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2019 DIGILAW 305 (CAL)

Sanjib Kumar Biswas v. State of West Bengal

2019-03-04

JOYMALYA BAGCHI, MANOJIT MANDAL

body2019
JUDGMENT : Joymalya Bagchi, J. 1. Conviction and sentence dated 13th June/14th June, 2016 passed by the learned Additional Sessions Judge, 2nd Court, Krishnagar, Nadia in Sessions Case No. 05 (10) of 2014 [Sessions Trial No. I (VIII) of 2015] convicting the appellant-convict in CRA 474 of 2016 for commission of offence punishable under Section 376 IPC and Section 8 of the Protection of Children from Sexual Offences Act, 2012 and sentencing him to suffer rigorous imprisonment for seven years and to pay fine of Rs.10,000/-, in default, to suffer rigorous imprisonment for six months more for the offence punishable under Section 376 IPC and to suffer rigorous imprisonment for three years and to pay fine of Rs.5,000/-, in default, to suffer rigorous imprisonment for three months more for the offence punishable under Section 8 of the POCSO Act and the acquittal of the other co-accuseds namely, Sweety Chakraborty, Nonigopal Biswas and Kamana Rani Biswas is the subject matter of challenge in both the appeals. While the appellant-convict has challenged his conviction and sentence in CRA 474 of 2016, one of the victims i.e. PW2 has preferred the appeal being CRA 95 of 2017 under the proviso of Section 372 of the Code of Criminal Procedure alleging that the appellant-convict ought to have been tried under graver charges, enhancement of compensation and acquittal of the aforesaid co-accuseds in this case. 2. Gist of the prosecution case as alleged against the appellant-convict is to the effect that the appellant-convict who was related to both the victims (hereinafter referred to as 'victim X' & 'victim Y') had subjected them to repeated sexual assaults on various dates. Co-accuseds, being relations of the appellant convict, had threatened the said victim. Trial court framed the following charge against the appellant-convict:- "That you, on or about after 28th November, 2014 at your house situated at Mayapur under PS-Nabadwip, Dist-Nadia committed rape on Somi Mazumder, and that you thereby committed an offence punishable u/s. 376 IPC and within the cognizance of this Court. That you, on or about after 28th November, 2014 at your house situated at Mayapur under PSNabadwip, Dist-Nadia committed sexual assault on Promi Mazumder, a minor girl aged about 12 years and that you thereby committed an offence punishable u/s. 8 of POCSO Act and within the cognizance of this Court. That you, on or about after 28th November, 2014 at your house situated at Mayapur under PSNabadwip, Dist-Nadia committed sexual assault on Promi Mazumder, a minor girl aged about 12 years and that you thereby committed an offence punishable u/s. 8 of POCSO Act and within the cognizance of this Court. And against the co-accuseds, namely, Sweety Chakraborty, Noni Gopal Biswas and Kamana Biswas as follows:- That you, on or about after 28th November, 2014 at your house situated at Mayapur under PSNabadwip, Dist-Nadia all committed criminal intimidation on Somi Mazumder and that you thereby committed an offence punishable u/s. 506 of IPC and within the cognizance of this Court." 3. Prosecution examined 16 witnesses to prove the charges including the victims namely, 'victim X' (de-facto complainant) and 'victim Y' (a minor) as PW2 & PW1 respectively. The defence of the appellant-convict was one of innocence and false implication. In support of his defence, he examined four witnesses. 4. Arguing on behalf of the appellant-victim in CRA 95 of 2017, Mr. Deep Chaim Kabir, learned advocate, drew our attention to the deposition of PW1 (the minor victim) and submitted that the evidence on record disclosed an offence of aggravated penetrative assault punishable under Section 6 of the POCSO Act. He also relied on the deposition of PW2 (de-facto complainant) and submitted as the appellant-convict was a relation and a person in position of trust of the victims, charge ought to have been framed under Section 376(2)(f) IPC instead of Section 376 simplicitor. Trial court illegally tried the accused for lesser charges and plea bite sentences were awarded which are much below the minimum sentence specified for the graver offences disclosed in this case. No compensation was also awarded to the victims under the Scheme framed by the appropriate Government under Section 357A of the Code of Criminal Procedure. Evidence on record also established the offence of criminal intimidation against the co-accuseds. 5. On the other hand, Mr. Kallol Mondal, learned advocate appearing for the appellant-convict in CRA 474 of 2016 submitted the evidence on record do not disclose the ingredients of the offences for which his client was tried far less the graver offences. He submitted that the appellant-convict was a victim of family rivalry and the improbability of the prosecution case has been clearly established from the defence evidence. He submitted that the appellant-convict was a victim of family rivalry and the improbability of the prosecution case has been clearly established from the defence evidence. No credible evidence has been adduced against the co-accuseds justifying reversal of their acquittal. He accordingly, prayed that the appeal against the conviction and sentence be allowed and that of the victim be dismissed. 6. As a preliminary issue with regard to non-framing of graver charge has been raised in the appeal preferred by the victim, I have chosen to address the same at the first instance before going into the merits of the conviction which is the subject matter of the appeal by the appellant-convict in CRA 474 of 2016. 7. Pw1, a minor, in course of her deposition, stated as follows:- "In the year 2014 I went to get private tuition at the house of Sanjib Biswas and Sanjib Biswas asked me to come on his bed and on the bed he touched my vagina and he sucked my vagina and I was directed to suck his penis and for that reason semen was coming out from his penis and poured it into my mouth as well as all over of my body and thereafter I was crying and he threatened me stating inter alia that if the matter was disclosed to anybody I was killed." 8. Pw2, another victim in her evidence stated that the appellant-convict was his cousin and after coming from Bangladesh he kept her in his custody on the promise of giving her a job, but used her as a maidservant and committed rape on her against her will. 9. Section 376(2)(f) of the Indian Penal Code reads as follows :- "S.376. Punishment for rape. - (1) *** *** *** (2) Whoever, -- (a) **** **** **** (b) **** **** **** **** (c) **** **** **** **** (d) **** **** **** **** (e) **** **** **** **** (f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or.........." "S.6. Punishment for aggravated penetrative sexual assault. - Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine." 10. Punishment for aggravated penetrative sexual assault. - Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine." 10. Section 3 of POCSO Act, 2012 reads as follows:- "3. Penetrative sexual assault. - A person is said to commit "penetrative sexual assault" if - (a) ................. (b) ................. (c) ................. (d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person." 11. Section 5, inter alia, defines 'aggravated sexual assault' as follows:- "5. Aggravated penetrative sexual assault. - (a) Whoever, being a police officer, commits penetrative sexual assault on a child - (n) whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child; or (p) whoever being in a position of trust or authority of a child commits penetrative sexual assault on the child in an institution or home of the child or anywhere else; or" 12. Reading the evidence on record in the light of the aforesaid penal provisions, I am of the opinion that ingredients of the offences punishable under Section 376(2)(f) of the Indian Penal Code and Section 6 of the POCSO Act are disclosed. 13. Under such circumstances, I am of the view that duty was cast upon the trial court to frame charges with regard to the graver offences disclosed in the facts of the case. Trial court failed to exercise such jurisdiction vested in it and proceeded to conduct the trial in respect of the lesser offences. It has been argued that the incident occurred in 2014 and the appellant-convict is in jail for about three years. Hence, no worthwhile purpose would be served in remanding the matter for retrial after framing graver charges. 14. Sexual offence leaves an indelible mark not only on the body but in the mind of the victim. It has been argued that the incident occurred in 2014 and the appellant-convict is in jail for about three years. Hence, no worthwhile purpose would be served in remanding the matter for retrial after framing graver charges. 14. Sexual offence leaves an indelible mark not only on the body but in the mind of the victim. Damage caused to the respect, dignity and the psyche of the victim continues to haunt her throughout her life even after the visible scars of sexual crime have disappeared. It is more traumatic when such heinous act is perpetrated by someone, who is a near relation having fiduciary control over the victim. 15. I have borne in mind these factors which arise in the factual matrix of the present case. Hence, I am of the opinion notwithstanding passage of time in view of the gravity of the offences and their impact on the victims it would be in the interests of justice to remand the matter for retrial upon reframing charges with regard to the aforesaid graver offences. 16. Accordingly, I remand the case for retrial with the following directions:- (a) Trial court shall reframe the charges under Section 376(2)(f) of the Indian Penal Code and under Section 6 of POCSO Act against the appellant-convict and proceed with the trial from that stage in terms of Section 216/217 of the Code of Criminal Procedure. Evidence already recorded shall remain on record and may be used as evidence in the course of retrial; (b) Parties shall be at liberty to recall/resummon witnesses for further examination, cross-examination with reference to the altered changes and/or lead further evidence, if necessary; (c) Thereafter, the appellant shall be examined under Section 313 of the Code of Criminal Procedure and the trial shall be taken to its logical conclusion in accordance with law; 17. As the case has been remanded for retrial due to non-framing of graver charges, as aforesaid, I refrain from making any observation on merits with regard to the conviction of the appellant-convict. Trial court is directed to appreciate the evidence on record during the trial independently and in accordance with law and to conclude the same within three months from the date of communication of this order. 18. I find that the evidence on record with regard to allegations of criminal intimidation levelled against the co-accuseds namely, respondent/opposite party nos. Trial court is directed to appreciate the evidence on record during the trial independently and in accordance with law and to conclude the same within three months from the date of communication of this order. 18. I find that the evidence on record with regard to allegations of criminal intimidation levelled against the co-accuseds namely, respondent/opposite party nos. 3 to 5 in CRA 95 of 2017 are vague, omnibus and flimsy. Hence, I choose not to disturb their acquittal in the present case. 19. With the aforesaid directions, both the appeals being CRA 474 of 2016 and CRA 95 of 2017 are disposed of. 20. I am conscious that the appellant-convict has suffered the sceptre of a criminal trial for about five years. Although in the light of the gravity of the offences and their impact on the victims, I am not inclined to give a hiatus to the prosecution but I consider it prudent that the appellant-convict may be enlarged on bail during the retrial of the case as he had been on bail during trial and did not misuse his liberty in any manner whatsoever. 21. Accordingly, the appellant-convict, namely Sanjib Kumar Biswas, be released on bail upon furnishing bond of Rs.20,000/- (Rupees Twenty thousand only), with two sureties of like amount each, one of whom must be local, to the satisfaction of the learned Chief Judicial Magistrate, Nadia at Krishnagar subject to condition that the said appellant-convict shall appear before the trial court on every date of hearing until further orders and shall not intimidate witnesses or tamper with evidence in any manner whatsoever and on further condition that he shall not enter the jurisdiction of Nabadwip Police Station until further orders except for attending court proceedings and shall provide the address where he shall presently reside to the Investigating Officer as well as the court below and shall meet the Officer-in-charge of the concerned police station where he shall presently reside once in a week until further orders. 22. In the event he fails to appear before the trial court during the trial without justifiable cause or misuses his liberty in any nature, the trial court shall be at liberty to cancel his bail without reference to this court. 23. 22. In the event he fails to appear before the trial court during the trial without justifiable cause or misuses his liberty in any nature, the trial court shall be at liberty to cancel his bail without reference to this court. 23. In the course of hearing of the appeals, I was informed that an enquiry under the provisions of Juvenile Justice (Care & Protection) Act is pending against PW1 (the minor victim) under the provisions of the Foreigners' Act. It is expected that such enquiry be concluded at an early date, if not already done. 24. The lower court records along with a copy of this judgment be sent down at once to the learned trial court for necessary action. 25. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities. I agree.