Shankar Bhim & Anr vs The State Of West Bengal
2022 Latest Caselaw 5106 Cal

                 IN THE HIGH COURT AT CALCUTTA
                CRIMINAL APPELLATE JURISDICTION
                         APPELLATE SIDE

PRESENT:

THE HON'BLE JUSTICE TIRTHANKAR GHOSH

                             CRA 9 of 2019
                         Shankar Bhim & Anr.
                                    -vs.-

                        The State of West Bengal

For the Appellants           :     Mr. Arindam Jana,
                                   Mr. Bikram Banerjee,
                                   Mr. Sudipta Dasgupta,
                                   Mr. Sutirtha Nayek

For the State                :     Mr. Abhra Mukherjee,
                                   Mr. Dipankar Mahato,

Heard on                     :     19.07.2022 & 03.08.2022.


Judgment on                  :     05.08.2022

Tirthankar Ghosh, J:-

      The present appeal has been preferred against the judgment and order of

conviction and sentence dated 06.12.2018 passed by the Learned Additional

Sessions Judge, 3rd Court, at Tamluk, Purba Medinipur in Sessions Trial No.

01(12)2017 wherein the learned trial Court was pleased to convict the

appellants under Section 354 of the Indian Penal Code and Section 323/34 of

the Indian Penal Code and sentenced them as follows:
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        1) For the offence under Section 354 of the Indian Penal Code the

           appellants were sentenced to suffer Rigorous Imprisonment for one

           year   and   fine   of   Rs.2,000/-   in   default   to   suffer   Simple

           Imprisonment for three months.

        2) For the offence under Section 323/34 of the Indian Penal Code the

           appellants were sentenced to fine of Rs.1,000/- each, in default to

           suffer Simple Imprisonment for one month.


     The genesis of the case relates to Nandakumar police station case no. 13

dated 26.03.2016 under Sections 341/447/323/354/376/511/506/34 of the

Indian Penal Code. FIR was registered pursuant to an application under

Section 156(3) of the Code of Criminal Procedure being filed by Madhumita

Ghora (PW1). The sum and substance of the allegations were to the effect that

on 14.12.16 at about 10.00 am when the informant's husband was not at

home the accused persons namely, Shankar Bhim, Chandan Bhim, Putul

Bhim and Shilu Bhim entered in the betel garden for damaging it. On seeing

such conduct the informant protested when Shankar and Chandan Bhim

attacked her by abusing filthy languages and forcefully pushed her on the

ground. It has been alleged that the accused persons took off her wearing

apparels by tying her mouth and pressed her breasts in lustful condition for

tempting her. At this stage the informant un-tied the cover of her mouth and

started shouting when the witness Pratima Ghora, Sukumar Ghora and

Meghnad Ghora came to her rescue. However, the accused persons slapped,

kicked, punched and pressed her neck in order to kill her. The accused
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persons also snatched away the gold pala valuing Rs.8,000/-. The informant

was treated at Khejurbera B.P.H.C. and lodged a General Diary with the

Nandakumar Police Station but the police authorities did not take any action.


      On the basis of the aforesaid complaint Nandakumar Police Station case

no. 13 dated 26.03.2016 was registered for investigation and on completion of

investigation     charge-sheet      was      submitted       under      Section

341/447/323/354

/376/511/506/34 of the Indian Penal Code. The learned

trial Court framed charges under Section 323/354/376/511/379/34 of the

Indian Penal Code. The prosecution in order to prove its case relied upon 6

witnesses which included PW1, Madhumita Ghora, informant; PW2 Meghnath

Ghora, husband of PW1; PW3 Kanchani Ghora, sister-in-law of PW1; PW4,

Sukumar Ghora, relation of PW1; PW5, Pratima Ghora, sister-in-law of PW1

and PW6, S.I. Samar Mishra, Investigating Officer of the case.

The prosecution in order to prove its case relied upon 6 documents

which included Ext.1, signature in the written complaint; Ext.2, seizure list;

Ext.3, statement of the victim under Section 164 of Cr.P.C.; Ext.4, Formal FIR;

Ext.5, rough sketch map with index and Ext.6 series, three injury reports.

PW1 in her examination-in-chief deposed that she filed the complaint in

Court. The same was prepared after she narrated the facts to her advocate and

after understanding the contents of the same she signed it. She identified all

the accused persons namely, Shankar Bhim, Chandan Bhim, Putul Bhim and

Shilu Bhim and stated that they are her brother-in-law and their wives. She

narrated that the incident took place in the month of February at about 10.00

am and there was dispute regarding landed property amongst her husband

and his brothers and with the accused persons. On the relevant date the

accused persons entered their betel garden in order to destroy it and when she

raised objection and asked them to go away Chandan Bhim and Shankar Bhim

tried to outrage her modesty and started quarrel with her. They also assaulted

her on different parts of her body and during the scuffle she lost her 'pala'

valued at Rs.8,000/- which was snatched away. She received injury at her

belly and chest and she was treated at Khejurberia Hospital. She further

deposed that she gave her garments to the police authorities who seized the

same and further stated that her blouse was torn at the time of assault. She

also identified her signature in the statement under Section 164 of the Code of

Criminal Procedure. In her cross-examination she stated that her family is

involved in a land dispute with the accused persons, to that effect civil cases

are pending between the parties.

PW2, Meghnath Ghora, is the husband of PW1, who deposed before the

Court that the incident took place at about 10.00 am two and half years ago

when the accused persons went to cultivate a joint land. His wife raised

objection. However, the said accused persons entered into quarrel and

altercation and neighbours asked him to file a case. He also deposed that the

accused persons also initiated a case against them which is pending and they

have also filed a civil suit.

PW3, Kanchani Ghora, is the sister-in-law of PW1. Who stated that the

incident took place two and half years ago at about10.00 am and the accused

persons forcefully entered into their paddy field and started planting when PW1

raised objection and the accused persons started quarrelling with her. In cross-

examination she admitted that the accused persons filed the case regarding the

same incident and there is also a civil case which is pending between the

parties.

PW4, Sukumar Ghora also deposed that the incident took place about

two and half years ago when the accused persons forcefully planted paddy in

their field and PW1 raised objection the accused persons quarrelled with her.

PW5, Pratima Ghora is also sister-in-law of PW1 she also the stated that

the incident took place two and half years ago at about 10.00 am when the

accused persons forcefully planted paddy in their field and PW1 raised

objection they started quarrelling with her, as a result of assault she received

abrasion and pain. PW1 was treated at B.P.H.C. and after that she filed the

present case.

PW6, S.I. Samar Mishra is the Investigating Officer of the case.

Two documents are also relevant for the purpose of adjudication of the

present case. Firstly, the statement of Madhumita Ghora before the Medical

Officer of Khejurberia B.P.H.C. appearing in her injury report marked as

Ext.6/2 wherein she stated that she was beaten by Chandan Bhim, Shankar

Bhim, Angur Bhim, Sathis Bhim by hand and fist it was also stated in the

injury report that she was kicked over her abdomen and a such she is suffering

from pain. The report also reflects that the injury is simple with no external

injuries are seen.

PW1 in her statement before the learned Judicial Magistrate under

Section 164 of Cr.P.C. (Ext.3) stated that on 14.02.2016 Chandan Bhim and

Shankar Bhim assaulted her and their wives at that time assisted them. Her

wearing apparels were torn and they tried to torture her. However, when her

husband, brother and sister-in-laws arrived they fled away.

Mr. Arindam Jana, learned Advocate appearing for the appellants

submits that the appellant were family members and over the self same

incident the appellants have also initiated a case which is pending and there

are disputes relating to a landed property for which a civil case is also pending

between the parties. It is submitted that the present case was initiated with a

ulterior motive for wrecking vengeance and each of the witnesses have narrated

contradictory versions of the incidents which cannot be relied upon to convict

the present appellants.

Mr. Abhra Mukherjee, learned Advocate appearing for the State has

supported the judgment delivered by the learned Trial Court and submitted

that the testimony of PW1 is believable and the injury reports itself speaks

regarding the assault being inflicted. Learned Advocate submitted that there is

no scope for interference with the order of conviction so passed by the learned

Trial Court and as such the same should be affirmed.

I have assessed the evidence in this case and I find that out of the 6

prosecution witnesses except the complainant none had narrated the story

regarding the offence of outraging the modesty being inflicted upon the PW1.

Now if the evidence of PW1 is taken into account her allegations in the petition

of complaint, her statement under Section 164 of the Code of Criminal

Procedure, her statement before the doctor as is reflected from the injury report

(Ext.6/2) and her deposition before the Court, I find that the same are

contradictory to each other and her allegations in the application under Section

156(3) of the Code of Criminal Procedure regarding disrobing her and pressing

her breast are exaggerated with a view to registration of the case. The said

allegation is absent in her deposition before the Court as also in her statement

under Section 164 of the Code of Criminal Procedure as also in the statement

before the doctor.

Accordingly, I am of the considered view that the offence under Section

354 of the Indian Penal Code as alleged has not been made out in this case to

hold the present appellants guilty of the said offence. As such the order of

conviction and sentence so passed under Section 354 of the Indian Penal Code

is set aside.

However, there is consistent version that PW1 was assaulted by fist and

blows which is also corroborated in the injury report. Thus the order of

conviction and sentence under Section 323 of the Indian Penal Code passed by

the learned Additional District and Sessions Judge, 3 rd Court, Tamluk, Purba

Medinipur is hereby affirmed.

The appellants are directed to comply with the direction of the learned

trial Court forthwith.

Accordingly, CRA 9 of 2019 is partly allowed.

Pending Applications, if any, are consequently disposed of.

Department is directed to send back the Lower Court Records and

communicate this judgment, so that effective steps are taken by the learned

trial Court.

All parties shall act on the server copy of this judgment duly downloaded

from the official website of this Court.

Urgent Xerox certified photocopy of this judgment, if applied for, be given

to the parties upon compliance of the requisite formalities.

(Tirthankar Ghosh, J.)