MANIK GHOSH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The instant appeal has been preferred against a judgement and order dated 30th August, 2011 passed by the learned Additional Sessions Judge, Fast Track Court, Tehatta, Nadia in Session Trial No. 01(12)/2010 arising out of Session Case No. 28 (05)/2010 convicting the accused/appellant Manik Ghosh under Section 354 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for two years for commission of offence punishable under Section 354 of the Indian Penal Code.

(2.) The prosecution case in brief is that on 24th August, 2006 at about 6.00 in the morning the de facto complainant of this case went for evacuation in a field situated by the side of her house and at that time suddenly accused Manik Ghosh from her behind placed one 'Gamcha' on her mouth and took her in a jute field and forcibly fell her down on the earth and violated her chastity and while the de facto complainant tried to raise voice then the accused person pressed her neck and stated to her that he would kill her if she tried to raise hue and cry but some men heard the voice of the de facto complainant and as a result the accused person left that place. Thereafter, the de facto complainant came to her house in ailing condition and narrated the incident to her husband and her son. Thereafter, the accused was proceeded by the family of the de facto complainant. When the son of the de facto complainant asked the accused Manik Ghosh, as to why he had done all those crime, on hearing the same three accused persons namely, Manik Ghosh, Mahitosh Ghosh and Sukhen Ghosh came to the house of the de facto complainant and assaulted her and destroyed the tiles of her house, threatening her that if she would report the matter else where, in that event they would kill them by igniting fire on her house. Thereafter, the de facto complainant lodged a written complaint before the Sub-Divisional Officer, Tehatta, who forwarded the same to I.C., Tehatta P.S. with certain directions and thereafter, police started the present case against three accused persons. Investigation was started and after completion of investigation, charge sheet was submitted under Sections 354/323/34 of the Indian Penal Code against said three accused persons, who pleaded not guilty and claimed to be tried. After conclusion of the trial the learned Additional District Judge, Fast Track Court, Tehatta, Nadia acquitted the accused Manik Ghosh from the charge punishable under Section 376 of the Indian Penal Code and held the appellant, Manik Ghosh guilty for commission of offence punishable under Section 354 of the Indian Penal Code and accordingly, convicted under Section 235(2) of the Code of Criminal Procedure. The learned Trial Judge also held that the accused persons namely, Manik Ghosh, Mahitosh Ghosh and Sukhen Ghosh were found not guilty for the offence under Section 323/34 of the Indian Penal Code.

(3.) Learned advocate for the appellant submitted that from the deposition of P.W.1 it is evident that the complainant specifically mentioned that she was raped by accused Manik Ghosh in the field of one Kartick Ghosh, as a result she sustained cut injury on her both elbow. P.W.1 stated in her evidence that she had received no injury on her back side as well as her buttocks and heels. During crossexamination she stated that she sustained no injury on her private parts, thigh as well as on her breasts. He further submitted that no wearing apparel was seized which could have smeared with mud of the jute field or some amount of biological relics in those wearing apparels, although the case was registered on the self-same day. He also submitted that the husband of the victim being P.W.2 did not accompany the victim before the doctor and he also did not go with his wife to the Police Station, which was 10 k.m. away from the residence of the complainant. Even P.W.2 stated that he was not examined by the police, although he stated that before he deposed before the Court, he had talked with his wife over the incident. He also submitted that P.W.1 did not state before the Investigating Officer while recording her statement under Section 161 of the Code of Criminal Procedure that she was ravished by the appellant but during course of recording evidence she stated that she was ravished by the appellant. In view of such contradiction in the evidence of P.W.1, the learned Judge ought to have disbelieved the entire evidence of P.W.1. In support of his submission he has relied on a decision of the Apex Court in the case of Abbas Ahmed Chowdhury vs- State of Assam reported in, 2011 2 SCC(Cri) 439 and in the case of Mohanlal vs- State of Rajasthan reported in, 2003 SCC(Cri) 1383. Thus, learned advocate for the appellant prayed that the appeal may be allowed by setting aside the order of conviction and sentence passed by the learned Judge.