Jadab Ghosh & Anr vs The State Of West Bengal
2022 Latest Caselaw 7824 Cal

                      IN THE HIGH COURT AT CALCUTTA
                           (Criminal Appellate Jurisdiction)
                                     Appellate Side
Present:

The Hon'ble Justice Rai Chattopadhyay


                              C.R.A. 753 of 2012


                              Jadab Ghosh & Anr.
                                     Versus
                           The State of West Bengal


Amicus Curiae                              : Mr. Mit Guha Roy


                                            : Mr. Saswata Gopal Mukherjee,
For the State                                 Mr. Binay Kumar Panda,
                                              Mr. Pravas Bhattacharjee.



Hearing concluded on        : 22/11/2022

Judgment on: 25/11/2022

Rai Chattopadhyay, J. :



      1.

The judgment and order of conviction and sentenced dated 24 th

February, 2012 passed by the ld. Additional District and Sessions

Judge, Fast Track Court, Bolpur in Sessions Trial No.1 of July, 2006,

has been assailed in this appeal. The trial commenced upon framing

of charge on 28th July, 2006, against the present appellant under

Sections 448/376/420 of IPC. The connected case is Nanoor Police

Station Case No. 62/2005 dated 05.05.2005 under Sections

448/376/420 IPC.

2. In the judgment as mentioned and impugned in this appeal, the trial

court has held the appellant to be guilty of the offence as alleged

against him and passed a sentence directing him to suffer rigorous

imprisonment for seven years and pay a fine of Rs.2000/- in default,

to suffer simple imprisonment for a further period of six months, for

the offence under Section 376 IPC. For the offence under Section 420

IPC, he was sentenced to suffer rigorous imprisonment for seven years

and pay a fine of Rs.1000/- in default of which to suffer simple

imprisonment for a further period of three months. Regarding offence

under Section 448 IPC, the appellant was sentenced to suffer rigorous

imprisonment for one year and all the sentences were directed to run

concurrently.

3. In this appeal the appellant's plea is mainly that the prosecution has

failed to bring home the charges alleged against him, that the

prosecution has failed to bring on record sufficient evidence so as to

prove his guilt as alleged, that the trial court has misdirected itself in

considering the evidence on record, that the trial court has wrongly

applied the law operating in the field, that the trial court has

erroneously come to a finding which is flawed and dehores the settled

law, that the impugned judgment is liable to be set aside and he is

entitled to be found in this case as a person not guilty of the offence

alleged against him.

4. The case started upon filing the FIR by the brother of the victim on 5 th

May, 2005. In the FIR the complainant has narrated an incident of

14th April, 2005, in short alleging that the appellant trespassed into

the house of the victim, had forceful physical relationship with her

amounting to rape and also at a subsequent stage in spite of initially

being agreeable to the terms of marriage with the victim girl, to have

subsided such a proposal and cheated the complainant and his family

by refusing to marry the victim girl. The fact remains that after the

alleged incident when it is claimed that the uncle of the victim girl

witnessed the incident of commission of rape by himself, both the

parties were taken into consultation by the eminent persons in the

village in order to come to a solution by marring off the victim with the

appellant. Allegedly for the deception caused by the appellant, such

an union could not be solemnized.

5. All these facts had given rise to the police case on the basis of the FIR

as above being registered as Nanoor Police Station Case No. 62/2005

dated 05.05.2005 under Sections 448/376/420 of IPC.

6. At the very outset it is pertinent to mention that in this appeal the

appellant had already completed the period of sentence as directed.

Accordingly for all practical purposes the court shall only to look into

the propriety of the impugned judgment, without having any bearing

as to the operation, execution or application of the sentence portion

thereof.

7. None appears in this appeal for the appellant. Hence, Mr. Mit Guha

Roy was appointed as Amicus Curiae in this case to assist the court

in assessing the merits of the same.

8. The court is thankful for the hard work put in by the ld. Counsel and

assistance rendered by him in this case.

9. Prosecution has produced seventeen witnesses and also exhibited

certain documents to prove the charges against the appellant.

Amongst the said witnesses, PW7 is the victim and PW5 is the uncle

of the victim to have personally witnessed the commission of the

offence by the appellant.

10. Victim in her evidence has elaborately and with sufficient precision

described the incident that happened on the faithful date with her. At

that time she was a minor and therefore veracity of this witness has

also been tested by the trial court before allowing her to depose in the

court. This piece of substantive evidence would otherwise be

sufficient to prove prosecution's case unless rebutted or rendered to

be doubtful by any other material in this trial. No difficulty in saying

that evidence of PW 5 duly corroborates whatever have been stated by

the victim in the court. Appellant has been identified duly by all the

witnesses. Therefore there is nothing before the court to disbelieve the

fact that the appellant on the particular date and time and at the

place as stated has committed forceful sexual relationship with the

victim, who was as a matter of fact, a minor at the time of commission

of the offence upon her. Notwithstanding whatever is stated in the

evidence by these two witnesses regarding absence of consent of the

victim to the sexual intercourse with the convict, physical relationship

with a minor would anyway come under the perview of the definition

of the rape as envisaged in law. Be that as it may, during cross-

examination of these two witnesses, the facts emerged from their

evidence in chief regarding forceful physical relationship by the

appellant with the victim without her consent - could not be shaken.

It is a trait law that the evidence of the victim itself would be sufficient

to bring whom the allegation of rape committed upon her if it inspires

confidence and be relied upon without seeking corroboration from any

other material. These traits are fulfilled in this case so far as

credibility of the evidence of the victim is concerned. Accordingly law

would require the court to take the evidence of the victim as to the

commission of rape upon her as a proved fact herein. The trial court

in this case has proceed in the right direction by following the

judgments in the case of Kernel Singh vs. State of M.P reported in

AIR 1995 SC 2472 and that of State of Maharashtra vs.

Chandraprakash Kwalchand reported in 1990 1 SCC 550.

11. The other witnesses are the relatives and the village people,

including the informant, who has given direct evidence as to the

incident developed after the incident of commission of rape was made

known of them. Their evidence may be weighed as regards the offence

under Sections 420 and 448 of IPC as alleged against the appellant.

From the evidence of these witnesses the subsequent development,

i.e, intervention of the eminent person of the village in order to come

to a settlement of marriage between the appellant and the victim girl

and the appellant having fled away at a later stage, shall be perceived.

Appellant's initial consent to the marriage with the victim girl and

later on his escape from entire scene is revealing from the deposition

of the said other witnesses. Accordingly I do not find any infirmity as

regards the decision of the trial court that the offence under Sections

420 as well as 448 of IPC are proved against the appellant.

12. The other point of possible infirmity of the prosecution's case lies

in belated filing of the FIR. Admittedly, after the fateful incident

having happened on 4th April, 2005, the FIR was lodged on 5th May,

2005, i.e, after one month. It is also a trait law that time gap to file a

FIR in a case of sexual offence may not by itself be fatal to the

prosecution's case as envisaged in the judicial pronouncements, i.e,

State of Punjab vs. Gurmeet Singh reported in AIR 1996 SC 1339

and, Kernel Singh vs. State of M.P reported in AIR 1995 SC 2472

.Both these cases are also relied on by the trial court to come to an

appropriate finding that in this case delaying in lodging FIR from the

date of incident as mentioned above would not pose any threat or

would not be fatal to the prosecution's case.

13. Upon the discussion made above, the judgment and order dated

24th February, 2012, of the trial court is found to be just and proper

and could not warrant any interference by this court. Therefore I am

constrained to find that the appeal has got no merit and same should

be dismissed on the finding as above. The appeal no.CRA 753 of 2012

is dismissed and the judgment and order of the trial court dated 24 th

February, 2012, is hereby upheld.

14. However, as mentioned earlier since the appellant has already

completed the period of his sentence, I accordingly award sentence for

the period already undergone. Appellant shall be released at once, if

not done yet and if he is not required in any other case/s.

15. CRA 753 is disposed of with the observations as above.

16. Connected application, if any, is also disposed of.

17. Urgent certified website copy of this judgment, if applied for, be

supplied to the parties upon usual undertaking.

( Rai Chattopadhyay, J. )