Goutam Patra & Ors vs State Of West Bengal
2023 Latest Caselaw 7188 Cal

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                IN THE HIGH COURT AT CALCUTTA
                 (Criminal Appellate Jurisdiction)
                          Appellate Side
Present:
The Hon'ble Justice Bibhas Ranjan De


                         CRA 6 of 2021
                      IA No. CRAN 2 of 2023
                      Goutam Patra & Ors.
                               Vs.
                      State of West Bengal


For the appellants/         :Mr. Jayanta Narayan Chatterjee, Adv.
Applicants                  Ms. Moumita Pandit, Adv.
                             Mr. Supreme Naskar
                             Ms. Jayashree Patra
                             Ms. Ritushree Banerjee
                             Ms. Pritha Sinha
                             Mr. Bhaskar Mondal


For the State                :Mr. Ranabir Roy Choudhury, Adv.
                             Mr. Moninak Gupta, Adv.
                             Mr. Pratik Bose


Heard on                     :11.10.2023 & 12.10.2023


Judgment on                  :17th October, 2023
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Bibhas Ranjan De, J.

Facts

1. A criminal investigation was set in motion on receipt of the FIR

dated 06.03.2011 lodged by Smt. Anuradha Sardar wife of Sri

Haripada Sardar of village Neruli Abad, District North 24

Parganas with the officer in-charge of Minakhan Police Station

alleging inter alia that the marriage of her

daughter/prosecutrix aged about 17 years was settled and

preparations for the same were almost completed. The date of

marriage was fixed on 22nd Falgun, 1417 B.S.

2. Amidst such scenario on 01.03.2011, the prosecutrix was

going to visit the house of her elder sister namely Purabi

Halder at North Singur Village under Police Station Sonarpur,

District South 24 Parganas. The prosecutrix was accompanied

by her brother Jayprakash who took the prosecutrix to Neruli

Hatkhola at about 3 p.m. on that day. Thereafter, prosecutrix

boarded on an Engine/motor van at Neruli, Hatkhola in

presence of Jayprakash in order to go to Malancha. From

there she was to take a bus in order to go to her elder sister's

house at Uttar Singur Village.

3. At night, on that day the informant called her elder daughter

over telephone and to her utter despair she came to know that

the prosecutrix did not reach the house of Purabi, her elder

daughter. After getting this information the complainant

started searching for prosecutrix but to no avail. Thereafter,

she lodged a general diary being G.D Entry no. 161 dated

03.03.2011 at Minakhan Police Station regarding the said

missing of her daughter. It was further alleged firmly that the

accused had kidnapped her minor daughter and forcefully

confined her in a house.

4. Based on the said First Information Report Minakhan Police

Station Case no. 51/11 dated 06.03.2011 was registered

under Section 363/366/120B of the Indian Penal Code,1860

(for short IPC) against the accused persons.

5. On completion of investigation of the case, charge sheet was

submitted on 14.09.2016 before the Court of Ld. Additional

Chief Judicial Magistrate, Basirhat, North 24 Parganas under

Section 363/366/120B/376 of the IPC. Cognizance was taken

and the case was committed to Ld. Additional Sessions Judge,

Basirhat who, in tern, transferred the case to Ld. Additional

Sessions Judge, Fast Track Court no.3, Basirhat for disposal.

6. Ld. Additional Sessions Judge, Fast Track 3rd Court, Basirhat

on receipt of the case, framed charge against all three

appellants under Section 363/366/34 of the IPC and separate

charge was framed against appellant/accused Goutam Patra

under Section 376 of IPC. To which all the appellants/accused

pleaded not guilty and claimed to be tried.

7. Ld. Judge, recorded evidence of five witnesses namely

Anuradha Sardar/complainant (mother of the prosecutrix) as

PW1, Jayprakash Sardar (brother of the prosecutrix) as PW2,

Mahadeb Bachhar (neighbor) as PW3, Bikash Sardar (another

brother of the prosecutrix) as PW4 and the prosecutrix herself

as PW5.

8. In course of their evidence signature of the complainant was

admitted in evidence as exhibit 1 and original transfer

certificate of prosecutrix was admitted as exhibit 2. On behalf

of the defence the signature of PW5 on notarized affidavit

dated 20.06.11 was admitted as exhibit A.

9. After recording evidence Ld. Judge, examined all the

appellants/accused under Section 313 of Code of Criminal

Procedure (for short CrPC).

10. Ld. Judge, upon considering the evidence adduced on

behalf of the prosecution as well as documents relied on behalf

of the prosecution particularly the evidence of PW5

(prosecutrix), recorded an order of conviction against all the

appellants/accused and sentenced them to suffer simple

imprisonment for five years each and also to pay a fine of Rs.

4000/- each in default to suffer further simple imprisonment

for six months for the offence punishable under Section

363/34 of the IPC. Appellants/convicts were further sentenced

to suffer further simple imprisonment for seven years each

and also to pay a fine to Rs. 6000/- each in default to suffer

further simple imprisonment for six months for the offence

punishable under Section 366/34 of the IPC. Both the

sentences were ordered to run consecutively.

11. Being aggrieved by and dissatisfied with the said

judgment appellants preferred the instant appeal.

Argument

12. Ld. Counsel, Mr. Jayanta Narayan Chatterjee, appearing

on behalf of the appellants has assailed the impugned

judgement by submitting that Ld. Judge, failed to appreciate

the evidence recorded in this case on the following grounds.

 Content of the FIR was not admitted in evidence while

admittedly complaint was not reduced into writing by the

complainant herself.

 Though alleged incident of kidnapping took place in the bus

stand area but there is no single evidence to that effect to

corroborate the evidence of prosecutrix PW5.

 All other four witnesses did not witness the alleged fact of

kidnapping. Moreover, PW3 being only independent witness

testified that prosecutrix of this case left her house.

 Out of eleven charge sheeted witnesses prosecution was

able to examine only 5 witnesses and particularly

prosecution could not produce the investigating officer to be

examined in this case.

 Though statement of victim was recorded by the Ld.

Magistrate after three years (11.07.2014) of the alleged

incident dated 01.03.2011, but the statement under Section

164 of the CrPC was never admitted in evidence.

 Exhibit A exposed the actual fact of love affairs between the

Appellant/ Gautam Patra and victim who left her house

voluntarily.

13. In sum and substance, it is vehemently argued by the Ld.

Counsel for the appellants that the prosecutrix having love

affairs with Goutam Patra left her house voluntarily because of

her social marriage settled by her parents which was due

within few days of time. Mr. Chatterjee, in support of his

contention, relied on a case of Mafat Lal and another Vs.

State of Rajasthan reported in (2022) 6 Supreme Court

Cases 589.

14. Ld. Counsel, Mr. Ranabir Roy Choudhury, appearing on

Behalf of the State has contended that production of

prosecutrix before Minakhan Police Station by the

Appellants/accused Goutam Patra cannot be denied and

thereby it can be conclusively presumed that prior to

production of the prosecutrix before Minakhan Police Station

the victim was residing with the appellants for last six months.

Mr. Chowdhury has further submitted that evidence of

prosecutrix (PW5) could not be discredited by the defence and

moreover no suggestion was put to her on behalf of the

defence regarding love affairs and marriage between

appellant/accused Goutam Patra and the prosecutrix.

15. Before parting with his argument Mr. Chaudhury

submitted that latches on the part of the investigation cannot

be a ground for acquittal of the accused.

Analysis

16. This Court being appellate court, re-appreciation of entire

evidence on record is very much required.

17. Heard the Ld. Counsels for the parties and perused the

record of Trial Court. On a cursory glance of the evidence

deposed before the Trial Court, PW1 is the mother of the

prosecutrix. She stated that marriage of her daughter/

prosecutrix, aged 17 years, was scheduled to be held. But on

01.03.2011 i.e. six (6) days prior to that marriage prosecutrix

was going to the house of her elder daughter at Sonarpur. Her

younger son accompanied prosecutrix up to the market

wherefrom prosecutrix boarded on a motor van towards

Malancha to avail Sonapur bound bus therefrom. In the

evening she called her elder daughter over telephone and came

to know that prosecutrix did not reach Sonarpur. After two

days she came to know that the prosecutrix was abducted by

the appellants. She lodge missing diary on 03.03.2011.

Thereafter, on 06.03.2011 she lodged written complaint,

reduced by one law clerk into writing, before Mikhan Police

Station. She identified her signature (Exhibit 1/1). She also

submitted a transfer certificate of school (exhibit 2).

18. In cross-examination PW1 denied the suggestion of

marriage between prosecutrix and appellant Goutam Patra out

of love affairs. She further stated that at the relevant point of

time prosecutrix was 18 years of age. She denied specific

suggestion that her younger son accompanied prosecutrix to

Malancha wherefrom she went to Sonarpur and returned after

three days. She did not witness the alleged incident of

kidnapping. She denied suggestion that to avoid appellant

Goutam Patra, marriage of the prosecutrix was arranged or

FIR was lodged to harass the appellants.

19. PW2 is the brother of prosecutrix. He stated that he

accompanied prosecutrix up to Neruli Bazar wherefrom

prosecutrix boarded on engine van for going to Sonarpur. He

then returned home. His mother called his sister at Sonarpur

over telephone and came to know that prosecutrix did not

reach Sonarpur. Subsequently, prosecutrix informed that she

was abducted by the appellants.

20. In cross-examination he testified that appellants filed

criminal case against them after the incident alleged in this

case. Appellants are their neighbours. He could not say the

place wherefrom prosecutrix was recovered. They took custody

of the prosecutrix from Court.

21. PW3, a resident of Neruli Abad, knew all the appellants

as well as complainant (PW1). He heard from neighbours that

the daughter of complainant left the house and went to other

place. He knew nothing else.

22. PW4 is another brother of procecutrix. He stated that his

brother (PW2) accompanied procecutrix till she boarded on

bus at Malancha. After five (5) moths Gautam Patra came to

Minakhan Police Station along with prosecutrix. His parents

took custody of the procecutrix from Basirhat Court. Later,

prosecutrix was married to one person of Champahati village.

23. In cross examination he further confirmed that

prosecutrix boarded on a bus and started to proceed alone. He

could not say as to involvement of parents of Gautam Patra in

the alleged offence of kidnapping.

24. Prosecutrix (PW5) is a married woman who got married

six years back. She stated that while she tried to board on a

bus appellants forcibly kidnapped her and took her away

in a Tata Sumo Car. She was taken to different places and

confined for the period of Six months till she was produced

before Minakhan Police Station. Even appellant Gautam Patra

committed sexual intercourse with the prosecutrix forcibly.

25. During cross-examination she identified her signature

on the affidavit (exhibit A) sworn by her. She further stated

that she boarded on bus to go to Kolkata and there was no

person surrounding that place. At the same time she

stated that she was taken away by the appellants from the

place where she tried to board on the bus.

26. Some factors appearing on oral testimony of witness are

to be taken into consideration at the time of appreciation of

evidence. Those factors are - contradictions, inconsistencies,

exaggerations, embellishment and contrary statements by two

or more witnesses on one and the same fact. Minor

discrepancies do not corrode the credibility of a case but

material discrepancies do so.

27. Though doctrine of falsus in uno, falsus in omnibus, is

not applicable in our law but at the time of appreciation of

evidence it is the duty of the court to separate grain from chaff

and appraise in each case as to what extent the evidence is

worthy of acceptance. If separation cannot be done, the

evidence has to be rejected in toto. It is now settled that if the

testimony of a sole witness is found reliable on touchstone of

credibility, accused can be convicted on the basis of such sole

testimony.

28. To eschew prolixity, I must not delve into the charge

under Section 376 of IPC which was found not proved by any

substantive evidence. That apart, nothing apparent from

record that after alleged recovery prosecurtix was ever

produced before any Medical Officer for her examination.

29. From the evidence of PW1 and PW3 (mother & elder

brother of prosecutrix) it appears that after missing of

prosecutrix they came to know, on inquiry, that appellants

abducted prosecutrix. But, according to PW2 (another younger

brother of prosecutrix) who stated in his cross-examination

that he came to know about kidnapping from the prosecutrix.

30. Therefore, factum of receiving information about

kidnapping is doubtful.

31. PW2, younger brother of prosecutrix, stated that he

accompanied prosecutrix up to Neruli Bazar wherefrom

prosecutrix boarded on an engine van for Malancha Bus Stand

whereas PW4, elder brother of prosecutrix testified that PW2

accompanied prosecutrix up to Malancha Bus Stand and

returned while prosecutrix boarded on bus.

32. So, factum of accompanying prosecutrix is also in doubt.

33. From the evidence of prosecutrix, PW5, it appears that in

examination in-chief she stated that she was abducted by the

appellants while she was trying to board on bus but, in cross-

examination she stated that she boarded on the bus and

there were few passengers in the bus but there was no

person in the place wherefrom she tried to board on the

bus.

34. Now, I am in a fix. Which one of the two versions of PW5

is true - either she was abducted by the appellants while she

was trying to board on bus or she was dragged out of the bus

for kidnapping by the appellants without any counter action of

the passengers.

35. On the contrary, evidence of PW3 sounds a rumour

among the neighbours that prosecutrix left her father's house.

36. Regarding age of the prosecutrix prosecution relied on

transfer certificate of school (exhibit 2) which was produced by

PW1 (mother of prosecutrix) before the Court and it was

admitted by the Learned Court. But, reliability of the

document (exhibit 2) has been jiggled by the cross-

examination of PW1 (mother of prosecutrix) who stated that at

the relevant point of time her daughter i.e. prosecutrix was 18

years old which was duly ratified by the admitted fact of

settlement of marriage of the prosecutrix prior to alleged

incident of abduction. Thereby, issue of age cannot be said to

have been established beyond doubt.

37. Learned Trial Judge, did not rely on affidavit (exhibit A)

on the ground that notary public was not examined and no

suggestion was put to the prosecutrix regarding marriage of

prosecutrix with the appellant Goutam Patra.

38. Ld. Trial Judge, in my humble opinion, overlooked the

evidence of PW5 (prosecutrix) who specifically stated as quoted

below:-"This is my signature appearing in the affidavit

dated 20.06.2011" Ld. Judge also failed to spot the evidence

of prosecutrix who never challenge the execution of affidavit by

the notary duly authorized under Section 297 of CrPC.

Therefore, contents of the affidavit (exhibit A) showing extreme

love, marriage, voluntariness further jerk the prosecution case

of abduction/kidnapping.

39. It is now trite law that though sole testimony of the

victim can be relied upon, but in the same time her version

must be trustworthy and unblemished and her evidence

should be of a very high quality, the same should be in a

position to accept it for its face value without any hesitation.

To test the quality of such a witness, the status of the witness

would be immaterial and what would be relevant is the

truthfulness of the statement made by such witness. What

would be more relevant is the consistency of the statement

right from the starting till the end namely, at the time when

witness makes the initial statements and ultimately before the

Court. It should be natural and consistent with the case of

prosecution qua the accused. There should not be any

prevarication in the version of such a witness.

40. Hon'ble Apex Court in the catena of judgements has held

that the witness should be in a position to withstand the

cross-examination of any length and howsoever strenuous it

may be and under no circumstance should give room for any

doubt as to the factum of the occurrence, the person involved,

as well as the sequence of each. Such a version should have

co-relation with each and every one of other supporting

material such as recoveries made, the manner of offence

committed, the scientific evidence and the expert opinion. The

said version should be consistently matched with the version

of every other witness.

41. But, in the case at hand, there is no scope to find out the

consistency between initial statement and ultimate due to

non-examination of Investigating Officer. That apart,

inordinate delay in recording statement of prosecutrix under

Section 164 of CrPC remains unexplained, that too, while

entire prosecution case is based on related witnesses not

supported by only independent witness (PW3).

42. Ratio of Mafat Lal (supra), in strict sense, is not

applicable in this case where there was an effort to suppress

the relationship between appellant Goutam Patra and the

prosecutrix whose minority cannot be said to have been

determined conclusively.

43. However, by perusal of the evidence of prosecutrix (PW5),

the same does not inspire confidence on this Court that the

appellants/ accused have committed forceful abduction. There

are not only material contradictions in her (PW5) evidence, but

also the manner in which the alleged incident has taken place

as per version of the prosecutrix, is not believable.

44. In the aforesaid view of the matter, in my opinion, the

Trial Judge, has erred in convicting the appellants for the

charges lebelled against them. Accordingly, I addressed all the

contentious issues of this appeal. Therefore, I proceed to pass

the following:-

Order

i. The appeal filed by the appellant is allowed.

ii. The judgement of conviction dated 21.12.2020 and order of

sentence dated 22.12.2020 passed in Sessions Case no. 13 (7)

2017/ Sessions Trial No. 1 (9) 2018 by the Additional Sessions

Judge, (Fast Track) 3rd Court, Basirhat, North 24 Parganas is

hereby set aside.

iii. All three appellants are found not guilty and acquitted.

iv. Appellant Dulal @ Palan Patra and Radharani Patra be set

at liberty at once though bond already submitted by them

shall remain in force for six (6) months in terms of Section

437A of the CrPC.

v. The appellant Goutam patra also be set at liberty at once if

he is not required to be detained in connection with any other

case, subject to furnishing a bond of Rs. 10,000/- with one

registered surety of like amount to the satisfaction of Ld.

Additional Chief Judicial Magistrate, Basirhat, North 24

Parganas, which shall remain in force for the period of six (6)

months from date in terms of Section 437A of the CrPC.

vi. The appeal being no. CRA 06 of 2021 along with

application, if there be any, stand disposed of accordingly.

vii. Ld. Trial Court record be transmitted back immediately.

viii. All parties shall act in terms of the copy of this order

downloaded from the official website of High Court, Calcutta.

ix. Urgent Photostat certified copy of this order, if applied for,

be supplied to the parties upon compliance with all requisite

formalities.

[BIBHAS RANJAN DE, J.]