Calcutta High Court (Appellete Side)
Mihir Gorai vs The State Of West Bengal & Anr on 13 July, 2022
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Before: Hon'ble Justice Sugato Majumdar
CRA 149 of 2015
Mihir Gorai
Vs.
The State of West Bengal & Anr.
For the Appellant : Mr. K. Ghosal.
For the State : Mr. Swapan Banerjee,
Ms. Purnima Ghosh.
Hearing concluded on : 08/07/2022
Judgment on : 13/07/2022
Sugato Majumdar, J.:-
The instant criminal appeal is filed against the judgment dated 31st
January, 2015 passed by the Additional Sessions Judge, 2nd Court, Purulia
cum the Special Judge under P.O.C.S.O Act, 2012 whereby the accused of
the trial Ashok Gorai was acquitted of the charges leveled against him under
sections 457/354 of the Indian Penal Code read with section 12 of the
P.O.C.S.O Act.
The present appellant being the de-facto complainant and the father of
the victim, lodged a written complaint against the said Ashok Gorai alleging
that on 22/03/2013 at about 11 p.m. he trespassed into his house, forcibly
broken the door of the room where the victim was sleeping and outraged her
modesty. The wife of the appellant resisted but when she could not do
anything she called the local people and confined the said Ashok Gorai
inside a room.
The written complaint was registered as Purulia (M) P.S. Case No. 59
of 2013 dated 23/03/2013. On completion of investigation charge sheet was
filed. Charges were framed under sections 457/354 of the Indian Penal Code
along with section 8 of the P.O.C.S.O Act 2012. The said Ashok Gorai
pleaded not guilty as a result of which he was tried. In trial, seven witnesses
were examined including the victim girl and her parents.
Defense of the said Ashok Gorai was false implication. He stated so
also in his examination under section 313 of the Code of Criminal Procedure,
1973.
The trial court, after appreciation of evidence came to the conclusion
that the said Ashok Gorai is not guilty and acquitted him of all the charges
leveled against him. The trial court observed that the evidences of the
witnesses are contradictory and belies the truthfulness of the allegations.
Mr. Ghosal, the Learned Counsel for the appellant submitted that the
victim was a rustic girl without having enough smartness. She might not
have deposed or narrated the incidents without meticulous details. But there
is no contradiction in her statements that her modesty was outraged by the
said Ashok Gorai. Minor contradictions, according to him, cannot undermine
her otherwise reliable evidence. The trial court should have considered and
appreciated evidence from that point of view. According to him, appreciation
of evidence by the trial court was seriously flawed which demands
interference of this court by setting aside the order of acquittal and
convicting the said Ashok Gorai as sufficient materials are there in the
record to order conviction.
Mr. Banerjee along with Ms. Ghosh, appearing on behalf of the state,
filed written notes of arguments in which several discrepancies in the
evidence were pointed out. The sum and substance of the argument of Mr.
Banerjee and Ms. Ghosh is that because of incoherent evidence, the trial
court rightly acquitted the said Ashok Gorai.
I have heard rival submissions.
It is stated in the written complaint that the victim was sleeping inside
her room when the said Ashok Gorai forcibly entered into the house
breaking door and outraged her modesty. The victim girl stated in evidence
that while she was returning from bathroom the said Ashok Gorai pressed
her mouth - and tried to drag herself and also outraged her modesty. She
somehow managed to shout on hearing which her parents came there and
managed to catch the said assailant. She did not state that the alleged
incident took place while she was sleeping inside the room, as stated in the
written complaint. The appellant, deposed as P.W. 2 and stated in evidence
that on hearing shouting he along with his wife came out of the room and
found that the victim was caught hold by the said Ashok Gorai and she was
placed on the cot with a cloth was pressed on her mouth. P.W. 2, being the
appellant, further stated in cross-examination that it was not correct to say
as stated in the written complaint that on 22/03/2013 at about 11 p.m. the
said Ashok Gorai had attacked his house and at that time the victim and the
wife of the appellant were sleeping inside the room. This statement of the
appellant undermines the allegations contained in the written complaint.
There was neither any seizure of the alleged piece of cloth nor any piece of
material demonstrating and evidencing breaking of the door which,
according to P.W. 3, the mother of the victim, was bolted from inside.
P.W. 3 stated that on hearing the shouting of the victim, she and her
husband, being the appellant came out of her room and asked the victim
what happened. The victim stated her that she came out for attending her
nature's call at bathroom when the said Ashok Gorai held her from back and
pulled her placing a cloth on her mouth. Again P.W. 3 stated that when she
went to the room of the victim hearing shouting it was closed. The victim
stated in cross examination that the said Ashok Gorai was detained at night
in the room where she also stayed in the night. This is very odd that the
assailant and the victim were kept confined in the same room throughout
the night. P.W. 3 once stated in her evidence that she was all along with the
victim throughout the night in her room. At the same time she stated that
she was in the room of the victim for five minutes. These statements are
contradictory. Although it is stated that the villagers guarded the said Ashok
Gorai at that time, no cogent evidence is available to support this contention.
P.W.1, the victim further stated in her evidence that police came at
about 3/3.30 a.m. and arrested the said Ashok Gorai from there. Memo of
Arrest, being Ext. A show that the said Ashok Gorai was arrested at 14:25
hours on 23/03/2013.
The appellant further stated in evidence that he visited the police
station at about 3 a.m. and lodged complaint there whereas the endorsement
on the written complaint shows that it was received at 18:25 hours on
23/03/2013
. He further stated that he was accompanied to the police
station by Bhabani Charan Gorai and Bibhuti Gorai but they were not
examined as witnesses.
No evidence was adduced to show the age of the victim.
Entire evidence is rife with contradictions and inconsistencies as
rightly observed by the trial court. No cogent, reliable and corroborative
evidence is there to sustain conviction. Such evidences cannot be relied
upon. I agree with the submission of the Counsels appearing for the state.
The plea of the Learned Counsel for the appellant that the victim is a rustic
girl and could not depose properly cannot help him as other evidences are
also contradictory.
In nutshell, this Court agree with the finding of the trial court and the
trial court committed no error in acquitting the said Ashok Gorai.
Accordingly, the instant appeal stands dismissed without cost.
Lower court record should be returned with a copy of this judgment.
(Sugato Majumdar, J.)
