Sudip Sen & Ors vs The State Of West Bengal
2022 Latest Caselaw 1116 Cal

                 IN THE HIGH COURT AT CALCUTTA
                CRIMINAL APPELLATE JURISDICTION
                          APPELLATE SIDE

The Hon'ble JUSTICE BIBEK CHAUDHURI

                            C.R.A 609 of 2018

                            Sudip Sen & Ors
                                   Vs.
                       The State of West Bengal

      For the Appellants:           Mr. Milan Mukherjee, Sr. Adv.,
                                    Mr.Biswajit Manna, Adv.


      For the State:                Mr. Saibal Bapuli, A.P.P.,
                                    Mr. Arani Bhattacharyya, Adv.


Heard on: 24 February, 2022.
Judgment on: 10 March, 2022.

BIBEK CHAUDHURI, J. : -


1.    Five accused persons stood trial and convicted for the offence under

Section 376(2)(g)/511 of the Indian Penal Code, IPC in short and also

under Section 323/34 of the IPC on conclusion of trial of Sessions Case

No.26(2) of 2011 corresponding to Sessions Trial No.1 (August) 2011. The

learned trial judge handed down sentence of rigorous imprisonment of five

years each with fine and default clause for committing offence under

Section 367(2)(g)/511 of the IPC. The appellants were also sentenced to

suffer rigorous imprisonment for one year each with fine and default

clause for the offence punishable under Section 323/34 of the IPC.
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2.    On 11th January, 2010 the defacto complainant lodged a written

complaint alleging, inter alia, that she had love relationship with accused

Sudip Singh. They used to visit different places in an around of the

township of Nabadwip where they used to stay, riding on a red coloured

motorcycle of accused Sudip. On 10th January, 2010 at about 4 pm Sudip

called the defacto complainant on her mobile phone and informed her

that the paternal aunt of Sudip was seriously ill and she wanted to see

the defacto complainant. He also said that he would be waiting for her at

a place called Gabtala. The defacto complainant went to Gabtala at about

5.30 pm where Sudip came to the spot by his motorcycle. She rode on the

said motorcycle and took her to a house situated at Tegharipara at about

6 pm. The defacto complaint saw one Sauvik Das a friend of Sudip

standing in front of the house. Sauvik told Sudip that everybody was

waiting for them inside the house. When they entered into the house

Sauvik closed the entrance door. She also found other friends of Sudip,

namely Papan Barik, Abhijit Chandra Nath @ Bijon Nath and Ashim

Sadhu inside the said house. They told Sudip to go to the room of the

aunt with the defacto complainant. Sudip took her to a room. The friends

of Sudip also followed them. There was no other person in the said room.

They immediately closed the door of the room from inside.       When the

defacto complainant sensed about some foul play and asked Sudip about

his aunt, he assaulted her by slaps on her cheek. He also threatened her

with dire consequences. The defacto complainant raised hue and cry. At

this Sudip and all his friends started assaulting her by slaps. Then they
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forcibly laid her on a cot. Sudip disrobed her and all of them

inappropriately touched different parts of her body with sexual intent.

When they tried to commit rape upon her the neighbouring people started

to knock at the entrance door of the said house. Sudip fled away scaling

the wall of the house. His friends were however caught red handed by the

local people. They were manhandled by them. They sent the defacto

complainant to her home. As she was mentally upset on the date of

occurrence, she could not lodge a complaint in the local P.S. On the

following day the defacto complainant lodged the complaint with the

Inspector-in-Charge, Nabadwip P.S.

3.       The case under Sections 376/511/120B/34 of the IPC was

registered against the accused persons. On completion of investigation

charge-sheet was submitted before the learned Sessions Judge at Nadia,

the case was committed to the 3rd Fast track Court at Krishnanagar for

trial.

4.       The   learned   trial   judge   framed   charge    against   the

accused/appellants under Section 376(2)(g)/511 of IPC and 323/34 of the

IPC. On conclusion of trial the accused persons were convicted under the

charge framed against them and sentenced to suffer imprisonment as

narrated above.

5.       Mr. Milan Mukherjee, learned Senior Advocate for the accused

persons/appellants submits that the written complaint contains two

different incidents in respect of same cause of action. The first incident

speaks about making a phone call by appellant Sudip to the defacto
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complainant requesting her to come to a place, called, Gabtala on 10th

January, 2010 at about 5.30 pm. Accordingly the defacto complainant

went to Gabtala on her own accord. Sudip came to that place riding on a

motorcycle. The defacto complaint sat on the motorcycle and went away

with Sudip. The second incident was held in a house at Tegharipara. It is

alleged that the appellant Sudip and his friends forcibly caught hold of

her on a cot, stripped her off and touched different parts of her body in

order to commit rape upon her. Then the victim raised hue and cry which

attracted local people. They started to knock at the door of the said house

Sudip fled away scaling a wall and other accused persons were caught red

handed and manhandled by the local people.

6.    It is submitted by Mr. Mukherjee that Section 164A of the Code of

Criminal Procedure enjoins a duty upon the Investigating Officer of a case

where, during the stage when an offence of committing rape or attempt to

committing rape is under investigation, the woman with whom rape is

alleged or attempted to have been committed shall be examined by a

Registered Medical Practitioner employed in a Government Hospital.

During investigation of the case the Investigating Officer proposed the

victim girl to be examined by the Medical Officer but she refused her

medical examination. The accused persons were also not examined as per

the provision of Section 53A of the Code of Criminal Procedure. Refusal to

be examined medically by the victim is an important circumstance which

the learned trial judge failed to consider. On 12th January, 2010 the

victim girl gave a statement under Section 164 of the Code of Criminal
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Procedure. It is reported by the victim girl that the accused persons

disrobed her and touched different parts of her body. They also touched

various parts of her body by their mouth also.

7.    Mr. Mukherjee next submits that PW2 Nitai Debnath and PW3 Amit

Mazumder being the local witnesses did not support the prosecution case

and they were declared hostile. PW4 is the uncle of the defacto

complainant. PW5 Biva Rani Nath is the mother of accused Avijit Nath

she was also declared hostile. PW6 is the mother of the defacto

complainant. PW7 is her father. PW8 Subhankar Biswas who recorded the

statement of the victim girl under Section 164 of the Code of Criminal

Procedure did not face cross examination. PW10 is the mother of accused

Souvik Das and PW11 is the I.O of the case. It is submitted by Mr.

Mukherjee that except the uncle and the parents of the defacto

complainant nobody supported the prosecution case. The local witnesses

who saved the victim were not examined. Even the rickshaw puller who

brought the defacto complainant from Tegharipara to her house after the

alleged incident was not examined. The Investigating Officer failed to

collect proper evidence to bring home charge against the accused persons.

Therefore, the order of conviction passed by the learned trial judge ought

to be set aside.

8.    It is further submitted by Mr. Mukherjee that even if the sole

testimony of the defacto complainant is taken on its face value, charge

under Section 376/511 of the Code of Criminal Procedure cannot stand.
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9.    Learned    P.P-in-Charge    on       the   other   hand,   submits   that

indisputably the victim girl had love relationship with the appellant No.1

Sudip Sen. Taking advantage of the said relationship, the appellant No.1

took her to an empty house and he along with his friends, disrobed the

victim girl. They also touched different parts of her body by their hands

and mouth. It is also submitted by the learned Advocate for the

respondent that a girl of self respect would not lead her evidence to the

effect that she was disrobed by the appellants. An unmarried girl would

not come forward to depose falsely against the appellants at the cost of

her chastity and womanhood. Therefore, there is no reason to disbelieve

the evidence of the victim girl. The learned Advocate for the respondent

has also drawn my attention to the mobile call details (Exhibit-6

collectively). It is found from the said call details that the appellant No.1

made four calls to the victim girl on 10th January, 2010 between 16.11

hours and 17.23 hours. The said phone calls record reveals that appellant

No.1 insisted upon the victim girl to leave her house and go to some place

with him. In other words, the call register dated 10th January, 2010

supports the claim of the defacto complainant. Other appellants were

already waiting in the house where she was taken and they committed the

offence wrongfully confining her in a room. Therefore, there is no reason

to alter the order of conviction and sentence passed by the learned court

below.

10. Having heard the leaned Counsels for the parties and on careful

perusal of the entire materials on record, I like to state at the outset that

though the learned Advocate for the appellant vigorously argued that the

defacto complainant did not want to get herself medically examined and

refused Medico Legal Examination on the very date of occurrence, the said

circumstance does not alone render the prosecution case doubtful. It is

the case of the prosecution that the accused appellant tried to commit

rape upon her. In case of attempt of rape, there cannot be any injury in

the private part of the victim girl. The Medical Officer wanted to examine

the private part of the victim girl on the date of occurrence which she

refused. In a case under Section 376/511 of the IPC, absence of such

Medico Legal Examination Report does not render the prosecution case

wholly doubtful.

11. It is true that the prosecution has failed to produce any

independent witness who saved the victim girl. But for the lapse of the

prosecution to produce any independent witness of the occurrence,

prosecution case cannot be disbelieved. I am in agreement with the

learned Advocate for the respondent that the prosecutrix would not

adduce false evidence against the appellants, especially appellant No.1

when she had subsisting love relationship with him. The learned trial

judge did not commit any error in holding the appellant's guilty for

committing offence upon the prosecutrix.

12. Now comes the question as to whether the specific act done by the

appellants amounts to an offence under Section 376/511 of the IPC or

not. Undoubtedly, there has been a major change in the definition of rape

by the Criminal Law Amendment Act, 2018, with effect from 21st April,

2018. But at the time of commission of offence, penetration is the sine-

qua-non for an offence of rape.

13. In order to find an accused guilty of an attempt with intent to

commit rape, court has to be satisfied that the accused, when he laid hold

of the prosecutrix, not only desired to gratify his passions upon her, but

that he intended to do so at all events, and notwithstanding any

resistance on her part. Indecent assaults are often magnified into

attempts of rape. In order to come to a conclusion that the conduct of the

accused was indicative of a determination to gratify his passion at all

events, and in spite of all resistance, materials must exist. Therefore, in a

case of attempt to commit rape the prosecution is under obligation to

prove that accused had committed and taken all step, short of

penetration. In the instant case the evidence of the prosecutrix

establishes that the accused disrobed her and touched different parts of

her body by their hands and mouth. From such evidence the ingredients

of offence of attempt to commit rape cannot be said to be proved.

However, it has been established beyond any shadow of doubt that the

appellant committed offence under Section 354 of the IPC.

14. Thus conviction of the appellants under Section 376/511 of the IPC

is altered to a conviction under Section 354 of the IPC. Conviction under

Section 323/34 of the IPC remains unaltered.

15. Now comes the question of sentence. The appellants are facing trial

for last 12 years. At the time of commission of offence they were students.

They passed considerable period of time in incarceration. This court is of

the view that if the appellants are sentenced to suffer rigorous

imprisonment for six months with fine for committing offence under

Section 354 of the IPC and also rigorous imprisonment for six months

with fine for committing offence under Section 323/34 IPC, the

punishment shall be just, proper and sufficient.

16. Accordingly the appellants, namely, Sudip Sen, Souvik Das @

Soubhik Das, Papan Barik, Abhijit Chandra Nath @ Bijan Nath and

Ashim Sadhu are sentenced to suffer rigorous imprisonment for six

months with fine of Rs.1000/- each in default to suffer imprisonment for

further one month each for committing offence under Section 354 of the

IPC.

17. The appellants are also sentenced to rigorous imprisonment for six

months and also to pay fine of Rs.1000/- in default rigorous

imprisonment for one month each for committing offence under Section

323/34 IPC. Substantive sentence for imprisonment shall run

concurrently. However sentence of imprisonment for nonpayment of fine

shall run separately.

18. The period of incarceration shall be set off against the actual period

of imprisonment under Section 428 of the Code of Criminal Procedure.

19. The instant appeal is thus disposed of.

20. Let a copy of the judgment be sent to the court below with the lower

court record.

21. Let a copy of the judgment duly countersigned by the ACO of this

court be handed over to the learned Advocate on record for the accused

free of cost.

(Bibek Chaudhuri, J.)