IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

APPELLATE SIDE

CRA 150 of 2018

with

CRAN 1 of 2018 (Old No. CRAN 1736 of 2018)

IJARUL MALLICK @ EJARUL MALLICK

VS.

THE STATE OF WEST BENGAL

Before: The Hon’ble Justice Apurba Sinha Ray

For the Appellant

: Mr. Ranadeb Sengupta, Adv.

Mr. Sachit Talukdar, Adv.

For the State

: Mr. Kallol Mondal, Ld. P.P.

Mr. Pritam Roy, Adv.

Ms. Triparna Ray, Adv.

Reserved on : 23.09.2026

Judgment on : 09.10.2026

Apurba Sinha Ray, J.

1. Challenging the judgment and order of conviction dated 26.02.2018

and 28.02.2018 passed by the learned Additional District and Sessions

Judge, Mekhliganj, Cooch Behar in Sessions Trial No. 5 (1) of 2017 arising

out of Sessions Case No. 05 of 2017 convicting the appellant under

Page 2 of 26

Sections 370 (2) and 370 A (2) of Indian Penal Code, Mr. Ranadeb

Sengupta learned Counsel of the appellant, has argued that the victim

herself eloped with the appellant wilfully. No case of trafficking is made

out under Section 370 IPC and there is no ingredient of offence punishable

under Section 370 A (2) of IPC. Although 11 witnesses were examined, the

evidence of the vital witnesses appears to have improved the prosecution

version during trial and such evidence is full of blemishes and

improbabilities and, therefore, cannot be relied upon.

2. Mr. Sengupta has further submitted that the de facto complainant

being the father of the victim was examined as PW 1. Mr. Sengupta has

argued that there was no concrete allegation in the written complaint that

the daughter of the de facto complainant was a ctually engaged in

prostitution by the appellant. Had PW 1 and daughter both narrated the

allegations against the appellant to the scribe, it is not clear how it was

mentioned in the FIR that the appellant wanted to engage the daughter of

the de facto complainant into prostitution. According to Mr. Sengupta, the

victim was married to another person and was having a son, alongwith

whom she lived her paternal home abode. Having regard to the facts and

circumstances, it cannot in any manner be said that the daughter of PW

1 was trafficked by the appellant. The cross-examination of PW 1 reveals

that even after having received an information about his daughter that she

was in great difficulty, PW 1 did not bother to intimate the concerned

Police Station regarding the same. Moreover, PW 1did not even inform his

son-in-law about the departure of his daughter from her paternal home.

Hence, according to Mr. Sengupta, the attending circumstances do not in

Page 3 of 26

any manner give an impression that the victim was trafficked. The

evidence of PW 3 reveals that on the relevant morning, the de facto

complainant had requested the appellant to continue to live with PW 2.

This clearly shows that the father who had come to rescue his daughter

who had allegedly been trafficked stayed at his daughter’s residence

overnight. Therefore, the evidence of PW 1 is shrouded with doubts. His

evidence is absolutely in contradiction to the written complaint lodged by

him.

3. Mr. Sengupta has drawn the attention of this Court to the deposition

of PW 2, the victim, who according to the defence is the star witness of the

prosecution. PW 2 clearly deposed that she did not give a second thought

to her departure from her paternal home with the appellant and visiting

places, despite the fact that she was married to another person. Such

evidence of PW 2 demolishes the first part of the prosecution case which

alleged that PW 2 was trafficked by the appellant. Furthermore, it also

does not appear from any corner of the evidence that she was forcibly

confined at any place where they stayed. PW 2 stated in her cross -

examination that the place called Chyangrabada is famous for prostitution

but PW 3, the landlady was not involved in it. This particular part of the

evidence gives an impression that no illegal or unlawful activity was

carried out in the house of PW 3 where the victim lady allegedly stayed

with the appellant. It is also the argument of Mr. Sengupta that PW 2 in

order to probabalise the charge under Section 370A (2) of the Indian Penal

Code stated in her cross -examination that during the course of

investigation she had divulged to the Investigating Officer about the

Page 4 of 26

appellant having several addictions and also assaulting her. She also

deposed that she had stated to the Investigating Officer about her prayer

to appellant not to force her into prostitution. In his deposition the IO

being PW 11 denied such statement from PW 2. Therefore, whatever PW 2

deposed before the Court the same was for the first time after the

commencement of the investigation. This renders the testimony of PW 2

absolutely unreliable and in this regard Mr. Sengupta has relied upon

Sunil Kumar Sambhudayal Gupta (Dr.) and others vs. State of

Maharashtra reported in 2011 (2) SCC (Cri) 375 and Darshan Singh

vs. State of Punjab reported in 2024 SCC Online SC 17.

4. According to Mr. Sengupta, PW 2 happens to be the vital witness of

the case. In a case like this, the testimony of the victim deserves to be kept

on the highest pedestal provided the same inspires confidence. In view of

the improvement made by her during trial the evidence of PW 2 cannot be

relied upon. PW 2 being the co-maker of the written complaint and the

vital witness in this case did not consider it prudent to divulge the vital

facts in the written complaint as well as in her statement before the IO. It

is a fact that an FIR cannot be the encyclopaedia of the minute details but

if the vital facts on which the prosecution is trying to rely for bringing

home the charges framed against the appellant are missing in the FIR,

then, such omission of important facts affects the probabilities of the

prosecution case and becomes relevant under Section 11 of the Evidence

Act. In support of his contention Mr. Sengupta has drawn the attention of

this Court to the judgment of Ram Kumar Pandey vs. State of Madhya

Page 5 of 26

Pradesh reported in AIR 1975 SC 1026 and Sujit Biswas vs. State of

Assam reported in (2013) 12 SCC 406.

5. Mr. Sengupta has also submitted that the evidence of PW 3 Munni

Mitra being the land lady of the alleged premises at Chyangrabada is not

reliable since she has improved the version of the prosecution case during

trial. The evidence of PW 3 with regard to the victim lady being forced into

prostitution was negated by the Investigating Officer when he was

specifically cross-examined in the issue. The evidence of PW 4 being the

husband of PW 3 is hearsay in nature. The scribe, who according to Mr.

Sengupta was examined as PW 6 is not of much help to the prosecution

since the same was drafted at the Mekhliganj Police Station.

6. Mr. Sengupta has vehemently argued that if evidence of PW 7 the

doctor who medically examined the victim lady, is considered in its letter

and spirit then the prosecution case is nowhere. The specific written

argument of Mr. Sengupta in this regard is as hereunder:

“PW.7 is the doctor who medically examined the victim lady. In

the examination in chief of PW.7 it appears that PW.2 had refused

to get her private parts examined. Such conduct of PW.2 assumes

importance, as in his cross examination, the doctor PW.7 has

specifically stated that if he had examined the private parts of the

victim lady, then he would have been able to give an opinion if she

had in fact been sexually assaulted repeatedly against her will.

Furthermore, it appears from the cross examination of PW.7, that

the victim lady had not stated before him as to how she had

sustained the injuries on her face, meaning thereby the injuries

Page 6 of 26

which were detected by PW.7 on the face of PW.2 were not

attributed to the appellant. This particular piece of evidence from

an independent formal witness i.e., a doctor again negates the

charge under Section 370A(2) of the Indian Penal Code against

the appellant. A reading of the evidence of PW.7 clearly shows

that the prosecution has miserably failed to prove its case beyond

reasonable doubts. The evidence adduced by prosecution be it

oral or documentary was not of unimpeachable character and

were full of vital omissions, contradictions and anomaly. In the

criminal justice system prevailing in our country, the prosecution

has to prove its case beyond reasonable doubt. The expression

beyond reasonable doubt means the evidence adduced by the

prosecution should be of unimpeachable character, the same

should be free from major contradictions and when read together

would culminate into a finding towards the guilt of the appellant.

It is when the prosecution has discharged the said burden, the

burden of proof shifts to the accused to establish his innocence. In

the instant case the evidence adduced by the prosecution

witnesses were not in consonance with each other. The

prosecution witnesses either contradicted themselves or belied

the prosecution case completely. It is humbly reiterated that

unless the guilt of the accused is proved beyond all reasonable

doubt the accused cannot be convicted of the charges so framed

against him. Reference may be made to the case of Rang Bahadur

Page 7 of 26

Singh versus State of Uttar Pradesh (reported in 2000 SCC (Cri)

703: 2000 (3) SCC 454 - Relevant paragraph 22).”

7. Mr. Sengupta has further submitted that the evidence of PW 11

shows that material witnesses have improved the version of the case and

as such the prosecution case does not deserve any merit without

consideration. Following judgments were cited from the sid e of the

appellant.

1. Sunil Kumar Sambhudayal Gupta & Ors. -vs- The State of

Maharashtra (2010(13) SCC 657: 2011(2) SCC(Cri) 375 -

Relevant Paragraphs 30-37)

2. Darshan Singh -vs- State of Punjab (2024 SCC Online SC

17- Relevant Paragraphs 25,28 32)

3. Ram Kumar Pandey -vs- State of Madhya Pradesh (AIR

1975 (SC) 1026 - Relevant Paragraphs 9-10)

4. Sujit Biswas -vs- State of Assam (2013 (12) SCC 406:

2014(1) SCC (Cri) 677 - Relevant Paragraph 24)

5. Lahu Kamlakar Patil & Another -vs- The State of

Maharashtra (2013 (6) SCC 417: 2013 (4) SCC (Cri)528 -

Relevant Paragraphs 21, 26, 27)

6. Rang Bahadur Singh -vs- State of Uttar Pradesh (2000 (3)

SCC 454: 2000 SCC (Cri) 703 - Relevant Paragraph 22)”

8. Mr. Sengupta has further stated that examination of the appellant

under Section 313 Cr.P.C. was not properly done. The documents under

Section 164 Cr.P.C. or the medical reports were not properly explained to

Page 8 of 26

the appellant. In this regard, he has again relied upon the judgment of

Sujit Biswas (supra).

9. Learned Counsel, Mr. Pritam Roy appearing for the State, has argued

that the prosecution has been able to prove the case against the accused

beyond all doubts and the judgment of conviction and sentence was

passed after taking into consideration all material facts.

10. Mr. Roy has given the chronological events as hereunder:

a. The accused came into contact with the victim;

b. the accused induced the victim to accompany him;

c. the accused took her to different places;

d. the accused brought her to Changrabandha, which is a red-

light area;

e. the victim stayed there with the accused and her minor son;

f. There were repeated quarrels between the accused and the

victim, as the accused used to bring customers and force

the victim into prostitution.

g. the victim was subjected to assault;

h. the victim disclosed her distress and sought the intervention

of her father;

i. PW-3 contacted the father;

j. the father came to Changrabandha;

k. the police thereafter intervened;

l. the victim was medically examined

m. the victim gave a statement under Section 164 Cr.P.C.;

n. PW-3 independently gave a statement under Section 164

Cr.P.C.

11. Mr. Roy has categorically argued that there was an inducement from

the side of the appellant and thereafter, PW 2 alongwith her minor child

was trafficked and thereafter transported to Changryabada. The allegation

of exploitation was palpable in the evidence of the parties. The conduct of

the victim immediately before the rescue operation provides substantial

corroboration to her testimony regarding the exploitation through

misplaced trust, fraud, deception, force, coercion etc. The learned Counsel

Page 9 of 26

Mr. Roy has further submitted that PW 2 being the victim lady has given

direct evidence regarding the sexual exploitation inflicted upon her. Mr.

Roy has further drawn the attention of this Court to the deposition of the

PW 3 wherein she stated that several persons used to enter the room of

the victim and the accused used to sit outside and the door of the room

remained closed. The prosecution case, according to Mr. Roy, is that the

accused herself was the person who controlled the victim and facilitated

the entry of other persons into her room. According to the evidence of PW

2, the accused was himself actively involved in sending other persons in

her room. The alleged conduct, therefore, directly connects him with the

sexual exploitation. The Court should not divide the occurrence into

artificial and isolated instances. The circumstances began with the

accused gaining the confidence of the victim taking her from one place to

another, bringing her to Chyangrabadha, keeping her there, exercising

control over her and thereafter subjecting her to sexual exploitation.

Accordingly, Mr. Roy submits that the ingredients of Section 370A (2) of

the IPC have been made out. The medical evidence corroborates physical

assault. Further rescue of the victim was a material circumstance.

Conduct of the appellant is also to be taken into consideration. Mr. Roy

has relied upon 3 judgments namely: -

1. Nirmal Premkumar and Anr vs. State represented by

Inspector of police reported in (2024) 20 SCC 293 (Page

14-26, Para 20-24,43)

Page 10 of 26

2. Deepak Kumar Sahu vs. State of Chhattisgarh

reported in 2025 SCC OnLine SC 1610 (Page 27 -36 Para-

5.5,5.6,5.6.2)

3. Madan Singh vs. state of NCT of Delhi in CRAL.A

1344/2011 (page 37-58, para 42).

Court’s view:

12. It is clear from the evidence on record that the victim, an adult

woman, accompanied the convict to various places before being taken to

a rented premises owned by PW 3 at Chyangrabandha, Jalpaiguri.

13. The process of human trafficking cannot be encapsulated in a rigid

or straightjacket formula. Traffickers employ diverse strategies to achieve

their illicit objectives, at times resorting to physical force or coercion, and

at other times employing deceptive ploys, such as feigning romantic

interest. By feigning love, traffickers entice victims away from their abodes

and, once control is firmly established, reveal their true motives.

14. Therefore, the mere fact that the victim accompanied the convict to

various locations, and ultimately to Chyangrabandha, a known red-light

area in North Bengal, does not imply that she voluntarily consented to

engage in sex work. Under Section 370 of the Indian Penal Code (IPC), the

consent of the victim is explicitly rendered immaterial in establishing the

offence of trafficking. Consequently, the defence’s contention regarding the

victim’s alleged willingness to accompany the convict lacks any foundation

in law.

Page 11 of 26

15. It is undisputed that the victim was a married woman. The defence

has raised questions as to why a married woman would travel across

various places with the convict. Whether the victim failed to discharge her

marital duties or obligations toward her husband is entirely irrelevant to

the adjudication of the present appeal. The sole issue before this Court is

whether a married woman was trafficked.

16. A review of the testimony of PW 2 (the victim) reveals that upon

learning of her marital status, the convict inquired about her relationship

with her husband. Upon being informed that her husband was a habitual

drunkard, the convict, himself a married man and a father of three, offered

to marry PW 2, promising her a life of happiness. This Court must consider

whether this was a genuine romantic gesture or a calculated ploy by a

seasoned trafficker. The deposition of PW 2 further establishes that the

convict solemnized a marriage with her before a Kazi at Malda, fixing the

Den Mohar at ₹10,000/-. Thereafter, she was taken to various places and

eventually brought to a rented room owned by PW 3 at Chyangrabandha.

It was in this room that the convict forcibly compelled PW 2 into

commercial sexual exploitation.

17. In defence, the appellant/convict contends that no force was ever

exerted to push the victim into prostitution. The defence asserts that the

entire prosecution narrative was concocted by PW 2, driven by her desire

to sever ties with the convict. Furthermore, learned Counsel for the

appellant highlighted that despite prosecution allegations of multiple

instances of sexual exploitation facilitated by the convict, the victim

refused a gynecological/medical examination of her private parts.

Page 12 of 26

Referring to the testimony of the examining medical officer (PW 7), the

defence argues that a thorough physical examination would have

conclusively determined whether the victim was subjected to multiple

sexual assaults as alleged.

18. It remains unexplained why the victim withheld consent for a

complete medical examination. While PW 2 was explicit and unwavering

in her testimony regarding being forced into sex work at Chyangrabandha

by the convict, her refusal to undergo a detailed medical examination

raises a crucial evidentiary query, particularly when such medical findings

could have corroborated or disproved the allegations of sexual

exploitation. Undoubtedly, medical evidence constitutes a vital component

of proof in such allegations, and, therefore, its absence warrants careful

scrutiny. Accordingly, it is prudent to analyze the specific testimony of the

medical officer, PW 7.

“I am a doctor currently posted as Medical Officer-

Specialist at Mekhliganj Sub -Divisional Hospital,

District Coochbehar. On 02.09.2016 also I was posted

at the same place and on the same post. On that day I

had examined one Sahanaz Parvin in connection with

Mekhliganj P.S. case no. 252/2016 dated 02.09.2016

u/s 498A/370/370A(2) of the IPC on the requisition

made by the police. This is the carbon copy of the said

requisition sent by the police to me and this is my

signature with seal on it and I had also written 'received'

on the said requisition. The writing of the witness along

with his signature and official seal on the requisition

dated 02.09.2016 made by the police requesting for

medical examination of the victim lady Sahanaz Parvin

Page 13 of 26

is marked as Exhibit-6. The victim lady had been

brought before me and identified by lady constable (LC-

480) namely Alpana Roy. I had taken the consent of the

said victim lady before examining her and she had

signed on the medical examination report in my

presence. She had been examined in presence of the

staff nurse Rubina Sultana who had also, signed on the

medical examination report as a witness in my

presence. The victim lady had complained that she was

married with some Ejarul Mallick two months back. One

month back she had been taken to Changrabandha and

forced into prostitution and further that she had been

forced to meet multiple sexual partners since last one

month. She was previously married to some Safiqul

Islam and had stayed with him for five years. She is

having one son with her first marriage. On examining

her I had found her to be conscious alert and co -

operative and her vital signs were within normal limits.

She was having one bruise with sub -conjunctival

haemorrhage in her left eye lid and peri orbital region.

The victim lady had refused to get her private parts

examined. This is the medical examination report

prepared by me on that day and this is my signature on

this report along with my official seal. The medical

examination report dated 02.09.2016 is marked as

Exhibit-3/2. Police had interrogated me regarding the

incident.”

19. In view of such deposition, this Court has no hesitation in holding

that PW 2 (the victim), who was otherwise vocal and explicit regarding the

alleged acts of sexual exploitation by multiple customers, withheld the

Page 14 of 26

best available evidence by refusing a medical examination. Consequently,

an adverse inference must be drawn against her and the prosecution

under Section 114 (Illustration g) of the Indian Evidence Act.

20. It is true that PW 3 (the landlady) deposed to having seen several

customers entering the victim’s room while the convict sat outside with

the victim’s son. However, such testimony fails to inspire confidence,

taking into account the victim’s unexplainable refusal to undergo a

physical and gynecological examination. Furthermore, the credibility of

PW 3’s testimony is substantially eroded by material omissions and

improvements, as elicited during the cross -examination of the

Investigating Officer (PW 11).

21. Additionally, while PW 1 (the victim’s father) purportedly went to

rescue his daughter from the custody of the convict, the deposition of PW

3 indicates that PW 1 instead implored the convict to reconcile, put the

past behind them, and continue cohabiting with the victim, a request

which the convict declined.

22. Mr. Roy, learned Counsel appearing for the State, contended that

taking into consideration the prevailing socio-economic realities, a father

whose daughter had already suffered a failed first marriage would face

severe social stigma and distress if he was required to take her back into

his household. Thus, it was argued, PW 1’s request to the convict to

maintain the marital relationship was a natural paternal reaction under

social duress and should not be viewed with suspicion.

23. This Court finds such a submission difficult to accept. If a father were

genuinely aware that his daughter was being coerced into commercial

Page 15 of 26

sexual exploitation while in the convict’s custody, no person of reasonable

prudence would willingly abandon his daughter to such a perpetrator.

This circumstance lends credence to the defense theory that the dispute

arose out of domestic friction rather than trafficking, thereby necessitating

closer scrutiny of the evidence on record. Crucially, the deposition of PW

1 itself fails to substantiate that he ever asked the convict to retain custody

of his daughter despite knowing she was being forced into sex work.

24. Furthermore, during cross-examination, PW 2 explicitly admitted

that she disclosed being pushed into commercial sexual exploitation to PW

3 on the very first day. This admission significantly weakens the

prosecution's narrative that the victim was systematically forced into sex

work over an extended period and sexually exploited by numerous

customers.

25. The evidentiary material on record suggests that while PW 2 might

have been subjected to pressure, any continuous forced prostitution

without substantial resistance appears improbable. Her statement that

she informed PW 3 on day one and asked her to contact her father, when

coupled with her explicit refusal to submit to a medical examination of her

private parts, contradicts the claim that she was forcibly subjected to

commercial sexual exploitation over several days. These circumstances

further belie the reliability of PW 3’s testimony.

26. In Nirmal Premkumar v. State , the Hon’ble Supreme Court

reiterated the settled legal principle that the uncorroborated testimony of

a victim can form the sole basis of conviction, provided it is wholly reliable

Page 16 of 26

and trustworthy. The Apex Court categorized oral testimony into three

distinct classes:

1. Wholly reliable,

2. Wholly unreliable, and

3. Neither wholly reliable nor wholly unreliable.

Relying on precedent, including Rai Sandeep v. State (NCT of Delhi)

[(2012) 8 SCC 21] and Krishan Kumar Malik v. State of Haryana

[(2011) 7 SCC 130], the Supreme Court in Nirmal Premkumar

reaffirmed that a court may convict on the sole testimony of a victim

as a "sterling witness" without requiring corroboration, provided the

quality and credibility of the witness are exceptionally high. To qualify

as a sterling witness, the testimony of the victim must remain

consistent and cogent from the initial statement to trial examination

(barring minor, inconsequential discrepancies), without leaving any

room for reasonable doubt in the prosecution case. In the present

case, the victim’s conduct and material contradictions fail to meet

this expected standard.

27. In Deepak Kumar Sahu (supra), the Hon’ble Apex Court has been

pleased to hold in paragraph 5.5 as hereunder:

“5.5. In cases of offences committed under

Section 376, IPC, when the story of the victim girl as told

in the evidence is found credit-worthy, the apparent

insufficiency of medical evidence pitted against

acceptable testimony of the victim, the latter would

Page 17 of 26

prevail. In State of Punjab v. Gurmit Singh [(1996) 2

SCC 384] it was observed:

In the absence of injury on the private part of the

prosecutrix, it cannot be concluded that the incident

had not taken place or the sexual intercourse was

committed with the consent of the prosecutrix. The

prosecutrix being a small child of about nine years of

age, there could be no question of her giving consent

to sexual intercourse. The absence of injuries on the

private part of the prosecutrix can be of no

consequence in the facts and circumstances of the

present case.”

28. In Madan Singh (supra) the Hon’ble Apex Court has also relied upon

the evidence of the victim as she appeared to be truthful and trustworthy

and she had disclosed all the facts at the very first instance to the Police

and to the doctor as well. The excerpt of Paragraph 43 is qu oted

hereinbelow:

“43. Prosecutrix has reported that she was raped and

a condom was used thus, the traces of semen were not

found. Nevertheless the MLC Ex. PW 1/A and Ext. PW

1/B corroborates the version of the prosecutrix. The FSL

results Ext. PW 1/C and Ext. PW 1/D further fortifies it.

And so far as the testimony of the victim is concerned,

the same is otherwise aboveboard except for her

statement under Section 164 CrPC, which too does not

absolves the Appellant, but presents a different picture

of her being traumatized and h arassed by the

Appellant. She is a truthful and trustworthy witness as

she disclosed all the facts at the very first instance to

the police and to the Doctor as well. She was candid

Page 18 of 26

and truthful which can be inferred from her narrative to

the police and Doctor. Her initial PCR call contains

information about rape by a boy (Ex. PW 9/E). She was

taken to the Hospital where she not only names the

Appellant as the perpetrator of crime, but tells about her

fiance, names him and also told about her first sexual

activity four months back in Assam with her fiance.

There was no occasion for her to give details. She told

the Doctor that she had scratched the assailant as also

about the use of condom. The corresponding injuries

were found on the person of the Appellant as can be

seen in the MLC Ex. PW 5/A of the Appellant. Four fresh

injuries were noticed by Dr Akhilesh Raj (PW 5) all of

which were on the upper body parts on neck, chest, etc.”

29. I have also considered the judgments as cited from the side of the

appellant. In Sunil Kumar Sambhudayal Gupta (Dr.) (supra), the

Hon’ble Apex Court has been pleased to hold that while appreciating the

evidence, the Court has to take into consideration whether such

contradictions/omissions had been of such magnitude that they may

materially affect the trial. It is further laid down that mere marginal

variations in the statement cannot be dubbed as improvements as the

same may be elaborations of the statement made by the witness earlier.

The omissions which amount to contradictions in material particulars i.e.

go to the root of the case/materially affect the trial or core of the

prosecution case, render the testimony of the witness liable to be

discredited.

30. In Darshan Singh (supra), the Hon’ble Supreme Court has been

pleased to observe as hereunder:-

Page 19 of 26

“32. Of course, PW 3 claims to be an illiterate witness

and therefore, her testimony must be interpreted in that

light. We are cognizant that the appreciation of evidence

led by such a witness has to be treated differently from

other kinds of witnesses. It cannot be subjected to a

hyper-technical inquiry and much emphasis ought not

to be given to imprecise details that may have been

brought out in the evidence. This Court has held that the

evidence of a rustic/illiterate witness must not be

disregarded if there were to be certain minor

contradictions or inconsistencies in the deposition.”

31. In Ram Kumar Pandey (supra), the Hon’ble Supreme Court has dealt

with the effect of omission of narrating vital facts in the First Information

Report. It is profitable to quote paragraphs 9 and 10 for understanding.

“9. No doubt. an F.I.R. is a previous statement which

can, strictly speaking, be only used to corroborate or

contradict the maker of it. But, in this case, it had been

made by the father of the murdered boy to whom all the

important facts of the occurrence, so far as they were

known up to 9.15 p.m. on 23-3-1970, were bound to

have been communicated. If his daughters had seen the

appellant inflicting a blow on Harbinder Singh, the

father would certainly have mentioned it in the F.I.R. We

think that omissions of such important facts, affecting

the probabilities of the case, are relevant under Section

11 of the Evidence Act in judging the veracity of the

prosecution case.

10. Even Joginder Singh, PW 8, was not an eye witness

of the occurrence. He merely proves an alleged dying

declaration. He stated that Harbinder Singh (described

by his pet name as "Pappi") rushed out of his house by

Page 20 of 26

opening its door, and held his hand on his chest with

blood flowing down from it. He deposed that, when he

asked Pappi what had happened Pappi had stated that

Suresh and Pandey had injured him. It is clear from the

F.I.R. that Joginder Singh had met Uttam Singh before

the F.I.R. was made. Uttam Singh did not mention there

that any dying declaration indicating that the appellant

had also injured Harbinder Singh, was made by

Harbinder Singh. The omission to mention any injury

inflicted on Harbinder Singh by the appellant in the

F.I.R. seems very significant in the circumstances of this

case. Indeed, according to the version in the F.I.R.,

Joginder Singh, who was in the lane, is said to have

arrived while Harbinder Singh was being injured.

Therefore, if this was correct, the two injuries on

Harbinder Singh must also have been inflicted in the

lane outside.”

32. In Sujit Biswas (supra), the Hon’ble Supreme Court has reiterated

the above principle in Paragraph nos. 24 and 25:-

“24. Undoubtedly, the FIR lodged has disclosed the

previous statement of the informant which can only be

used to either corroborate or contradict the maker of

such statement. However, in the event that the

informant is a person who claims to know the facts, and

is also closely related to the victim, it is expected that he

would have certainly mentioned in the FIR, all such

relevant facts. The omission of important facts affecting

the probability of the case, is a relevant factor under

Section 11 of the Evidence Act to judge the veracity of

the case of the prosecution. (Vide Ram Kumar Pandey v.

Page 21 of 26

State of M.P. [(1975) 3 SCC 815 : 1975 SCC (Cri) 225 :

AIR 1975 SC 1026] )

25. An adverse inference can be drawn against the

accused only and only if the incriminating material

stands fully established, and the accused is not able to

furnish any explanation for the same. However, the

accused has the right to remain silent, as he cannot be

forced to become a witness against himself.”

33. In Lahu Kamlakar Patil and another (supra), the Hon’ble Supreme

Court has considered the unnatural conduct of interested witness.

Paragraph 26 of the said judgment is quoted hereinbelow:

“26. From the aforesaid pronouncements, it is vivid that

witnesses to certain crimes may run away from the

scene and may also leave the place due to fear and if

there is any delay in their examination, the testimony

should not be discarded. That apart, a court has to keep

in mind that different witnesses react differently under

different situations. Some witnesses get a shock, some

become perplexed, some start wailing and some run

away from the scene and yet some who have the

courage and conviction come forward either to lodge an

FIR or get themselves examined immediately. Thus, it

differs from individuals to individuals. There cannot be

uniformity in human reaction. While the said principle

has to be kept in mind, it is also to be borne in mind that

if the conduct of the witness is so unnatural and is not

in accord with acceptable human behaviour allowing

variations, then his testimony becomes questionable

and is likely to be discarded.”

Page 22 of 26

34. In Rang Bahadur Singh (supra), the Hon’ble Court has once again

reiterated the age-old principle that the prosecution must prove its case

beyond reasonable doubts. In this regard, it profitable to quote the

paragraph no. 22 of the said judgment.

“22. The amount of doubt which the Court would

entertain regarding the complicity of the appellants in

this case is much more than the level of reasonable

doubt. We are aware that acquitting the accused in a

case of this nature is not a matter of satisfaction for all

concerned. At the same time we remind ourselves of the

time-tested rule that acquittal of a guilty person should

be preferred to conviction of an innocent person. Unless

the prosecution establishes the guilt of the accused

beyond reasonable doubt a conviction cannot be passed

on the accused. A criminal court cannot afford to deprive

liberty of the appellants, lifelong liberty, without having

at least a reasonable level of certainty that the

appellants were the real culprits. We really entertain

doubt about the involvement of the appellants in the

crime.”

35. It is true that the First Information Report (FIR) does not contain the

entirety of the factual matrix. The defence contends that while the initial

FIR lodged by PW 1 merely alleged an attempt by the convict to push the

victim into commercial sexual exploitation, the prosecution witnesses

subsequently improved upon their initial version during trial. Specifically,

the FIR omitted details regarding multiple customers entering PW 2’s room

at the convict’s behest, the convict sitting outside with her child, or the

victim being subjected to repeated sexual exploitation. Furthermore, the

Page 23 of 26

role of PW 3 (the landlady), as detailed during trial, was conspicuously

absent in the FIR.

36. Upon an appraisal of the record, the deposition of PW 2 falls into the

category of testimony that is neither wholly reliable nor wholly unreliable.

It is a settled proposition of law that the uncorroborated testimony of a

victim of sexual assault or human trafficking can form the foundation of

a conviction, provided it is trustworthy, cogent, and unimpeachable. In the

present case, the prosecution has established beyond reasonable doubt

that the convict transported the victim to Chyangrabandha, Jalpaiguri,

and housed her in rented premises situated within a red-light area in

North Bengal which is corroborated by PW 3.

37. Had the convict harboured no dishonest or criminal intent to push

the victim into sex work, no plausible explanation exists as to why he

chose to secure accommodation specifically in a red-light area when

numerous other residential locations were available across West Bengal.

While the prosecution has failed to establish beyond reasonable doubt that

the victim was actually sexually exploited by multiple customers—largely

due to her own stiff resistance against entering commercial sexual

exploitation—the convict’s diabolical intent and preparatory acts stand

conclusively proven. Even in the absence of absolute proof of completed

acts of prostitution with customers, the core ingredients of Section 370 of

the Indian Penal Code (IPC) are fully satisfied: the victim was transported

from Murshidabad to Chyangrabandha through deception and fraudulent

Page 24 of 26

promises, with the clear object of engaging her in commercial sexual

exploitation.

38. The impugned judgment reflects that the learned Trial Judge

meticulously analyzed the testimony of all prosecution witnesses. The

Trial Court explicitly addressed the alleged contradictions in the

statements of PW 1, PW 2, and PW 3. In distinguishing the decision in

Subhash v. State of Haryana [(2011) 2 SCC (Cri) 689], relied upon by

learned Counsel for the accused, the Trial Court correctly held that the

principles therein do not advance the defence's case. Regarding the alleged

discrepancies in the depositions of PW 2 and PW 3, the learned Trial Judge

rightly observed that both witnesses had recorded their statements under

Section 164 of the Code of Criminal Procedure (Cr.P.C.) before the learned

Judicial Magistrate at Mekhliganj shortly after the incident, wherein they

detailed the occurrence in clear terms.

39. This Court has independently scrutinized the Section 164 Cr.P.C.

statements of PW 2 and PW 3. After taking into consideration that these

statements were recorded within a few days of the occurrence, the Trial

Court was justified in concluding that the minor variations do not amount

to material contradictions. It is well settled that an FIR need not be an

encyclopedia of every minute detail. Despite minor omissions in the initial

FIR, the core prosecution case —that the victim was fraudulently

transported to a red-light area at Chyangrabandha for the purpose of

forced prostitution—remains unshaken and proved beyond reasonable

doubt.

Page 25 of 26

40. It is true that during his 313 Cr.P.C. examination, the relevant

questions concerning the witnesses’ 164 Cr.P.C. and contents of the

medical evidence were not brought to the notice of the convict. However,

such failure does not cause any prejudice to the convict and, therefore,

the prosecution case cannot be disbelieved, so far as, Section 372 IPC is

concerned.

41. In closing the present discussion, I would like to state that after

considering all materials on record I have found that prosecution has

failed to prove the charge against the appellant under Section 370 A (2) of

IPC since this Court is not convinced about the allegation of sexual

exploitation of the victim at the instance of the multiple customers as

alleged. There is a serious doubt as to whether the convict was actually

able to engage her in flesh-trading in spite of his best effort. Therefore, in

my view, the charges against the accused under Section 370 A (2) of IPC

were not proved beyond reasonable doubt and accordingly, the convict is

acquitted from the charge under Section 370 A (2) of IPC and the sentence

for imprisonment of 5 years and to pay a fine of Rs. 5000/- in default to

undergo simple imprisonment of one month is hereby set aside.

42. However, in light of the evidentiary material on record, this Court

holds that the prosecution has successfully established the charge under

Section 370 (2) of the IPC against the convict beyond reasonable doubt.

Consequently, no ground is made out to interfere with the well-reasoned

findings of the learned Trial Court. The order of conviction under Section

370 (2) IPC and sentence passed against the appellant is hereby affirmed.

Page 26 of 26

43. Accordingly, the present appeal, being CRA 150 of 2018, is dismissed

in part on contest. Connected application, if any, stands disposed of.

44. The judgment and conviction and order of sentence dated 26.02.2018

and 28.02.2018 passed by the learned Additional District and Sessions

Judge, Mekhliganj, Cooch Behar in Sessions Trial No. 5 (1) of 2017 arising

out of Sessions Case No. 05 of 2017 convicting the appellant under

Sections 370 (2) and 370 A (2) of Indian Penal Code with the modification

as indicated above, are hereby confirmed. The convict who is on bail is

directed to surrender before the learned Trial Court within 30 days from

this day and on his surrender the learned Trial Court shall commit him to

the concerned Correctional Home for serving out the remaining sentence

under Section 370 (2) IPC. The relevant bail order of suspension of

sentence is hereby cancelled. If he does not surrender within the period

indicated above, the learned Trial Judge shall issue warrant of arrest

against him and proceed thereafter in accordance with law. The Trial

Court Records alongwith a copy of this judgment be sent to the learned

Trial Court for information and necessary action.

45. All parties shall act on the basis of the server copy of this order

downloaded from the official website of this Court.

46. Urgent photostat certified copies of this judgment, if applied for, shall

be supplied to the parties upon compliance with all necessary formalities.

(APURBA SINHA RAY, J.)