IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
The Hon’ble Justice Joymalya Bagchi
The Hon’ble Justice Suvra Ghosh
C.R.A. 27 of 2016
Bishal Chhetri alias Bikki Biswakarma
alias Prakash Rai
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
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
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
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.
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.
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.
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
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
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.
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.
(Suvra Ghosh, J.) (Joymalya Bagchi, J.)