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Kamal Biswas vs The State Of West Bengal on 5 August, 2019

Form No. J(1)

IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION

Present:
The Hon’ble Justice Asha Arora

C.R.A. 119 OF 2016

Kamal Biswas
– Versus –
The State of West Bengal.

For the Appellant : Mr. Arindam Jana, learned advocate,
Mr. Sujan Chatterjee, learned advocate.

For the State : Ms. Faria Hossain, learned advocate.

Hearing concluded On : 05.08.2019.

Judgement On : 05-08-2019.

Asha Arora, J. :

1.

This appeal has been preferred against the judgement and order of

conviction and sentence dated 4th January, 2016 and 5th January, 2016

passed by the Additional Sessions Judge, 2nd Fast Track Court,

Berhampore, Murshidabad in Sessions Serial No. 95 of 2009 whereby the

appellant was convicted for the offence punishable under section 354 IPC

and sentenced to suffer rigorous imprisonment for two years and to pay

fine of Rs.10,000/- in default of which to suffer rigorous imprisonment for

three months for the aforesaid offence.

2. The facts leading to the instant appeal may be summarized as follows :

3. On 10th May, 2007 at 10.35 hours one Sadananda Ghosh lodged a written

complaint at Shaktipur B.H. alleging that on 7th May, 2007 at about 17.30

hours his wife Sumitra Ghosh had gone out to arrange for their minor

daughter’s private tutor. After some time, on her way back to the house she

heard cries of her daughter aged about six years. On reaching home her

daughter informed her that the accused Kamal Biswas came to the house

and pressed her body with his penis. He threatened her with dire

consequence if she disclosed this incident to anyone. The incident was

reported to the village Panchayat but in vain. Since no fruitful result

followed, the instant complaint was lodged which was duly forwarded to

the Officer-in-Charge of Rejinagar P.S. On the basis of the aforesaid written

complaint the case was initiated being Rejinagar P.S. Case No. 69 of 2007

dated 10.05.2007 under section 354/506 IPC against the

accused/appellant. Investigation culminated in the submission of the

charge-sheet under section 354/506 IPC and under section 376/511 IPC

against the accused/appellant.

4. The trial court framed charges for the offences punishable under section

376/511 and 506 IPC against the accused/appellant. Being so arraigned,

the accused/appellant pleaded not guilty in consequence of which trial

commenced. In course of trial prosecution examined eight witnesses and

relied upon some documents which were tendered in evidence.

5. Defence version in brief as is evident from the trend of cross-examination

of the prosecution witnesses as well as from the examination of the

accused under section 313 CrPC is innocence, denial of the prosecution

case and false implication due to long standing dispute between the Ghosh

community and the Mahisya community.

6. On the basis of the evidence on record the trial court convicted the

accused/appellant for the offence punishable under section 354 IPC and

sentenced him as aforesaid.

7. Assailing the conviction of the accused/appellant on multifarious counts,

learned counsel appearing for the appellant argued that the delay in

lodging the FIR has not been convincingly explained. Referring to the

concluding portion of the FIR(exhibit-1), learned counsel sought to impress

that the complainant was interested in realising money from the accused

so he waited for the decision of the village Panchayat. Since no fruitful

result followed, this fabricated complaint was lodged as an afterthought.

Placing reliance on the case of Thulia Kali Versus The State of Tamil

Nadu reported in (1972) 3 Supreme Court Cases 393, it is argued that

delay in lodging the FIR has resulted in embellishment particularly in view

of the fact that the delay has not been satisfactorily explained. It is

submitted that the village Pradhan or Upa-Pradhan not having been

examined, prosecution version that there was an attempt to settle the

matter through village salish is not believable. Further submission is that
according to the FIR the incident occurred in the house of the defacto-

complainant but no charge for the offence punishable under section 448

IPC was framed against the accused so, the chain of events is incomplete.

Learned counsel for the appellant canvassed that in view of the

contradictions inter se in the evidence of PW-1 and PW-2 (parents of the

victim) no reliance can be placed on these two witnesses. Referring to the

cross-examination of PW-2 it is pointed out that she (PW-2) narrated the

incident to Bhajali Ghosh, Ananda Ghosh and others but none of these

witnesses were cited nor examined to corroborate her version of the

incident. It is argued that conviction cannot be based on the sole testimony

of the victim who is a child of tender age in the care and custody of her

parents as her evidence is a tutored impact.

8. Per contra, learned advocate appearing for the State submits that the

evidence of the victim is in conformity with her statement under section

161 CrPC and there is no reason why the victim would depose falsely

against the accused/appellant. It is argued that a victim of molestation is

in the same position as an injured witness and the testimony of such a

witness should receive the same weight. In support of such submission

reference has been made to the case of Shekara Versus State of

Karnataka reported in 2010 (1) Supreme Court Cases (Cri) 1293

paragraph 8. On the point of delayed FIR, learned advocate for the State

contended that initially an attempt was made to settle the matter through

the village Panchayat but no result followed so the FIR was lodged. Good
cause has been shown for the delay so there is no reason to disbelieve the

prosecution case. To buttress such submission reliance has been placed on

the case of Satyapal Versus State of Haryana reported in 2009 (3)

Supreme Court Cases (Cri) 108 paragraph 20.

9. On the point of omission to frame charge for the offence of house trespass

punishable under section 448 IPC, it may be useful to refer to the charge

dated 12.01.2011 framed against the accused/appellant which reads as

follows :

“I, Shri Kaushik Bhattacharyya, Addl. Sessions Judge, 2nd Fast Track

Court, Berhampore, Murshidabad.

hereby charge you (2) Kamal Biswas

as follows –

First- That you, on or about the 7.5.07 at around 5.30 P.M. at the

house of Sadananda Ghosh situated in village Kamnagar under P.S.

Rejinagar, District Murshidabad attempted to commit rape on minor

Puja Ghosh

and thereby committed an offence punishable under Section 376/511

of the Indian Penal Code, and within my cognizance.

Secondly – That you, on or about the 7.5.07 at around 5.30 p.m. at

the house of Sadananda Ghosh situated in village Kamnagar under
P.S. Rejinagar, District Murshidabad committed criminal intimidation

by threatening Puja Ghosh with injury to her person.

and thereby committed an offence punishable under section 506 of

the Indian Penal Code and within my cognizance.”

It is evident that the date, time and place of occurrence (in the house of

Sadananda Ghosh) have been clearly mentioned in the charge as required

under section 212 CrPC. Therefore omission to state the relevant offence of

house trespass punishable under section 448 IPC is of no consequence as

the appellant could not show how he has been prejudiced by such

omission. The relevant provisions in the Code of Criminal Procedure

dealing with the effect of an omission in the charge are Section 215 and

Section 464. Section 215 CrPC provides as follows :

“215. Effect of errors.- No error in stating either the offence or

the particulars required to be stated in the charge, and no

omission to state the offence or those particulars, shall be

regarded at any stage of the case as material, unless the accused

was in fact misled by such error or omission, and it has

occasioned a failure of justice.”

According to Section 464 CrPC “No finding, sentence or order by a

Court of competent jurisdiction shall be deemed invalid merely on the

ground that no charge was framed or on the ground of any error,
omission or irregularity in the charge including any misjoinder of

charges, unless, in the opinion of the Court of appeal, confirmation or

revision, a failure of justice has in fact been occasioned thereby.”

In the case in hand, there is nothing on record to show that the accused

was in fact misled or prejudiced by the omission to mention the offence

punishable under section 448 CrPC in the charge framed against him. The

prosecution witnesses were cross-examined at length on behalf of the

accused which shows that the accused clearly understood the details of the

charge against him. It is evident that non-mention of the aforesaid offence

in the charge has not occasioned a failure of justice. Therefore the

argument in this regard is fallacious.

10. It is well settled that delay in lodging the F.I.R. cannot be used as a

ritualistic formula for discarding the prosecution case and doubting its authenticity. In the

case in hand, the delay of three days in lodging the F.I.R. has been explained by the defacto

complainant in the F.I.R. itself. There is no substance in the argument that the explanation

of delay in lodging the F.I.R. is not believable since the Panchayat Pradhan or Upa-Pradhan

were not examined to substantiate the prosecution version that an attempt was made to

settle the matter through the village Panchayat. In this context we cannot lose sight of the

evidence of P.W. 4 who is a co-villager and an independent witness who scribed the F.I.R. as

per instruction of the complainant and his wife. Being quizzed in cross-examination this

witness asserted that he is acquainted with the case since an attempt was made to negotiate

the matter in the village. It has been elicited from the mouth of P.W. 4 in cross-examination

that there was an attempt to settle the matter. So the explanation of delay given in the F.I.R.

cannot be disbelieved. Thulia Kali’s case (supra) relied upon by the learned counsel for the
appellant is clearly distinguishable on facts and is not apposite for the purpose of the

present case.

11. There is also no merit in the argument that the accused has been falsely

implicated due to long standing dispute between the two communities. In Pandurang

Sitaram Bhagwat – Versus – State of Maharashtra reported in (2005) 9 Supreme Court

Cases 44 relied upon by the learned counsel for the appellant, there was admittedly strained

relationship between the parties. In the case in hand, it was suggested to P.W. 1 and P.W. 2

in cross-examination that there is long standing dispute between the Ghosh community and

Mahisya community. There is nothing on record to show that there was animus between the

accused and the defacto complainant on personal level. On the contrary, it has been elicited

in the cross-examination of the victim (P.W. 5) that accused had visiting terms with the

complainant’s family and the victim would address him as ‘kaka’. This elicitation in the

cross-examination of P.W. 5 demolishes the plea of animus or dispute between the defacto

complainant and the accused. Therefore Pandurang Sitaram Bhagwat’s case (supra) finds

no application to the case in hand.

12. Coming to the evidence of the three vital witnesses relied upon by the

prosecution, it may be beneficial to quote the testimony of the victim who has been examined

as P.W. 5. This witness has narrated the incident in the following manner :

“I am Puja Ghosh, my father is Sadananda Ghosh and mother Sumitra Ghosh. I am

resident of Kamnagar. I know Kamal Biswas of my village. He is present (identifies).

On 7.5.07 at 6-30pm my mother went to arrange private tutor for me, father was not

in house, he went to Katwa to supply milk. I was alone in the house. Kamal was

sitting in saw mill beside my house. I was then crying as it became evening. Then

Kamal entered into our house. He then enquired about my mother, in reply I stated

she was not in the house, he also enquired whereabouts of my father and in reply I
told father went to Katwa to supply milk. He then sat beside me touched my body.

Then Kamal removed my pant. He then removed his own pant. Thereafter he

touched my urinal place and he rubbed his penis below the naval portion of my body

upto ‘jung’. I then started to cry. My mother returned and hearing sound of my

mother Kamal fled away from my house. I also made statement before learned

Magistrate. He read over the statement and thereafter narrated and explained it to

me.”

In the case in hand, the victim is a child of six years. The age of the victim has not been

disputed. Needless it is to say that the evidence of a child victim can form the basis of

conviction if the same is found to be credible and truthful. The testimony of a child victim

can be relied upon if the court is satisfied that the child understands the questions put to

her and is capable of giving rational answers. In the case in hand, the manner in which the

child victim narrated her ordeal in court testifies to her competency to depose. It is evident

that she had sufficient understanding and adequate intellectual capacity to narrate the

incident. The victim (P.W. 5) recounted her ordeal coherently and spontaneously without any

exaggeration. She successfully withstood the test of extensive and incisive cross-

examination. No dent could be made in her testimony which remained unscathed in cross-

examination. Nothing could be elicited in the cross-examination of P.W. 5 to demolish her

evidence or to render it untrustworthy. Being quizzed in cross-examination P.W. 5 asserted

that accused had visiting terms in her house and she called him ‘kaka’. The testimony of

P.W. 5 is clearly in conformity with her statement under Section 164 Cr.P.C.. No material

contradiction could be pointed out in the evidence of P.W. 5 in relation to her statement

under Section 161 Cr.P.C. or under Section 164 Cr.P.C. There is no merit in the argument

that the evidence of P.W. 5 is untrustworthy and a tutored impact. Nothing could be brought

on record by the accused/appellant to persuade me to disbelieve the evidence of P.W. 5. The

evidence of P.W. 5 appears to have a ring of truth and it inspires confidence.

13. P.W. 2 is the mother of the victim whose evidence is quoted herein below :

“Sadananda Ghose (P.W. 1) is my husband. Puja is my daughter. I know my

neighbour Kamal Biswas. He is present (identifies) 5½ years ago in the evening at 6-

30pm I went to arrange private tutor for my said daughter and she was in the house.

Then she was 6 years old. On the way of return I found my daughter was crying.

Hearing my sound Kamal fled away from my house. On being asked my daughter

disclosed that accd. removed her wearing apparels and at the same time he removed

his pant and thereafter rubbed his penis on her belly and private part (sex organ).

She also disclosed that accd. threatened her with dire consequence if she disclosed

it to anyone.”

No material contradiction could be pointed out in the evidence of P.W. 2 in relation to her

statement under Section 161 Cr.P.C.. There is no substance in the argument that the evidence of

P.W. 1 and P.W. 2 being contradictory cannot be relied upon. It is a well settled proposition of law

that while appreciating evidence of a witness, minor discrepancies on trivial matters not affecting

the core of the prosecution case ought not to prompt the court to reject the evidence in its

entirety. The fact that P.W. 2 did not state to the Investigating Officer that seeing her the accused

fled away from her house does not make her evidence untrustworthy.

14. I am also not impressed with the argument that due to non-examination of Ananda

Ghose, Bhajali Ghose, the Pradhan or the Upa-pradhan, the prosecution case has become

doubtful. In the case in hand, prosecution case hinges mainly on the evidence of the victim and

her parents. It is well settled that a victim of molestation or sexual assault is the best witness

and the evidence of such a witness is entitled to great weight absence of corroboration

notwithstanding. There is no reason why the victim a child of tender age would depose falsely

against the accused. Pandurang Sitaram Bhagwat’s case (supra) finds no application to the

case in hand for the simple reason that each case has to be determined on the touchstone of the
factual matrix thereof. The evidence of the child victim inspires complete confidence and is

beyond reproach.

15. For the reasons aforestated, I am of the firm view that no interference is warranted

with the judgement and order impugned.

16. Consequently, the appeal fails and is accordingly dismissed.

17. The appellant shall surrender before the trial Court within one month from this

date to serve out the sentence in default of which the trial Court shall take appropriate steps

against the appellant/accused for execution of the sentence in accordance with law.

18. A copy of this judgement along with the lower court records be sent to the trial

Court.

19. Urgent photostat certified copy of this judgement, if applied for, be given to the

applicant upon compliance of requisite formalities.

(Asha Arora, J.)

dc./P.M.

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