HIREN ALIAS HIRULAL GHOSH Vs. STATE OF WEST BENGAL

LAWS(CAL)-2010-9-97

HIGH COURT OF CALCUTTA

Decided on September 14,2010

HIREN @ HIRULAL GHOSH Appellant

VERSUS

STATE OF WEST BENGAL Respondents

JUDGEMENT

- (1.) COMPLAINT :- Jamuna (not real name) aged about eighteen years lodged a complaint on December 4, 2000 with the Indpur Police Station in the District of Bankura. According to the complaint, Hirulal Ghosh, the appellant above named, promised her to marry and, on such assurance, he had sex with the complainant and as a result of which the complainant became pregnant. While she was on her family way complainant requested Hirulal to marry when he refused. As she was illiterate she took the help of one Swapan Kumar Pal who scribed the complaint.
(2.) CHARGE :- The learned Additional Sessions Judge, 2nd Court, Bankura framed the charge implicating Hirulal under Section 376 of the Indian Penal Code. Hirulal pleaded innocence and opted to be tried.
(3.) PROSECUTION OF THE EVIDENCE :- PW-1 (victim) :- She worked as the domestic help in the house of the appellant for two years. At about two years before the date of making deposition she used to stay from morning to evening and would do all domestic work including fetching of water, cleaning of utensils etc. During her working hours, one day while she was cleaning the room, the appellant got hold of her face from behind and forcibly laid her on the floor and removed her apparels. The appellant ravished her without her consent. The appellant assured Jamuna that he would marry her. However, he did not keep his promise. They had entered into sexual relationship for about ten times before she delivered a female child. She did not disclose initially this fact to any one until she delivered her child as the appellant promised her to marry. After being refused by the appellant, she disclosed the entire fact to her parents and the villagers. The appellant fled away from the village compelling her to record the complaint with the Police Station. She got herself examined by the doctor at the instance of the prosecution. Swapan Kumar Pal, the scribe was her brother in-law. She was staying ten kilometers away from her house. She lodged the complaint after village compromise had failed. She was actually fourteen years old. However mistakenly she was described eighteen years old. In cross-examination, she once again narrated the incident that was consistent with her complaint. PW-2 (Ananta Lal Ghosh) :- The witness was the father of Jamuna. The incident took place on last Baisakh (April - May of 2000). The witness came to know that Jamuna was in her family way having child in the womb for seven months. He also came to know that Hirulal was responsible for the same. The witness had three children namely Jharna, Sridam and Jamuna. Jamuna was the youngest, aged about fifteen years. The witness informed his elder brother and started searching the whereabouts of Hirulal who was not available in his house. Villagers held a village compromise where Hirulal was not present. Hence, no final decision could be taken. When village compromise failed he lodged complaint with the Police Station through his daughter. On 26th Pous (November-December, 2000) Jamuna gave birth to a female child. In crossexamination, the witness explained the delay in lodging the FIR. According to him, he was waiting for the village compromise. PW- 3 (Puspa Ghosh) :- This witness was the mother of Jamuna. She deposed that when Jamuna was on her family way for having seven month's pregnancy she disclosed to her that with the promise of marriage Hirulal cohabited with Jamuna as a result she conceived. Hirulal, however, did not keep his promise, as a result they had no option to inform the Police as Hirulal was absconding and villagers advised them to do so. PW-4 (Swapan Kr. Paul) :- This witness was the brother in-law (husband of cousin) of Jamuna. On December 24, 2000 witness went to Police Station along with Jamuna and others. He scribed the complaint. The complaint was written as per the instruction of Jamuna. Jamuna put her Left Thumb Impression. He deposed that Hirulal was present in village compromise, however denied the charge. PW-5 (Krishna Pada Ghosh) :- This witness was the uncle of Jamuna as well as the accused Hirulal. The witness came to know from PW-2 that Jamuna became pregnant and she was carrying seven month's child in the womb. He also came to know that Hirulal forcibly raped her. Hirulal's family refused to accept the liability. The village compromise failed. In village compromise Jamuna narrated the incident. Jamuna gave birth to a female child in the Hospital. In cross-examination the witness admitted to have stated before the Police that he came to know of the incident in December. He, however, did not disclose that he came to know of the incident from PW-2. He also did not state to the Police that he tried to compromise by calling the accused family. PW-6 (Tarapada Ghosh) :- According to the Public Prosecutor the witness was gained over and, as such, he was discharged without examination. PW-7 (Laxman Ghosh) :- This witness was also gained over. PW-8 (Smt. Sabitri Ghosh) :- Sabitri was a neighbour. According to her, Jamuna used to work as a maid servant in the house of Hirulal. One day Hirulal forcibly cohabited with Jamuna for which Jamuna conceived and ultimately delivered a female child who was aged about one year four months old at the time of trial. In crossexamination, she admitted that Jamuna had a relationship with Hirulal. PW-9 (Shiba Prasad Singha) :- This witness was the Sub-Inspector posted at Taldangra Police Station. On December 24, 2001 he received a written complaint and registered the formal FIR under Section 493 read with Section 376 at the Indian Penal Code as against Hirulal. He visited the place of occurrence and prepared a rough sketch map with index. He examined the victim girl under Section 161 and produced her before the learned Magistrate to record her statement under Section 164. He examined independent witnesses like Tarapada and Laxman. He examined Smt. Puspabala Ghosh who stated to him that Jamuna had disclosed that she had not been keeping well. She was taken to a Homoeopath who declared that she was in her family way. PW-10 (Dr. Dipankar Guha Ray) :- This witness was the Associate Professor in Bankura Sanmiloni Medical College and Hospital. He examined Hirulal and found him potent. Hirulal was aged about twenty-four/twenty-five years. PW-11 (Dr. Mrs. Subrata Kundu) :- This witness was the Demonstrator in Bankura Sanmiloni Medical College. She examined Jamuna who was found to be pregnant. Jamuna was habituated with sexual intercourse.;

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