Sarban Saha @ Sharban Saha vs State Of West Bengal
2022 Latest Caselaw 7888 Cal

IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present:

The Hon'ble Justice Joymalya Bagchi And The Hon'ble Justice Ajay Kumar Gupta

C.R.A. 603 of 2013

Sarban Saha @ Sharban Saha Vs.

                              State of West Bengal

Amicus Curiae             :    Ms. Zareen N Khan

For the State             :    Mr. Saswata Gopal Mukherjee, ld PP
                               Mr. Partha Pratim Das
                               Mrs. Manasi Roy

Heard on                  :    29th November, 2022

Judgment on               :    29th November, 2022


Joymalya Bagchi, J. :-

Appeal is directed against the judgment and order dated 17.06.2013

and 18.06.2013 passed by learned Additional Sessions Judge, 4 th Court,

Malda in Sessions Trial No. 2 of 2010 airing out of Sessions Case no. 252 of

2009 convicting the appellant for commission of offence punishable under

Sections 417/376 of the Indian Penal Code and sentencing him to suffer

rigorous imprisonment for 10 (ten) years and a fine of Rs. 1,00,000/-, in

default, to suffer simple imprisonment for two years more for the offence

punishable under Section 376 of the Indian Penal Code and to suffer

rigorous imprisonment for one year and to pay a fine of Rs.5,000/-, in

default to suffer simple imprisonment for three months more; both the

sentences shall run concurrently.

Prosecution case against the appellant is to the effect that the

appellant had a love affair with the victim. The affair continued for five

years. There was free mixing between them. One day in the month of March

2009 the appellant told the victim to meet him under Behula Bridge in the

evening. On the following evening, when she reached the Behula Bridge, the

appellant held her hand and dragged her under the bridge. They started

gossiping till 9 p.m. When she wanted to leave, the appellant held her hand

and said that he loved her and would like to marry her. Thereafter, the

appellant had physical relationship with her forcefully. She returned home.

After the incident the appellant did not keep contact with her. He switched

off his mobile phone. Victim became pregnant. When she informed her

pregnancy to the appellant, he proposed that she should abort. She visited

a gynecologist at Moulpur Hospital who confirmed her apprehension.

Thereafter, she lodged written complaint resulting in registration of Malda

P.S case no 78 of 2009 dated 9.4.2009 under sections 417/376 IPC.

Pursuant to investigation, charge-sheet was filed and charges were

framed under sections 417/376 IPC against the appellant. Appellant

pleaded not guilty and claimed to be tried. Prosecution examined 11

witnesses and exhibited a number of documents. Defence of the appellant

was one of innocence and false implication.

In conclusion of trial, the trial Judge by the impugned judgment and

order dated 17.6.2013 and 18.6.2013 convicted and sentenced the

appellant, as aforesaid.

Nobody appears for the appellant. Ms. Khan is requested to assist

the Court as amicus curiae.

Mr. Das appears for the State.

PW 1, Basana Das is the victim herself. She deposed she met the

appellant at a marriage ceremony five years prior to the incident. They

developed acquaintance. Appellant used to visit her residence. He used to

accompany her to school as well to her tuition. Their relationship became

intimate. Appellant told her that he had fallen in love with her. In the first

week of March 2009, appellant requested her to go to Behula Bridge. On the

next evening at 5 p.m. she met the appellant on that bridge. Appellant took

her hand and made her sit under the bridge. They were gossiping for some

time. Thereafter, the appellant stated he loved her and would marry her. In

spite of such proposal she was unwilling to have sex, but he committed rape

against her will. She started shouting "bachao bachao". Thereupon, the

appellant assured her that he would marry her. She left the place around

9.15 p.m. She returned home. Her parents were sleeping. She did not inform

her parents. After 3/4 days she disclosed the incident to her mother.

Thereafter, they went to the house of the appellant. The relations of the

appellant abused them and drove them away. She telephoned the appellant

and informed him that she might have conceived. Hearing this, appellant

told her to terminate the pregnancy. Under such circumstances, she

reported the matter to her parents and decided to file a case. She was

extensively cross-examined with regard to her embellished version that she

had been forcibly raped and had shouted for help.

PW 2, Mili Das is the mother of the victim. She has substantially

corroborated her daughter.

PW 6, Swapan Das is the father of the victim. He deposed there was

a love affair between the appellant and the victim. He also stated appellant

had committed rape on her daughter in the month of March. He, however, is

completely silent with regard to any proposal of marriage given to the family

of the appellant.

PW 10 Dr. Sanjoy Basak is the medical officer who examined the

victim. Upon examination he noted as follows:-

"Hymen was old ruptured, intrytous easily passes two fingers.

Uterous size was almost normal. No injury or foreign body seen inside the

vagina. Pubic hair were not matted." There are overwritings in the medical

report with regard to the Last Menstrual Period (LMP) which appears to have

been altered from 20th March to 20th February.

He proved the medical report Ext 4.

PW 11 Tushar Kanti Saha is the investigating office. He visited the

place of occurrence. He recorded statements of witnesses. He arranged for

medical examination of the appellant as well as the victim. Thereafter, he

submitted charge-sheet.

From the evidence on record including that of the victim (PW 1) and

her parents PWs 2 and 6 it appears that there was an intimate relationship

between the parties.

Victim (PW1) claimed in the month of March, 2009, appellant had

requested her to go to Behula bridge at 7.00 p.m. On the following evening,

she went to the spot. Appellant made her sit under the bridge and they

gossiped for some time. Thereafter, the appellant expressed love and his

desire to marry her. When he proceeded to have sexual intercourse, she

protested. Thereupon, she was forcibly raped. When she cried out 'bachao

bachao', the appellant assured her he would marry her. During her cross-

examination she admitted that she had not stated in the FIR that she had

shouted 'bachao bachao' when she was forcibly raped. She also did not

narrate the incident of forcible rape to her parents on the night of

occurrence.

From these circumstances, it is difficult for me to believe that the

victim had been forcibly raped.

That apart, prosecution case suffers from various exaggerations

and/or improbabilities:-

Firstly, mother of the victim did not state to the police that when

she objected to the free mixing between the couple, appellant had told that

her daughter should pursue education and he would marry her.

Secondly, both the victim (PW1) and her mother (PW2) stated 3/4

days after the incident they had confronted the family members of the

appellant with regard to the proposal of marriage but were turned down.

This circumstance is significantly absent in the first information report

lodged by PW1 as well as in the statement of her mother (PW 2) to the

Investigating Officer (PW11). It appears to be an embellishment to support

the case of false promise of marriage. I am emboldened to come to such

conclusion as father of the victim (PW6) has also not supported the

prosecution case on this score.

Thirdly, victim claimed she had become pregnant and had contacted

the appellant. Thereupon, the appellant told her to abort. This aspect of the

prosecution case does not find support from the evidence of PW10, Medical

Officer who examined the victim. PW10 had examined the victim in April,

2009 and found the uterus was normal which improbabilises the

prosecution case of pregnancy due to sexual intercourse between the

parties. There are also overwritings with regard to the Last Menstrual Period

of the victim.

In view of the aforesaid contradictions and/or inconsistencies in the

prosecution case, I am inclined to extend the benefit of doubt to the

appellant.

Accordingly, conviction and sentence of the appellant are set aside.

Appeal is allowed.

Appellant shall be discharged from his bail bond after expiry of six

months in terms of Section 437A of the Code of Criminal Procedure.

Let a copy of this judgment along with the lower court records be

forthwith sent down to the trial court at once.

I record my appreciation for the able assistance rendered by Mrs.

Zareen N. Khan, learned Advocate, as amicus curiae in disposing of the

appeals.

Photostat certified copy of this judgment, if applied for, shall be made

available to the appellant upon completion of all formalities.

I agree.

(Ajay Kumar Gupta, J.)                               (Joymalya Bagchi, J.)