Sarada Singha vs The State Of West Bengal
2021 Latest Caselaw 3759 Cal

Form J(2)         IN THE HIGH COURT AT CALCUTTA
                     Criminal Appellate Jurisdiction
                                Appellate Side

Present :
The Hon'ble Justice Bibek Chaudhuri


                          C.R.A. 171 of 2018
                               With
           IA NO. CRAN 1 of 2018 (Old No. 1099 of 2018)
                         Sarada Singha
                                   Vs.
                        The State of West Bengal


For the Appellant         :   Mr.Samiran Mandal, Adv.
                              Mr.Abhinaba Dan, Adv.


For the State :               Mr. Saswata Gopal Mukherjee, Ld. P.P.
                              Mr. Sandip Chakraborty,
                              Mr.Ashok Das

Heard on                                : 14.07.2021

Judgment On                             : 14.07.2021

Bibek Chaudhuri, J.

In the instant appeal under Section 373(2) of the Code of

Criminal Procedure (hereinafter described as the Code), the

convict/appellant has assailed the judgment and order of conviction

and sentence passed by the learned Additional Sessions Judge, Khatra

in Sessions trial No. 3 (10) of 2014 corresponding to Sessions Case

No. 10(7) of 2013 thereby convicting and sentencing him to suffer

rigorous imprisonment for three years and also to pay fine of Rs.

1,000/- with default clause for committing offence under Section 354

of the Indian Penal Code.

At the outset it is pertinent to note that though the trial Court

framed charge against the appellant under Section 376/511 of the

Indian Penal Code, the learned trial Judge on appreciation of

evidence , both oral and documentary found that the prosecution

failed to bring home the charge under Section 376/511 of IPC against

the accused. However, there is sufficient material to hold that the

accused committed offence under Section 354 of the Indian Penal

Code and accordingly the learned Court below convicted and

sentenced the accused to suffer imprisonment for three years

under the provisions of Section 222 of the Code.

Prosecution case germinated with lodging of an FIR by the

daughter of one Anil Lohar (hereinafter described as the victim ). In

the written complaint she alleged that on 10 th July, 2012 at about

5.30 a.m. she went to an open place near a pond to attend nature's

call. While she was returning, the accused caught hold of her,

touched her breast and other parts of body, then forcibly laid her

down on the ground with the intention to commit rape upon her.

However, the victim somehow managed to get out of the clutches of

the accused and returned home. She could not tell the incident to

any of her family members out of shame on the date of occurrence

and also on the following days . Only on 13 th July, 2012, she informed

the incident to her parents and other relatives considering her

future safety and subsequently lodged complaint in the local P.S. In

the FIR it was stated by the de facto complainant that she was a

student of class X at the relevant point of time , aged about 16 years .

On the basis of the said complaint Indpur Police Station case

No. 60 of 2012 under Section 376/511 of the Indian Penal Code was

registered, police took up this case for investigation. During

investigation statement of the victim girl was recorded under Section

164 of the Code of Criminal Procedure. She was also examined by a

Medical Officer. The Investigating Officer also examined and recorded

statement of available witnesses, prepared sketch map of the place of

occurrence and on conclusion of investigation submitted charge sheet

against the accused under Section 376/511 of the Code of Criminal

Procedure.

It appears from the lower Court record that in order to bring

home the charge against the appellant, prosecution examined in all

nine witnesses. Amongst them the P.W. 3 is the victim and

prosecutrix. P.W. 1 and P.W.2 are the father and mother of the victim

respectively. P.W. 4 is the uncle of the victim. P.W. 5, P.W. 6, P.W. 7

and P.W. 8 are all members of Lohar family. P.W.9 is the

Investigating Officer of this case.

On careful perusal of the evidence on record it is ascertained

that except the victim all the witnesses are in the nature of hearsay.

They did not see the occurrence. It is pointed out at the very

beginning argument by the learned counsel for the appellant that

according to the FIR date of occurrence was 10 th July, 2012. But the

FIR was lodged after three days, that is on 13 th July,2012. There is no

explanation of delay in lodging the FIR. On the contrary, it is found

from the evidence on record that the father of the prosecutrix is a

member of village committee. A criminal case was initiated against

the members of the village committee for committing murder of the

brother of the accused. In the said case some members of the village

committee was convicted and sentenced. Therefore, there is every

reason to implicate the accused who is the elder brother of the

deceased falsely and for such purpose a concocted FIR was lodged

after three days of the alleged occurrence.

It is also submitted by the learned advocate for the appellant

that the prosecution failed to prove the place of occurrence.

According to the de facto complainant the place of occurrence is an

open field near the pond where female inhabitants of the village

regularly go to attend nature's call. On the contrary, the father of the

de facto complainant stated that the incident took place inside a

forest by the side of the pond. Learned advocate for the appellant

also draws my attention to the sketch map prepared by the

investigating officer of this case and submits that Investigating Officer

did not mention existence of any forest or bushes near the pond.

There are agricultural fields on both side of the pond and the version

of the de facto complainant and her father with regard to the place of

occurrence being contradictory, prosecution case cannot be believed.

It is further submitted by the learned advocate for the appellant that

the victim girl while examined as P.W.3 stated that the female

inhabitants of their village regularly go to the place, where she was

allegedly apprehended by the accused, to attend nature's call.

Therefore, it is very natural that apart from the victim girl there must

be other persons around the place of occurrence on the date and time

of alleged incident. But the prosecution failed to examine any

independent witnesses in this case.

Considering all such aspects of the matter it is urged by the

learned advocate for the appellant that the learned trial Judge

committed gross error in appreciating the evidence of P.W.3 and other

witnesses and holding the accused guilty for committing offence under

Section 354 of the Indian Penal Code. Lastly he submits that the

incident allegedly took place on 10 th July, 2012. The appellant was held

guilty for committing offence under Section 354 of the Indian Penal

Code. At the time of commission of alleged offence, an offender may

be punished with imprisonment of either description for a term which

may extend to two years, or with fine, or with both. The learned trial

Judge failed to consider the pre-amended provision of Section 354 of

the Indian Penal Code and passed an order of sentence of

imprisonment for a term of three years which according to law cannot

sustain. The accused must be prosecuted on the basis of the penal

provision applicable on the date of commission of offence. On such

ground also the impugned judgment and order of conviction and

sentence is liable to be set aside.

Mr. Chakraborty, learned P.P.-in-charge, on the other hand

submits that in respect of an offence against a woman with regard to

outraging of modesty, attempt to rape or commission of rape etc.

delay in lodging F.I.R. is not fatal. Practically in number of cases the

victim and her family members do not want to lodge any complaint

against the accused alleging such incident out of shame and

humiliation. It is not uncommon in our village society that a girl being

victim of such offence is castigated by the co-villagers raising question

on her character. Therefore, delay in lodging F.I.R. in the instant case

should be considered under the above backdrop. He also submits that

it is not true that the de facto complainant did not explain the delay in

the F.I.R. Practically, she stated that she could not state the incident

for two days to her family members out of shame.

Secondly, he submits that in a case of outraging modesty the

evidence of the prosecutrix can be the sole basis of conviction. If the

evidence of the prosecutrix appears to the Court trustworthy, cogent,

believable and unblemished, the Court can record conviction of the

accused on the basis of sole testimony of the prosecutrix and no

corroboration is necessary in such case.

It is submitted by the learned P.P.-in-Charge that the learned

trial Judge elaborately discussed the evidence on record and came to

the conclusion that the accused outraged modesty of the victim girl.

There is no reason to interfere with the impugned judgment, order of

conviction and sentence.

Having heard the learned advocates for the appellant and the

respondent/State of West Bengal and on perusal of the entire evidence

on record independently as well as the impugned judgment, I like to

discuss the issue as to whether the place of occurrence was identified

by the witnesses during evidence or it was shifted. The victim girl

stated in her evidence when she was returning after attending nature's

call she was caught hold by the accused from behind in an open place.

The father of the victim girl, on the other hand, stated that the

accused outraged modesty of the victim inside a forest by the side of a

pond.

I have closely perused the sketch map. On the eastern side of

the pond there is an agricultural land. On the western side of the pond

there are agricultural lands. On the northern side of the pond there are

bushes and trees and thereafter the house of one Puranjoy Lohar is

situated. On the southern side of the place of occurrence the house of

the accused is situated at a distance of about 200 metres. Place of

occurrence is on the eastern side of the pond being agricultural land.

Just on the adjacent north of the place of occurrence there are bushes

and trees. According to the de facto complainant her modesty was

outraged on the agricultural land and according to the father of the de

facto complainant the incident took place inside the bushes situated

just adjacent to the place of occurrence. The father of the de facto

complainant is not an eye witness. He narrated the place of

occurrence on the basis of the statement made by the Investigating

Officer.

In view of the fact that except P.W.3, all other witnesses

narrated the place of occurrence on the basis of what they have heard

from P.W.3, such contradiction cannot be treated as material

contradiction. It is found from the evidence of P.W.3 that she was

sexually abused near the place where she used to go daily to attend

nature's call.

With regard to delay of two days in lodging complaint, this

Court is of the view that the learned Counsel for the appellant

overlooked the fact that Indian women are slow and hesitate to

complain of sexual assault and if the prosecutrix is a minor girl, in

many cases their parents do not come forward for the sake of the

future of the girl. Merely because the complaint was lodged less than

promptly does not raise the inference that the complaint was false.

The reluctance to go to the police is because of society's attitude

towards the woman; it casts a doubt and shame upon her rather than

comfort and sympathise her. Therefore, delaying in lodging complaint

in such cases does not necessarily indicate the version of the

prosecutrix false.

In State of Maharashtra Vs. Chandraprakash Kewalchand

Jain : [1991] SCC 550, the Supreme Court had the occasion to

point out that a woman who is victim of a sexual assault, is not an

accomplice to the crime, but is a victim of another person's lust and,

therefore, her evidence need not be tested with the same amount of

suspicion as that of an accomplice. The similar view is reiterated by

the Supreme Court in a subsequent judgment in Karnel Singh Vs.

State of Madhyapradesh : AIR 1995 SC 2472.

Coming to the instant case it is ascertained that the

victim/prosecutrix narrated the incident almost in the same manner

as disclosed in the F.I.R. She did not try to exaggerate any story.

She withstood the cross-examination by the defence. In course of

cross-examination she was specifically asked as to whether the

accused saw her private part. She replied in affirmative. Thereafter,

she was asked as to whether she saw the private part of the accused.

The victim replied in the negative. Had it been the case of

exaggeration or that the prosecution wanted to make out a story of

attempt to rape. She could have tutored to answer the above

question in different manner.

In Vijay @ Chinee Vs. State of Madhya Pradesh reported

in (2010) 8 SCC 191, it is observed by the Hon'ble Supreme Court

that a prosecutrix of a sex offence cannot be put on par with an

accomplice. She is in fact a victim of the crime. The Evidence Act

nowhere says that her evidence cannot be accepted unless it is

corroborated in material particulars. She is undoubtedly a competent

witness within the meaning of Section 118 of the Evidence Act and

her evidence must receive highest weight as she is attached to an

injured in a case of physical violence. The same degree of care and

caution must attach in the evaluation of her evidence as in the case of

injured complainant or witness and no more. What is necessary is

that the Court must be alive to and conscious of the fact that it is

dealing with the evidence of a person who is interested in the

outcome of the charge levelled by her. If the Court keeps this in mind

and feels satisfied that it can act on the evidence of the prosecutrix,

there is no rule of law or practice incorporated in the Evidence Act

similar to illustration (b) to Section 114 which requires it to look for

corroboration. If for some reason the Court is hesitant to place

implicit reliance on the testimony of the prosecutrix it may look for

evidence which may lend assurance to her testimony short of

corroboration required in the case of an accomplice.

In the instant case there is no reason to disbelieve the evidence

of the prosecutrix. Therefore, I do not find any scope to spill ink over

the judgment of conviction passed by the learned Trial Judge against

which the instant appeal is filed.

On the question of sentence this Court is in concurrence with

the submission made by the learned Advocate for the appellant that

on the date of commission of offence, the appellant might be

sentenced with either discretion for a term of two years or with fine or

with both.

Learned Trial Judge practically erred in law by passing a

sentence of three years with fine against the appellant.

Therefore, the order of sentence is set aside.

On the question of sentence, this Court finds that the incident

took place in the year 2012. Since 2012, the accused is pursuing his

case before the Trial Court as well as this Court for long nine years.

For the act committed by the appellant he already suffered much

agony and sleepless night.

In view of such circumstances, this Court is of the view that for

committing an offence under Section 354 of the Indian Penal Code,

taking into consideration the fact situation, some amount of fine, in

default, imprisonment shall be just and sufficient sentence for the

offence committed by the accused. Accordingly, the instant appeal is

dismissed so far as it relates to the order of conviction. However, the

order of sentence passed by the learned Trial Judge is modified and

the appellant is sentenced to pay fine of Rs.10,000/-, in default,

simple imprisonment for six months for committing offence under

Section 354 of the Indian Penal Code.

The half of the fine amount if released, shall be paid to the

victim as compensation.

The appellant is directed to make payment of the fine amount

within three weeks from the date of the judgment, failing which the

learned Additional Chief Judicial Magistrate, Khatra is at liberty to

issue warrant of arrest against the appellant to suffer sentence.

Let a copy of this order be sent to the learned Additional Chief

Judicial Magistrate, Khatra immediately for information and

compliance.

Let a plain copy of this order be also supplied to the learned

Counsel for the appellant free of cost for compliance.

Lower Court Records be transmitted to the learned Court below

by the department.

(BIBEK CHAUDHURI, J)