Calcutta High Court (Appellete Side)
Sujit Bhowmick vs The State Of West Bengal on 4 March, 2022
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
C.R.A 554 of 2016
Sujit Bhowmick
Vs.
The State of West Bengal
For the Appellant: Ms. Devipriya Mitra, Adv.
For the State: Mr. Prasun Kumar Datta, Adv.,
Md. Kutub Uddin, Adv.
Heard on: 23 February, 2022.
Judgment on: 04 March, 2022.
BIBEK CHAUDHURI, J. : -
1. The appellant faced trial on the charge under Sections 448,
376/511 and 325 and 379 of the Indian Penal Code, IPC in short and on
completion of trial the learned Additional Sessions Judge Uluberia, found
him guilty for committing offence under Sections 354, 448 and 323 of the
IPC and he was convicted and sentenced to suffer rigorous imprisonment
for three years with fine and default clause for committing offence under
Section 354 of the IPC, rigorous imprisonment for six months with fine
and default clause for the offence punishable under Section 448 of the
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IPC and rigorous imprisonment for six months with fine and default
clause for committing offence under Section 323 of the IPC in Sessions
Trial No.116(U) of 2014 on 5th July, 2016.
2. The order of conviction and sentence is assailed in the instant
appeal.
3. On 28th August, 2013 the defacto complainant lodged a written
complaint before the Officer-in-Charge, Shyampur Police Station stating,
inter alia, that her husband used to work at the relevant point of time in
Kolkata. She used to reside alone in her house at village Gadiara. On 24th
August, 2013 at about 2 am at night, accused Sujit Bhowmik @ Vikey
broke open the door of her room and tried to commit rape upon her. The
defacto complainant raised alarm which prevented him from committing
rape upon her. But the accused snatched away one earring made of gold
from her ear. Hearing her hue and cry, her elder brother-in-law and local
people rushed to the place of occurrence. Seeing them the accused fled
away from the room of the defacto complainant in naked condition leaving
his 'lungi and shoes'. On the following day she was medically treated at
Kamalpur Hospital. It is also stated by the defacto complainant that due
to her medical treatment, there was delay in lodging complaint against the
accused.
4. On the basis of the said complaint police registered Shyampur P.S
Case No.351 of 2013 dated 28th August, 2013 under Sections 448,
376/511, 379 and 325 of the IPC against the accused and took up the
case for investigation. On completion of investigation police submitted
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charge-sheet against the accused. Since the offence under Section
376/511 of the IPC is tribal by the Court of Session the case was commit
to the court of the learned Additional Sessions Judge, Uluberia.
5. Learned Advocate for the appellant has criticized the impugned
judgment in course of her argument submitting, inter alia, that the
alleged incident took place on 24th August, 2013 at about 2 am. From the
evidence of the defacto complainant (PW1) it is ascertained that on the
very date of occurrence, she went to Shyampur P.S at about 4 am. The
Police Officer first advised her to have medical treatment and then lodge
complaint in the P.S. On the same day she was medically treated at about
11 am at Kamalpur Hospital. But the written complaint was lodged on
28th August, 2013, i.e., after the lapse of about four days. According to the
learned Counsel for the appellant there is unexplained, inordinate delay
in lodging the complaint and as a result of such unexplained delay, false
implication of the accused cannot be ruled out.
6. It is further submitted by the learned Advocate for the appellant
that according to the defacto complainant, she raised hue and cry when
the accused tried to commit rape upon her and hearing her cry, the elder
brother of her husband and other local villagers rushed to her room and
saw the accused assaulting the defacto complainant. Seeing them the
accused fled away from the place of occurrence. Except Gour Dolui (PW2)
no other villager came forward to corroborate the evidence of PW1. PW5 is
the husband of the defacto complainant. He was not present in the house
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on the date of occurrence. Therefore, he has no direct knowledge about
the incident and his entire evidence is in the nature of hearsay.
7. It is also urged by the learned Counsel for the appellant that the
defacto complainant made an allegation that the accused attempted to
commit rape upon her. However, in her evidence, the basic ingredient of
offence of attempt to commit rape is not established. The learned trial
judge also disbelieved the evidence of the defacto complainant with regard
to attempt to commit rape upon her. Therefore, the accused was convicted
under Section 354 of the IPC.
8. It is submitted by the learned Advocate for the appellant that
according to the defacto complainant the alleged incident took place
inside her room. But from the sketch map (Exhibit-7) it is ascertained
that the incident took place on the road in between the residence of the
complainant and the residence of the accused. A question was raised as
to why the defacto complainant was on the village road in the wee hours
of night. Thus, it is argued by the learned Advocate for the appellant that
when the prosecution has failed to prove the place of occurrence, entire
incident remains doubtful and the appellant is entitled to get benefit of
doubt.
9. The learned Advocate for the state respondent has supported the
impugned judgment and submits that learned trial judge convicted the accused on proper appreciation of evidence and there is no reason to alter the order of conviction passed against appellant by the learned court below.
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10. Having heard the learned Counsels for the appellant and the respondent, and on perusal of the evidence on record, both oral and documentary, it is found that on the date of occurrence the defacto complainant was alone in her room. The case of the prosecution is that the accused broke open the door of her room and attempted to abuse her sexually. The defacto complainant raised an alarm which attracted her elder brother-in-law and other local villagers. The elder brother-in-law of the defacto complainant deposed during trial as PW2. From his evidence it is found that on the date and time of occurrence he rushed to the place of occurrence hearing alarm of the defacto complainant. He saw accused Sujit assaulting the defacto complainant. According to the defacto complainant, the incident took place on 24th August, 2013 at about 2 am. She was medically examined on the same date at about 11 am at Kamalpur Block Primary Center. The Medical Officer found cut injury on the left ear lobule. The said injury was repaired by stitches. The defacto complainant lodged that the accused snatched away a gold earring from her left ear causing bleeding injury over the said left ear. The victim narrated the same history of assault before the Medical Officer. Therefore, though the written complaint was lodged four days after the occurrence, from the injury report and the history of injury sustained by the defacto complainant recorded by the Medical Officer (PW6), I do not find any reason to interfere with the order of conviction passed by the learned trial judge under Section 323 of the IPC against the appellant. 6
11. There is of course material contradiction with regard to the place of occurrence. In her written complaint the defacto complainant stated that the incident took place inside her room but the Investigating Officer found during investigation that the place of occurrence is on the road in front of the house of the defacto complainant. If the sketch map and evidence of Investigating Officer is believed, then the place of occurrence cannot be held to be in the room of the defacto complainant. Under such circumstances, the accused cannot be convicted under Section 448 of the IPC. It is needless to say that when two views are found from the evidence on record, the court shall accept the view that helps the accused/appellant.
12. For the above reason, this court is of the view that the conviction of the accused under Section 448 of the IPC cannot be sustained.
13. With regard to the conviction under Section 354 of the IPC, this Court is of the opinion that the defacto complainant narrated specifically the act committed by the accused with her on the date of occurrence at wee hours of night. It is found from the evidence of the defacto complainant that the accused forcibly pulled her saree and tore her petticoat. In cross examination no suggestion was put to the defacto complainant on behalf of the accused that there was previous enmity between her and the accused. Therefore, I do not find any reason to disbelieve the evidence of the defacto complainant on the charge under Section 354 of the IPC.
14. For the reasons stated above, the instant appeal is allowed in part. 7
15. The appellant is acquitted from the charge under Section 448 of the IPC.
16. However, the conviction and sentence passed by the learned trial judge for the offence punishable under Section 354 and under Section 323 of the IPC is upheld.
17. I do not also find any scope to alter the quantum of sentence passed by the learned trial judge on the aforesaid two heads of charge.
18. The appeal is set aside on contest on the aforesaid two heads.
(Bibek Chaudhuri, J.)