SDAS/TAMAL PA
Item No.214

IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION

Present:
The Hon’ble Justice Joymalya Bagchi
And
The Hon’ble Justice Suvra Ghosh

C.R.A. 27 of 2016
Bishal Chhetri alias Bikki Biswakarma
alias Prakash Rai
-Vs-
State of West Bengal

For the Appellant : Mr. Partha Sarathi Bhattacharya, Adv.

For the State : Mr. A. K. Maiti, learned A.P.P.,
Mr. Angshuman Chakraborty, Adv.,
Mrs. Kaberi Sengupta (Mrs. Maiti), Adv.

Heard on : 17th December, 2019

Judgment on : 17th December, 2019

Joymalya Bagchi, J. :-

Appellant is represented by his learned Counsel. Hence, Ms. Sreyashee

Biswas, learned Counsel appointed on behalf of the State Legal Services Authority

is discharged. Her contribution is appreciated.

The appeal is directed against the judgment and order dated 09.12.2013

and 10.12.2013 passed by the learned Additional District and Sessions Judge,

Kurseong, Darjeeling in Sessions Case No. 37 of 2010 convicting the appellant for

commission of offence punishable under Sections 376/366 of the Indian Penal

Code and Section 5 of the Immoral Traffic (Prevention) Act 1956 and sentencing

him to suffer life imprisonment for the offence punishable under Section 376 of

the Indian Penal Code, to suffer rigorous imprisonment for 10 years and pay a fine
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of Rs.2,000/- in default, to suffer further rigorous imprisonment for six months

more for the offence punishable under Section 366 of the Indian Penal Code and

to suffer rigorous imprisonment for seven years and pay a fine of Rs.2000/- in

default, to suffer further rigorous imprisonment for six months more for the

offence punishable under Section 5 of Immoral Traffic (Prevention) Act.

Prosecution case, as alleged against the appellant and other accused

persons viz. Sangita Chhetri and Jamuna Thapa is to the effect that the appellant

posed as an army man and proposed marriage to the victim. Victim initially did

not agree. However, the appellant persistently telephoned her requesting the latter

to meet him. Finally, the victim met the appellant at Kurseong town on

02.07.2010

along with her friend, Chunnu Subba (P.W. 5). The appellant wanted

to talk with the victim in private. As a result P.W. 5 left the spot. He requested

the victim to accompany him to Siliguri. Initially she was reluctant. However, on

the request of co-accused Sangita Chhetri, sister-in-law of the appellant, over

phone, she agreed to accompany the appellant to Siliguri. At Siliguri the victim

was introduced to Sangita who told her to stay with the appellant for the night in

the hotel and assured her on the next day they would talk regarding

arrangements of her marriage with the appellant. That night against her will the

appellant committed rape on her in the hotel. On the next day, Sangita told the

victim that she would take her to Pune to meet the elder sister of the appellant. At

Pune the victim was kept in a brothel and was sexually exploited. In the

meantime, Chunnu reported the matter to P.W. 1, Man Singh Gurung, father of

the victim. P.W. 1 and others searched for the victim but to no avail. An enquiry

revealed that the appellant had contacted the victim through two phone numbers

i.e. 9563270871 standing in the name of one Bishal Chhetri of Padhan Nagar,

Siliguri, (cousin of the appellant), and 9547837235 standing in the name of one
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Banu Khatun, daughter of Md. Mahoddin Harsiden Khatun of Mary View T.E.

Turba, Gaziram, Naxalbri. Finally he approached a local NGO viz. Kanchanjunga

Uddar Kendra, Siliguri, and came to know that Banu Khatun was a habitual

woman trafficker. Under such circumstances, P.W. 1 lodged written complaint

with Kurseong Police Station resulting in registration of F.I.R. No. 111 of 2010

dated 15.07.2010 under Section 365 of the Indian Penal Code. Police officers

attached to Kurseong Police Station along with representative of the aforesaid

NGO (P.W. 15) and others proceeded to Pune and finally recovered the victim girl

from a brothel owned by one Jamuna Thapa. Victim was medically examined and

her statement was recorded under Section 164 of the Indian Penal Code.

Charge-sheet was filed against the appellant, Sangita Chhetri and Jamuna

Thapa. Charges were framed against the appellants under sections

363/365/366/368/376 of the Indian Penal Code and section 5 of the Immoral

Traffic (Prevention) Act, 1956. Charges were also framed against Jamuna Thapa

and Sangita Chhetri under Sectins 366/120B, 368/120B of the Indian Penal Code

and Section 5 of the Immoral Traffic (Prevention) Act, 1956. Accused persons

pleaded not guilty and claimed to be tried. In the course of trial, prosecution

examined 17 witnesses and exhibited a number of documents. The defence of the

appellant was one of innocence and false implication. In conclusion of trial, trial

court by judgment and order dated 09.12.2013 and 10.12.2013 convicted and

sentenced the appellant, as aforesaid. Co-accused Sangita was convicted and

sentenced under Sections 366/120B of the IPC and Section 5 of the Immoral

Traffic (Prevention) Act while co-accused Jamuna was convicted and sentenced

under Section 3/4/5 of the Immoral Traffic (Prevention) Act, 1956.

Although the appellant preferred the instant appeal against his conviction

and sentence, no appeal has been preferred by the co-convicts.
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Mr. Bhattacharya, learned Counsel appearing for the appellant, argued

that allegation of forcible rape is highly improbable as the victim, (P.W. 4),

voluntarily accompanied the appellant and stayed with him in the hotel. No

independent evidence is forthcoming with regard to the victim being subjected to

sexual exploitation at Pune. No local witness has been examined to corroborate

the version of the victim. Hence, the appellant is entitled to an order of acquittal.

Mr. Maiti, learned Additional Public Prosecutor, argued that the victim

graphically disclosed the sordid tale of how she was procured by the appellant

with the aid of Sangita Chhetri on the false promise of marriage. After cohabiting

with her on such promise, the appellant put her in a brothel at Pune (owned by

Jamuna Thapa) and forced her into prostitution. Finally, she was recovered from

the brothel. Hence, prosecution case has been proved beyond doubt.

Narration of P.W. 4 depicts the pathetic tale of a victim who was procured

by the appellant and the co-convict Sangita Chhetri for prostitution on the false

promise of marriage. The appellant posed as an army man and proposed marriage

to her. Initially, she was reluctant. However, the appellant persisted and finally

persuaded her to meet him at Kurseong on 02.07.2010. The victim was

accompanied by P.W. 5, Chunnu Subba. In order to get rid of Chunnu, P.W. 5,

the appellant expressed a desire to talk with the victim in private. As a result,

P.W. 5 left them at Kurseong and returned home. Thereupon the appellant

insisted the victim to accompany him to Siliguri. As she was reluctant, appellant

made her talk with his sister-in-law, Sangita Chhetri over phone, who assured the

victim that the appellant would marry her. Accordingly, victim accompanied the

appellant to Siliguri. They met Sangita. The latter told her to stay for the night in

a hotel with the appellant and assured the victim that she would meet her next

morning. At night the victim was forcibly ravished by the appellant in the hotel.
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Next day, Sangita assured her that she would take her to Pune to talk to the sister

of the appellant regarding their marriage. On such assurance, appellant

accompanied both the accused persons to Pune where she was put in a brothel

and subjected to sexual exploitation. Finally she was recovered by police. She

made statement to the learned Magistrate under Section 164 of Code of Criminal

Procedure. She was also medically examined. Evidence of the victim is

corroborated by Chunnu Subba, P.W. 5, who stated that appellant had met the

victim at Kurseong and the latter informed her over phone that they had left for

Siliguri in a hired vehicle. P.W. 5 reported the matter to Man Singh Gurung, P.W.

1, father of the victim. As the victim did not return at night, P.W. 1 and others

searched for her at various places. He went to Sonada Police Station to lodge

complaint. He was referred to Kurseong Police Station where he lodged complaint

scribed by P.W. 3, Kiran Gurung. P.W. 2, Sangita Gurung, sister-in-law of the

victim and P.W. 3 have corroborated the evidence of the defacto complainant, P.W.

1.

Evidence of P.W 4 has been criticized on the score that she had voluntarily

left with the appellant and allegation of forcible rape is a myth. Even if one

concedes to the argument of the appellant that the victim had not been forced to

sexual intercourse, ample evidence has come on record that the so-called consent,

if any, of the victim to the sexual intercourse was procured by the appellant and

other accused persons through blatant dishonesty. Appellant falsely proposed

marriage to her and as the victim was unwilling, he persisted and finally

compelled her to meet him at Kurseong on 02.07.2010. Thereafter, upon the

persuasion of co-accused Sangita Chhetri appellant took the victim to Siliguri and

on the assurance of marriage cohabited with her. Subsequently, appellant and

Sangita took the victim to a brothel at Pune where she was utilized for commercial
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sex. Conduct of the appellant, therefore, leaves no doubt in one’s mind that he

never intended to marry the victim and had set up a honey trap in collusion with

Sangita Chhetri to ensnare the victim and procure her for prostitution. Hence, I

have no doubt in my mind that sexual intercourse between the appellant and the

victim in the hotel was without her consent and falls within the definition of ‘rape’

under section 375 IPC. Recovery of the victim from the brothel at Pune owned by

Jamuna Thapa has been wholly established not only through the evidence of the

police witnesses namely P.W 12, 13 and 14 but also the independent witness, P.W

15, Secretary of Kanchanjangha Uddar Kendra, Siliguri and other local witnesses

namely P.Ws 8, 9, 10 and 11. All of them had accompanied the police party to

Pune to recover the victim.

In the light of the aforesaid discussion, conviction of the appellant is

upheld.

Coming to the issue of sentence, I note the maximum sentence of life

imprisonment has been imposed upon him for committing the offence punishable

under section 376 IPC. Appellant does not appear to have any criminal

antecedent. In view of the facts and circumstances of the case and balancing the

aggravating and mitigating factors, I am of the opinion that maximum sentence

imposed on the appellant may be reduced to some extent.

Accordingly, I direct that the appellant shall suffer rigorous imprisonment

for ten years and to pay fine of Rs. 2,000/-, in default, to suffer a further period of

rigorous imprisonment for six months more for committing the offence punishable

under section 376 of the Indian Penal Code. Sentences imposed upon him on the

score of committing offence under section 366 IPC and section 5 of Immoral Traffic

(Prevention) Act are upheld and all the sentences are to run concurrently.
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The period of detention suffered by appellant during investigation, enquiry

and trial shall be set off from the substantive sentence imposed upon the

appellant in terms of Section 428 of the Code of Criminal Procedure.

With the aforesaid modification as to sentence, the appeal is disposed of.

Copy of the judgment along with Lower Court Records be sent down to the

trial court at once for necessary compliance.

Urgent Photostat Certified copy of this order, if applied for, be supplied

expeditiously after complying with all necessary legal formalities.

I agree.

(Suvra Ghosh, J.) (Joymalya Bagchi, J.)