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2020 DIGILAW 21 (CAL)

Makhan Mondal v. State Of West Bengal

2020-01-06

TIRTHANKAR GHOSH

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JUDGMENT Tirthankar Ghosh, J. - The present appeal has been preferred against the judgment and order of conviction and sentence dated 15-07-2009 passed by the Ld. Additional District & Sessions Judge, Fast Track 1st Court, Jalpaiguri in connection with Sessions Case No. 514 of 2008 (Sessions Trial No. 09 of 2009), wherein the appellant was held guilty for commission of offence under Section 448 of the Indian Penal Code (IPC) and under Sections 376/511 of the IPC. Consequently the appellant was sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 500/- in default suffer rigorous imprisonment for three months for the offence under Section 448 of the IPC and rigorous imprisonment for five years and pay fine of Rs. 1000/- in default suffer rigorous imprisonment for six months for the offence under Sections 376/511 of the IPC. 2. It is reflected from the records of this case that on 24-12-2009 a Coordinate Bench of this Court was pleased to admit the appeal, call for the records, issue usual notices, stay realization of fine and granted liberty to prefer an application for bail upon service of notice to the State. By a separate order dated 24-12-2009 a rule was issued calling upon the appellant to show cause as to why the order of sentence imposed upon him for his conviction under Sections 376/511 of the IPC passed by the Ld. Trial Court should not be enhanced and further orders be passed. The said rule was registered as CRR 781 of 2010. 3. The records also reflected that by an order dated 19-02-2010 the appellant was released on bail and consequently there was a direction for expeditious preparation of the paper books. By an order dated 14-01-2016 as none appear on behalf of the appellant, a notice was issued as to why the bail which was granted during the pendency of appeal should not be cancelled and the said notice was made returnable within three weeks. The last of the order dated 14- 07-2016 also reflects that the appellant was absconding. 4. The Ld. Advocate appearing for the appellant submits that the appellant has served out the sentence which was imposed by the Ld. Trial Court and to that effect he has submitted a copy of the prisoner's petition which has been received by him. The last of the order dated 14- 07-2016 also reflects that the appellant was absconding. 4. The Ld. Advocate appearing for the appellant submits that the appellant has served out the sentence which was imposed by the Ld. Trial Court and to that effect he has submitted a copy of the prisoner's petition which has been received by him. It is seen that from 15-09-2016 till date the appellant is in custody in connection with the present case and for more than eight months he was in custody during the trial, further more than seven months he has suffered after the order of conviction and sentence was pronounced by the Ld. Trial Court and till the High Court entertained the appeal and released the appellant on bail. 5. The history of the case initiated with the appellant being implicated in connection with Moynaguri Police Station Case No. 641/08 dated 25-10-2008 under Sections 448/376/511 of the IPC which was on the basis of a written complaint lodged by PW1 addressed to the Officer-in-Charge, Moynaguri Police Station. 6. The allegations in brief are that on 22-10-2008 at about 10:30 PM when complainant's husband was not present at the house, the appellant being a neighbour entered in the house and continuously touched different part of her body while she was sleeping at her room. According to the complainant, the act of the accused woke her up and she found that the appellant was trying to gag her mouth and attempted to lift her wearing apparels towards her waist and was disrobing himself. It was further alleged that the accused attempted to ravish the complainant. However, the complainant ultimately succeeded in rescuing herself from the clutches of the appellant and raised hue and cry when the children of the complainant as also the local people rushed to her room. 7. The investigation of the case commenced on the aforesaid information and one Subir Kumar Goon, Sub-Inspector of Police was entrusted investigation of the case by Officer-in-Charge of the police station. After completion of investigation, the Investigating Officer of the case submitted chargesheet before the Ld. CJM, Jalpaiguri under Sections 448/376/511 of the IPC. The case was thereafter committed to the Ld. After completion of investigation, the Investigating Officer of the case submitted chargesheet before the Ld. CJM, Jalpaiguri under Sections 448/376/511 of the IPC. The case was thereafter committed to the Ld. Sessions Judge and after compliance of all the formalities charge was framed against the appellant under Sections 448/376/511 of the IPC on or about 14-01-2009, the contents of the charge were read over to the appellant to which he pleaded not guilty and claimed to be tried. 8. The prosecution in order to prove its case relied upon 7 witnesses which included PW1, the prosecutrix; PW2, Bhalobasa Sarkar, a neighbor of the prosecutrix; PW3, Rabindra Nath Sarkar, neighbour of the prosecutrix; PW4, Gurupada Sarkar, scribe of the FIR; PW5 Biren Sarkar, neighbour of the prosecutrix; PW6, Dr. Rabindra Nath Halder, Medical Officer of the Jalpaiguri Sadar Hospital; and PW7, the Investigating Officer of the case. 9. From the evidence deposed by PW1, the prosecutrix, it is found that she has corroborated the contentions advanced in the written complaint and also explained the delay for informing the police. The defence tried their level best, however, there was no contradiction in her evidence and she could not be dislodged from her earlier version. PWs 2, 3 & 5 being neighbours narrated their version as they have heard from PW1 but they also reiterated and corroborated the version of PW1. PW6, from the medical examination report which was marked as Ext.2, narrated the incident as was evident from the report and it is reflected from the report that no injury was detected either in her body or at her private parts. 10. I have taken into account the evidence of the prosecution and also the documents which have been relied upon by the prosecution and taking into account the deposition of PW1, I find that there is a ring of truth attached to her version which substantiates her initial allegation regarding breaking open the door of her house and attempt to commit offence under Section 376 of the IPC. To that extent, I do not find any illegality in the judgment and order of conviction and sentence so passed by the Ld. Trial Court. Accordingly, the judgment and order of conviction and sentence dated 15-07-2009 passed by the Ld. To that extent, I do not find any illegality in the judgment and order of conviction and sentence so passed by the Ld. Trial Court. Accordingly, the judgment and order of conviction and sentence dated 15-07-2009 passed by the Ld. Additional District & Sessions Judge, Fast Track 1st Court, Jalpaiguri in connection with Sessions Case No. 514 of 2008 (Sessions Trial No. 09 of 2009) is hereby affirmed. 11. In CRR 781 of 2010 although rule was issued in respect of enhancement of the sentence for commission of offence under Sections 376/511 of the IPC, I do not find any overwhelming materials which calls for interference for enhancing the sentence so imposed by the Ld. Trial Court. Thus, no interference is called for, so far as the sentence which has been imposed upon the appellant. 12. Accordingly, the rule is discharged. 13. As the accused has already undergone the sentence which was imposed upon the appellant by the Ld. Trial Court in connection with Sessions Case No. 514 of 2008 and Sessions Trial No. 09 of 2009, he should be released if he is not wanted in connection with any other case. 14. Cra 651 of 2009 is thus dismissed and CRR 781 of 2010 is also dismissed. 15. Department is directed to inform the concerned correctional home for releasing the appellant if he is not wanted in any other case and the LCR be sent back to the Lower Court. 16. Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.