Calcutta High Court (Appellete Side)
Bibhas Dey vs The State Of West Bengal on 24 November, 2021
Form J(2) IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Bibek Chaudhuri
C.R.A. 678 of 2018
With
IA NO. CRAN 2 of 2021
Bibhas Dey
Vs.
The State of West Bengal
For the petitioner : Mr. Fazlur Rahman, Adv.
Mr. Prasant Kumar Banerjee, Adv.
For the State : Mr. Ranabir Roy Choudhury, Adv.
Ms. Anasuya Sinha, Adv.
Mr. Pinak Kr. Mitra, Adv.
Heard on : 24.11.2021
Judgment On : 24.11.2021
Bibek Chaudhuri, J.
The instant appeal is directed against the judgment and order of
conviction and sentence dated 25th July, 2018 and 27th July, 2018
passed by the learned Additional Sessions Judge, Chandernagore in
Sessions Trial No.44 of 2014, corresponding to Sessions Case No.07
of 2014 which arose out of Bhadreswar P.S. Case No.256 of 2013
dated 7th July, 2013 under Section 376/511 of the Indian Penal Code
sentencing the appellant to suffer rigorous imprisonment for 5 years
and to pay fine of Rs.2000/-, in default, to suffer further
imprisonment of one month.
A very short question is involved in the instant appeal, viz., the
specific act of the accused/appellant, even if admitted, tantamounts
to commission of offence under Section 376/511 of the Indian Penal
Code.
In order to substantiate the charge under Section 376/511 of
the Indian Penal Code, Prosecution examined 9 witnesses. Defence
case as disclosed from the cross-examination of the witnesses on
behalf of the Prosecution as well as examination of the accused under
Section 313 of the Code of Criminal Procedure and evidence of the
three witnesses on behalf of the defence is that of false implication of
the accused due to animosity between the parties due to landed
property dispute.
It is needless to say that in an offence of sexual assault or
attempt to commit sexual assault, it is the evidence of the victim girl
that matters most. Accomplice theory cannot be applied in case of the
evidence of the victim girl. She is the injured witness and it is
expected that she will not make false allegation against an innocent
person at the cost of her feminine dignity, honour and chastity.
The case in hand discloses an incident which took place on 7 th
July, 2013, when the de facto complainant (P.W.1) did not find her
mentally retarded daughter, she conducted search and went to the
house of her neighbour, the appellant herein. She found the door of
the room of the appellant closed from inside. She peeped through the
window and found that the accused was lying over the body of the
victim girl, tried to commit rape upon her. The same narration was
made in the written complaint filed by the mother of the victim girl in
the local police station. Another important aspect that requires a
special mention is that the victim girl was medically examined on the
same day at about 1:50 p.m. by P.W.2, Dr. Santosh Kumar Hazari.
During examination, he did not find any external injury over the body
of the victim girl. There was no injury seen over vulva of her private
parts and the hymen was intact.
It is found from the evidence of the victim girl (P.W.4) that on
the date and time of occurrence, the accused/appellant pressed her
breast and thigh after lying her down. It is already recorded that the
victim girl is mentally retarded. However, her evidence was recorded
by the Trial Judge on his satisfaction that she was able to give answer
to normal questions rationally.
The said witness was cross-examined and she withstood the
test of cross-examination successfully. Therefore, this Court has no
reason to disbelieve the evidence of P.W.4.
Now the most important question that requires to be answered
in the instant appeal is as to whether the specific act done by the
appellant comes within the purview of attempt to commit rape.
In Aman Kumar & Anr. -Vs.- State of Haryana reported in
2004 SCC (Cri) 1497, the Hon'ble Supreme Court had the occasion
to consider the scope of an attempt to commit an offence. The
relevant portion of the said report is reproduced below:-
"The plea relating to applicability of Section 376 read with
Section 511 of the Indian Penal Code needs careful
consideration. In every crime, there is first intention to
commit, secondly, preparation to commit it, thirdly, attempt to
commit it. If the third stage, i.e., attempt is successful then the
crime is complete. If the attempt fails, the crime is not
complete, but law punishes the person attempting the act. The
Section 511 is a general provision dealing with attempts to
commit offence not made punishable by other specific sections.
It makes punishable all attempts to commit offences punishable
with imprisonment and not only those punishable with death.
An attempt is made punishable because every attempt,
although it falls short of success, must create alarm which by
itself is an injury, the moral guilt of the offender is the same as
he had succeeded. Moral guilt must be united to cause injury in
order to justify punishment. As the injury is not as grave as if
the act had been committed, only half the punishment is
awaited."
Thus, in order to prove a charge under Section 376/511 of the
Indian Penal Code, prosecution was under obligation to establish all
the ingredients of offence under Section 376 of the IPC, short of
penetration. If a victim girl is molested, the accused commits an
offence under Section 354A of the Indian Penal Code.
Considering the entire evidence on record, this Court finds that
the accused made physical contact and advances involving
unwelcome and explicit sexual overtures within the meaning of
Section 354A (1)(I) IPC and accordingly, he is liable to be punished
with rigorous imprisonment which may extend to 3 years or with fine
or with both.
Therefore, this Court finds that the prosecution failed to
establish the charge under Section 376 by Section 511 of the Indian
Penal Code. However, from the evidence on record, it is established
beyond any shadow of doubt that the accused committed offence of
sexual harassment within the meaning of Section 354A of the Indian
Penal Code.
It is needless to say that in view of the provision of Section
222(1), this Court can hold the accused guilty for committing a minor
offence, though he was not charged with it. Applying the provision of
Section 222(1), the appellant is convicted for committing offence
under Section 354A of the Indian Penal Code.
Accordingly, the appellant is sentenced to rigorous
imprisonment for 3 years.
The Trial Court's judgment and order of conviction and sentence
is modified accordingly.
The period of punishment shall be set off under Section 428 of
the Code of Criminal Procedure against the actual period of
imprisonment and if the appellant serves out rigorous imprisonment
of 3 years, he shall be released at once.
A copy of this judgment be immediately sent to the learned
Court below along with the lower court record for information and
compliance.
The appellant is at liberty to act on the server copy of this
order.
(Bibek Chaudhuri, J.)
