Madhabendu Ganguly vs Unknown
2021 Latest Caselaw 1825 Cal

10.03.2021 Item no.01 Court No.1 AB/SDE(t)

(Via Video Conference)

C.R.A. No.318 of 2019 With I. A. CRAN 1 of 2019 (Old CRAN 2469 of 2019) I. A. CRAN 2 of 2019 (Old CRAN 2537 of 2019) (CAN not found) I. A. CRAN 3 of 2020 (Old CRAN 4541 of 2020)

In the matter of : Madhabendu Ganguly

.... Appellant/ Applicant.

Mr. Milan Mukherjee, Sr. Adv, Mr. Biswajit Manna ...for the Appellant/Applicant.

Mr. Madhusudan Sur, Ld. APP Mr. Dipankar Pramanik ...for the State

In re : CRAN 2469 of 2019

This is an application for suspension of sentence and grant

of bail pending appeal against an order of conviction and sentence

handed down for an offence found to have been punishable under

Section 6 of the Protection of Children from Sexual Offences Act

read with Section 506 of the Indian Penal Code.

We have heard learned Senior Counsel for the

applicant/appellant and learned Additional Public Prosecutor for

the prosecution.

The accused person was charge-sheeted for offence

punishable under Section 506 of the Indian Penal Code read with

Section 6 of the Protection of Children from Sexual Offences Act

and Section 66E of the I. T. Act.

The Court below acquitted the accused of the charge under

Section 66E of the I. T. Act and convicted him for offence

punishable under Section 6 of the Protection of Children from

Sexual Offences Act and Section 506 of the Indian Penal Code.

At this stage, while dealing with the application for

suspension of sentence and grant of bail, we do not think that it

would be appropriate for us to detail out the various matters, which

would finally fall for decision in the appeal.

Be that as it may, we see even from the judgment that the

prosecutrix, who was below 15 years, had made the complaint of

commission of physical assault on her to her mother after five

months of the alleged incident and the mother, in turn, took

another eight months to make the complaint, which led to the

lodgment of the first information report.

It also comes out that the mother did not inform the father of

the alleged victim, who is P.W.1 in the case. We see that there is

an explanation offered that P.W.1 was away in Sikkim and he

would have under mental strain and pressure if he were informed

of the incident. The delay in lodging the first information report is

attributed to the threat held out by the accused to do away with the

sister and brother-in-law of the victim. For this purpose, it was said

that the videography of the occurrence was apparently held out.

We may, here and now, notice that the charge under Section

66E of the I. T. Act did not find favour in the Court below. This may

have an impact on the assimilation of evidence as regards the

transaction in question, which, in turn, may raise different

questions on the final hearing. We leave it here without expressing

anything on that aspect either in favour of the accused appellant or

the prosecution for the time being. The testimony of the doctor,

who examined the victim, after the registration of the complaint

and the quality of his evidence when contrasted with the quality of

evidence of the victim, raises more questions than one.

We also see, as pointed out by the learned Senior Counsel

appearing for the applicant/appellant that the Investigator did not

go into or make available primary evidence regarding the date of

birth of the accused and after the examination of the Investigating

Officer, certain documents were sought to be produced from her

school. The appreciation of such evidence serves a huge deficit in

the prosecution, as argued by the learned Senior Counsel

appearing for the appellant.

We may also notice that the activity attributed to the

accused including by making an attempt to silence the victim by

using some cloth to tie her mouth with her towel, prima facie,

indicates to us that in the common course of human conduct, the

victim cannot be expected to have kept away from making a

complaint as known in law to her mother, who obviously would

repose confidence being the parents available with the victim in the

household.

On the whole, we are satisfied that the applicant/appellant

has demonstrated a strong prima facie arguable case in defiance of

finding of guilt and the order of conviction and sentence handed

down by the Court of Sessions.

We also notice that sometime till the statement of the victim

was recorded under Section 164 Cr.P.C. after the complaint of her

mother was taken by the police, the accused had been in prison

and bail was ultimately granted by this Court. After conviction, he

is now serving out the sentence. He has by now been in custody for

three years and eleven months approximately.

For the aforesaid reasons, we are inclined to suspend the

sentence imposed on the applicant/appellant and grant bail to him

on the following conditions.

The appellant/applicant shall be released on bail upon

furnishing a bond of Rs.20,000/- (Rupees Twenty thousand only)

with two sureties of like amount each, one of whom must be a local

surety, to the satisfaction of Learned Chief Judicial Magistrate,

Murshidabad at Berhampore on condition that he shall report to

the Officer-in-Charge of the concerned Police Station every fortnight

and shall not involve in any incriminating activity in any manner

whatsoever till the disposal of this appeal unless otherwise ordered.

If any of the conditions imposed on the appellant are not

complied with or are found to have been breached, order of

suspension of sentence, that is being granted hereby, could be

cancelled or be recalled.

The appellant shall be present or be represented at the

hearing of the appeal.

Paper Books be prepared within four weeks from the date of

receipt of lower court records.

Let the appeal be listed for final hearing as soon as paper

books are ready.

The application being C.R.A.N. 2469 of 2019 is allowed.

In view of disposal of the aforesaid application, CRAN 4541 of

2020 also stands disposed of.

Urgent Photostat Certified copy of this order, if applied for, be

supplied expeditiously after complying with all necessary legal

formalities.

(Thottathil B. Radhakrishnan, C.J.)

(Aniruddha Roy, J.)