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2019 DIGILAW 125 (CAL)

MANIK GHOSH v. STATE OF WEST BENGAL

2019-01-25

RAJARSHI BHARADWAJ

body2019
JUDGMENT : RAJARSHI BHARADWAJ, J. 1. The instant appeal has been preferred against a judgment and order dated 30th August, 2011 passed by the learned Additional Sessions Judge, Fast Track Court, Tehatta, Nadia in Session Trial No. 01(12)/2010 arising out of Session Case No. 28 (05)/2010 convicting the accused/appellant Manik Ghosh under Section 354 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for two years for commission of offence punishable under Section 354 of the Indian Penal Code. 2. The prosecution case in brief is that on 24th August, 2006 at about 6.00 in the morning the de facto complainant of this case went for evacuation in a field situated by the side of her house and at that time suddenly accused Manik Ghosh from her behind placed one 'Gamcha' on her mouth and took her in a jute field and forcibly fell her down on the earth and violated her chastity and while the de facto complainant tried to raise voice then the accused person pressed her neck and stated to her that he would kill her if she tried to raise hue and cry but some men heard the voice of the de facto complainant and as a result the accused person left that place. Thereafter, the de facto complainant came to her house in ailing condition and narrated the incident to her husband and her son. Thereafter, the accused was proceeded by the family of the de facto complainant. When the son of the de facto complainant asked the accused Manik Ghosh, as to why he had done all those crime, on hearing the same three accused persons namely, Manik Ghosh, Mahitosh Ghosh and Sukhen Ghosh came to the house of the de facto complainant and assaulted her and destroyed the tiles of her house, threatening her that if she would report the matter else where, in that event they would kill them by igniting fire on her house. Thereafter, the de facto complainant lodged a written complaint before the Sub-Divisional Officer, Tehatta, who forwarded the same to I.C., Tehatta P.S. with certain directions and thereafter, police started the present case against three accused persons. Investigation was started and after completion of investigation, charge sheet was submitted under Sections 354/323/34 of the Indian Penal Code against said three accused persons, who pleaded not guilty and claimed to be tried. Investigation was started and after completion of investigation, charge sheet was submitted under Sections 354/323/34 of the Indian Penal Code against said three accused persons, who pleaded not guilty and claimed to be tried. After conclusion of the trial the learned Additional District Judge, Fast Track Court, Tehatta, Nadia acquitted the accused Manik Ghosh from the charge punishable under Section 376 of the Indian Penal Code and held the appellant, Manik Ghosh guilty for commission of offence punishable under Section 354 of the Indian Penal Code and accordingly, convicted under Section 235(2) of the Code of Criminal Procedure. The learned Trial Judge also held that the accused persons namely, Manik Ghosh, Mahitosh Ghosh and Sukhen Ghosh were found not guilty for the offence under Section 323/34 of the Indian Penal Code. 3. Learned advocate for the appellant submitted that from the deposition of P.W.1 it is evident that the complainant specifically mentioned that she was raped by accused Manik Ghosh in the field of one Kartick Ghosh, as a result she sustained cut injury on her both elbow. P.W.1 stated in her evidence that she had received no injury on her back side as well as her buttocks and heels. During crossexamination she stated that she sustained no injury on her private parts, thigh as well as on her breasts. He further submitted that no wearing apparel was seized which could have smeared with mud of the jute field or some amount of biological relics in those wearing apparels, although the case was registered on the self-same day. He also submitted that the husband of the victim being P.W.2 did not accompany the victim before the doctor and he also did not go with his wife to the Police Station, which was 10 k.m. away from the residence of the complainant. Even P.W.2 stated that he was not examined by the police, although he stated that before he deposed before the Court, he had talked with his wife over the incident. He also submitted that P.W.1 did not state before the Investigating Officer while recording her statement under Section 161 of the Code of Criminal Procedure that she was ravished by the appellant but during course of recording evidence she stated that she was ravished by the appellant. In view of such contradiction in the evidence of P.W.1, the learned Judge ought to have disbelieved the entire evidence of P.W.1. In view of such contradiction in the evidence of P.W.1, the learned Judge ought to have disbelieved the entire evidence of P.W.1. In support of his submission he has relied on a decision of the Apex Court in the case of Abbas Ahmed Chowdhury vs- State of Assam reported in, (2011) 2 SCC(Cri) 439 and in the case of Mohanlal vs- State of Rajasthan reported in, (2003) SCC(Cri) 1383. Thus, learned advocate for the appellant prayed that the appeal may be allowed by setting aside the order of conviction and sentence passed by the learned Judge. 4. Learned advocate for the State submitted that so far as the allegation of outraging the modesty of the complainant by the accused Manik Ghosh is concerned, there was no omission, contradiction, inconsistency and exaggeration in the evidence of P.W.1 and by dint of the entire deposition of P.W.1 along with the injury report, the prosecution has been able to bring home the offence punishable under Section 354 of the Indian Penal Code against the accused Manik Ghosh. In the instant case, the prosecution case primarily rests on the evidence of P.W.1, who went to Tehatta B.P.H.C. and got herself treated by P.W.3, Dr. Ramchand Murmu, who deposed that on examination he found lacerated cut injury over left elbow as well right elbow. He further submitted that after completion of investigation, P.W.5 submitted charge sheet under Sections 354/323/34 of the Indian Penal Code; however considering the materials available during investigation, the learned Judge was pleased to frame charges under Section 376 of the Indian Penal Code in respect of the accused Manik Ghosh as well as under Section 323/34 of the Indian Penal Code against other two acquitted accused persons and the appellant. After conclusion of trial, the learned Judge was pleased to acquit all the accused from charges under Section 323/34 of the Indian Penal Code and was pleased to convict the appellant under Section 354 of the Indian Penal Code after finding him not guilty for the offence punishable under Section 376 of the Indian Penal Code. After conclusion of trial, the learned Judge was pleased to acquit all the accused from charges under Section 323/34 of the Indian Penal Code and was pleased to convict the appellant under Section 354 of the Indian Penal Code after finding him not guilty for the offence punishable under Section 376 of the Indian Penal Code. He also submitted that from the facts and circumstances of the case, it is clear that there was use of force and/or aggression on the part of the appellant, as a result of which P.W.1 received some injuries, which could not make out a case under Section 376 of the Indian Penal Code, but definitely could make out a case within the parameters of Section 354 of the Indian Penal Code. Thus, he prayed for dismissal of the appeal. 5. Heard learned advocates for the parties and perused the impugned judgment. 6. In the instant case the prosecution examined as many as five witnesses to prove its case. 7. P.W.1, Dipali Ghosh, the complainant during her examination in chief stated that she lodged a complaint against the accused persons alleging that on 7th Bhadra at about 6.00 a.m. she went for evacuation in a field nearby to her house and at that time accused Manik Ghosh came there and pressed one 'gamcha' on her mouth from her behind and fell her down on the earth and thereafter, putting off her wearing saree and after opening his wearing pant he committed rape on her and as a result she sustained cut injury on her both elbows. She further stated that thereafter, she came to her house and reported the matter to her husband and at that time her younger son namely Prasenjit was there and he also heard the incident. She also stated that the accused persons were the three brothers and after the incident they were proceeded to field for washing jute and then they were proceeded to field by the side of her house with a lathi. When her husband asked Manik as to why he had raped on P.W.1, the accused persons assaulted her husband and also her son and as a result they fled away from their house. She also stated that the accused persons had broken the tiles of their house. When her husband asked Manik as to why he had raped on P.W.1, the accused persons assaulted her husband and also her son and as a result they fled away from their house. She also stated that the accused persons had broken the tiles of their house. During cross-examination P.W. 1 stated that she told the Investigating Officer that after opening wearing pant Manik Ghosh committed rape on her and she further stated that at the time of commission of rape she sustained no injury on her private parts. She also stated that she gave bite to the accused Manik Ghosh while he committed rape on her as well as scratched on the body of the accused Manik Ghosh. There was no injury on her backside but her head was studded with earth. 8. P.W.2, Gopal Ghosh, husband of P.W.1 during his deposition stated that his wife lodged a complaint against three accused persons. The incident took place about five years back in a field at 6.00 a.m., when his wife went to field for evacuation. She came back home in weeping state and on being asked P.W.1 stated to him that accused Manik Ghosh by pressing 'gamcha' in her mouth committed rape on her. He further stated that thereafter the three accused persons were proceeded by the side of his house having a lathi with them and on being asked by him to accused Manik Ghosh, as to why he committed the said act on his wife, the accused persons destructed his house by means of breaking the tiles, as a result he and his family left his house. During cross-examination P.W.2 stated that before his deposition he had no talk with her wife over the incident. 9. P.W.3, Dr. Ram Chand Murmu during his deposition stated that on 24th August, 2006 he was posted at Tehatta B.P.H.C. as Medical Officer and on that date he examined one Dipali Ghosh, wife of Gopal Ghosh of village Salua, P.S. Tehatta. During examination he found that there was cut injury over left elbow as well as on right elbow of Dipali Ghosh. During cross-examination P.W.3 stated that the injuries noticed by him on the body of Dipali Ghosh were simple in nature and might be caused due to accident. 10. During examination he found that there was cut injury over left elbow as well as on right elbow of Dipali Ghosh. During cross-examination P.W.3 stated that the injuries noticed by him on the body of Dipali Ghosh were simple in nature and might be caused due to accident. 10. P.W.4, Raghunath Pramanick, Assistant Sub-Inspector during his deposition proved his receiving endorsement on the written complaint and the formal F.I.R., which were marked as Ext. 2 and 3 respectively. Cross-examination of P.W.4 had been declined. 11. P.W.5, Sisir Kumar Saha, Inspector of Police as well as the Investigating Officer of this case during his deposition stated that he proved the rough sketch map along with index of the place of occurrence and after investigation he submitted charge sheet against three accused persons under Sections 323/354/34 of the Indian Penal Code. 12. For an offence under Section 354 of the Indian Penal Code intention to outrage the modesty of a woman or knowledge that the act of the appellant would result in outraging her modesty is the gravamen of the offence. The essence of a woman's modesty is her sex. Whoever uses criminal force to her with intent to outrage her modesty commits offence under this section. From the deposition of P.W.1, it is clear that her modesty was outraged by the accused Manik Ghosh when she had gone out in the field for evacuation and during such time there was nothing but a clear intent to outrage her modesty, in as much as she received injuries on the date of incident which was corroborated by the medical evidence. Though such injuries upon the victim by the accused could not make out a case under Section 376 of the Indian Penal Code but it should be an offence under Section 354 of the Indian Penal Code. Therefore, the learned Judge rightly convicted the appellant under Section 354 of the Indian Penal Code after finding him not guilty for the offence punishable under Section 376 of the Indian Penal Code. Hence, the order of conviction and sentence imposed upon the appellant passed by the learned Judge is upheld. 13. Therefore, the learned Judge rightly convicted the appellant under Section 354 of the Indian Penal Code after finding him not guilty for the offence punishable under Section 376 of the Indian Penal Code. Hence, the order of conviction and sentence imposed upon the appellant passed by the learned Judge is upheld. 13. The decisions cited by the learned advocate for the appellant in the case of Abhas Ahmed Chowdhury vs- State of Assam (supra) and in the case of Mohanlal vs- State of Rajasthan (supra) are not applicable in the instant case, as in this case criminal force was used on the victim lady as corroborated by medical evidence. 14. Learned advocate for the appellant submitted that the appellant was in custody for 170 days and now he is on bail. Therefore, bail bond of the appellant is cancelled and he is directed to surrender before the trial Court forthwith. 15. Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon them in terms of Section 428 of the Code of Criminal Procedure. 16. Accordingly, the appeal is dismissed. 17. Copy of the judgment along with Lower Court Records be sent down to the trial court at once for necessary compliance. 18. Urgent Photostat certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.