Calcutta High Court (Appellete Side)

Babu Sk & Anr vs The State Of West Bengal on 25 July, 2022

                 IN THE HIGH COURT AT CALCUTTA
                CRIMINAL APPELLATE JURISDICTION
                         APPELLATE SIDE

PRESENT:

THE HON'BLE JUSTICE TIRTHANKAR GHOSH


                            CRA 102 of 2021
                                   With

                         IA No. CRAN 1 of 2021

                            Babu Sk & Anr.
                                  -vs.-
                        The State of West Bengal

For the appellants           :     Mr. Soumik Ganguli,
                                   Mr. Diptendu Banerjee,
                                   Ms. Pinky Sarkar.

For the State                :     Mr. Swapan Banerjee.


Heard on                     :    04.07.2022 & 18.07.2022.


Judgment on                  :     25.07.2022

Tirthankar Ghosh, J:-

      The present appeal has been preferred challenging the judgment and

order of conviction dated 05.02.2016 /06.02.2021 passed by the learned

Additional Sessions Judge, First Court, Katwa, Purba Bardhaman, in Sessions

Trial No. 46 of 2010 arising out of Sessions Case no. 249 of 2009, thereby

holding the appellant no. 1 guilty of commission of offence punishable under
                                            2


Section 448/323/376/511 of the Indian Penal Code and the appellant no.2

under Section 448/325 of the Indian Penal Code. The learned Trial Court

thereafter was pleased to impose the following sentences in respect of the

appellants:


Appellant No.1/Babu Sk:


     1) Sentenced to suffer R.I for five years (5 years) for the offence punishable

        under Sections 376/511 of the Indian Penal Code and fine of Rs.5,000/-

        in default S.I. for six months (6 months).

     2) Sentenced to suffer R.I. for one year (1 year) for the offence punishable

        under Section 323 of the Indian Penal Code and fine of Rs.500/- in

        default S.I. for ten days (10 days).

     3) Sentenced to suffer R.I. for one year (1 year) for the offence punishable

        under Section 448 of the Indian Penal Code and fine of Rs. 500/- in

        default S.I. for ten days (10 days).


Appellant no.2/ Momai Sk:


     1) Sentenced to suffer R.I. for six months (6 months) for the offence

        punishable under Section 448 of the Indian Penal Code and fine of Rs.

        500/- in default S.I. for ten days (10 days).

2)      Sentenced to suffer R.I. for three years (3 years) for the offence

        punishable under Section 325 of the Indian Penal Code and fine of Rs.

        1,000/- in default S.I. for one month (1 month).
                                        3


      The genesis of the case relates to an application under Section 156(3) of

the Code of Criminal Procedure preferred by one Rashida Bibi before the

learned ACJM, Katwa. The allegations made therein are that on 03.09.2008 at

mid night between 11.30 pm to 12.00 am when the complainant and her two

sisters were sleeping in their house, the appellant no.1 trespassed into the

room and pulled the wearing apparels of Pakhira Bibi, sister of the

complainant, thereby attempting to disrobe her, as a result of which Pakhira

Bibi woke up and screamed when the appellant no.1 fled away. The incident

was informed to the police station but no action was taken and as such the

appellant no.1 along with an illegal mob on 26.09.2008 entered into their

house with deadly weapons along with stick, axe etc. and started hurling filthy

languages by grabbing the hand of the complainant. Appellant no.1 and his

associates which included appellant no.2 threatened as to why a complaint was

lodged at the police station and assaulted the complainant with iron rod. As a

result of which the right arm of the complainant was fractured and she fell

down on the ground when the appellant snatched away her gold chain. At that

time the complainant's sisters were screaming as they were also assaulted with

sticks and iron rod by the miscreants. Sahida Bibi's hand was broken,

however, hearing the hue and cry the villagers rushed to their house when the

accused persons fled away. Sahida Bibi was taken to Ketugram Health Centre

and from there she was referred to Katwa Hospital and she was released after

treatment on 01.10.2008. Complainant states that as the police was inactive in
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spite of receipt of information she was compelled to file the case for a direction

upon the police authorities to investigate into the alleged offence.


      On the direction of the Learned Additional Chief Judicial Magistrate,

Katwa Police Station case no. 114/08 dated 07.12.2008 was registered for

investigation                           under                            Sections

147/148/149/448

/506/504/323/326/379/34/376/511 of Indian Penal

Code. On completion of investigation the Investigating Authority submitted

charge-sheet against 9 accused persons namely, (1) Babu Sk, (2) Momai Sk, (3)

Kalo Sk, (4) Futu Khatun, (5) Jharna Bibi, (6) Ansara Bibi, (7) Momena Bibi, (8)

Sakina Bibi and (9) Tani Bibi.

The prosecution in order to prove its case relied upon 7 witnesses

namely; PW1, Rasida Bibi, complainant; PW2, Pakhira Bibi, sister of the PW1;

PW3, Naser Sk, acquaintance; PW4 Sahida Bibi, sister of PW1 and PW2; PW5,

Anirban Banerjee, Advocate who drafted the application under Section 156(3)

of Cr.P.C.; PW6, Dr. Siddhartha Kr. Sen, Medical Officer and PW7, Basudeb

Mondal is the Investigating Officer of the Case.

PW1, Rashida Bibi identified all the 9 accused persons in Court and

deposed that after informing Ketugram Police when the police authorities did

not take any steps, she approached the learned ACJM, Katwa through one

Advocate for initiation of the case. She stated that she was sleeping inside the

house along with her two sisters at about 10.30 pm/12 am Pakhira Bibi

started crying as she was disrobed. The witness stated that hearing such hue

and cry she woke up and saw Babu Sk running away. In the next morning the

incident was informed to the police station. After 23 days Babu Sk being

accompanied with other eight accused persons entered into their house and

hurled abusive language to the three sisters. Babu Sk was armed with Tangi

and iron rod. She deposed that Babu Sk tried to hit her head with the iron rod

in order to kill her but since she shifted her head the iron rod struck her hand

and she fell down, when Kalo Sk snatched away the gold chain. The other two

sisters at that point of time came to her aid when they were also assaulted and

Sahida Bibi's right hand was fractured by Momai Sk. The witness stated that

she sustained injury in different parts of her body including her right hand,

they were treated first at Ketugram Hospital and thereafter referred to Katwa

Sub-divisional Hospital, where Sahida Bibi was admitted for 3/4 days,

thereafter she was discharged.

PW2, Pakhira Bibi identified all the accused persons in Court and stated

that three years ago at about 11.30 pm/12.00 am when the three sisters were

sleeping inside a room then Babu Sk entered and pulled her wearing apparels

and inner garments, thereby disrobing her. The accused sat on her thigh and

attempted to commit rape upon her. Hearing her hue and cry the other sisters

woke up and then Babu Sk fled away. The incident was reported to Ketugram

Police Station and she believed that a case was registered. However, after 22

days all the accused persons armed with lathi, tangi and other arms trespassed

into their house and assaulted Rashida Bibi on her right hand which was

fractured and when Sahida Bibi tried to save her Momai Sk assaulted Sahida

and her right hand was also fractured by Momai Sk. The accused persons

assaulted all the three sisters in different parts of their body and even snatched

away the gold chain of Rashida Bibi. When the villagers rushed to their house

the accused persons went away. She also stated that Sahida was admitted at

the hospital for 4/5 days.

PW3, Naser Sk, is an acquaintance of the defacto complainant, who

identified all the accused persons and stated that three years ago PW1, PW2

and PW4 were sleeping inside their house while Babu entered inside their room

at about 11.30 p.m./12.00 a.m. Babu entered to commit rape upon PW2.

Hearing the hue and cry he went to their house when Babu Sk fled away. The

incident was informed to the police station by Rashida Bibi but police did not

take any steps, thereafter about 22 days later all the nine accused persons

entered the house of the three sisters and assaulted them and many persons of

the locality saw the incident. The witness stated that PW1 was admitted to

hospital for 6/7 days as her arms were fractured and he also came to know

that a gold chain of PW1 was snatched away by Kalo Sk. The witness also

stated that Sahida Bibi was also injured and her arms were also fractured.

PW4, Sahida Bibi, identified all the accused persons in Court and

narrated the incident in the same manner as PW1 and PW2.

PW5, Anirban Banerjee, is an Advocate who prepared and filed the

application under Section 156(3) of Cr.P.C. and identified the left hand thumb

impression of PW1 and also identified his signature which was marked as Ext.1

series.

PW6, Siddhartha Kr. Sen, is the Medical Officer who treated Sahida Bibi

and found the following injuries:

" 1. History of trauma of right hand.

2. Diffused swelling over right hand and wrist. Xray report revealed that there was fracture on the base of 2nd Meta carpal bone on the right hand."

The witness identified the injury report which was prepared by him with

his signature which was marked as Ext.2.

PW7, Basudeb Mondal, is the investigating Officer of the case who

narrated the chronology of evidence and the manner in which investigation was

conducted by him and also identified the sketch map along with index which

was marked as Ext.3 collectively.

Records of the case reflect that although charges were framed under

Section 376/511 of the Indian Penal Code against appellant no.1, Babu Sk and

under Sections 148/448, 323/34. 325/34, 380/34 against all the accused

persons yet the learned trial Court while arriving at its conclusion held that the

prosecution has failed to prove the charges under Sections 148/323/380 of the

Indian Penal Code against the appellant no.2. The learned Trial Court on

scrutiny of the evidence also acquitted 7 accused persons namely, (1) Kalo Sk,

(2) Futu Khatun, (3) Jharna Bibi, (4) Ansara Bibi, (5) Momena Bibi, (6) Sakina

Bibi and (7) Tani Bibi.

The learned trial Court, however, was pleased to hold Babu Sk guilty for

the offences under Sections 448/325/376/511 of the Indian Penal Code and

the accused Momai Sk guilty under Sections 448/325 of the Indian Penal

Code.

Mr. Soumik Ganguli, learned advocate appearing for the appellant

submitted that there are no independent witnesses who have supported the

case of the prosecution. It has also been contended by the learned advocate

that except the three sisters who claimed themselves to be victim of the

circumstances there are no cogent material for arriving at the conclusion

regarding the finding of guilt and the learned trial Court erroneously arrived at

such conclusion. Additionally, it has been submitted that Momai Sk is entitled

to the same benefit as other accused persons who have been acquitted from the

charges and the learned trial Court convicted him only on the testimony of the

three sisters without the same being corroborated from the injury report

regarding the assault being inflicted by the appellant No.2 or any of the

associates. Learned advocate submitted that there is a gross illegality in the

order so passed by the learned trial Court and the same as such calls for

interference by this Court.

Mr. Swapan Banerjee, learned advocate appearing for the State resisted

the contention of Mr. Ganguli and submitted that the factual circumstances

necessary for proving the charges have been well established by the

prosecution. He submitted that the genesis of the case originates from

03.09.2008 when Babu Sk attempted to ravish PW2, Pakhira Bibi. The accused

persons become overconfident because of the inaction of the police authorities

and as such after 22/23 days attacked them to establish their authority or

dominance. Additionally it has been submitted that the medical documents of

Rashida Bibi and Sahida Bibi would reflect that they were injured, being

treated in Government Hospital. The prosecution, according to the learned

advocate has proved the case beyond reasonable doubt and as such the order

of conviction and sentence passed by the learned trial Court should not be

interfered with.

I have assessed the evidence of the four prosecution witnesses which

included the three sisters namely, Rashida Bibi, Pakhira Bibi and Sahida bibi

and also an acquaintance who supported the case of the prosecution. It is a

fact that in the injury report there is no reflection regarding the persons who

assaulted the two sisters, however, the same cannot be a yardstick because

firstly, they went to a primary health centre which did not have any

infrastructure or even letterhead of a Government Hospital, they were then

referred to Sub-divisional Hospital and the injury report of the Sub-divisional

hospital reflects that they were referred from Ketugram Hospital. The evidence

of PW6, Medical Officer proves that Sahida Bibi was assaulted on the right

hand wrist and the X-ray revealed that there was fracture on the base of 2 nd

Meta carpal bone of the right hand. PW1, PW2 and PW3 has consistently

stated regarding the overacts of Babu Sk both on 03.09.2008 and 26.09.2008

and that of Momai Sk on 26.09.2008. So far as infliction of injury is concerned

the same has been stated both by the injured witnesses regarding the

particular person inflicting injury. In case of Rashida Bibi all the witness has

stated that the injury was sustained because of the assault by iron rod by

Babu Sk and in case of Sahida the assault being inflicted by Momai Sk

additionally this has been corroborated by PW2 and PW3.

In view of the aforesaid so far as the incident of 03.09.2008 and

26.09.2008 is concerned, I am of the opinion that the incident had taken place.

Accordingly, the finding of guilt arrived at by the learned Trial Court in respect

of the appeal are not interfered with.

So far as applicability of the sections are concerned, I am of the opinion

that the incident as narrated on 03.09.2008 would fall under Section 354 of

the Indian Penal Code. Accordingly, accused Babu Sk should be convicted and

sentenced for the offence under Sections 448/323/354 of the Indian Penal

Code. So far as the appellant Momai Sk is concerned his conviction under

Sections 448/325 of the Indian Penal Code is maintained.

However, the sentence imposed upon both the Appellants call for

modification, accordingly:

i) Babu Sk, appellant no.1 is sentenced to Rigorous Imprisonment of

one year and fine of Rs.5,000/- in default to suffer Simple

Imprisonment for three (3) months for the offence under Section

354 of the Indian Penal Code.

ii) Babu Sk, appellant no.1 is sentenced to Rigorous Imprisonment of

one month and fine of Rs.5,000/- in default to suffer Simple

Imprisonment for ten days for the offence under Section 323 of the

Indian Penal Code.

iii) Babu Sk, appellant no.1 is sentenced to Rigorous Imprisonment of

one month and fine of Rs.5,000/- in default to suffer Simple

Imprisonment for ten days for the offence under Section 448 of the

Indian Penal Code.

The sentence of appellant no.2, Momai Sk is modified to the extent as

follows:

i) For the offence under Section 325 of the Indian Penal Code the

appellant would undergo sentence of Simple Imprisonment for