Champa Pandit vs Mantu Pati & Ors
2023 Latest Caselaw 1701 Cal

                    IN THE HIGH COURT AT CALCUTTA
                   CRIMINAL APPELLATE JURISDICTION
                            (APPELLATE SIDE)


 Present:
 The Hon'ble Justice Rai Chattopadhyay


                          C.R.A No. 91 of 2012

                             Champa Pandit
                                  Vs.
                            Mantu Pati & Ors.


     The Amicus Curiae                       : Ms. Sibangi Chattopadhyay,

                                             : Ms. Sruti Dey, Adv.


 For the State                               : Mr. N. P. Agarwala,
                                             : Mr. Pratick Bose.


 Hearing concluded on: 16/01/2023

 Judgment on: 15/03/2023


 Rai Chattopadhyay, J.

1) This is an appeal to challenge and set aside the judgment and

order of acquittal dated January 25, 2011, passed by Judicial

Magistrate, 3rd Court, Tamluk at Purba Medinipore, in C. R. Case No.

87 of 2006. The respondents here/accused persons were charged for

offences under section 323 IPC and two amongst them were also

charged for an offence under section 354 IPC.

2) In this appeal, this Court shall be guided by the principles that,

the presumption of innocence in favour of the accused has been

fortified by his acquittal and if the view adopted by the trial Court is a

reasonable one and the conclusion reached by it had its grounds well

settled on the materials on record, the order of acquittal may not be

interfered with. Though there is no absolute restriction in law to

review and relook the entire evidence on which the order of acquittal

is founded, an interference by this appeal Court would be warranted

only on the finding that the trial Court's decision is based on

erroneous views and against the settled position of law.

3) It would be beneficial to mention the findings of the Supreme

Court in the case of State of Rajasthan versus Shera Ram reported in

(2012) 1 SCC 602:

"7. A judgment of acquittal has the obvious consequence of granting freedom to the accused. This Court has taken a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the Court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal.

8. The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of innocence. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. An appeal against acquittal has always been differentiated from a normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate Court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not call for."

4) In a recent judgment reported in 2023 SCC Online SC 225 (Nikhil

Chandra Mondol versus State of West Bengal) the Hon'ble Supreme

Court has been pleased to hold that the scope of interference in an

appeal against acquittal is very well crystallised. Unless such a finding

is found to be perverse and illegal/impossible, it is not permissible for

the appellate Court to interfere with the same. The Court has relied on

a three Judges bench decision in the case of Rajesh Prashad versus

State of Bihar reported in (2022) 3 SCC 471, in which it was held that

there is a double presumption in favour of the accused on his

acquittal. Firstly, the presumption of innocence that is available to

him under the fundamental principle of criminal jurisprudence that

every person shall be presumed to be innocent unless he is proved

guilty by a competent Court of law. Secondly, the accused having

secured his acquittal, the presumption of his innocence is further

reinforced, reaffirmed and strengthened by the Court. There the

Hon'ble Court has held further that if two reasonable conclusions are

possible on the basis of the evidence on record, the Appellate Court

should not disturb the finding of acquittal recorded by the trial Court.

5) Now on this basic guiding principle to deal with a judgment like

the impugned one, that is, the presumption of innocence of the

respondents/accused persons have been further fortified by the said

judgment of the trial Court, this Court shall proceed to analyse, in

this appeal, if the impugned judgment is founded on appropriate

appreciation of evidence and cogent reasons to reach to the finding as

it has, which may not be a finding utterly impossible or that, if the

same suffers from any perversity or palpable illegality, to warrant this

Court's interference to it.

6) The trial Court's findings are broadly based on four parameters,

firstly that the two other witnesses, who have deposed in this trial,

along with the complainant, may be interested witnesses. This, it

says, on the basis of the fact revealed, regarding pendency of previous

litigation between the parties which prompted the Court to find

already existent animosity between them. One of these two, is the

husband of the complainant. Secondly, the Court has dwelled upon

the ground of suppression of material fact by the complainant, as the

complainant did not produce in Court the proof of general diary entry,

which she asserts to have lodged with the police. Next, the trial Court

has based its fact-finding process, on the inadequacy of evidence,

more precisely the medical evidence which according to the trial Court

is not revealing sufficiently to find guilt of the accused persons under

any of the above stated provisions of law. Lastly, according to the trial

Court the delay in filing the complaint has been fatal for the

prosecution's case. Thus, the trial Court has proceeded to find that

the prosecution has failed to prove charges as above, against the

present respondents/accused persons and acquitted them.

7) The complainant has set the system in motion by filing a complaint

dated February 1, 2006, in the Court of Chief Judicial Magistrate at

Tamluk, Purba Medinipur. The complaint was lodged against all the

present respondents. The date of occurrence has been mentioned to

be December 5, 2005. And the time of occurrence is said to be at 5 PM

in the afternoon. The complainant has said inter alia, that, the

accused persons forcefully entered into her house on the said date

and time. They have violently abused her in filthy language. Regarding

her allegation of attack on her person and violation of her modesty,

the complainant has stated in the said complaint that respondent

Mantu Pari pulled tuft of her hair in one hand and forcefully pressed

her mouth with bad intention, with his other hand. She has further

alleged that respondent Dilip Giri embraced her amorously and torn

and pulled out her blouse. Respondent Tarun Guchait disrobed her by

removing her saree. Allegedly all the respondents/accused persons

were wrenching her continuously and have also subjected her to

assault and hurt by slaps and kicks. That, they have outraged her

modesty by continuously trying to get her in the buff. It has also been

stated that when the husband of the victim/complainant came to her

rescue, he has also been subjected to physical assault by the accused

persons. Allegedly, as alarm was raised and neighbours rushed into

the place, the accused persons fled away from there. Also allegedly, on

his way back the accused person namely Babu Dey threatened the

complainant with pointed knife, with dire consequences. Trial started

by framing of charge against the accused persons under section 323

IPC and against respondent Dilip Giri and Tarun Guchait, under

section 354 IPC.

8) The complainant herself (PW. 1), one Gobinda Chandra Ghora (PW.

2) and Subal Pandit (PW. 3 and the husband of the complainant) are

the three witnesses for the prosecution, in this trial. All the witnesses

have identified all the respondents on dock. Witnesses including the

complainant have duly substantiated the allegations made in the

complaint by deposing in Court. To prove an offence punishable under

section 323 IPC, the prosecution has to prove the ingredients of

offence as laid down under section 321 IPC, beyond all reasonable

doubts. Own volition, intention and knowledge of the accused person

corresponding to the result of causing hurt to any person would

constitute an offence punishable under section 323 IPC.

9) What constitutes an outrage of female modesty is nowhere defined.

According to Section354 IPC, an intentional assault or use of criminal

force to any woman intending to outrage her modesty, would be

punishable under the said provision of law. The essence of a woman's

modesty is her sex. Therefore one may find that assault or criminal

force, applied with knowledge and intention to violate a woman

sexually, may come within the four corners of the above stated

provision of law. The prosecution in a trial has to prove the above

beyond the scope of any iota of doubt.

10) In this trial, from the examination-in-chief of all the three

prosecution witnesses, one can find coherence and continuity in

support of and substantiating the allegations made in the complaint.

The trial Court had to find out, if in the cross examination of the

witnesses as above, any fact has emerged to cast a reasonable doubt

as to the substantive evidence of the prosecution witnesses. The trial

Court had also to look to the corroborative evidences, which would

have been necessary, in addition to the ocular evidence of the

witnesses as regards the offence alleged against the present

appellants. The trial Court appears to have proceeded in the proper

direction to assess all these aspects in the case and pointed out to

some relevant discrepancies and doubts as regards the credibility of

the witnesses.

11) The relevant areas may be mentioned, as hereinbelow:

As regards the witnesses, if are interested witnesses;

(i) The complainant/PW1, in her cross examination has asserted the fact to have filed other two criminal cases against the present respondents/accused persons, being C.R.No. 465 of 2006 and M.P.Case No. NGR 650 of 2005.

(ii) She has asserted to be the witness in a criminal case against the respondents, which has been filed by P.W.2.

(iii) She has stated to have purchased property of Tulsi Paik at plot No. 824 in Mouza- Kalindipur, where allegedly, the respondent Rabi Mishra and his wife have forcefully taken unauthorised possession and are living therein.

(iv) She has also stated that one Dhananjay Paul has lodged a criminal case against her being CR No. 169 of 2006, in which respondent Bistu Pati is a witness against her; also that, complainant Dhananjay is a close acquaintance of the present respondents/ accused persons.

(v) PW. 2 has asserted to have filed five cases against the present respondents/ accused persons. So far as possession of the house of Tulsi, by the accused person Rabi Mishra, is concerned, this witness have conceded to the said fact.

12) Therefore, there is long and chequered history of not one but

several criminal cases between the parties. It appears that two groups

of people are belligerent to each other, filing cases and being witnesses

against each other. Thus the possibility of implication of the

respondents in a false case, cannot be ruled out. Similarly the shadow

of doubt cannot be dispelled as regards the reason of filing the present

case to only wreck vengeance against the respondents.

13) However, obviously, pendency of cases from a previous date

between the parties would not have been important, if in this trial the

prosecution could have brought on record, clinching evidence in order

to satisfy the ingredients of offence for which the respondents were

charged against.

14) As regards non-availability of medical evidence;

As already stated above, witnesses have deposed in support of

the prosecution case to which the complaint duly corroborates.

However, in this case excepting the ocular evidence what would have

been of utmost necessity, practically unavoidable and obvious, is the

appropriate and sufficient medical evidence. Witnesses have stated to

have been treated by a homeopathy practitioner, though none of the

witnesses could say his name. There is no treatment paper relied on

or exhibited by the prosecution in this case. Under such

circumstances, when the trial Court has held in the impugned

judgment that the fact of injuries sustained by the complainant or her

husband (PW.3), was not established from the evidence in the trial,

the same is found to be appropriate.

15) Other shortcomings in the evidence;

The torn and damaged wearing apparels of the complainant

have also not been exhibited in this trial, which would have been

imperative, more particularly with respect to the offence under Section

354 IPC. In view of the previous animosity between the parties and to

eliminate any possibility of false implication of the respondents or

malicious prosecution against them, the Court would certainly not

bestow unconditional reliance on the statement of the

complainant/victim and look for the corroborative material, which the

trial Court in this trial has done correctly. However vital pieces of

corroborative material like medical document, wearing apparels etc

are unavailable in this trial to the prosecution, to support the oral

evidence given by the witnesses. PW.2, being also a litigant against the

respondents/accused persons, in some other case, cannot be held to

be a credible witness free from all doubts as to his intentions of taking

revenge against the respondents. Finding of the trial Court in this

regard can also not be flawed.

16) As regards suppression of materials by the complainant;

This Court cannot also overlook the fact revealing from the

evidence regarding suppression by the complainant of copy of her

general diary entry, claimed to have been lodged with police against

the present respondents, before filing of this case. In doing so the

complainant has drawn the mistrust of Court and very rightly so.

Pertinent to note that the complainant pleaded her unwillingness to

produce the said general diary entry as evidence, rather than any

other ground like loss of the same etc. Accordingly it was her own

volition not to produce the same in Court which should have gone

against her and adverse inference should have been drawn, as has

rightly been done by the trial Court in this case.

17) As regards delay in filing the complaint;

No less important is to take into consideration the long time gap

of about two months from the date of alleged incident till the date of

filing the present complaint in the Court. This delay is unexplained in

this trial. A long gap in filing the complaint, for which there is no

explanation to offer as to the reason thereof, would only add to the

misery of the prosecution in failing to substantiate as to the

creditworthiness of the complaint itself. Against an offence as serious

as outraging her modesty, the complainant would not have

unnecessarily sit tight over that. Therefore the moment she is unable

to explain with sufficient and cogent reason regarding cause of delay

in filing the complaint, the possibility of the same being concocted and

untrue, creeps in, which cannot be overruled right away. This delay in

filing the complaint, which has remained unexplained, has been fatal

to the prosecution case and on this point the trial Court is only

correct to hold likewise.

18) Accordingly in this trial, the trial Court is found to have

approached rightly in appreciating the evidence on record and

absence of the same and has ultimately come to a finding which is

just, fair and proper. There is no perversity or palpable illegality in the

approach or finding of the trial Court which may be interfered to, in

this appeal. This is again apt, to reiterate the principles that in an

appeal against the order of acquittal, the Court should be slow in

interfering with the same unless the findings of the trial Court are

absolutely not in confirmation with the law or perverse or impossible.

Hence considering the materials present in this case and following the

settled principles of law, this appeal Court would find the judgment of

the trial Court impugned in this appeal to be just fair and proper, not

warranting any interference to the same at all.

19) Hence the appeal fails. CRA No. 91 of 2012 is dismissed with

connected pending applications, if any.

20) Court appreciates the efforts put in by the Ld. Amicus Curiae in

this case, to assist the Court in the matter. The Secretary, High Court

Legal Services Committee is directed to do the needful to pay fees in

this case to Ld. Amicus Curiae, at a rate commensurate to that of a

category 'A' lawyer in its panel, preferably within one month from the

date of this judgment.

21) Connected application, if any, is also disposed of.

22) Certified website copies of this judgment, if applied for, be

supplied to the parties subject to compliance with all the requisite

formalities.

                                                           Digitally signed by RAI
                                     RAI           CHATTOPADHYAY
                                     CHATTOPADHYAY Date: 2023.03.15 13:43:45
                                                   +05'30'
                                                   (Rai Chattopadhyay,J.)