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Ananta Alias Ajay Ghosh v/s Suvajit Ghosh & Another


Company & Directors' Information:- AJAY (INDIA) LTD [Active] CIN = U18102RJ1996PLC011678

Company & Directors' Information:- N R GHOSH & CO PVT LTD [Strike Off] CIN = U52400WB1938PTC009511

Company & Directors' Information:- S K GHOSH PVT LTD [Active] CIN = U51909WB1945PTC010956

Company & Directors' Information:- AJAY AND CO. PRIVATE LIMITED [Strike Off] CIN = U01122DL1997PTC089125

Company & Directors' Information:- A K GHOSH PVT LTD [Strike Off] CIN = U51909WB1960PTC024523

Company & Directors' Information:- A R GHOSH PVT LTD [Strike Off] CIN = U25209WB1987PTC042917

Company & Directors' Information:- A GHOSH & CO PVT LTD [Active] CIN = U74210WB1949PTC018128

Company & Directors' Information:- C P E C ANANTA PRIVATE LIMITED [Active] CIN = U74140DL2015PTC283747

Company & Directors' Information:- K C GHOSH & CO PVT LTD [Strike Off] CIN = U74210WB1934PTC008006

Company & Directors' Information:- A N GHOSH PVT LTD [Strike Off] CIN = U45201WB1948PTC016772

    Criminal Appeal No. 379 of 2017

    Decided On, 14 January 2020

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE JOYMALYA BAGCHI & THE HONOURABLE MR. JUSTICE SUVRA GHOSH

    For the Appearing Parties: Kusal Kr. Mukherjee, Saibal Bapuli, Bibaswan Bhattacharya, Advocates.



Judgment Text


Joymalya Bagchi, J.

1. A nine year old boy was subjected to penetrative sexual assault by the appellant. This is the gist of the prosecution case which was instituted pursuant to a written complaint lodged by P.W.3, the father of the victim boy alleging that on 28.9.2016 at 4.30 P.M., appellant had lured his 9 year old son to a solitary bamboo orchard on the promise of flying kites and had committed sexual assault on him. As a result, his son sustained bleeding injuries in his rectum and lost consciousness. Victim was removed to Bethuadahari Hospital and thereafter to Saktinagar District Hospital. In conclusion of investigation, charge-sheet was filed against the appellant and charges were framed under Section 377 of the Indian Penal Code and Section 6 of the POCSO Act. In the course of trial, prosecution examined 12 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial judge by the judgment and order dated 19.4.2017 convicted the appellant for commission of offences punishable under Section 377 of the Indian Penal Code and Section 6 of the POCSO Act and sentencing him to suffer imprisonment for life to pay fine of Rs.1,00,000/-, in default to undergo rigorous imprisonment for one year more. Ninety per cent of the fine amount, if realised, was directed to be paid to the victim.

2. Learned Counsel appearing for the appellant argued that the evidence of the victim, P.W.2 suffers from inconsistencies and contradictions. Possibility of rectal injury due to other causes i.e. constipation or fall on a bamboo shoot cannot be wholly ruled out. While the mother of the victim, P.W.4 narrated the history of assault in the medical papers as attempted rape, prosecution witnesses improved their version in Court and alleged penetrative sexual assault on the victim. Appellant is, therefore, entitled to an order of acquittal.

3. On the other hand, Mr. Bapuli, learned Additional Public Prosecutor with Mr. Bhattacharyya argued that the evidence of the victim, P.W.2 is not only corroborated by his parents, P.W.3 and P.W.4 but other independent witnesses like P.W.7 and P.W.8. P.W.10, Medical Officer who first treated the victim found bleeding injury in the rectum. Other medical witness (P.W. 9) also disclosed lacerated rectal injury. Medical evidence has corroborated the ocular evidence of the victim (P.W. 2) relating to penetrative sexual assault and the appeal is liable to be dismissed.

4. P.W.2 is the victim in the present case. He is a 9 year old boy who was examined in Court after putting questions to him to test his capacity to depose. He stated on the fateful day, he had gone out to fly kites. At that time, the appellant gagged him and took him into the bamboo orchard and inserted his penis into his rectum. Blood started oozing out from his rectum. His mother was cleaning utensils at a nearby place. Appellant fled away and his mother raised hue and cry. Local people arrived at the spot. He was shifted to Bethuadahari Hospital and thereafter transferred to Saktinagar District Hospital. He made statement before the Magistrate, Ext.2.

5. In cross-examination, he stated that he and Ananta were engaged in flying kites. To catch kites, he went into bamboo orchard.

6. Relying on the aforesaid piece of evidence, it is argued P.W. 2 during crossexamination had claimed he went to the bamboo orchard for catching kites and had not been dragged therein by the appellant.

7. I have given due consideration to such submission on behalf of the appellant. Evidence of the victim, P.W.2 has to be read as a whole. On a reading of the entire evidence, I have no doubt in my mind that the appellant and the victim were flying kites near the bamboo orchard when the incident occurred. Whether the appellant had dragged the victim into the bamboo orchard or had taken advantage of the victim when the latter had in the course of flying kites entered the desolate orchard, in my estimation, does not effect the crux of the prosecution case that the victim had been sexually abused by the appellant taking advantage of their close proximity to one another in a deserted place.

8. I am fortified to come to such conclusion as the version of P.W.2 is not only corroborated by his parents and relations P.W.3, P.W.4 and P.W.6 but also independent witnesses P.W.7 and P.W.8. These witnesses also saw the appellant fleeing away from the spot and P.W.8 noticed blood oozing out from the rectum of the victim.

9. Hence, the version of the victim, P.W.2 is wholly corroborated by the aforesaid witnesses and establishes the prosecution case beyond doubt. In addition thereto, medical evidence has corroborated the evidence of P.W.2. with regard to penetrative sexual assault.

10. P.W.10, Dr. Sutapa Biswas treated the victim at Bethuadahari Hospital. She noted lacerated injury around anus with active bleeding. She referred the patient to District Hospital. She proved the medical report, Ext.5.

11. P.W. 9, Dr. Nabarun Bandopadhyay, treated the victim at Nadia District Hospital. He found abrasion on the perennial region. Rectal foreign body was found. He proved the bed head ticket.

12. Referring to the cross-examination of P.W. 3, father of the victim, that the latter suffered from constipation. Anal wall may be torn due to such condition and the opinion of P.W. 9 during cross-examination that the injury found by him may be caused by falling on bamboo, it has been argued that the prosecution case of penetrative sexual assault has not been proved beyond doubt. Learned Counsel appearing for the appellant also submitted that prosecution witnesses have improved their case in Court since P.W. 4, mother of the victim, had described the incident as one of the attempted rape in the history of assault recorded in the medical papers.

13. In the aforesaid factual matrix, I am convinced about the truthfulness of the prosecution case. Evidence of P.W. 2, the victim boy, is clear and convicting with regard to penetrative sexual assault. It is corroborated by his relations and other independent witnesses who saw blood oozing from the rectum of the victim soon after the incident. Bleeding lacerated injury was noted by the doctor, P.W. 10, who treated him at the first instance. In view of the aforesaid overwhelming evidence on record with regard to penetrative sexual assault on the victim resulting in lacerated injury in the rectum hypothetical propositions floated by the defence with regard to other possible causes of similar injury remain in the realm of mere conjecture and cannot make an inroad into the credibility of the prosecution case which is well established through the evidence of the injured witness corroborated by medical evidence. As presence of bleeding lacerated injury in the rectum of victim, probabilises a case of penetrative sexual assault, approximate description of the incident as attempted rape in the history of assault loses significance.

14. Hence, I have no hesitation in my mind that the conviction recorded against the appellant under Section 377 of the Indian Penal Code and under Section 6 of the POCSO Act requires to be upheld. Coming to the issue of sentence, I find that the appellant has been awarded the maximum sentence of life imprisonment. Appellant does not have criminal antecedent and in the factual backdrop of the case, I am inclined to modify the sentence imposed on the appellant.

15. Accordingly, I direct that the appellant shall suffer rigorous imprisonment for seven years and pay a fine of Rs.25,000/-, in default to suffer rigorous imprisonment for one year more for the offence punishable under Section 377 of the Indian Penal Code. He shall suffer rigorous imprisonment for ten years and pay a find of Rs.25,000/-, in default t

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o suffer rigorous imprisonment for one year more for the offence punishable under Section 6 of the POCSO Act. Both the sentences shall run concurrently. Amount of fine, if realised, shall be paid to the victim, P.W. 2. 16. With the aforesaid modification as to sentence, the appeal is disposed of. 17. The period of detention, if any, undergone by the appellant during investigation, enquiry and trial shall be set off against the substantive sentences imposed upon him in terms of section 428 of the Code of Criminal Procedure. 18. Let a copy of this judgment along with the lower court records be forthwith sent down to the trial court at once. 19. Urgent photostat certified copy of this order, if applied for, shall be given to the parties, as expeditiously as possible on compliance of all necessary formalities. 20. I agree.
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