Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
The Hon’ble Justice Asha Arora
CRA No.196 of 2012
State of West Bengal
For the appellant: Mr. Sandip Chakraborty
For the State: Mr.Manoranjan Mahata
Heard on: 14/12/2017, 08/01/2018 and 09/01/2018,
Judgment on: 09/01/2018.
Asha Arora, J.
This appeal is directed against the judgement and order of conviction and
sentence dated March 7, 2012 passed by the learned Additional Sessions Judge,
3rd Fast Track Court, Jangipur, Murshidabad in Session Trial No.2/March/2011
arising out of Sessions Case No.24 of 2011 whereby the appellant Rajesh Sk.
and two others have been convicted for the offence punishable under section 354
IPC and sentenced to suffer imprisonment for two years each and to pay a fine of
Rs.10,000/- each, in default of which to suffer further imprisonment for six months
Prosecution case in brief is that on January 8, 2009 at about 9.30/10.00
PM, the appellant Rajesh Sk., who was known to the defacto complainant Sundari
Khatun, set out with her and her uncle’s daughter Rehana Khatun for his house at
Bagsirapara. On the way, the appellant took them to an abandoned room at
Aurangabad Balika Vidyalaya where four friends of the appellant came. It is
further alleged that the appellant embraced Sundari Khatun forcibly and pressed
her breast. He also tried to pull her trouser but she managed to escape by biting
his finger. Two of the companions of the appellant named Hanif Sk and Abdul Sk
sexually assaulted Rehana Khatun while the appellant and two others aided in the
commission of such offence. When Sundari Khatun raised cries, the accused
persons fled away. While fleeing, the accused persons took away the gold
necklace, silver ‘tora’ and gold earrings of Rehana.
On the basis of the written complaint of Sundari Khatun, Suti Police Station
Case No.4 of 2009 dated 9th January 2009 under sections 376(2)(g) and 379 IPC
was initiated against the appellant and four others. Investigation into the case
culminated in the submission of the charge-sheet under sections 376(2)(g) and
379 IPC against all the accused persons including the appellant. The learned trial
Judge framed charge under section 376(2)(g) and 379 IPC against the appellant
and two other accused persons who pleaded not guilty to the indictment and
claimed to be tried. During the trial, prosecution examined nineteen witnesses
and exhibited several documents.
Defence version in short is innocence and complete denial of the
On conclusion of trial, the learned Judge found that though the charge
under section 376(2)(g) and 379 IPC could not be established, the offence
punishable under section 354 IPC has been proved against the accused persons.
The accused were accordingly convicted and sentenced as aforesaid for the
offence punishable under section 354 IPC.
The point for determination is whether the conviction and sentence of the
appellant for the offence punishable under section 354 IPC is sustainable.
The main thrust of argument of the learned counsel for the appellant is that
the two victims are majors and consenting parties as the appellant was known to
them. It is submitted that the entire story of the prosecution is false and concocted.
As the allegation of rape and theft made out in the FIR could not be established,
the learned trial Judge was not justified in convicting the appellant under section
354 IPC. It is canvassed that the appellant being admittedly known to the victims,
there was no reason why they did not disclose his name to the medical officer who
examined them. It has also been argued that the evidence of the two victims is
contradictory to each other on material points and cannot be relied upon.
Prosecution story is full of discrepancies and inconsistencies.
Learned counsel appearing for the State countered that the conviction and
sentence of the appellant for the offence punishable under section 354 IPC is
justified in the facts and circumstances of the case.
Prosecution case hinges mainly on the evidence of the two victims. PW 1
Sundari Khatun is the de facto complainant and one of the victims. She has
testified in her evidence that about two years ago at night at about 9.30/10.00 pm
the accused Rajesh Sk took her and her uncle’s daughter Rehana Khatun to see
the Moharam fair. On the way, Rajesh took them to an abandoned room at
Aurangabad Girls High School where there were four other accused persons who
threatened them with a knife and told them to hand over their ornaments. Due to
fear she and Rehana handed over their ornaments to the accused persons. PW
1 further stated in her evidence that accused Rajesh touched her body and
pressed her breast but she managed to escape by biting his finger. The
companions of Rajesh caught her and pressed her mouth with a piece of cloth
whereafter they committed rape upon Rehana Khatun. When she (PW1) raised
cries, the accused persons fled away. In her cross-examination PW1 stated that
she took Rehana to her house with serious bleeding injuries and she herself also
sustained bleeding injuries on her body and was medically treated by a doctor.
Curiously enough the medical officer (PW 15) who examined the two victims did
not find any injury or mark of injury on any part of their body. It is also significant
to note that there is nothing in the evidence to suggest that the two victim girls
were medically treated for their alleged injuries on the date of the incident or on
the following day.
PW 2 Rehana Khatun is another victim who deposed almost in a similar
manner by testifying that on the date of the incident the accused Nagar, Mala Sk.,
Abdul and Hanif committed rape upon her in a room at Aurangabad Girls High
School. According to PW 2 she and her cousin Sundari (PW1) had been to
Maharam fair wherefrom the accused Rajesh, on the pretext of taking them to his
house, took them to a room near Aurangabad Balika Vidyalaya where four others
were waiting. The accused persons took away their ornaments and accused
Rajesh touched the body of her cousin who managed to escape by biting the
finger of Rajesh while the other four accused persons committed rape upon her
by threatening her with a knife. It has been stated by PW2 in her cross-
examination that they met Rajesh at the moharam fair and therefrom he took
them to an abandoned room. The evidence of PW 2 on this point is contradictory
to that of PW 1 who testified that she and her cousin Rehana were taken by the
accused Rajesh to see the Maharam fair. In her cross-examination PW 2 stated
that she sustained bleeding injuries on her private parts but the medical evidence
of PW 15 does not corroborate her testimony in this regard.
The evidence of PW 4, PW 5, PW6, PW7 and PW 12 who are related to the
victim girls is hearsay. There is nothing in the evidence to show that the victims
girls were medically treated by any doctor for their alleged injuries. On the
contrary, from the medical evidence of PW 15 it transpires that no mark of injury
was found on any part of the victims’ body. It is also interesting to note that as
per the statement of the two victim girls before the medical officer (PW 15), they
were physically assaulted by some persons but the names of the persons were
not disclosed to PW 15. Admittedly the appellant Rajesh Sk. was known to the
two victim girls who remained silent before the medical officer (PW 15) and chose
not to disclose his name. The post occurrence conduct of the victims was far from
natural. Who prevented the victims from lodging a complaint promptly at the
police station which is about 1½ km. distant from the place of occurrence as
according to PW 1 accused fled away from the site when she raised cries.
According to PW 2 there are many houses around the room where the incident
took place. In her cross-examination PW2 stated that she raised cries for a few
minutes before the incident but surprisingly no one came to the aid of the victims
on hearing their cries. This is indeed an incredible story which is far from
believable. The evidence of the two victims does not inspire confidence and is far
from creditworthy. In the absence of cogent, credible and convincing evidence the
learned trial Judge was not justified in recording an order of conviction and
sentence under section 354 IPCagainst the appellant.
For the reasons aforestated, the impugned judgement and order of
conviction and sentence passed by the learned trial Judge warrants interference
and is liable to be set aside.
Consequently the appeal is allowed by setting aside the impugned
judgement and order of conviction and sentence. The appellant is hereby
acquitted and discharged from his bail bond
A copy of this judgement along with the lower court records be sent
forthwith to the trial court.
Urgent photostat certified copy of this judgement if applied for, be given to
the applicant upon compliance of requisite formalities.
(Asha Arora, J.)