Gobinda Ghosh vs The State Of West Bengal
2022 Latest Caselaw 420 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. 152 of 2018

                          Gobinda Ghosh
                                Vs.
                      The State of West Bengal


For Appellant                   :        Mr. Dipanjan Chatterjee, Adv.,
                                         Ms. Sonali Das, Adv.

For the Respondent              :        Ms. Faria Hossain, Adv.,
                                         Mr. Sandip Chakraborty, Adv.


Heard & Judgment On             :        09.02.2022


Bibek Chaudhuri, J.

One Gobinda Ghosh, appellant herein has filed the instant

appeal assailing his conviction under Section 354B of the Indian Penal

Code and consequent sentence to suffer simple imprisonment for

three years with fine and default clause passed by the Learned

Additional Sessions Judge, Ranaghat at Nadia in Sessions Case No.

07(11)/2016 corresponding to Sessions Trial No. 13(1)/2017.

Indisputably, the appellant is the father-in-law of the de facto

complainant. It is ascertained from the written complaint that the

marriage of the de facto complainant was solemnized with one

Tanmoy Ghosh on 30th April, 2016. Within few days of marriage

Tanmoy went to Punjab to join his employment as Border Security

Force Jawan. The wife of Tanmoy used to stay alone at her

matrimonial home. It is alleged by the de facto complainant that

immediately after marriage some dispute cropped up between

husband and wife and it was subsequently amicably settled between

them. While she was staying alone at her matrimonial home, on 10 th

June, 2016 at night her father-in-law assaulted her and touched her

body inappropriately. She also attempted to commit rape upon her.

When the de facto complainant resisted, she was tied up with the help

of 'gamcha'(towel) against a window and the appellant again

attempted to commit rape upon her. When she raised hue and cry

the appellant threatened her that he would pour kerosene oil on her

body and set her ablaze. It was further stated by the de facto

complainant that the appellant and his wife never accepted her as

their daughter-in-law as the marriage between de facto complainant

and their son, Tanmoy was an inter caste marriage, the de facto

complainant being a member of so-called low caste.

On the basis of the said complaint, Police registered a case

under Sections 498A/376/511/34 of the Indian Penal Code being

Gangnapur Police Station Case No. 97/2016 and took up the case for

investigation. On completion of investigation charge-sheet was filed

against the accused person under the above-mentioned heads of

charge as the offence was exclusively triable by the Court of Sessions.

It was committed to the Court of the Learned Additional Sessions

Judge, Ranaghat at Nadia for trial. The Learned Trial Judge on

consideration of materials-on-record framed charge under Sections

498A/34 of the Indian Penal Code against all the accused persons and

under Sections 376/511 of the Indian Penal Code against the

appellant. When the accused persons pleaded not guilty, the

prosecution was called upon to produce the witnesses.

During trial, in all eight witnesses were not examined. Apart

from the Investigating Officer (P.W. 8) and the Medical Officer (P.W.

7) and one Sanjib Das (P.W. 6) who was the scribe of the written

complaint, all other witnesses are the close relatives of paternal side

of the de facto complainant. It is needless to say that the de facto

complainant was examined as P.W. 1 during trial.

The Learned Trial Judge on due consideration of evidence on

record held appellant, Gobinda Ghosh guilty for committing offence

under Section 354B of the Indian Penal Code and convicted and

sentenced him accordingly. The appellant and his son, Tanmoy were,

however, acquitted from the charge under Sections 498A/34 of the

Indian Penal Code. It will not be out of place to mention here that

during trial of the case mother-in-law of the de facto complainant,

namely, Runu Ghosh had expired and the case against her was

abated.

I have carefully heard the submission made by the Learned

Advocate for the appellant and Learned Public Prosecutor-in-Charge.

I have also perused the evidence on record and scrutinized the same

independently.

On scrutiny of the evidence on record, this Court finds the

following glaring infirmities in the evidence adduced by the witnesses

on behalf of the prosecution:-

(i) Marriage of the de facto complainant was solemnized

on 30th April, 2016. As per the written complaint she

was tortured and abused on 10 th June, 2016. Thus, the

incident took place within 41 days of marriage of the

de facto complainant. In her written complaint the de

facto complainant stated that she was assaulted and

inappropriately touched by her father-in-law in the

night of 10th June, 2016. When she resisted the

appellant tied her hands with the help of 'gamcha'

against a window and again attempted to commit rape

upon her. Thus, according to the written complaint

entire incident took place in the night of 10 th June,

2016.

(ii) Now in evidence she stated on oath that the incident

took place on 10th June, 2016 at about 9.30/10.00 p.m.

when she was cooking at her matrimonial home. At

that time, the appellant came from behind,

embarrassed her and pressed her breast. As a result

of sudden push she fell down on the ground, then the

accused/appellant tried to commit rape upon her.

Again on the next day morning, i.e. on 11 th June, 2016

the appellant tried to commit the same indecent act

upon the de facto complainant. Surprisingly enough,

the written complaint is absolutely silent about the

incident that allegedly took place on 11th June, 2016.

(iii) This Court is perfectly aware that the written complaint

is not a substantive piece of evidence. It is not an

encyclopaedia so that every minute details are to be

stated by the de facto complainant, but the FIR must

contain the incident in a summarized form which took

place. When there is a material omission in the FIR

regarding the incident of 11 th June, 2016, such

omission amounts to contradiction and in such case the

Court has no other opportunity but to hold that the de

facto complainant tried to develop her case introducing

a new story dated 11th June, 2016.

(iv) The relatives of the de facto complainant also stated

with great stress about the incident of 11 th June, 2016

but the de facto complainant did not state such

incident in his written complaint.

(v) There is another glaring contradiction which comes

from the evidence of the Medical officer. The Medical

Officer (P.W. 7) wrote the injury report of the de facto

complainant as per her statement. She stated before

the Medical Officer that the alleged incident took place

on 10th June, 2016 during noon. If such statement of

the de facto complainant made before the Medical

Officer for the first time even before lodging the FIR is

believed, then the entire story of happening of the

incident on 10th June, 2016 at night is held to be false,

and false to the knowledge of the de facto complainant.

(vi) Surprisingly enough, the Learned Trial Judge convicted

the appellant under Section 354B of the Indian Penal

Code. Section 354B is the penal provision for assault

or use of criminal force to a woman with intent to

disrobe. It runs thus:-

"354B. Assault or use of criminal force to

woman with intent to disrobe. - Any man who

assaults or uses criminal force to any woman or abets

such act with the intention of disrobing or compelling

her to be naked, shall be punished with imprisonment

of either description for a term which shall not be less

than three years but which may extend to seven years,

and shall also be liable to fine".

Careful reading of Section 354B suggests that even if an

accused does not have any intention to commit rape, he may be held

guilty for committing the offence of disrobing a woman. Even in

Section 354B it is not required for the prosecution to prove that the

victim was actually disrobed used of criminal force with the intent to

disrobe by the accused is sufficient to bring home the charge under

Section 354B of the Indian Penal Code.

Now the Learned Trial Judge did not frame any charge under

Section 354B of the Indian Penal Code causing thereby prejudice to

the appellant because he did not get any opportunity to understand or

explain for which he was being tried. Section 354B of the Indian

Penal Code is not a lesser offence of Sections 376/511 of the Indian

Penal Code. Therefore, the Learned Trial Judge committed a gross

error in convicting the appellant under Section 354B of the Indian

Penal Code taking aid of Sub-Section 4 of Section 222 of the Code of

Criminal Procedure.

For the reasons stated above, this Court is of the view that the

judgment and order of conviction and sentence passed by the Learned

Additional Sessions Judge, Ranaghat, Nadia in Sessions Trial No.

13(1)/2017 arising out of Sessions Case No. 07(11)/2016 cannot be

sustained.

The instant appeal is, therefore, allowed on contest.

The accused be discharged from the bail bond.

Office is directed to supply the urgent certified copy of this

order to the Learned Advocates for the parties on the usual

undertakings.

(Bibek Chaudhuri, J.)

Srimanta A.R. (Court)