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2019 Supreme(Cal) 645
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
Joymalya Bagchi, Manojit Mandal, JJ.
Sanjib Kumar Biswas - Appellant
Versus
State of West Bengal & Others - Respondents
Criminal Appeal Nos. 474 of 2016 & 95 of 2017
Decided On : 04-03-2019
Kallol Mondal, Krishan Ray, Sabyasachi Mukherjee, Amrita Chel, Souvik Das, Deep Chaim Kabir, Sumanta Das, Arun Kumar Maity, Parthapratim Das, Trina Mitra, Saswata Gopal Mukherjee, Advocates
The court emphasized the duty of the trial court to frame charges for graver offences based on the evidence presented and highlighted the gravity of sexual offences and their impact on victims.
Headnote:
POCSO Act - Conviction and sentence under Section 376 IPC and Section 8 of the Protection of Children from Sexual Offences Act, 2012 - Section 376 IPC, Section 8 of POCSO Act
Fact of the Case:
The appellant-convict was convicted for committing rape and sexual assault on two victims, one of whom was a minor. The victims' advocate alleged that the appellant-convict should have been tried under graver charges and sought enhancement of compensation and acquittal of the co-accuseds.
Finding of the Court:
The court found that the trial court failed to frame charges for graver offences despite evidence disclosing such offences. It remanded the case for retrial with directions to frame charges under graver offences and to conclude the trial within three months.
Issues: Non-framing of graver charges, appeal against conviction and sentence, allegations of criminal intimidation against co-accuseds
Ratio Decidendi: The court held that the trial court should have framed charges for graver offences based on the evidence presented. It emphasized the gravity of sexual offences and their long-lasting impact on victims.
Final Decision: The appeals were disposed of, and the appellant-convict was granted bail during the retrial.
JUDGMENT :
Joymalya Bagchi, J.
1. Conviction and sentence dated 13th June/14th June, 2016 passed by the learned Additional Sessions Judge, 2nd Court, Krishnagar, Nadia in Sessions Case No. 05 (10) of 2014 [Sessions Trial No. I (VIII) of 2015] convicting the appellant-convict in CRA 474 of 2016 for commission of offence punishable under Section 376 IPC and Section 8 of the Protection of Children from Sexual Offences Act, 2012 and sentencing him to suffer rigorous imprisonment for seven years and to pay fine of Rs.10,000/-, in default, to suffer rigorous imprisonment for six months more for the offence punishable under Section 376 IPC and to suffer rigorous imprisonment for three years and to pay fine of Rs.5,000/-, in default, to suffer rigorous imprisonment for three months more for the offence punishable under Section 8 of the POCSO Act and the acquittal of the other co-accuseds namely, Sweety Chakraborty, Nonigopal Biswas and Kamana Rani Biswas is the subject matter of challenge in both the appeals. While the appellant-convict has challenged his conviction and sentence in CRA 474 of 2016, one of the victims i.e. PW2 has preferred the appeal being CRA 95 of 2017 under the proviso of Section 372 of the Code of Criminal Procedure alleging that the appellant-convict ought to have been tried under graver charges, enhancement of compensation and acquittal of the aforesaid co-accuseds in this case.
2. Gist of the prosecution case as alleged against the appellant-convict is to the effect that the appellant-convict who was related to both the victims (hereinafter referred to as 'victim X' & 'victim Y') had subjected them to repeated sexual assaults on various dates. Co-accuseds, being relations of the appellant convict, had threatened the said victim. Trial court framed the following charge against the appellant-convict:-
"That you, on or about after 28th November, 2014 at your house situated at Mayapur under PS-Nabadwip, Dist-Nadia committed rape on Somi Mazumder, and that you thereby committed an offence punishable u/s. 376 IPC and within the cognizance of this Court.
That you, on or about after 28th November, 2014 at your house situated at Mayapur under PSNabadwip, Dist-Nadia committed sexual assault on Promi Mazumder, a minor girl aged about 12 years and that you thereby committed an offence punishable u/s. 8 of POCSO Act and within the cognizance of this Court.
And against the co-accuseds, namely, Sweety Chakraborty, Noni Gopal Biswas and Kamana Biswas as follows:-
That you, on or about after 28th November, 2014 at your house situated at Mayapur under PSNabadwip, Dist-Nadia all committed criminal intimidation on Somi Mazumder and that you thereby committed an offence punishable u/s. 506 of IPC and within the cognizance of this Court."
3. Prosecution examined 16 witnesses to prove the charges including the victims namely, 'victim X' (de-facto complainant) and 'victim Y' (a minor) as PW2 & PW1 respectively. The defence of the appellant-convict was one of innocence and false implication. In support of his defence, he examined four witnesses.
4. Arguing on behalf of the appellant-victim in CRA 95 of 2017, Mr. Deep Chaim Kabir, learned advocate, drew our attention to the deposition of PW1 (the minor victim) and submitted that the evidence on record disclosed an offence of aggravated penetrative assault punishable under Section 6 of the POCSO Act. He also relied on the deposition of PW2 (de-facto complainant) and submitted as the appellant-convict was a relation and a person in position of trust of the victims, charge ought to have been framed under Section 376(2)(f) IPC instead of Section 376 simplicitor. Trial court illegally tried the accused for lesser charges and plea bite sentences were awarded which are much below the minimum sentence specified for the graver offences disclosed in this case. No compensation was also awarded to the victims under the Scheme framed by the appropriate Government under Section 357A of the Code of Criminal Pr
