IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
The Hon’ble Justice Joymalya Bagchi
The Hon’ble Justice Suvra Ghosh
C.R.A. 927 of 2013
State of West Bengal
For the appellant : Mr. Jayanta Narayan Chatterjee, Adv.
Mr. Apalak Basu, Adv.
Mr. N Ahmed, Adv.
Ms. J Patra, Adv.
Ms. S Das, Adv.
Ms. S Ghosh, Adv.
For the State : Mr. Rana Mukherjee, A.P.P.
Mr. Suman Saha, Adv.
Heard on : 27.02.2020
Judgment on : 27.02.2020
Joymalya Bagchi, J. :
The appeal is directed against the judgment and order dated 24.9.2013
and 25.9.2013 passed by the learned Additional District and Sessions Judge,
Fast Track Court I, Basirhat North 24 Parganas in Sessions trial no. 4(6)09
arising out Session Case No 9(11)08 convicting the appellant for commission of
offence punishable under Sections 376 of the Indian Penal Code and sentencing
him to suffer rigorous imprisonment for life.
The prosecution case as alleged against the appellant is to the effect that
on 17.1.2007 at 8 p.m. when none of the in laws of the victim were at home, her
uncle in law came to her house and entered her room while she was putting her
child to sleep. Suddenly, he gagged her mouth and thereafter committed rape on
her. He threatened the victim not to disclose the incident to anyone otherwise she
would face dire consequences. On the pretext of going to the toilet the victim
escaped by locking the door from outside. She came back with her neighbour but
the appellant escaped by removing a bamboo fencing around the house. She
went to the local panchayet members who claimed that they were busy. On the
next day, she went to the police station. They assured her that police force would
be sent from the local police outpost but such help did not arrive. Accordingly, on
she lodged written complaint against the appellant alleging rape. In
conclusion of investigation charge-sheet was filed. Charge was framed against the
appellant under section 376 IPC. Appellant pleaded not guilty and claimed to be
tried. In the course of trial, prosecution examined 11 witnesses and exhibited a
number of documents. In conclusion of trial, learned trial judge by judgement
and order dated 24.9.2013 and 25.9.2013 convicted and sentenced the appellant,
as aforesaid. Hence, the present appeal.
Learned Counsel appearing for the appellant submitted that version of the
prosecutrix PW 1 with regard to forcible sexual assault is highly unnatural and
improbable. She did not raise any hue and cry and FIR was registered two days
after the incident. Other prosecution witnesses particularly PW 3 Sudhansu
Pramanik, panchayet member as well as Minati Mondal, PW 8 have not
supported the prosecution case and were declared hostile. Medical evidence is
also inconclusive. Hence, evidence of PW 1 remains uncorroborated and the
prosecution case is liable to be failed.
On the other hand, Mr. Mukherjee, learned counsel appearing for the State
submitted that delay in lodging FIR has been explained by the victim PW 1.
Other witnesses had been won over by the appellant who was an influential
person in the locality. They were declared hostile and extensively cross examined
with regard to their previous statements to police. Hence prosecution case has
been proved beyond doubt and appeal is liable to be dismissed.
From the evidence on record, it appears that the evidence of P.W.1 has not
been corroborated by other witnesses, including panchayet member Sudhansu
Pramanik, P.W.3 to whom the victim initially lodged complaint and Minati
Mondal, P.W.8, a neighbor who drafted the complaint.
A victim of sexual offence is not an accomplice but is in the same status as
an injured witness. It is settled law that conviction may be founded on the
uncorroborated version of such a victim provided her evidence is reliable. I have
assessed the evidence of P.W.1, (the victim in the present case) from that
perspective. P.W.1 deposed that the appellant was her kakasasur (uncle-in-law)
and on the fateful night, taking advantage of the absence of her husband and in-
laws, had come to her house. At that time she was in the verandah with her child
in her lap. In view of the appellant being a close relation, she did not initially
suspect any evil intention on his part. When she went to the room for putting the
sleeping child in bed, the appellant entered the room and asked her why she has
declined to join “Maobadi Sangathan”. Thereafter, appellant suddenly held her
from behind, gagged her mouth and committed rape on her. He also threatened
her that he had kept a secret machine in the room and would kill her and her
child if she narrated the incident to anyone. On the excuse of going to the toilet,
P.W.1 came out of the room and locked the door from outside and ran for help.
When she returned to the room with her neighbours the appellant fled from the
room by breaking the bamboo fence around the house. Her neighbours took her
to panchayet members who however turned her away claiming that they were
busy in a meeting. On the next day when she went to the police station she was
assured that police force from the local police camp would go to her house for
investigation. Unfortunately, the police did not come and finally on 21.01.2007
she lodged F.I.R.(Ext.1) scribed by P.W.2. She also made statement before
magistrate. She was medically treated (Ext.3). She also exhibited a written
complainant lodged on 18.01.2007 with Sudansu Pramanik, P.W.3, a panchayat
member, (Ext.5). She also proved the seal and stamp of the panchayat (Ext.7) on
Learned counsel appearing for the appellant has challenged the evidence of
P.W.1 on the ground Sudansu Pramanik, P.W.3 and Minati Mondal, P.W.8 who
wrote the aforesaid complaint did not support her case. It was also submitted
there was enmity between the appellant and P.W.1 over land. Medical evidence
does not corroborate allegation of forcible rape.
The instant case portrays a pathetic picture of secondary victimisation of a
victim of sexual assault. P.W.1 had been forcibly violated by her uncle-in-law.
She rushed to the local panchayat office on the selfsame night but was turned
away on the plea the members were busy in a meeting. Next day she went to the
police station but no complaint was received. She was told policemen would go
from the local police camp to investigate the matter. However, no one turned up.
Finally, on 21.1.07 she again went to police station and lodged FIR. Lack of
cooperation from the local panchayat as well as the law enforcement agency to
the unfortunate victim who knocked on their doors seeking legal redress is writ
large in the facts of case. Hence, I am of the opinion delay in lodging first
information report has been clearly explained and cannot be a ground to
disbelieve the version of the prosecutrix.
It has been contended that the conduct of the victim was unnatural as she
did not raise hue and cry at the first instance. Hence, allegation of forcible
sexual assault upon her is improbable and ought to be taken with a pinch of
salt. I am unable to accept such defence plea. Admittedly, appellant was known
to the victim and consequentially the latter could not have suspected his evil
intention when he initially entered the house. Thereafter, the appellant entered
her room on the pretext of discussing issue relating to her refusal to join
“Maobadi Sangathan”. Suddenly, he caught her and gagged her mouth.
Unexpected assault from a person in confidence clearly perplexed her and she
was unable to raise a hue and cry when she was gagged and raped. Thereafter
the appellant threatened her by saying he had kept a secret machine in the room
and would kill her and her child. Under such circumstances, without raising hue
and cry and risking the lives of her children and herself, P.W.1 escaped from the
clutches of her predator by pretending to go to the toilets and called for help.
Conduct of the victim in the attending facts and circumstances of the case
does not appear to be unnatural. She was a mother of two minor children whose
lives were at risk due to the threats held out by the appellant out by the
appellant. Hence, I am unwilling to come to a conclusion that conduct of the
appellant in not raising hue and cry during the incident is so improbable that her
version of forcible rape ought to be disbelieved. Presence of the minor children in
the room does not improbabilise the incident. They were aged around 2 years and
6 months respectively and were fast asleep at the time of the incident. For
reasons discussed hereinabove the victim was unable to raise hue and cry so as
to awaken the children. Accordingly, presence of the children in the room does
not rule out the prosecution case of forcible rape of the victim.
Judging in the backdrop of the aforesaid facts, I am of the view the version
of P.W.1 is a truthful one which inspires confidence and can be the sole basis of
Unfortunately, other prosecution witnesses like P.Ws.3 and 8 appear to
have been won over and did not support the prosecution case. They were
declared hostile and were extensively cross-examined with regard to their
previous statements to police wherein they had fully supported the version of the
victim. Fact that the said witnesses held back truth from the Court is clear from
the contemporaneous complaint lodged by P.W. 1 with the panchayet member
P.W.3. The complaint, (Exhibit-5), was scribed by P.W.8. P.W.8, though hostile,
has admitted she wrote the complaint on the instruction of the victim P.W.1.
These circumstances clearly show that the hostile witnesses had been won over
and sought to protect the appellant for reasons not far to seek.
Evidence of P.W.6, the doctor who examined the victim has clearly
explained due to lapse of time medical evidence of rape may have disappeared.
Hence, little importance may be attached to the medical evidence in the facts of
the present case.
In the light of the aforesaid discussion, I am of the opinion version of the
victim is reliable and does not suffer from inherent improbabilities. National
Crime Record Bureau Reports1 show more than 90 per cent of cases of rape are
perpetrated by relations or known persons. It is, therefore, not unnatural that the
appellant, a close relation of the victim, took advantage of her helplessness while
her other in-laws were absent to subject the victim to rape. Plea of animosity due
to land dispute appears to be farfetched and not convincing. No question was put
to P.W.1 on such score and stray statements from a hostile witness in my
considered opinion cannot be the foundation of such an entrenched enmity
between the parties that would prompt the prosecutrix to falsely implicate the
appellant in a case of rape.
1 NCRB Crime in India Statistics in 2018 show that 93.9% of the total rape cases were
committed by persons known to the victim. In 2017, in 93% of the total rape cases, the
offenders were known to the victim while in 2016, 94.6% of the total cases were
committed by relations including father, brother, son, grandfather or other known
In the light of the aforesaid discussion, I uphold the conviction and
sentence imposed on the appellant.
Coming to issue of sentence imposed upon him, I note the maximum
sentence of life imprisonment has been imposed upon him. The appellant does
not appear to have criminal antecedents. Balancing the aggravating and
mitigating facts in the present case, I am of the opinion sentence imposed on the
appellant may be modified. He is accordingly directed to suffer rigorous
imprisonment for seven years and to pay a fine of Rs. 10,000/-, in default, to
suffer rigorous imprisonment for six months more.
Period of detention suffered by the appellant during investigation, enquiry,
trial and hearing of appeal shall be set off from the substantive sentence imposed
upon him in terms of 428 of the Code of Criminal Procedure.
Appeal is accordingly disposed of.
Copy of the judgment along with L.C.R.s be sent down to the trial court at
Urgent Photostat Certified copy of this order, if applied for, be supplied
expeditiously after complying with all necessary legal formalities.
(Suvra Ghosh, J.) (Joymalya Bagchi, J.)