Calcutta High Court (Appellete Side)
Rakhal Ghosh vs State Of West Bengal on 5 May, 2025
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:-
HON'BLE JUSTICE CHAITALI CHATTERJEE DAS.
CRA/328/2011
WITH
IA NO.CRAN 1 OF 2011
RAKHAL GHOSH
VS.
STATE OF WEST BENGAL
For the Appellant : Mr. Amit Ranjan Pati, Adv.
Ms. Swastika Chowdhury, Adv.
Ms. Khadijatul Kubra, Adv.
For the State : Mr. Debasish Roy, Adv.
Mrs. Manisha Sharma, Adv.
Mr. S. Nandy, Adv.
Last heard on : 29.04.2025
Judgement on : 05.05.2025
CHAITALI CHATTERJEE DAS, J.:-
1.
This is an application under Section 374 (2) of the Code of Criminal
Procedure filed by the appellant petitioner challenging the judgement dated
26 April 2011 and order of sentence dated 28 April 2011 passed by the
Learned Additional Sessions Judge, re-designated Court, Paschim,
Mednipur in Session Trial Case No. February 2011 arising out of Shani
Page 1 of 13
P.S. case number 18 of 2009 dated April 3, 2009 under Sections 376 of the
Indian Penal Code, 1860 corresponding to GR case number 518 of 2009,
whereby convicting the appellant for an offence committed under Section
354 of the Indian Penal Code 1860 and sentencing him to suffer simple
imprisonment for nine months and to pay a fine of ₹10,000 in default to
suffer further simple imprisonment for one month.
Prosecution case
2. A complaint was written by the father of the victim being P.W 4 on 3rd of
April 2009 before the Officer-in-charge Salboni Police Station alleging that
on 30 March 2009 at noon about 2 o’clock when his daughter that is the
victim girl aged about 15 years went to the river for natural call, and while
returning alone, the present appellant picked her up and took to a nearby
Doba and raped her muffling her mouth. It was further narrated that since
his daughter was late in returning, his wife went to search and suddenly
found that the present appellant is running away from the said Doba. The
de-facto complainant then went to the Doba and noticed his daughter lying
down there, and then he called everyone by shouting. After recovery, the
victim narrated the incident to the parents who informed to the appellants
father, namely Badal Ghosh, and on hearing, they became furious and tried
to assault the de-facto complainant and used filthy languages for the reason
of which the de-facto complainant did not lodge any complaint on that day,
considering the future of his daughter. He also expressed his apprehension
of being threatened by the Appellant and his father.
Page 2 of 13
3. On the basis of the said written complaint, the Salboni police case number
18/2009 dated April 3, 2009 started under Section 376 IPC. After
completion of investigation, the I.O. submitted the charge sheet against the
present applicant for an offence punishable under Section 376 IPC.
Subsequently, the said case was transferred to the court of Learned
Sessions Judge and on February 28, 2011, the charge was framed against
the present appellant under Section 376 IPC.
Submission
4. Learned Advocate appearing on behalf of the Appellant initially submits that
the charge was framed under section 376 of the Indian Penal Code but the
Learned Trial court has passed the order of conviction under section 354 of
the Indian Penal Code since no such materials were found against the
appellant to prove the said charge. Further submitted before this court that
the prosecution examined 11 witnesses, including the de-facto complainant
who did not support the case of prosecution and declared as hostile. The
mother of the victim also did not support the prosecution story and declared
hostile. There was a delay in lodging the F.I.R of 5 to 6 days, which created
doubt over the prosecution case. It is argued that in the written complaint,
the age of the victim was mentioned about 15 years but the Doctor Who
examined the victim, considering the x-ray for determination of age opined
that the age of the victim was more than 17 years, but less than 19 years.
The doctor adduced evidence as PW 2 and said medical examination report
of the victim girl has been marked with Exhibit 2 and the plates are marked
with exhibit 3 series. In view of such report, there was no external injury
Page 3 of 13
and or any injury mark found on her body, and no foreign body was
detected in her body and private part. PW 4 the de-facto complainant made
a departure from that was written in the complaint and before declared
hostile deposed about scuffle in between his daughter and the accused and
he was advised by the villagers to lodge the complaint before the police
station.
5. The complainant said he was advised by the villagers to lodge a complaint
but at the police Station one of them was asked to write something on paper
where he put signature. So the F.I.R itself is not proved therefore, the
prosecution has miserably failed to prove that the complaint was lodged at
the instance of the de-facto complainant and any incident occurred on the
relevant day and time by this Appellant. It is further argued that the victim
girl, P.W.6 only deposed that on the relevant time on her way to home the
appellant came to her and placed his hand on her body. She further said
that she put the signature on the statement given under Section 164 Cr.Pc
as per the instruction of the police. Furthermore the victim herself gave a
different version before the Learned Magistrate under Section 164 Cr.Pc
when she herself narrated the incident before the court which was very
different. It is therefore submitted that glaring inconsistencies are apparent
in the evidence adduced by the victim herself and on the basis of said
evidence order of conviction cannot be sustained. P.W. 7, 8 and 9 did not
say anything in support of the prosecution case, and their cross-
examination was denied. Investigating Officer PW 11 did not visit the place
of occurrence and record the statement of the witnesses. This statement of
the I.O. is enough to show that there was no investigation and only at the
Page 4 of 13
instance of the police authorities, the complaint was lodged against the
present appellant alleging commission of a serious offence by this Appellant.
It is contended that no cogent evidence was forthcoming in order to pass an
order of conviction under Section 354 IPC and accordingly prays for
Acquittal.
6. Per Contra it is the submission of the learned prosecution that the heinous
offence was committed by the appellant which was intimated to the police by
the father of the victim girl and on the basis of which the investigation
started culminated into filing of charge sheet. Since it was exclusively triable
by a Session Court the same was committed before the learned session
court, when the charge was framed against the appellant was read over and
explained to him to which he pleaded not guilty and claimed to be tried.
Accordingly, the trial commenced and the prosecution cited 11 witnesses
including the victim and the I.O. It is submitted that mere delay in filing the
complaint cannot be fatal against the prosecution as it has been clearly
stated by the de-facto complainant that they were threatened by the
appellant and his father, and therefore he did not complain on the date of
the incident. It is further submitted that the victim girl being a village girl
may not be certain about the exact age but her age was in between 17 to 19.
There is no denial that there was a medical examination of the victim after
the incident and to the report of the P.W.2. There was hymen injury, and
such report was proved and marked with exhibit. The learned Court relied
upon the statement of the victim who admitted about an incident which took
place on the date of on the relevant date when she went to the river and on
our way back to home, the appellant placed his hand on her body near a
Page 5 of 13
Doba, and her statement given under Section 164 of the Code of Criminal
Procedure 1973 when she specifically stated about commission of rape on
her.
7. Further, more the appellant was medically checked and found capable of
performing sexual intercourse. The learned Sessions Judge, considering the
medical evidence and the statement of victim rightly observed that the
scuffing between the victim girl and the appellant is proved and therefore
even if the charges under Section 376 of the Indian Penal Code is not
proved the prosecution has been succeeded in proving the accusation under
Section 354 beyond all reasonable doubt. Therefore, there is no reason to
interfere with the judgement and order passed by the Learned Sessions
Court and this criminal appeal is liable to be dismissed.
ANALYSIS
8. Heard the submission of both the learned advocate
The seminal issues which falls for consideration is that?
a) Weather the prosecution has been able to prove the case beyond all
reasonable doubt.
b) Weather the Learned Court was writing, passing the order of conviction
against the accused under Section 354 of IPC.
9. In this case, in order to set the motion, the complaint was lodged by the
father of the victim on 3rd of April 2009 alleging an incident happened on 30
March 2009. The said complaint was written by Nandu Chatterjee who was
not cited as a charge sheet witness. The I.O. submitted the charge sheet on
16.8.2010 being CS number 56 /10 under Section 376 of Indian Penal
Page 6 of 13
Code. The I.O. recorded the statement of 14 witnesses who were named as
charge sheet witnesses however; the prosecution examined 11 witnesses out
of said 14 witnesses. In this case, the victim gave 164 statements before the
Learned Magistrate on 9 April 2009 that is after nine days from the date of
alleged incident. She stated her age as 16 years and specifically stated that
the appellant assaulted her physically despite her objection, touched her in
appropriately and ultimately raped her. The medical examination was done
on 16th of April 2009 that is 16 days after the alleged date of incident when
it was said by the doctor that no foreign body or private part was found and
no injury mark was found on our body excepting hymen injury. It is a
settled law that FIR is neither substantive evidence nor an encyclopaedia of
the prosecution case. It is from the nature of the FIR and other surrounding
circumstances that it has to be seen whether there was any scope for any
contradiction at the time the informant gave it or it was a version, which
meditated explanation at the trial. At the same time, the information when
recorded is the basis of the case made out by the informant and therefore it
is an extremely vital and valuable piece of evidence for the purpose of
corroborating.
10. The importance of lodging F.I.R is the first information of an incident given
to the police first in point of time on the basis of which the investigation
commences. In the instant case, the written complaint was lodged, by none
other than the father of the victim and therefore it is quite acceptable that
he will narrate the exact incident happened with his daughter before the
police authorities since it is his daughter who has faced traumatic incident.
The de-facto complainant/P.W. 4 while adducing evidence neither before the
Page 7 of 13
Learned Trial Court nor in the written complaint said that it was written as
per his instruction by Nadu Chatterjee. While adducing evidence he made a
total departure than what he put in the written complaint.
11. An incident of scuffling can be found between his daughter and the
appellant from his testimony. He deposed before the Court that the officer in
charge asked them to write something on paper and then to put his
signature but he never di vulged the name of the scribe during his evidence
and the said scribe also never adduced evidence. P.W. 4 the father was
declared hostile and was cross examined by the prosecution where he said
that he had no knowledge about the incident of commission of rape upon
her daughter and denied about the content of the written complaint lodged
on March 30, 2009. Not only that he also specifically denied about any
threatening given by the Appellant or his father as narrated in the F.I.R
Prosecution has miserably failed to prove the F.I.R itself as it creates serious
doubts pertaining to the occurrence of the incident as narrated. Most
interestingly, the mother of the victim PW5 also denied to have any
knowledge about any incident relating to her daughter and the accused
person and also about lodging of any complaint before any authority by her
husband regarding such incident when according to the F.I.R the mother
went to find out her daughter since it was late and saw the Appellant
running away from the Doba and then discovered her daughter from the
Doba. P.W. 6 the victim whose evidence is the most vital piece of evidence if
considered carefully it would come, she failed to identify the victim though
in the statement given before the Magistrate she took the name of the
Appellant specifically committing rape on her. In the court she denied that
Page 8 of 13
the accused committed rape upon her, but deposed that he came to her and
placed his hands on her body. This evidence primarily shows either the
victim tried to suppress something or the entire story was made with some
other purpose. When the victim said that the accused put a hand on her
body how she failed to identify the accused. She even didn’t say that any
resistance was there by her side and any force applied on her by the
appellant.
12. A person commits an offence of rape when he fulfils the ingredients as
envisaged in Section 375 of IPC which are totally missing in this case, and
that is the reason, the learned Trial court could not pass an order of
conviction under Section 376 of IPC but passed the order of conviction
under Section 354 IPC .
13. Section 354 IPC reads as:
Assault or criminal force to women with intent to outrage her modesty
who ever assault or uses criminal force to any woman, intending to
outrage or knowingly it to be likely that he will thereby outrage her
modesty, shall be punished with imprisonment of either description for a
term which shall not be less than one year, but which may extend to 5
years, and shall also be liable to fine.
14. Therefore, as observed by the Hon’ble Supreme Court in Rupan Deol Bajaj
& another vs State of Punjab and others (1995) 6 SCC 194 that the
ultimate test for asserting whether modesty has been outraged is whether
the action of the offender is such as could be perceived as one which is
capable of shocking. The essential condition to attract Section 354of the
Page 9 of 13
Indian Penal Code are, there must be an assault on the woman, that
accused must use force on her, and the criminal force must have been used
with an intention to outrage her modesty.
15. In the instant case, even though the father has turned hostile, if his version
before declaring him as hostile is seen at best an incident of scuffing
between the appellant and the victim can be found however, on account of
such scuffing the victim did not suffer any such external or internal
injuries. The victim when adduced evidence before the court was aged
about 18 years and therefore matured enough to depose as to whether any
criminal force was applied to her or not or there was any intention on the
part of the appellant who placed his hands on her body to outrage her
modesty, or at all the appellant touched her inappropriately. P.W. 2 the
doctor did x-ray to ascertain the age of the victim and opined her age more
than 17 and less than 19 ,s o all probabilities her age would be more or less
18 years so it also cannot be said that she was minor during the incident. In
State versus Gurmeet Singh (1996) 2 SCC3 84 it was observed by the
Supreme Court that “The inherent bashfulness of the females and the
tendency to conceal outrage of sexual aggression are factors which the court
should not overlook.” In the instant case the statement of the victim given
before the Magistrate primarily shows certain details of the incident of rape
but she totally made a different story while adducing evidence before the
Court. The Court is unable overlook the fact that in sexual offences delay in
lodging the F.I.R can be due to variety of reasons, particularly the reluctance
of the prosecutrix or her family members to go to the police and complain
about the incident which concerns the reputation of the prosecutrix and of
Page 10 of 13
her family. Keeping in mind the above observation on looking to the delay
caused in filing the F.I.R in the instant case, cannot be a factor in passing
and order of conviction against the appellant , but when the complaint
lodged before the concerned police station by the father of the victim may be
few days after the incident, subsequently denied of any such incident and
also lodging of the Complaint itself at his own instance, and when the
mother also denied of any incident as stated in the complaint with her
daughter and when the victim, herself denied of commission of any offence
of rape or even using of criminal force or assaulting to outrage her modesty,
certainly it weakens the case of the prosecution .It is now well settled that
the sole testimony of the rape victim if found trustworthy can be the basis
to pass an order of conviction Therefore it is not about the collection of
corroborating evidence from the other prosecution witnesses but about the
trustworthiness of the victim herself and also her parents .
16. So in the above factual backdrop what the court could rely is that one
Medical report of the victim dated 16.4.2009 with no external injuries or any
foreign body in her body or private part but with irregular vertical injury of
the hymen at 6,O’ clock position, which was marked with exhibit . The
vaginal swab was taken and handed over to LHG/130030 Subhadra as it
appears from such report. Secondly the statement given by the victim before
the Learned Magistrate under Section 164 Cr.Pc narrating the nature of
offence committed .After these two important documents and the evidences
adduced by the parents and the victim are compared a totally different
version can be found which certainly harps the very foundation of the
prosecution case. It is further to be considered that the statement given
Page 11 of 13
under Section 164 Cr.Pc is not itself a substantive piece of evidence and can
only be used for the purpose of corroboration and contradiction. It is also
relevant to note that the victim deposed before the court that she put her
signature as per instruction of police. So definitely the Magistrate erred in
relying on her said statement, The denial to identify the Appellant by none
other than victim herself or the denial of the de-facto complainant of lodging
any F.I.R at his instance or nondisclosure of anything about the scribe and
the denial by the mother of the victim of having knowledge of any such
incident creates serious doubts regarding the involvement of the Appellant
in this case. Non recording of any statement by the I.O. further reveals the
apathy on the part of the investigating agency in doing proper investigation
even in a case where charge has been framed under Section 376 of the
Indian Penal Code. So no unimpeachable evidence can be found against the
Appellant to pass an order of conviction even under Section 354 IPC
17. Be that as it may this Court considering the above aspect is unable to
concur with the observation made by the Learned Trial court as the
prosecution has miserably failed to prove the case against the Appellant
beyond all reasonable doubts and therefore is of the view that the
Judgement and order of conviction passed by the learned Trial court is liable
to be set aside.
18. The CRA stands allowed.
19. The Appellant shall be discharged from the bail bonds after expiry of 6
months in terms section 481 of BNSS.
20. Let a copy of this judgement along with the trial court record be forthwith
sent before the Trial Court.
Page 12 of 13
21. Photostat copy of this judgement if applied, shall be made available upon
compliance of all formalities.
(CHAITALI CHATTERJEE DAS, J.)
Page 13 of 13