Azad Hossain vs The State of West Bengal

Joymalya Bagchi, J.—The appeal is directed against the judgment and order dated 16th May, 2013/14th May, 2013 passed by the learned Additional Sessions Judge, 1st Fast Track Court, Jangipur, Murshidabad convicting the appellant for the offence punishable under Section 376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 15,000/- in default of payment of fine to undergo rigorous imprisonment for one year more with a direction that if the fine amount is realised, half amount therefrom shall be paid to the prosecutrix.

The prosecution case as alleged against the appellant is as follows:

"The victim (P.W. 1) in the instant case was residing with her father at her parental home being deserted by her husband. The appellant is her cousin. On 1st March, 2009 in morning, the appellant came to the house of the brother (P.W. 3) of the victim and was served tea by his wife (P.W. 2). In the night of that date the appellant went inside the room where the victim was sleeping. The room had a jhanp (bamboo split cover) only. The appellant got hold of the victim and as she tried to raise alarm, he gagged her and threatened to kill her and forcibly committed rape on her. The appellant threatened to kill her if she disclosed anything and fled away. On the next morning the victim P.W. 1 disclosed the incident to P.W. 2 the brother''s wife. P.W. 2 on her turn informed the brother of the victim P.W. 3. P.W. 3 went to the house of the appellant and confronted him. The appellant admitted his guilt and threatened P.W. 3 that he may do whatever he wanted. Thereafter they went to Farakka police station and informed the incident to the police. The police assured them that they would take action. However, no steps were taken. On 18th March, 2009, the victim took out an application under Section 156(3) of the Code of Criminal Procedure before the learned Additional Chief Judicial Magistrate, Jangipur, Murshidabad through her lawyer P.W. 9. Pursuant to direction passed by the learned Magistrate, instant case being Farakka P.S. case No. 47/09 dated 4th April, 2009 under Section 376 of the Indian Penal Code was registered for investigation. In conclusion of investigation, charge sheet was filed against the appellant under Section 376/511 of the Indian Penal Code. Subsequently the offences in the charge sheet were changed to Section 376/448 of the Indian Penal Code. The case, being a sessions triable one was committed to the Court of the learned Additional Sessions Judge, Jangipur, Murshidabad. Thereafter the case was transferred to the Court of the Additional Sessions Judge 1st Fast Track Court,, Jangipur, Murshidabad for trial and disposal. The charge was framed under Sections 376/448 of the Indian Penal Code against the appellant. The appellant pleaded ''not guilty'' and claimed to be tried. In course of trial prosecution examined as many as 10 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 Court by the judgment and order dated dated 14th May, 2013/16th May, 2013 convicted the appellant for the offence punishable under Section 376 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 15,000/- in default of payment of fine to undergo rigorous imprisonment for one year more with a direction that if the fine amount is realised, half amount therefrom shall be paid to the prosecutrix."

P.W. 1 is the victim and de facto complainant in the instant case. She stated that she was residing at her father''s house when the incident took place. The appellant is her cousin. Her elder brother P.W. 4 resides in a house adjacent to that of her father. On the fateful night around 10 p.m. she was sleeping in a room which is covered by a jhanp. The appellant entered the room and caught hold of her. She tried to cry out, the appellant pressed her mouth and threatened to kill her. Thereafter the appellant forcibly raped her. After committing rape the appellant threatened that she would be killed if she disclosed the incident to anyone. Then the appellant left the room. Next day the victim inform the incident to P.W. 2 her boudi (wife of P.W. 3). P.W. 2 on her turn, informed the brother of the widow (P.W. 3). P.W. 3 went to the house of the appellant and confronted him. The appellant admitted to have committed rape on the victim. P.W. 1 along with her father went to police station and informed the police about the incident. The police assured that they would look into the matter but did not start any case. Thereafter P.W. 1 filed a complaint before the learned Additional Chief Judicial Magistrate, Jangipur through her learned lawyer P.W. 9. She put her L.T.I. on the application. She was medically examined. She put her L.T.I on the medical examination report. In cross-examination, she stated that her father stayed with her step mother and three children. There were two rooms in her father''s house. She informed the incident to P.W. 3 at 8 a.m. on the next morning.

P.W. 2 is the wife of the brother of the victim. She stated that on the date of occurrence the appellant had come to their house at 8 A.M. He took tea and stayed there till 12 noon. Next day, P.W. 1 informed her weeping that at 11-00 P.M. on the previous night the appellant had entered her room and forcibly raped her. She narrated the incident to her husband, P.W. 4. P.W. 4 went to the house of the appellant and confronted him. The appellant admitted that he raped the victim and threatened P.W. 4 that he may do whatever he wanted. P.W. 1 reported the matter to the police. As police did not take any action, she filed the complaint. In cross-examination, she stated that the stepmother and her children were not present in the house of her father-in-law on the date of occurrence. She further stated that husband of P.W. 1 had pronounced talak to her.

P.W. 3 is the brother of P.W. 1. He stated that he heard about the incident from his wife, P.W. 2. He went to the house of the appellant. The appellant in presence of his father told him he had committed rape on the victim and threatened him that he may do whatever he wanted.

P.W. 4 is the husband of the sister of the victim. He has stated that he had met the appellant in the morning of the date of occurrence. On being asked the appellant stated that he was going to the house of P.W. 3. Next day, he heard from P.W. 3 that the appellant had raped P.W. 1. He accompanied P.W. 3 to the house of the appellant. The appellant admitted that he raped the victim and threatened that they may do whatever they wanted. P.W. 1 also narrated the incident to him.

P.W. 5 was posted as I.C., Farakka Police Station. He received the complaint and drew up formal First Information Report.

P.W. 6 is the first Investigating Officer of the instant case. He prepared a rough sketch map, recorded the statements of the witnesses, and caused medical examination of the victim at Jangipur Sub Divisional Hospital. In cross-examination, he stated that he had not examined the father of the victim girl.

P.W. 7 is the medical officer who examined the victim and found that she was capable of sexual intercourse. He exhibited the medical report of the victim.

P.W. 8 is the medical officer who examined the appellant and stated that he was medically fit for sexual intercourse.

P.W. 9 is the lawyer who filed the application on behalf of P.W. 1. He has proved the written complaint.

P.W. 10 is the other Investigating Officer who completed the investigation and submitted the charge sheet.

Mr. De, learned counsel appearing for the appellant submitted that the evidence of P.W. 1 is not worthy of credence. She alleged that she was raped in a room in the house where the other room was occupied by her father. Her father has not been examined. He further submitted that there is inordinate delay of about a month in lodging the First Information Report. The evidence of P.W. 2 and P.W. 3 are also unreliable. He submitted that the appellant was falsely implicated in the instant case as he was not willing to marry P.W. 1 who was a deserted woman.

Ms. Mukherjee, learned Amicus Curiae submitted that inordinate delay in lodging the First Information Report has not been properly explained. It throws grave doubt as to the truthfulness of the prosecution case. Version of the prosecutrix suffers from inherent improbability. Accordingly, she submitted that the appellant ought to be acquitted.

Mr. Banerjee, learned Additional Public Prosecutor appearing for the State submitted that the evidence of P.W. 1 is corroborated by P.Ws. 2 and 3. P.Ws. 3 and 4 have deposed that the appellant admitted his guilt. Delay in lodging the First Information Report has been duly explained. He prayed for dismissal of the appeal.

P.W. 1 is the victim and the most vital witness in the instant case. She stated that the appellant was her relation. He had come on the fateful night around 10-30/11-00 P. M. inside her room. The appellant entered the room and caught hold of her. When she tried to shout, her mouth was gagged and she was threatened and forcibly raped. After rape she was threatened by the appellant that if she disclosed the occurrence to anyone she would be killed. It transpires from the evidence on record that the room of the victim did not have a door. There was a ''Jhanp'' (Bamboo split curtain). This circumstance probabilises the surreptitious entry of the appellant in the room while the victim was sleeping. Her evidence was seriously criticised on the score that such a situation was most improbable when her father was sleeping in the other room. It has also been argued that examination of the father of the victim who was most vital for unfolding the prosecution case. I find from the evidence of P.W. 1 that she was sleeping when the appellant entered the room. The appellant caught hold of the victim and she woke up as she tried to shout she was gagged and raped. As a result she was unable to raise a hue and cry when she was raped. Consequentially her father could not come to her aid at the time of occurrence. Thereafter she was threatened that she would be killed if she informed the incident to anyone. Hence she did not dare to inform anyone in the night. However, immediately in the morning she informed the incident to her sister in law. The conduct of the victim in keeping quiet in the night due to threat held out by the appellant and thereafter choosing to narrate the incident to her sister in law (a member of the women folk of the family) instead of her father cannot be said to unnatual or artificial in the backdrop of the instant case. It must be borne in mind that each victim reacts in her unique manner when confronted with a horrifying event like sexual assault. It cannot be expected that such a victim of sexual assault and that too at the behest of a relation would immediately narrate the incident to the menfolk of the family. She is most likely to confide to the members of the women folk with whom she is more intimate and comfortable to narrate such incident. Hence, the conduct of the victim in divulging the incident of rape to P.W. 2, her sister-in-law in the morning instead of narrating it to her father in the night itself is most plausible.

For the aforesaid reason, I do not accept the contention that the version of P.W. 1 is an unnatural or artificial one. The incident of rape as narrated by P.W. 1 finds corroboration from P.Ws. 2 and 3. She narrated the incident to P.W. 2 on the next morning. Thereafter, P.W. 2 narrated it to her husband, P.W. 3 in the afternoon. P.W. 3 went to the residence of the appellant and the appellant admitted to have raped the victim and threatened P.W. 3 to do whatever he wanted. Evidence of the witnesses remained unshaken in the cross-examination. The admission by the appellant is corroborated by P.W. 4. Such circumstances clearly establishes beyond reasonable doubt the prosecution version of rape of the victim by the appellant and her narration of the incident to P.W. 2 soon thereafter. Admission of the appellant of rape before P.W. 3 and P.W. 4 also lends credence to the prosecution case of rape.

It has been contended that there is an inordinate delay in lodging the First Information Report. I, however, find that the delay has duly been explained in the facts of the case. It is the evidence of P.W. 1 that on the very next day she narrated the incident to P.W. 2. In the afternoon, P.W. 3 went to the house of the appellant and the appellant admitted his guilt in presence of P.Ws. 3 and 4. The very next day, P.W. 1 being accompanied by her father went to the police station. Police assured her of necessary action, but no steps were taken for 18 days. Hence, application under section 156(3) of the Code of Criminal Procedure was filed. The aforesaid factual matrix clearly and sufficiently explains away the delay in registration of the First Information Report.

It is true that examination of the father of the victim could have added further corroboration to the prosecution case. However, in the facts of the consistent and reliable version of the prosecution witnesses, mere non-examination of the father of the victim cannot be said to be fatal to the prosecution case.

It has been argued that the victim and the appellant were having an affair and the sexual intercourse was consensual. I am unable to accept such version. There is no evidence on record of any amorous relationship between the victim and the appellant. The appellant is a relation of the victim. It is common knowledge that most cases of rape perpetrator is a relation or any person known or acquainted to the victim. Merely because the victim is a deserted lady and the appellant is known to her, it cannot be inferred as a necessary corollary that there is amorous relation between them. That apart, the appellant in his defence had blown bolt hot and cold at the same time. In the course of cross-examination of P.W. 1 and other witnesses, suggestions (emphatically denied) were given that there was a romantic relationship between P.W. 1 and the appellant. Similarly, suggestions (again denied) were given that no such incident occurred on the date of occurrence. On one hand the appellant was seeking to probabilise a case of consensual sex between P.W. 1 and himself and on the other hand he was denying the incident in toto.

In view of the aforesaid evidence on record, I am unable to accept the submissions of Mr. De that the appellant ought to be acquitted as there was no forcible sexual intercourse and the case was one of consensual sex between two persons romantically inclined to each other.

Finally, it has been argued that medical report does not speak of forcible sexual intercourse. The victim was medically examined more than a month after the incident and hence, absence any injury or evidence of forcible sexual intercourse is all but natural.

For the aforesaid reasons, I do not find any merit in the instant appeal. The appeal is, accordingly, dismissed. I uphold the conviction and sentence imposed upon the appellant.

Let copy of the judgment along with the lower court records be sent down to the Trial Court at once.

I record my appreciation of Ms. Mukherjee as Amicus Curiae in assisting the Court for disposing of the appeal.