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2020 DIGILAW 521 (CAL)

Shyamal Ghosh v. State Of West Bengal

2020-06-23

MD.NIZAMUDDIN, SAHIDULLAH MUNSHI

body2020
JUDGMENT Sahidullah Munshi, J. - This appeal is against the judgment of conviction and order of sentence dated 28.08.2014 passed by the learned Additional Sessions Judge, 3rd Court, Hooghly in Sessions Trial No. 1(1)/2013 (Sessions Case no. 297/2012), thereby convicting the appellant under charges for commission of offence punishable under Section 376 of Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs.5,000/- (Rupees Five Thousand) only, in default, to suffer rigorous imprisonment for a further period of six months. 2. The prosecution case in a nutshell is that one Sarbani Bhattacharya, Inspector-in-charge of AHCU of CID, West Bengal lodged a written complaint on 02.08.2012 before the Officer-in-charge of Gurap Police Station, District Hooghly to the effect that on 01.08.2012 she along with CID team together with a number of Government Officials and few others visited Jana Sikhsha Prachar Kendra for interrogation of the inmates of Dulal Smriti Sansad, Gurap, as the inmates of Dulal Smriti Sansad, shifted to the said home for safe custody on 12.07.2012. The team had been to the Home, Jana Sikhsha Prachar Kendra, Jangipara in connection with Gurap PS case no. 57 dated 11.07.2012 under Section 302/201/34 IPC. 3. The appellant was placed on trial before trial Court to answer charges for commission of offences punishable under Section 376 of Indian Penal Code in connection with Sessions Trial No. 11 of January, 2013 Sessions Case no. 297 of 2012. 4. After completion of investigation the Investigating Agency submitted charge-sheet and the learned Judicial Magistrate upon receipt of such charge-sheet took cognizance of the offence; committed the case before the learned Sessions Judge at Hooghly. Learned trial Judge framed charges under Section 376 of Indian Penal Code against the appellant and the charges were read over and explained to the appellant while he pleaded not guilty and claimed to be tried. 5. Prosecution examined as many as 10 witnesses to prove its case. The accused was examined under Section 313 of the Code of Criminal Procedure and pleaded innocence. Learned Advocate Mr. 5. Prosecution examined as many as 10 witnesses to prove its case. The accused was examined under Section 313 of the Code of Criminal Procedure and pleaded innocence. Learned Advocate Mr. Bhattacharya who was appointed amicus curiae by this Court strenuously argued in support of the appeal praying acquittal and left no stone unturned to prove that the judgment of conviction and order of sentence is illegal and based on a finding on which no order of punishment could have been passed at all rather, he submitted that the accused is innocent and deserves to be acquitted. Mr. Bhattacharya submitted that evidence on record does not justify conviction of the appellant under Section 376 of the Indian Penal Code and thus he submitted that the impugned judgment of conviction and order of sentence are liable to be set aside. He further submitted that it was apparent from the evidence that the de facto complainant who is a CID Officer without having any evidence of an offence narrated by the victim who was a psychiatric patient initiated the proceeding and harassed the appellant and the learned trial Judge failed to appreciate the same. He further submitted that PW2 stated in her evidence that the victim was not normal and therefore, learned trial Court ought not to have taken cognizance that the accused committed an offence under Section 376 upon such an abnormal resident of the Home and consequently the order of conviction is liable to be set aside. He submitted that the punishment awarded by the learned Judge is too harsh to communicate with the offence complained of and thus sentence is not maintainable. According to Mr. Bhattacharya prosecution has failed to prove the offence of rape of the victim and therefore, the order of sentence is liable to be set aside. He also submitted that proper opportunity was not given to the accused under Section 313 of the Code of Criminal Procedure, and, therefore, the accused is entitled to be acquitted because of irregularities on the part of the Court. 6. Mr. Bhattacharya also pointed out that the investigation is based on a complaint lodged by the CID Officer while investigating another matter and this complaint was lodged after one year from the commission of alleged offence and such delay has not been explained. Therefore, according to him the order of conviction cannot stand. 7. 6. Mr. Bhattacharya also pointed out that the investigation is based on a complaint lodged by the CID Officer while investigating another matter and this complaint was lodged after one year from the commission of alleged offence and such delay has not been explained. Therefore, according to him the order of conviction cannot stand. 7. Let us now consider the finding arrived at by the trial Court on the basis of the evidence on record and also to consider how the prosecution was believed to prove its case so that the trial Judge rightly passed the order of conviction and sentence. 8. Pw1 is the complainant, Sarbani Bhattacharya, Officer-incharge Anti Human Trafficking Unit, Criminal Investigation Department (AHTU, CID) West Bengal. The complainant on whose complaint PS case no. 57 dated 11.07.2012 was started was subsequently taken control of by the CID, West Bengal. PW1 stated in her examination-in-chief one inmate of the concerned Home, namely Panbati Chowdhury (PW3) disclosed in her presence that when she was lodging at Dulal Smriti Sansad (Home) accused Shyamal Ghosh committed rape on her past winter of that year and she informed such incident to the Secretary of Dulal Smriti Sansad (Home) but Secretary did nothing. On the entire matter being taken up with the higher official, she was instructed to lodge a complaint and the complaint (Exbt.1) was, accordingly, lodged. Her signature on the complaint was proved and marked Exbt.1/1. PW1 also stated that statement of Panbati (victim) was recorded by the concerned I.O. in video which was said to be in proper custody. PW1 on cross-examination stated "I myself and our team members were then present there. As controlling Officer relating Gurap P.S. Case No. 57 date 11.7.2013 I also interrogated Panbati. I recorded the statement of Panbati and I supplied the same to S.I. Jayabrata Ganguli in connection with Gurap P.S. Case no. 57 dated 11.7.2012." In the cross-examination PW1 further stated "I cannot recollect whether Panbati declared the name of her husband or not. I cannot also recollect whether Panbati has stated from which date she was lodging in the Dulal Smriti Sansad Home. 57 dated 11.7.2012." In the cross-examination PW1 further stated "I cannot recollect whether Panbati declared the name of her husband or not. I cannot also recollect whether Panbati has stated from which date she was lodging in the Dulal Smriti Sansad Home. I put question to Panbati to the effect that in spite of his normal mental capacity as to why he was been lodging in concerned Home and in answer to that she disclosed that she had been found missing and she was not in position to find out her own house and as such she was lodging in the Home. Question of regaining normalcy of Panbati I cannot and does not arise as she was from the very inception was normal." From the cross- examination of PW1 at least one thing is clear that the defence tried to find out from the complaint that she had no knowledge about the mental state of affairs of the victim but from the cross-examination it revealed that PW1 clearly answered that the victim was normal not abnormal. Now let us see how far the statement of PW1 (complainant) has got corroboration from other witnesses. 9. Pw2 Manik Chandra Mondal, who is a staff of Dulal Smriti Sansad (Home), stated in his examination-in-chief "I know accd. Shymal Ghosh (identified). I found that accd. Shymal time to time used to visit our Secretary." He further stated "I do not find our Secretary to take any preventive measure to that effect." In cross-examination this PW2 was sought to be disbelieved and as a result when question was asked he answered "So far my knowledge goes in the last part of July, 2012 Police examined me and recorded my statement." 10. Pw3 in her statement stated "Accd. Shymal took me in the store room of Dulal Smiriti Sansad and committed rape on me in the evening, more or less one year back from to-day and that time was winter season. ...He committed rape on me forcefully. I stated about committing of rape on me by accd. before the I.O. and I also narrated the same in my statement U/s 164 (Exbt.10) Cr.P.C. recorded by concerned Magistrate wherein I put my thumb impression." This witness in cross-examination by the defence stated "4 days after the incident of committing rape I narrated the fact to Bulbul Chowdhury. I stated about committing of rape on me by accd. before the I.O. and I also narrated the same in my statement U/s 164 (Exbt.10) Cr.P.C. recorded by concerned Magistrate wherein I put my thumb impression." This witness in cross-examination by the defence stated "4 days after the incident of committing rape I narrated the fact to Bulbul Chowdhury. When Police came in connection with the famous case of Guria I stated to police about committing rape on me by accd. After the death of Guria Police came at D.S.S. Home and it was Tuesday or Wednesday about one year back. Police brought me in Court. Two lady employees of Jangipara Home accompanied me. I was examined by Police." 11. The statement of PW3 gets further corroboration from the Helpline Operator PW4 which was also relied on by the trial Court. This PW4 in cross-examination stated "I did not personally lodge any complaint at Gurap P.S. hearing such statement of Panbati. Bulbul Chowdhury used to look after the inmates of that Home and her duty was in between 10 a.m. and 5 p.m. Bulbul was present when Panbati disclosed such fact of rape." 12. Pw5 Rajib Panday is the Joint BDO and is an independent witness. He disposed "When the Members of C.I.D. Team were investigating the matter and when on e of them was interrogating one inmate of that Home named Panbati I was present there and it is well within my hearing that Panbati Chowdhuri disclosed that one Shymal Ghosh committed rape on her in a store room at that Home (Dulal Smriti Sansad)." On cross-examination this witness further stated "It is not a fact that Panbati Chowdhuri did not disclose about rape on her by accd. Shymal neither before the C.I.D. Officer nor before us. It is not a fact that Panbati Chowdhuri is not capable of understanding well Bengali words." 13. Pw6 is a Block Welfare Officer, an independent witness stated in examination-in-chief "At that Home I found one inmate Panbati @ Panpati Chowdhuri. Panbati Chowdhuri was interrogated and examined by the concerned C.I.D. Inspector in our presence and she disclosed that she was raped by accd. Shymal Ghosh at the Home at Dulal Smriti Sandad at Khajurdaha." In cross-examination by the defence this witness confirmed that the complainant when enquired about the offence he was present there. Panbati Chowdhuri was interrogated and examined by the concerned C.I.D. Inspector in our presence and she disclosed that she was raped by accd. Shymal Ghosh at the Home at Dulal Smriti Sandad at Khajurdaha." In cross-examination by the defence this witness confirmed that the complainant when enquired about the offence he was present there. However, no suggestion was given in the cross-examination by the defence that this witness had any bias against the accused. 14. Pw7 is a police witness, signatory on the seizure list who stated "I once saw accd. Shyamal Ghosh. Accd. Shymal Ghosh is present (identified). One statement of Panbati Chowdhury was recorded in video and after that said video casette was seized under seizure list and as witness I signed on that. This is the carbon copy of seizure list prepared along with the original (marked 'X' for identification). This is my signature in carbon impression on the seizure list (marked Ext.2/1)." Cross-examination of this witness has been declined. Therefore, what has been stated by the witness regarding the statement of Panbati Chowdhuri remains undisputed. 15. Pw8 is a doctor. He was declared hostile but in crossexamination he stated "I stated to I.O. that in our presence some inmates came from Khajurdaha Dulal Smriti Sangha Home were interrogated and examined in connection with Guria murder case by C.I.D. Officer. I stated to I.O. that one Panbati Chowdhury being one of the inmates was interrogated by C.I.D. Officer Sarbani Bhattacharjee and Police Officer Malay Bose, I.O. of that Guria case. I also stated to I.O. that at that time of such interrogation and examination I was present." He further stated "...On 10.8.2012 I along with C.I.D. Officer Sarbani Chattacharejee and her team and Srabanti Das - Executive Magistrate and Amiya Chakraborty - Block Wesfare Officer went to Jangipara Home." 16. Pw9 is the first Investigating Officer was thoroughly crossexamined to prove that the investigation was not properly made and that a false case has been lodged but the defence could not be successful in doing so. In cross-examination by the defence this witness remained unshaken. 17. Pw10 is a Sub-inspector of D.I.B. Hooghly who identified the accused and recorded the statement of other witnesses. He brought the victim to the Correctional Home for Test Identification Parade for the accused person and TI Parade was duly held. In cross-examination by the defence this witness remained unshaken. 17. Pw10 is a Sub-inspector of D.I.B. Hooghly who identified the accused and recorded the statement of other witnesses. He brought the victim to the Correctional Home for Test Identification Parade for the accused person and TI Parade was duly held. This witness collected the report of TI Parade and also collected copy of statement of the victim girl recorded under Section 164 Code of Criminal Procedure. He submitted charge-sheet against the accused Shyamal Ghosh under Section 376 IPC being C.S. No. 84/12 dated 8.11.2012. Report of the TI Parade has been marked Exbt.7 on admission. Suggestion of the defence that false charge-sheet was submitted, was denied by this witness and stated "It is not a fact that the charge-sheet submitted by me is nothing but a table work and it is totally perfunctory one or that the accd. person has been falsely implicated in this case." 18. The accused was examined under Section 313 of the Code of Criminal Procedure but all throughout the convict pleaded that he was innocent and nowhere any denial came as appears from record that he never committed the alleged offence or that he was falsely implicated. When convict was asked that according to the evidence of PW3, victim herself, the accused committed rape upon her in the evening prior to taking her at the place of occurrence, that is, store room, the appellant stated he is innocent. When the accused was asked that PW3 victim in her statement recorded by the learned Magistrate under Section 164 of the Code of Criminal Procedure stated that she was violated by the accused, the accused stated the he is innocent. With regard to the evidence of PW4 when the accused was asked that he used to visit time and again the said Dulal Smriti Sansad the accused stated he is innocent. With reference to evidence of PW4 that the accused committed rape upon the victim Panbati Chowdhury inside Dulal Smriti Sansad on her persons and other staff staffs even then the accused stated he is innocent. With reference to the evidence of PW7 that statement of Panbati Chowdhury was recorded in video which was later seized under the seizure list with the signature of PW7 as the list was marked Exbt.2/1 the accused stated he is innocent. With reference to the evidence of PW7 that statement of Panbati Chowdhury was recorded in video which was later seized under the seizure list with the signature of PW7 as the list was marked Exbt.2/1 the accused stated he is innocent. Therefore, it appears that the accused would not be able to justify his innocence in the case. On proper appreciation of the evidence we find that the complaint lodged by PW1 gets due corroboration from other witnesses including independent witnesses like Government Officials. PW2, duly corroborates the evidence of PW1 and the factum of written complaint. PW4 corroborates the statement of the victim, PW5 and PW6, the independent witnesses duly corroborates the statement of the victim as also the substantive evidence of PW1 and the complaint. Based on these witnesses the trial Court has pronounced judgment and we do not find any wrong in it. Even the statement of the victim recorded under Section 164 of Cr.P.C. (Exbt.10) where she has stated that the accused used to visit the concerned Home committed rape upon her person three to four times and she knew the accused. This is further strengthened by the fact that Exbt.7, that is, T.I. Parade Report it shows that victim duly identified the accused inside the District Correctional Home, Hooghly, where T.I. Parade was held. This evidence of the victim under Section 164 (Exbt.10) and the Report of T.I. Parade (Exbt.7) if taken together for consideration, it would be sufficient to hold that the evidence of PW1 based on the written complaint has been duly corroborated. 19. Even we are not unmindful on the pronouncement made by the Hon'ble Apex Court in a catena of decisions that victim's statement alone in a rape case is itself sufficient for awarding punishment to a rapist and such statement of the victim does not require any corroboration which is to be considered at par with the evidence of an injured witness. 20. Trial Court has pronounced the judgment of conviction and awarded sentence based on these witnesses. Therefore, we do not find any justification to hold contrary thereto. 21. Pw5 and PW6 being the independent witnesses also corroborated both the complaint case and the statement of the victim. Therefore, we do not also find any justification to hold otherwise that the accused is an innocent person. Therefore, we do not find any justification to hold contrary thereto. 21. Pw5 and PW6 being the independent witnesses also corroborated both the complaint case and the statement of the victim. Therefore, we do not also find any justification to hold otherwise that the accused is an innocent person. Both these witnesses were present at the time of interrogation and they heard the victim complaining of the commission of offence under Section 376 IPC. Although Mr. Bhattacharya has strenuously argued that the video clip was discussed by the trial Court but the same was never produced, we have taken note of the fact but at the same time we cannot ignore the recording of the victim in the video cassette which was taken into seizure list along with original marked 'X' for identification. Signature of PW7 of such carbon impression of the seizure list was marked Exbt.2/1. Cross-examination of this witness was declined. Apart from the video cassette, we hold that there are sufficient evidence on record to hold that the accused is guilty of the offence complained of. The lacuna which are being pointed out by the defence had not been asked to the Investigating Officer who is the only person to clarify the same but that is hopelessly absent in the cross-examination of the Investigating Officer PW9 and PW10. 22. We therefore, hold that the judgment of conviction and order of sentence passed by the learned trial Court do not call for any interference and the same is confirmed. 23. All concerned are directed to act on a server copy of this judgment and order. 24. Criminal Section is directed to send down the records to the learned Court below together with a copy of the judgment forthwith to the concerned learned trial Court. 25. Urgent Photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance with all usual formalities. 26. I agree.