Calcutta High Court (Appellete Side)
Soumik Roy vs State Of West Bengal on 5 March, 2021
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
CRA 546 of 2017
With
CRAN 1 of 2017 (Old No. CRAN 4177 of 2017),
CRAN 2 of 2017 (Old No. CRAN 5281 of 2017),
CRAN 3 of 2020 (Old No. CRAN 3750 of 2020)
Soumik Roy
-Vs-
State of West Bengal
For the Appellants: Mr. Milan Mukherjee, Sr. Adv.,
Ms. Kabita Mukherjee, Adv.,
Mr. Manas Dasgupta, Adv.,
Mr. Biswajit Manna, Adv.
For the State: Mr. Swapan Banerjee, Adv.,
Mrs. Purnima Ghosh, Adv.
Heard on: January 21, 2021.
Judgment on: March 5, 2021.
BIBEK CHAUDHURI, J. : -
1. The instant appeal is directed against the judgment and order of
conviction dated 31st August, 2017 and 1st September, 2017 respectively
passed by the learned Additional Sessions Judge, 5th Court at Howrah in
Sessions Trial Case No.24 of 2016 convicting the appellant under Section
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354A/376 of the Indian Penal Code and sentencing him to suffer rigorous
imprisonment for one year for the offence under Section 354A of the
Indian Penal Code and also to suffer rigorous imprisonment for seven
years and to pay fine of Rs.5000/- in default to suffer a further rigorous
imprisonment for six months for the offence under Section 376 of the
Indian Penal Code.
2. The appellant has assailed the judgment and order of conviction
and sentence passed by the trial court on the ground that the prosecution
failed to produce the statement made before the police at the first
instance immediately after the occurrence and the written statement of
the defacto complainant which is treated by the police as FIR is not as
FIR, but a statement made by her under Section 161 of the Code of
Criminal Procedure and this being the position, the so-called FIR is hit by
Section 162 of the Code of Criminal Procedure.
3. Secondly, there are infirmities in the evidence of the victim lady.
Though the testimony of the prosecutrix could be acted upon and be the
basis of conviction without being corroborated in material particulars, if
her testimony is trustworthy and free from infirmities, there are
infirmities in the oral evidence of the prosecutrix and therefore, it cannot
be taken as the solitary foundation for the conviction of the appellant.
4. Thirdly, the prosecutrix went to have an X-ray of her waist in a
diagnostic centre at Bally in the district of Howrah. For the purpose of
conducting X-ray, she wore a gown provided to her by the diagnostic
centre. The appellant was a technician, of X-ray department of the said
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diagnostic centre. As a technician he naturally touched the victim lady,
corrected her posture and position on the X-ray table and the victim lady
might think that she was inappropriately touched. There is absolutely no
evidence to show that the victim lady was sexually harassed or she was
revised by the appellant when the appellant allegedly inserted his finger
inside the vagina of the victim lady.
5. Fourthly, some employees of the said diagnostic centre were
examined by the Investigating Officer and they were cited as witnesses in
the charge-sheet on behalf of the prosecution. During trial, however, the
prosecution failed to examine those witnesses. The said witnesses
deposed as defence witnesses and stated that they were present at the
time of conducting X-ray of the waist of the victim lady and the appellant
did not commit any offence as alleged by her. The learned trial judge
failed to appreciate the evidence adduced by the defence in proper
perspective and convicted the appellant only on the basis of sole
testimony of the prosecutrix.
6. It is also urged by the learned Counsel for the appellant that when
two plausible views with regard to an incident are forthcoming, the court
shall accept the version that supports the accused and the accused would
have been acquitted from the charge on benefit of doubt. On the above
grounds, the judgment and order of conviction passed by the learned trial
judge is under challenge in the instant appeal.
7. Let me now state the salient facts of the case:-
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That on 11th January, 2015 at about 8.45 hours the defacto
complainant and her husband went to LASCO Medicare Centre at
Bally for X-ray of her waist. Before conducting X-ray, one lady staff
of the said diagnostic centre helped the defacto complainant to wear
the X-ray gown and then she left the place closing the door of the X-
ray room. Then a technician laid the defacto complainant down on
the X-ray table for X-ray of her waist. At that time he touched her
breast and then turned her on the opposite side and inserted his
finger into her rectum. There was no other person except the
defacto complainant and the said technician in the X-ray room at
that time. After her X-ray being done she came out from the X-ray
room and informed the incident to her husband. Then they called
her family members over phone and also informed the police. Police
came there and took the said technician to custody. Subsequently,
the defacto complainant came to know the name of the appellant.
On the basis of the said complaint, police submitted charge-
sheet against the appellant under Section 345A/376 of the Indian
Penal Code.
The case was committed to the Court of Sessions.
Subsequently it was transferred to the 5th Court of the learned
Additional Sessions Judge, Howrah for trial. The accused/appellant
pleaded not guilty when the charge was framed and read over and
explained to him.
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During trial prosecution examined six witnesses. Amongst
them defacto complainant deposed as PW1 and PW2 is her
husband. PW3 is the Medical Officer attached to T.L Jaiswal
Hospital. He conducted Medico Legal Examination of the defacto
complainant and prepared a report which was marked as exhibit-
2/1 during trial of the case. PW4 is a close relative of the defacto
complainant. PW5 is a seizure witness and PW6 is the Investigating
Officer of Bally P.S Case No.6 of 2015 which was registered on the
basis of written complaint filed by the prosecutrix.
8. Mr. Milan Mukherjee, learned Senior Counsel on behalf of the
appellant submits that from the written complaint it is found that after
her X-ray was done, the defecto complainant came out from the X-ray
room and informed her husband that the technician laid her down on the
X-ray table and touched her breast and inserted his finger in her rectum.
Thereafter he inserted his finger in her vagina twice. After narrating the
incident to her husband, she called her family members to the said
diagnostic centre over phone. Then she informed the incident to Bally
Police Station over phone. Police came to the said diagnostic centre and
took the appellant to the police station. Subsequently she came to know
that the name of the said technician is Soumik Ray who committed the
offence upon the defacto complainant. Showing the contents of the FIR it
is submitted by Mr. Mukherjee that the defacto complainant first
informed the matter to the police over phone. Acting on such phone call,
police came and took the appellant to the police station. As per rule of
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business, it is the bounden duty of the Police Officer to record the
information which they received over phone from the defacto complainant
in the GD Book maintained by the police station. The said GD Book has
not been produced during trial of the case. It is, therefore, not possible for
the court to ascertain as to whether the said telephonic call was a cryptic
information about the incident or a detailed statement of the said
incident. If the telephonic version contained detailed information about
the incident, such information ought to have treated as the FIR and the
statement which was considered as FIR, and on the basis of which Bally
P.S Case No.6 of 2015 was registered should be treated not as FIR but a
statement of the defacto complainant made under Section 161 of the Code
of Criminal Procedure.
9. It is further pointed out by the learned Senior Counsel for the
appellant that the telephonic information made by the defacto
complainant must be held to be detailed information about the incident
because acting on such information police came to the said diagnostic
centre and took the appellant to the police station. Thus, it is contended
by Mr. Mukherjee that the prosecution withheld the first information
made by the defacto complainant to the police immediately after the
occurrence over telephone. The concerned GD Book was not placed
during trial of the case and only on this ground, the appellant is entitled
to get the benefit of doubt.
10. It is further submitted by Mr. Mukherjee, the learned Senior
Counsel that the victim defacto complainant is a married lady aged about
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41 years at the relevant point of time. From the sketch map it is
ascertained that there are series of rooms in a row in the said diagnostic
centre where different diagnostic works of the other patients were being
conducted. Had it been the fact that the appellant inappropriately
touched the private parts of the defacto complainant, it was very natural
for her to raise alarm but she did not shout at the time of occurrence. She
did not tell the incident to any other person of the said diagnostic centre.
The investigation officer examined other employees of the said diagnostic
centre and recorded their statement under Section 161 of the Code of
Criminal Procedure but the said witness were not examined by the
prosecution. They were however examined as DW1 and Dw2 by the
defence. DW1 Smt. Kalpana Bhowmick stated in her evidence that on 11th
January, 2015 during the X-ray of defacto complainant, she along with
the appellant and one Prosenjit Malick were all-along present in the X-ray
room. The husband of the defacto complainant was also present at the
time of conducting her X-ray in the X-ray room. Prosenjit Malick deposed
in this case as DW2. At the relevant point of time he was posted as Senior
Radiographer at LASCO Medical. The appellant used to work at the
relevant point of time as a junior technician under DW2. On 11th January,
2015, DW2, the appellant and a lady of attendant, namely, Kalpana
Bhowmick were present inside the X-ray room at the time of conducting
X-ray of the defacto complainant. Her husband was also present in the X-
ray room.
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11. It is submitted by Mr. Mukherjee that there is no reason to
disbelieve the evidence of DW1 and DW2. From their evidence it is
ascertained that at the time of X-ray of the defacto complainant, they were
present in the X-ray room. Thus it was not possible for the appellant to
commit such offence in presence of other members of staff in the X-ray
room.
12. Even assuming but not admitting that the defacto complainant had
felt that the appellant touched her body inappropriately or that he
inserted finger into her vagina, it might so happen that the appellant had
to touch her to help her to lie down on the X-ray table in correct position
and posture for taking perfect X-ray image of her waist. There is also no
reason to disbelieve the evidence of DW1 and DW2. Thus, when two views
are forthcoming regarding the incident, it was the duty of the court to
accept the view that was in favour of the accused because in such case
the accused was entitled to get benefit of doubt.
13. Learned P.P-in-Charge, on the other hand has supported the
finding of the learned trial judge and submits that there is no infirmity in
the finding arrived at by the learned trial judge and the instant appeal is
liable to be dismissed.
14. Having heard the learned Counsels for the appellant and the
respondent and on perusal of the entire materials on record as well as the
judgment delivered by the learned trial judge I like to state at the outset
that depending on the facts of the case, it could be clearly stated that the
police arrested the appellant before the official complain was lodged on
the basis of a telephonic information made by the defacto complainant
after the incident. The learned Senior Counsel for the appellant tried to
impress upon me that non production of the relevant GD Book is fatal for
the prosecution, because had the GD Book been produced, it might have
been found that the said telephonic information was actually the first
information report recorded by the police officer in the GD Book. However
in the case of Lalita Kumari vs. Government of U.P reported in (2014) 2
SCC 1, the Hon'ble Supreme Court held that the absence of GD will not
vitiate the FIR. It may at best be treated as a lapse on the part of the
prosecution but, the merit of the case would be determined on the basis
of the evidence adduced by the witnesses during trial of the case.
15. In the case of Ramsin Bavaji Jadeja vs. State of Gujarat reported
in MANU/SC/0670/1994, the Supreme Court laid down that if the
telephonic message is cryptic in nature and the officer-in-charge,
proceeds to the place of occurrence on the basis of that information to
find out the details of the nature of the offence itself, then it cannot be
said that the information, which had been received by him on telephone,
shall be deemed to be First Information Report. The object and purpose of
giving such telephonic message is not to lodge the First Information
Report, but to request the officer-in-charge of the police station to reach
the place of occurrence. On the other hand, if the information given on
telephone is not cryptic and on the basis of that information, the officer-
in-charge is prime facie satisfied about the commission of a cognizable
offence and he proceeds from the police station after recording such
information, to investigate such offence, then any statement made by any
person in respect of the said offence including about the participants,
shall be deemed to be a statement made by a person to the police officer
"in the course of investigation", covered by Section 162 of the Code of
Criminal Procedure. That statement cannot be treated as First
Information Report. But any telephonic information about commission of
a cognizable offence irrespective of the nature and details of such
information cannot be treated as First Information Report.
16. Again in Damodar vs. State of Rajasthan reported in
MANU/SC/0726/2003, the Supreme Court has observed that even when
the telephone message is not cryptic and on the basis of information, the
officer-in-charge of the police station is prima facie satisfied about the
commission if a cognizable offence and he proceeds from the police station
after recording such information to investigate such offence, then any
statement made by any person in respect of the said offence including
about the participants shall not be deemed to be a statement made by a
person to the police officer in the course of investigation covered by
Section 162 of the Code of Criminal Procedure.
17. In the instant case it is found from the FIR as well as evidence of
defacto complainant that she informed the incident to the local police over
phone and on the basis of such information police came to the said
diagnostic centre and took the appellant to the police station. There is no
cross examination to the defacto complainant on the point as to whether
she made detailed report over phone to the police officer or not.
18. Prosecution case cannot be disbelieved altogether and thrown away
on the ground that no relevant GD Book was produced by the
prosecution. Relying on the ratio laid down in Damodar (supra) even if a
telephonic information discloses commission of cognizable offence which
led the police to rush to the PO, such information might not be treated as
FIR. In the instant case Bally P.S Case No.6 of 2015 was registered on the
basis of the written complaint submitted by the defacto complainant. So,
the said written complaint is the FIR and the learned trial judge did not
take any wrong decision while treating the said written complaint as FIR
of this case.
19. It is a well known and well followed principle in criminal
jurisprudence that the prosecution is under obligation to prove the guilt
of the accused beyond reasonable doubt. In this case the accused has
clearly mentioned the presence of two more people in the X-ray room at
the time of conducting X-ray of the defacto complainant. They are
Kalpana Bhowmik (DW1) and Prasenjit Malik (DW2). The said witnesses
confirmed the fact that no such incident took place in the X-ray room in
their presence. It is very surprising that the prosecution did not cross
examine the defence witnesses and contradict their statement on oath
with their previous statement recorded by the Investigating Officer under
Section 161 of the Code of Criminal Procedure to raise a doubt about their
credibility. Standing in such a situation, I can safely say that the
prosecution has failed to prove that the appellant is guilty beyond
reasonable doubt. The prosecution has proved the presence of the victim
and the accused in LASCO during 8.48 am, however it failed to prove the
acquisitions of rape on the accused. The Supreme Court in the case of
Krishnan & Anr. vs. State represented by Inspector of Police reported
in MANU/SC/0505/2003 : (2003) 7 SCC 56 was pleased to hold that
the doubts would be called reasonable if they are free from a zest for
abstract speculation. Law cannot afford any favour other than the truth
and to constitute reasonable doubt, it must be free from any over
emotional response. Doubts must be actual and substantial doubts as to
the guilt of the accused persons arising from the evidence or from the lack
of it, as opposed to mere vague apprehensions. A reasonable doubt is not
an imaginary, trivial or a merely possible doubt, but a fair doubt based
upon reason and common sense. It must grow out of the evidence in the
case. This principle is also laid down in the case of Ramakant Rai vs.
Madan Rai & Ors. reported in (2002) 12 SCC 395.
20. The criminal justice system does not need the prosecution to prove
absolute guilt of the accused but when there are two eye witness
presented before the court who accepted their presence and claimed that
no such event had taken place on that day and the prosecution failed to
cross examine them and raise a doubt about credibility of their evidence,
then there is an actual doubt present in this situation as to whether the
incident actually took place or not.
21. Last but not the least, I have already recorded that the victim lady
was accompanied by her husband to the diagnostic centre for X-ray of her
waist on the date and time of occurrence. When the alleged offence was
committed upon, her she did not raise any alarm. Even she did not make
any objection against the alleged act of the appellant. She silently allowed
the offence to be committed upon her. Only after she came out from the
X-ray room she told the incident to her husband. What was very natural
and probable for them at that juncture is first to make a complaint
against the appellant to the management of the said diagnostic centre.
However without making such complaint to the management of the said
diagnostic centre, she informed the matter to her family members and
then to the police.
22. By not examining the members of staff of the said diagnostic centre
who were examined during investigation by the Investigating Officer, the
prosecution tried to suppress the truth behind the incident.
23. In view of such circumstances I am not in a position to affirm the
judgment and order of conviction and sentence passed against the
appellant by the learned Additional Sessions Judge, 5th Court at Howrah
in Sessions Trial Case No.24 of 2016.
24. Accordingly the instant appeal is allowed on contest, however,
without costs.
25. Accordingly the judgment and order of conviction and sentence
passed by the learned Additional Sessions Judge, 5th Court, Howrah in
Sessions Trial Case No.24 of 2016 against the appellant is set aside.
26. The appellant is acquitted from the charge under Sections
354A/376 IPC, set at liberty and released from the bail bond.
27. Let a copy of this judgment be sent to the learned trial court along
with lower court record.
(Bibek Chaudhuri, J.)
