Calcutta High Court (Appellete Side)
D.Hira Dhajen Modak vs The State Of West Bengal on 14 March, 2023
14.03.2023
Court No.35
Item No. 94 CRA 167 of 2012
D.Hira Dhajen Modak
Vs.
The State of West Bengal
Ms. Suruchi Saha.
... the amicus curiae
Mr. Pravash Bhattacharyya,
Mr. Pratick Bose.
... for the State
In this appeal the appellant/convict has challenged the judgment
of conviction and order of sentence dated 3rd February, 2012 passed by
Special-cum-Additional District and Sessions Judge, Cooch Behar in
Sessions Trial No. 2(1)11 under Sections 448/376/506 of the Indian
Penal Code.
At the outset a report submitted in Court today by Mr. Bose,
learned Advocate for the State in this appeal, may be mentioned. The
report is dated 7th March, 2023 and goes on to indicate that after
serving the period of sentence the convict/appellant has already been
released from the Correctional Home on 27th July, 2018. The said
report be kept with the record.
The trial Court has convicted the appellant and imposed
punishment of rigorous imprisonment for seven years, six months and
one year, for the offences under Sections 376,448 and 506 of the Indian
Penal Code, respectively. The trial Court has also directed him to pay
an amount of fine of Rs.10,000/-, Rs.500/- and Rs.10,000/-
respectively along with the period of sentence. Also directions were
given for sufferance for imprisonment for further period in default of
payment of fine.
The criminal proceeding was started against the present
appellant/convict upon lodging the FIR by the victim on 18th July,
2009. Pursuant to the same Kotwali Police Station Case No. 535 of
2009 dated 18th July, 2009 under Section 448/376/506 of the Indian
Penal Code was started. The said FIR may be extracted is hereinbelow:-
"Complainant :- Smt. Shyamali Sarkar, wife of Hiten Sarkar, Village &
P.O. Chawdanga, P.S. Kotwali, Dist. Cooch-Behar. I am lodging a written
complaint to the Kotwali P.S. to the effect that on 09-07-09 during non I was
staying in my house with my child aged about three years. Other aged family
members of my house were working in our agricultural field at the relevant
point of time. At about 1.00 P.M. one young man, namely, Dhajen Modak of
western side of my house came to my house and asked me to want fire for
smoking „bidi‟. When I went to my room to bring a match box, he followed me
and entered my room and closed the door of the room and then and there he
embraced me, pressed my mouth with cloth and undressed me and laid me
down on a cot and ride on my body and penetrated her penis in my vagina and
poured semen. I tried to raise hue and cry but the accused threatened me
brandishing an iron weapon, specially used for cutting jute plants (Benki) and
threatened me that if I shout and disclose the matter to anybody, he kill me
and gone away.
Thereafter, when I raised hue and cry, then, my husband, father-in-law
and mother-in-law came to house and asked me as to why I am crying and
narrated the entire incident to them. The guardians of my house narrated the
entire incident to our neighbours as well as to the Anchal Pradhan by writing.
The Anchal Pradhan assured us to solve the dispute. But the Anchal Pradhan
informed us that the said heinous incident did not fall within his jurisdiction,
you go to Police Station and lodge F.I.R. and then and there, we lodge the
F.I.R., in the meantime, 10 days has been elapsed. I am a pregnant about 4
months. I want justice for torturing upon me.
I, therefore, pray that you would be kind enough to investigate the
aforesaid heinous incident in the spot and arrest the accused person for
torturing upon me and take appropriate action against the accused person and
thus oblige."
After investigation police submitted charge-sheet against the
present appellant and after commitment of the case to the concerned
Sessions Court the Trial proceeded with the framing of charges against
the appellant on 10th January, 2011.
Several witnesses have been examined. Amongst them PW 1 is
the victim lady, who has duly supported the FIR narrated incident in
her deposition. She has duly withstood the cross-examination. Such
evidence of the victim lady has been supported in the trial by PW nos. 2,
3, 6, 10, 12 and 13.
Considering the consistency and co inherence in the evidence of
all the witnesses, more particularly that of the victim lady, which has
remained unshaken during the cross-examination, it is found that
evidence is clinching enough to prove the prosecution case.
On perusal of the impugned judgment as mentioned above, it
appears that the trial Court has heavily relied on the evidence of the
victim lady finding it to be sufficient enough upon which the conviction
of the appellant/convict should be founded.
In pursuance of Section 134 of the Indian Evidence Act,1872,
according to which, the quality but not the quantity of the evidence
would be the determining factor as to whether the prosecution has been
able to bring whom the charges against the accused person or not. In
this case, the finding of the trial Court in the impugned judgment
appeared to be unblemished. In consideration of the legal provisions
the sole testimony of the victim would have been sufficient in this case
to find guilt of the accused person/appellant. However, as discussed
earlier, there are legible corroboration to the substantive evidence of the
victim lady (PW 1) which has aided to the prosecution case immensely.
Accordingly, on the discussion as above, the impugned judgment
is upheld, so far as the portion of finding guilt of the accused
person/appellant as well as convicting him for the offence, is concerned.
However, so far as the sentence portion is concerned, this Court
is inclined to take notice of the report submitted on behalf of the State
today, as mentioned above, it appears that during the pendency of the
present appeal, the appellant has already undergone the period of
sentence, being incarcerated. After completion of the period of sentence
he was released on 27th July, 2018. Accordingly, it is found necessary
that requisite modification be made to the sentencing portion in the
impugned judgment.
The appellant/ convict is sentenced to suffer imprisonment of like
description, for the period he has already undergone in custody.
Thus, the appeal is allowed in part with the findings as above.
The Court appreciates the able assistance of Ld. Amicus Curiae,
in disposing of this appeal.
Accordingly, this appeal is disposed of.
All pending applications, if any, are consequently disposed of.
Certified website copies of this order, if applied for, be supplied to
the parties subject to compliance with all the requisite formalities.
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RAI Digitally signed by
RAI
CHATTOP CHATTOPADHYAY
Date: 2023.03.14
ADHYAY 16:50:56 +05'30'
(Rai Chattopadhyay, J.)
