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Rajab Ali @ Anai vs State Of West Bengal on 2 August, 2018

IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION

Present:
The Hon’ble Justice Joymalya Bagchi
And
The Hon’ble Justice Ravi Krishan Kapur

C.R.A. 60 of 2015

Rajab Ali @ Anai
-Vs-
State of West Bengal

For the Appellant : Mr. Shiladitya Sanyal, Sr. Adv.,
Mr. Ainal Bari, Adv.,
Mr. Subhrajyoti Dey, Adv.

For the State : Mr. Arun Kumar Maity, Ld. A.P.P.,
Mrs. Kaberi Sengupta (Maity), Adv.,
Ms. Trina Mitra, Adv.

Heard on : 02.08.2018

Judgment on : 02.08.2018

Joymalya Bagchi, J. :-

The appeal is directed against the judgment and order dated 16.01.2015

and 17.01.2015 passed by the Learned Additional Sessions Judge, 3rd Court,

Nadia, Krishnagar in Sessions Trial No. VIII(Nov.).13 arising out of Sessions Case

No. 34(9) 13 convicting the appellant for commission of offence punishable under

Sections 376/354 of the Indian Penal Code and sentencing him to suffer rigorous

imprisonment for life and to pay fine of Rs. 50,000/-, in default, to suffer further
rigorous imprisonment for two years for the offence punishable under Section

376 of the Indian Penal Code and to suffer rigorous imprisonment for two years

and to pay fine of Rs.5,000/-, in default, to suffer rigorous imprisonment for six

months for the offence punishable under Section 354 of the Indian Penal Code.

Both the sentences are run concurrently.

The prosecution case as alleged against the appellant is to the effect that

on 15.7.2012 at around 10.00 A.M., the victim had gone to his residence to

demand money which had been paid to him for securing a job for her son. Taking

advantage of such situation, the appellant gagged the victim and raped her

forcibly. She returned home and narrated the incident to her husband. Out of

fear of public disgrace, they kept quite. Again on 17.8.2012 at around 8 P.M.

when her husband had gone to offer Namaz, the appellant came to the residence

of the victim and tried to rape her. She cried for help and due to intervention of

others, the appellant ran away. On the next day, the victim lodged complaint

with Nakashipara Police Station resulting in registration of Nakashipara Police

Station Case No. 921 of 2012 dated 18.8.2012 under Section 376 of the Indian

Penal Code. In the course of investigation, the victim was medically examined

and charge sheet was filed against the appellant. The case being a sessions

triable one was committed to the Court of Sessions and transferred to the Court

of the Additional Sessions Judge, 3rd Court, Nadia, Krishnagar for trial and

disposal. Charges were framed under Section 376 of the Indian Penal Code and

Section 376/511 of the Indian penal Code with regard to the incidents, as

aforesaid. The appellant pleaded not guilty and claimed to be tried. In the course
of trial, prosecution examined 8 witnesses and exhibited a number of documents.

In support of his defence, the appellant examined his son-in-law Kachi Seikh as

D.W.1. In conclusion of trial, the trial Judge by the impugned judgment and

order dated 16.01.2015 and 17.01.2015 convicted and sentenced the appellant,

as aforesaid. Hence, the present appeal.

Mr. Sanyal, learned Senior Advocate with Mr. Bari and Mr. Dey, learned

Advocates appearing for the appellant argued that the narration of the alleged

incident by the victim, P.W.1 does not inspire confidence. It is unnatural why the

victim and her husband P.W.2 kept quiet about the first incident for more than a

month. He further submitted that the second incident which occurred in the

house of the victim is most improbable as other inmates of the house were

present at the time of occurrence. He submitted that there was enmity over

demands of dowry between the appellant who is the father-in-law of one of the

sons of the victim (D.W.1) and the family of the victim. Accordingly he was falsely

implicated in the instant case. Hence, the appeal ought to be allowed.

On the other hand, Mr. Maity, learned Additional Public Prosecutor

appearing for the State submitted that the appellant was the father-in-law of one

of the sons of the victim. There was an intimate social relationship between the

parties. That apart, P.W.2, husband of the victim, also had business relationship

with the appellant. The allegation of enmity over demands of dowry as narrated

by the appellant in his examination under Section 313 of the Code of Criminal

Procedure is not supported by the materials on record. On the other hand, D.W.1

speaks of a business dispute exposing the falsity in the defence of the appellant
relating to enmity between the parties. In the backdrop of the close relationship

between the appellant and the victim through marriage, it is not unnatural that

the victim and her husband decided not to come out with the incident to avoid

public disgrace and social turmoil. However, when the appellant attempted

similar act, the criminal case was registered. Hence, the appeal is liable to be

dismissed.

Let me examine the rival versions of the parties in the light of the evidence

on record.

P.W.1, Sonabhanu Bibi, is the victim and the most vital witness in the

instant case. She deposed one and half years ago she went to the house of the

appellant around 10.00 hours. Appellant had taken money from her husband to

give employment to one of her sons and had promised to return the said money.

When she went to the house of the appellant he was alone. Taking advantage of

the situation, the appellant gagged her mouth and forcibly raped her. She

returned to her house and when her husband returned from the market she

narrated the incident to him. Out of shame they decided not to disclose the

incident to anybody. One month later when her husband went to Masjid to offer

Namaj at about 19.00 hours she was alone in the house. The appellant came to

her house and after opening the room forcibly embraced her and lifted her saree.

Thereafter the appellant fled away. Her son Sentu Sk. and Tapan Mallick came to

the spot. She told the incident to Tapan. Thereafter, her husband and one

Takbir Sk. also came to the house. On the next day, she lodged F.I.R. She put

L.T.I. on the F.I.R. She made statement to the police and the learned Magistrate.
She put her L.T.I. on the injury report and on the statement before the learned

Magistrate. She had three sons. In cross-examination, she stated that Tapan

Mallick is not her ‘bhagne’. Kachi Sk. is her son. The appellant is the father-in-

law of her son. It would take about 10 minutes on foot to go to the house of the

appellant. The appellant gave motor cycle and gold ornaments of two bhories.

She denied the allegation that there was demand of Rs. 50,000/- as dowry and a

salish was held where the appellant was to pay Rs. 50,000/- to her.

P.W.2, Yeanur Sk., is the husband of the victim. He stated that the

incident of rape occurred in the house of the appellant about one and half years

ago at about 10.30/11 hours. On that date, the accused had called his wife to

return the money which he had taken for giving job to her son. When she went

to the house of the appellant, the appellant forcibly raped her. When he returned

home from the market he found his wife weeping. On query she told him that

the appellant had raped her forcibly. He informed the incident to his brother

Ishamuddin and they decided not to disclose the incident out of shame and

prestige. One month later at about 19.30/20.00 hours he had gone to the Masjid

to offer prayer. When he returned home he found Tapan Mallick and Asraful Sk.

were present at that spot along with his wife. Asraful was weeping and told him

that the appellant had tried to rape her mother. They saw that the appellant

had run away from the house. They lodged F.I.R. In cross-examination, he

stated before the incident he used to do joint business with the appellant.

P.W.4, Asraful Sk., deposed that on 15.07.2012 an incident occurred in

their house at about 19.30/20.00 hours. He was at the first floor in the house.
Hearing shouts of his mother he came down and saw the appellant running

away. Tapan Mallick also came to the spot. His mother told them that the

appellant had tried to rape her. She also narrated the earlier incident of rape to

them. He could not state the date of rape or attempt of rape. In cross-

examination, he stated that at the time of incident he along with his mother was

present at the house. He had given Rs. 5000/- for getting job four to five months

prior to the incident.

P.W.5, Tapan Mallick deposed one and half years ago, at about

19.00/20

.00 hours, he was going down the road beside the place of occurrence.

He saw the appellant flee away from the spot. On hearing shouts he went to the

place of occurrence and saw Asraful. The victim narrated the incident to them

and alleged that the appellant tried to rape her. She also narrated to them that a

month ago the appellant had called her to his house and raped her and

threatened her not to disclose the incident to anyone.

P.W.6, Takbir Sk., was declared hostile.

P.W.7, Mr. Prabhat Chandra Sengupta, was posted as S.I. at Nakashipara

Police Station. He received written complaint from the victim and drew a formal

F.I.R. marked as Exbt.-2 and Exbt.- 3.

P.W.3, Dr. Manik Mani, examined the victim on 23.08.2012. He proved his

report as Mat. 1.

P.W.8, Mr. Prasenjit Kar, visited the place of occurrence and prepared the

rough sketch map with index. He sent the victim to the hospital for medical

examination. He also sent the victim to the Court for recording her statements
under Section 164 of the Code of Criminal Procedure. He submitted charge-

sheet against the accused person.

D.W.1, Kachi Seikh, son of the victim, deposed that the appellant was his

father-in-law. He stated that they were three brothers viz. Asraful Alam, Imajul

Haque and himself. At the time of the incident he along with his brothers used

to stay with his parents in the same house. After four months of his marriage

there was a trouble between his father-in-law and his parents over business.

Mr. Sanyal, learned senior Counsel appearing for the appellant, has

strongly criticised the evidence of P.W.1 with regard to the alleged incident of

rape on 15.07.2012. He submitted that the conduct of P.W.1 and her husband

in not disclosing the incident of rape for more than one month renders their

version incredible. It is also submitted that due to further demands of dowry

which could not be paid by the appellant and other business disputes, his client

has been falsely implicated in the instant case.

It is trite law if the version of a victim of sexual assault is truthful and

inspires confidence, mere delay in reporting the incident would not be a ground

to disbelieve the prosecution case. At the same time, it is important to bear in

mind when allegation of sexual assault is made against an accused who has pre-

existing enmity with the victim and her family members, such allegation must be

subjected to deeper scrutiny and examined with due care and caution before it is

relied upon.

I have examined the evidence of the prosecution witnesses from the

aforesaid perspectives. Firstly, it appears from the evidence on record that there
was a close family relationship between the appellant and the victim. Appellant

was the father-in-law of the victim’s son, Kachi Sk. That apart, there was

business relationship between the appellant and P.W.2, the husband of the

victim prior to the incident.

Failure of the victim and her husband to immediately come out with the allegation of

sexual assault on her by the appellant, a close relation by marriage is to be judged in the

aforesaid facts and circumstances of the case. Both P.W.1, the victim and P.W.2, her husband

have claimed that they kept quiet about the allegation of sexual assault to avoid public disgrace.

No doubt any accusation by the victim against the father-in-law of her son would have created

social turmoil in the matrimonial life of her son. When the reticence of the victim and her

husband to bring the incident to public knowledge is judged from such angle, it cannot be said

that their conduct is so opposed to normal human conduct that it would render the prosecution

case patently absurd and inherently improbable. It is also important to note that the allegation of

false implication on further demands of dowry from the appellant as claimed by him in his

examination under Section 313 Cr.P.C. is not borne out from the evidence on record. Even D.W.1,

his son-in-law, did not support such defence plea. On the other hand he sought to probabilise a

business dispute between his parents and the appellant. No evidence of such dispute has come to

light in this case. Such contradiction and/or dichotomy in the defence plea with regard to enmity

renders such plea hollow and wholly untrustworthy. It is not unknown that the women are

subjected to sexual assault ordinarily at the hands of close relations. National Crime Records

Bureau statistics show over 90% of rape survivors are sexually assaulted by known persons

including relations. 2013, 2015 and 2016 NCRB Reports show 98%, 95% and 94.6% of rape

survivors respectively were sexually assaulted by known persons including relations. When

sexual assault is perpetrated by persons who have close social relationship with the victim it

creates the deepest dilemma to a victim: whether to disclose the ignominious incident and hazard

disruption of social equilibrium and harmony or to painfully suffer the agony in anonymous

solitude. In fact, the victim and her husband initially chose the first course, howsoever, hurtful
the same may have been to her emotion and dignity presumably keeping in mind the damage it

may cause to the social stability in the matrimonial life of her son who was married to the

appellant’s daughter. However, her limits of fortitude broke its barrier when the appellant again

outraged her modesty at her house in the evening of 17th August 2012. Narration of the victim in

this regard is corroborated by the evidence of P.W.4 and P.W.5. Both the witnesses saw the

appellant running away from the house and on reaching the spot the victim narrated the

incidents to them. Evidence of P.W.4 has been criticized on the ground that he had given a wrong

date of the incident. If his evidence is read as a whole it would appear the error was an

inadvertent one due to slip of tongue on his part as his version is otherwise corroborated by other

witnesses, namely his father, P.W.2 and P.W.5. Subsequent conduct of the appellant in outraging

the modesty of the victim on the subsequent date i.e. 17th August 2012 also lends credence to the

earlier incident of forceful rape by him on the victim on 15th July 2012 which for reasons as

discussed hereinabove the victim and her husband had not immediately disclosed to others to

avoid public disgrace.

In the light of the aforesaid discussion, I have no doubt in my mind that the delay in

lodging FIR has been adequately explained and the version of the victim, P.W.1 stands

corroborated through the evidence of other witnesses, namely, her husband, P.W.2 and her son,

P.W.4 and P.W.5. Evidence of D.W.1, another son of the victim and son-in-law of the appellant,

runs counter to the defence taken by the appellant with regard to the alleged enmity between the

families. On the other hand, his version that all the brothers resided in the same house with their

parents probabilises the presence of P.W.4 at the place of occurrence on the subsequent day

when the appellant sought to outrage the modesty of his mother.

Hence, I am inclined to uphold the conviction recorded against the appellant.

Coming to the

issue of sentence, I find that the appellant has been sentenced to suffer an indeterminate

sentence i.e. life imprisonment for commission of offence punishable under Section 376 IPC.

Keeping in mind the facts and circumstances of the case, I am of the opinion that

sentence imposed on the appellant may be reduced and he is directed to suffer rigorous
imprisonment for 7 (seven) years and to pay a fine of Rs. 50,000/-, in default, to suffer rigorous

imprisonment for one year. Sentence imposed on the appellant on the charge for the offence

punishable under Section 354 IPC shall remain unaltered. Both the sentences shall run

concurrently. Fine amount, if realized, shall be paid to the victim as compensation in terms of

Section 357(1) Criminal Procedure Code

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 Criminal Procedure Code.

The appeal is, accordingly, disposed of.

Let a copy of this judgment along with the lower court records be sent

down to the trial court immediately.

(Joymalya Bagchi, J.)

I agree.

(Ravi Krishan Kapur, J.)

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