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.)
