Calcutta High Court (Appellete Side)
Gopal Pandit vs The State Of West Bengal & Anr on 19 June, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
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CRA (DB) 305 of 2023
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
CRA (DB) 305 of 2023
With
IA No.: CRAN 2 of 2024
Gopal Pandit
Vs.
The State of West Bengal & Anr.
For the Appellant : Mr. Debangan Bhattacharjee, Advocate
Mr. Mahiul Islam, Advocate
Mr. Sudipta Mahapatra, Advocate
For the State in the appeal : Mr. Sanjay Banerjee, Advocate
Ms. Nandini Chatterjee, Advocate
For the State in CRAN application : Mr. Antarikhya Basu, Advocate
Ms. Paromita Sahoo, Advocate
Hearing & Judgment on : June 19, 2025
MD. SHABBAR RASHIDI, J.:-
1.
The appeal is directed against the judgment of conviction dated March
23, 2022 and order of sentence dated March 24, 2022 passed by the
learned Additional Sessions Judge, Baruipur, South 24 Parganas in
connection with Special Sessions Trial No.22 of 2021 arising out of Spl
(CIS) No.152 of 2020.
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CRA (DB) 305 of 2023
2. By the impugned judgment of conviction, the appellant was convicted
of the offences punishable under Sections 363/366/376(3) of the
Indian Penal Code, 1860 read with Section 4 of the Protection of
Children from Sexual Offences Act, 2012.
3. By the impugned order of sentence following the aforesaid conviction,
the appellant was sentenced to suffer rigorous imprisonment for four
years and to pay a fine of Rs.2,000/- and in default of payment of fine,
to suffer further imprisonment for three months for the offence
punishable under Section 363 of the Indian Penal Code. The appellant
was also sentenced to suffer rigorous imprisonment for five years with
a fine of Rs.5,000/- and in default of payment of fine, to suffer further
imprisonment for three months for the offence punishable under
Section 366 of the Indian Penal Code. The appellant was further
sentenced to suffer rigorous imprisonment for twenty years and to pay
a fine of Rs.10,000/- and in default of payment of such fine, the
appellant was directed to undergo further imprisonment for six months
for the offence punishable under Section 376(3) of the Indian Penal
Code. All the sentences were directed to run concurrently.
4. Learned Advocate appearing for the appellant submits that there are
material contradictions between the statements of the witnesses
examined on behalf of the prosecution. It has also been submitted that
the victim herself was examined as P.W.2 and she has not supported
any case, any prosecution as made out in the First Information Report.
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CRA (DB) 305 of 2023
5. Referring to the evidence led at the trial, learned Advocate appearing
for the appellant submits that the evidence does not make out a case
under Sections 363/366/376 of the Indian Penal Code. It is submitted
that the evidence of the prosecution does not justify a conviction of the
appellant.
6. On the other hand, learned Advocate appearing for the State submits
that the prosecution witnesses have proved the case beyond all
reasonable doubts sufficient to convict the appellant. It is further
submitted on behalf of the State that the statement of the victim
recorded under Section 164 of the Code of Criminal Procedure was
duly proved at the trial and is sufficient evidence to bring on the
charges levelled against the appellant.
7. On December 6, 2020, the mother of the victim lodged a written
complaint with Baruipur Police Station. It was submitted that on
December 4, 2020 around 7 P.M. in the evening, the daughter of the de
facto complainant was passing by a pathway on her way to her friend’s
house. At that time, the appellant forcibly took her daughter from the
pathway and dragged her to a hut situated in a nearby place. She
further stated that in the hut, the appellant forcefully laid the daughter
of the de facto complainant down and stripped her, committed sexual
assault against her will at her private parts and physically tortured her
for some time. When the victim was not able to bear the torture, she
tried to escape by pushing the appellant. The appellant beat her
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CRA (DB) 305 of 2023
threatening if she disclosed the incident to her parents or anyone else,
she would be tarnished and her social reputation will be blemished in
the society by circulating the images of the incident over facebook.
After the incident, the daughter of the de facto complainant fell
seriously ill. The de facto complainant also stated in her written
complaint that the appellant thereafter brought the daughter of the de
facto complainant at her house at about 9 PM in the night over cycling.
The victim did not disclose anything in the night out of fear. However,
on the next morning, that is, on December 5, 2020 at around 6 AM,
the victim disclosed the incident to the de facto complainant.
8. On the basis of such written complaint, Baruipur Police Station Case
No.2392 dated December 6, 2020 under Section 4 of the POCSO Act
was started against the appellant. After conducting an investigation
into the case, the police submitted charge sheet in the case. On the
basis of materials in the case diary charges under Sections
363/366/376(2)/376(3) of the Indian Penal Code and Section 6 of the
POCSO Act were framed against the appellant on March 26, 2021. The
appellant pleaded not guilty to the charges and claimed to be tried.
9. In order to bring home the charges, the prosecution examined five
witnesses in all. In addition, prosecution also relied upon certain
documentary as well as material evidence.
10. The de facto complainant herself deposed as P.W.1. In her deposition,
she stated that the victim was her daughter. The incident happened at
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CRA (DB) 305 of 2023
about 7 PM and one and half years ago (from February 4, 2022).
Although, the P.W.1 was an illiterate lady being not able to read and
write, proved the written complaint which was admitted in evidence
and marked as Exhibit-1. She identified the appellant in Court. She
further stated that her daughter was returning from her friend’s house
and on her way, the appellant kidnapped her and took her forcibly.
However, she stated in her examination-in-chief itself that she was not
able to recollect what was caused upon her daughter by the appellant .
She also proved the birth certificate of the victim. In her cross-
examination, P.W.1 admitted that she was an illiterate and was not
able to understand the contents of the written complaint. She also
stated that when she went to the police station to lodge the written
complaint, she was accompanied by some political persons. She
admitted in her cross-examination that the complaint was lodged by
her as her brother Swapan Mondal told her to lodge.
11. The victim deposed as P.W.2. She stated in her deposition that in the
year 2020 she was returning home from her friend’s house. She stated
that the appellant was her para people and that she had no love affair
with the appellant. She categorically stated in her examination-in-
chief that the appellant did not misbehave with her. She recorded a
statement before the learned Magistrate which she proved. She was
interrogated by police in connection with the case. She identified the
appellant in Court. In her cross-examination, P.W.2 stated that, she
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CRA (DB) 305 of 2023
did not make any statement to the police to the effect that the
appellant took her in a hut in the jungle. She, however, stated to have
made a statement to the police as well as before the learned Magistrate
that the appellant forcibly committed rape upon her. The P.W.2 was
declared hostile by the prosecution. In her cross-examination by the
defence, she stated that, Swapan Mondal was her maternal uncle and
her statement to the police was tutored by said Swapan Mondal. She
further stated in her cross-examination that her statement before the
learned Magistrate was what the police told her to make.
12. The Medical Officer was examined as P.W.3. She stated that on
December 6, 2020, she examined the victim when the victim
complained that she was sexually assaulted on December 4, 2020 at
around 7 PM lying on the ground. On examination, P.W.3 found the
hymen of the victim was ruptured. She also found abrasion over her
right forehead and right knee. She proved the report prepared in her
pen and signature. In her cross-examination, P.W.3 stated that
abrasion on the right knee and right forehead may be caused by falling
down on hard substance. She also pointed out that the hymen may be
ruptured due to the cycling, swimming, athletics, etc.
13. Another Medical Officer deposed as P.W.4. He stated that on
December 7, 2020, he examined the appellant. On such examination,
P.W.4 did not find any injury on the body or genital organ of the
appellant. However, the appellant was found capable of performing
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CRA (DB) 305 of 2023
sexual intercourse in ordinary course of nature during his
examination. P.W.4 proved his report.
14. The Investigating Officer of the case deposed as P.W.5. He stated
about steps taken by him in course of investigation of the case. He
visited the place of occurrence and examined available witnesses. He
sent the victim as well as the appellant for medical examination. On
completion of investigation, he submitted charge sheet against the
appellant.
15. On conclusion of the evidence on behalf of the prosecution, the
appellant was examined under Section 313 of the Code of Criminal
Procedure. In such examination, the appellant claimed himself to be
innocent having no knowledge about the incident. He, however,
declined to adduce any defence witness.
16. According to the case made out by the prosecution, the appellant is
said to have kidnapped the victim while she was moving on the
pathway. There is, however, a little contradiction in this regard.
According to the case made out in the written complaint, the victim
was going to her friend’s house at the relevant point of time, however,
in the depositions, P.W.1 and P.W.2 have stated that, the victim was
returning from her friend’s house at the time of the incident.
According to the case submitted by the prosecution, the victim was
kidnapped by the appellant and was taken to a nearby hut where the
appellant forcibly committed rape upon the victim.
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CRA (DB) 305 of 2023
17. However, the de facto complainant, P.W.1 detracted from her statement
in the written complaint. In the written complaint, she detailed the
incident in so many words. But at the time of deposition, she
categorically stated in her examination-in-chief itself that, she would
not recollect what was caused upon her daughter by the accused. Not
only that, in her cross-examination, she admitted that, while going to
police station for lodging written complaint, she was accompanied by
political persons. She also admitted that, the written complaint was
lodged by P.W.1 as her brother, Swapan Mondal asked her to lodge.
18. Similarly, the victim, P.W.2 did not disclose any overt act on the part of
the appellant in her examination-in-chief. She candidly stated in her
deposition that, she met the appellant while on the way but the
appellant did not misbehave with her. She also denied any kind of love
relation between her and the appellant. Besides that, victim, also
admitted in her cross-examination that, she narrated the incident
before the police as tutored by her maternal uncle Swapan Mondal.
She also admitted that, whatever she stated before the learned
Magistrate was told by the police. Therefore, the incident of kidnapping
or committing any sexual assault upon the victim as made out in the
written complaint has been destroyed by P.W.1, P.W.2. Moreover, both
P.W.1 and P.W.2 however, stated that the written complaint was lodged
with the police at the instructions of one Swapan Mondal. The said
Swapan Mondal has not been examined by the prosecution.
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CRA (DB) 305 of 2023
19. So far as the medical evidence is concerned, P.W.3 has admitted in his
cross-examination that, hymen of a lady may be ruptured by many
ways including cycling, swimming, athletics etc. He also stated that,
the abrasion from the right knee and right forehead of the victim might
be caused by falling down on hard substance. Although, First
Information Report discloses illness of the victim but it does not
specifically mention the kind of injuries on the knees and forehead as
found on the body of the victim.
20. In the case reported in 2021 SCC OnLine Cal 2007 (Swapan Mondal
versus State) it was held by a coordinate Bench of this Court that
ocular evidence of the victim will prevail from any scientific
examination report.
21. In the case at hand, the victim has not supported the case of
prosecution as made out in the First Information Report. Again she has
not disclosed any criminal overt act attributed to the appellant as
against her. Moreover, it is admitted on the part of both P.W.1 and the
victim, P.W.2 that, written complaint was lodged at the instruction of
the brother of P.W.1 that is, Swapan Mondal who has not been
examined as a witness in the present case.
22. In such circumstances, we are not in a position to sustain conviction
and sentence of the appellant as imposed by the learned Trial Court.
23. The impugned judgment of conviction and order of sentence are set
aside.
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CRA (DB) 305 of 2023
24. CRA (DB) 305 of 2023 is allowed.
25. IA No.: CRAN 2 of 2024 is disposed of accordingly.
26. The appellant be set at liberty forthwith, if not warranted in connection
with any other case, subject to bail bond to be executed by the
appellant under Section 437A of the Code of Criminal Procedure
corresponding to Section 481 of the Bharatiya Nagarik Suraksha
Sanhita (BNSS), 2023 within six months.
27. Copy of the judgment and order along with the Trial Court Records be
transmitted to the learned Trial Court forthwith.
28. Urgent Photostat certified copy of this judgment, if applied for, be
supplied to the parties on priority basis upon compliance of all
formalities.
(Md. Shabbar Rashidi, J.)
29. I agree.
(AD/CHC) (Debangsu Basak, J.)