughter of the de facto complainant.
3. On the basis of the said complaint Ranibandh P.S Case No.32 of 2012 dated 24th april, 2012 was registered under Section 363/366/109 of the IPC and finally police submitted charge-sheet against accused Tapas and Jayanta Mahata under Section 363/366/376 of the IPC. accused Sudhir Mahata, Sonali Mahata and Jayanta Mahata were further charged under Section 109 read with Section 363/366 of the IPC.
4. The learned additional Sessions Judge, Khatra, convicted accused Tapas and Jayanta Mahata and sentenced them accordingly. Hence the instant appeal challenging the order of conviction and sentence.
5. In order to bring home the charge against the accused persons prosecution examined as many as 12 witnesses. amongst them, the victim of this case was examined as PW7. PW1 ashok Mahata is the father of the victim girl and de facto complainant of this case. PW4 is the mother of the victim girl. PW8 Kurma Mahata is the nephew of PW1. PW10 Dr. Dipankar Sarkar was a Medical Officer attached to the Forensic Science Medicine at Bankura Sammilani Medical College and Hospital. He holds ossification test of the victim girl on 10th May, 2012 and submitted charge on 19th May, 2012. PW11 is the Investigating Officer of this case and PW12 is the scribe of the written complaint. Other witnesses are not the material witnesses for the purpose of adjudicating the instant appeal, being hearsay in nature.
6. I propose to start with the evidence of the victim girl. It is found from her evidence that on 23rd april, 2012 at about 7 pm she was reading a book in her room. after sometime she came out of her house. Thereafter Tapas Mahata and Jayanta Mahata came to the spot. Seeing her Tapas grabbed her mouth and Jayanta Mahata dragged her to the primary school of the village. Then they brought her to Khatra by a motorcycle.Both Jayanta Mahata and Tapas Mahata threatened her and told her not to shout. From Khatra, Tapas Mahata brought her to Kolkata by a
