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Unknown vs The State Of West Bengal on 10 May, 2018

Form no. J(1)

In the High Court at Calcutta
Criminal Appellate Jurisdiction
Appellate Side

Present:
The Hon’ble Justice Asha Arora

C.R.A 401 of 2008

Tareque Bazikar
…Appellant

Versus

The State of West Bengal
…Respondent

For the appellant : Mr. Sandipan Ganguly, Advocate
Mr. Krishnendu Bhattacharya, Advocate
Mr. Somsuvra Mukherjee, Advocate

For the State/Respondent : Mr. Debajyoti Deb, Advocate

Heard on : 19.01.2018, 16.02.2018, 01.05.2018 and
03.05.2018.

Judgment on : 10th May, 2018

Asha Arora, J.:

This appeal is directed against the judgment and order of conviction

and sentence dated 29th May, 2008 passed by the learned Additional
Sessions Judge 2nd Fast Track Court, Alipore, South 24 Parganas in

Sessions Trial No. 5(7) 2006 arising out of Sessions Case No. 53(6) 2006

whereby the accused/appellant was convicted for the offence punishable

under Section 376 IPC and sentenced to suffer rigorous imprisonment for

seven years and to pay a fine of Rs.5000/- in default of which to suffer

rigorous imprisonment for six months for the aforesaid offence.

Prosecution case, bereft of unnecessary details is as follows:

On 8th February, 2005 the defacto complainant Kasem Baidya lodged a

written complaint at Baruipur Police Station alleging that his neighbour

Tareque Bazikar (appellant herein) had sexual relation with his daughter

Ashmira Khatoon, aged about 21 years on the assurance that he would

marry her. When Ashmira became pregnant pursuant to such

relationship, accused got her pregnancy aborted by giving her medicines.

On 25th December, 2004 a ‘salish’ was held in the village to resolve the

matter where it was decided the appellant/accused would marry Ashmira

but he refused to do so which prompted the defacto complainant to

lodge the complaint.

On the basis of the written complaint of PW 1 Kasem Baidya, PW3

A.S.I. Anjan Barman initiated Baruipur P.S. case No. 34 dated

8/2/2005 under section 376/313 IPC against the accused/appellant.

Investigation into the case culminated in the submission of the charge-

sheet under section 376/313 IPC against the accused/appellant.

The trial Court framed charge under section 376/313 IPC against

the accused/appellant who pleaded not guilty to the indictment and

claimed to be tried. During the trial prosecution examined nine

witnesses and produced several documents which were exhibited.

PW1 is the father of the victim, PW2 is the victim, PW3 is the police

officer who registered the case and drew up the F.I.R., PW4 is the scribe

of the F.I.R., PW5 is the co-villager in whose presence a ‘salish’ was held

to resolve the matter. This witness testified in his evidence that the

matter could not be settled since the accused refused to marry Ashmira.

PW6 is another co-villager who was declared hostile by prosecution. PW7

is the Judicial Magistrate who recorded the statement of the victim under

section 164 Cr.P.C.. PW8 is the doctor who held medical examination of

the victim and conducted the potency test of the accused. PW9 is the

Investigating Officer.

Defence version is innocence and complete denial of the

prosecution story.

Upon conclusion of trial the learned Judge convicted the

accused/appellant for the offence punishable under section 376 IPC and

sentenced him as aforesaid.

Castigating the prosecution case on multifarious counts, learned

counsel for the appellant submits that the inordinate delay in lodging

the F.I.R. has not been explained which makes the prosecution version

doubtful. It has further been argued that the evidence of PW1 is hearsay
and is not legally admissible. It is pointed out that as per the evidence of

PW1 the victim disclosed the incident to her mother who disclosed the

same to PW1. This witness has no direct knowledge of the incident. His

evidence cannot therefore be relied upon. Learned counsel for appellant

sought to empress that the two vital witnesses namely, the victim’s sister

and mother to whom she narrated the incident have not been examined.

It has also been canvassed that the uncorroborated testimony of the

victim is far from trustworthy. To buttress his submissions learned

counsel for the appellant placed reliance upon Kaini Ranjan versus

State of Kerala reported in 2014 AIR (Supreme Court) 261 and K.P.

Thimmappa Gowda versus State of Karnataka reported in 2011(14)

Supreme Court Cases 475. Reference has also been made to the

decisions reported in 2010(2) CHN 413 in the case of Samsul Sarkar

@ Duburi versus State of West Bengal and Vijayan versus State of

Kerela reported in 2008(14) Supreme Court Cases 763.

Repudiating the submissions advanced on behalf of the appellant,

learned advocate appearing for the State countered that no corroboration

is required to the evidence of the victim which is in conformity with her

statement under section 164 Cr.P.C.. Placing reliance upon the decision

reported in (2017)2 Supreme Court Cases 51 in the case of State of

Himachal Pradesh versus Sanjay Kumar Alias Sunny it has been

argued that the testimony of a victim of sexual assault is vital and

unless there are compelling reasons which necessitate looking for
corroboration of such statement, the courts should find no difficulty to

act upon the uncorroborated testimony of such a victim to convict the

accused. On the point of delay in lodging the F.I.R. learned advocate

appearing for the State referred to the case of Dildar Singh versus State

of Punjab reported in (2006)10 Supreme Court Cases 531 and (2010)8

Supreme Court Cases 714 in Satpal Singh versus State of Haryana. It

has been contended that the delay in lodging the F.I.R. has been

convincingly explained. There is therefore no reason to doubt the

prosecution case on this score particularly in a case of sexual assault.

It is well settled that corroboration is not the Sine qua non for a

conviction in a case of sexual assault. It is to be seen whether the

uncorroborated testimony of the victim inspires confidence and is

creditworthy. It is also true that delay in lodging the F.I.R. is not fatal

to the prosecution in a case of sexual assault since such an offence

cannot be equated with other offences. There are several factors which

weigh in the mind of the victim and her family members before they

decide to lodge a complaint at the police station. Keeping these aspects

in mind the evidence led by prosecution needs to be evaluated.

PW1 stated in his evidence that the accused had sexual relation

with his daughter with a promise to marry her. Pursuant to such

physical relation, when his daughter became pregnant he made her

consume medicines and got her pregnancy aborted. Ashmira disclosed

this fact to her mother who narrated the matter to PW1. In his cross-
examination PW1 stated that he had no knowledge about the pregnancy

of his daughter nor was he aware of the relationship between accused

and his daughter. PW1 testified that about one week prior to the date of

‘salish’ his wife disclosed the aforesaid fact to him. Now this is an

incredible story which PW1 sought to make out with a view to explain the

long delay in lodging the FIR. It is unlikely and unnatural that the father

would not be aware of his daughter’s long relationship with the accused

who was a neighbour and would often come to their house. At this

juncture it is significant to mention that in his cross-examination PW1

categorically asserted that accused never came to their house but in his

written complaint PW1 averred that the accused would often visit their

house and would take his daughter to the cinema and circus. Being

quizzed in cross examination PW1 stated that “he had no knowledge

whether the accused used to mix with his daughter in the park,

cinema and other places.” It has surfaced in the cross examination of

PW2 Ashmira Khatoon that she had love affair with the accused for 3/4

years. It is far from believable that during this long period the father of

the victim remained unaware of the liaison between his daughter and

accused. PW2 testified in her evidence that accused would call her to his

house in the absence of his family members and have sexual intercourse

with her on the assurance of marrying her. Due to such physical

intimacy she became pregnant. When the accused came to know about

this he aborted her pregnancy by giving her some medicines. PW2 stated
that she disclosed this fact to her sister Kashmira Bibi who in turn

informed their mother. Curiously enough, neither the sister nor the

mother of the victim have been examined to corroborate her evidence. It

is also surprising that this clandestine relationship continued for more

than two years but none of the neighbours or the family members of the

accused were aware of it. From the evidence of PW1 it transpires that

PW2 had disclosed the matter to her mother and sister. It is indeed

unnatural that the mother of the victim would have kept quiet and not

inform her husband or lodge any complaint against the accused. For

reasons best known to prosecution, the two material witnesses namely,

the mother and sister of the victim have not been examined. There is no

explanation for non-examination of these two witnesses. It is well settled

that conviction for an offence punishable under section 376 IPC can be

based on the sole testimony of the prosecutrix if her evidence is found to

be credible and trustworthy. In the present case, for the reasons stated,

the testimony of PW2 is far from creditworthy. Apart from this, it

transpires from the evidence on record that the village ‘salish’ was held

on 25/12/2004 while the written complaint was lodged on 8/2/2005

pursuant to the refusal of the accused to marry the victim. PW5 who

was present in the village ‘salish’ testified in his evidence that in the said

‘Salish’ the family members of Ashmira stated that accused should

marry her but he refused so the matter could not be settled. If the

matter could not be resolved in the ‘salish’, who or what prevented the
victim or her father from lodging the FIR promptly thereafter instead of

sitting over it for more than one month. There is no plausible explanation

for the inordinate delay in lodging the FIR. The decisions relied upon by

the learned advocate for the State on this point are clearly

distinguishable on facts from the present case.

Now the question is whether the evidence on record is sufficient to

justify the conviction of the accused/appellant for the offence

punishable under section 376 IPC. PW2 stated in her evidence that she

had love affair with the accused and when she would go to his house in

the absence of his family members, he would have sexual intercourse

with her with a promise of marriage. Such relationship continued for 3/4

years. The genesis of the physical intimacy was love affair as has been

clearly spelt out by PW2 in her evidence. It is also evident that PW2

willingly indulged in sexual intercourse with the accused. According to

PW2 she consented to physical intimacy with the accused on his

assurance that he would marry her. It is difficult to believe that the

victim continued to have sexual relation with the accused for such a long

period without thinking that the promise to marry may be a mere hoax.

It is reasonably expected that as an adult the victim had considered the

pros and cons of the illicit relationship in which she indulged for such a

long period. It is not the prosecution case that the victim would submit

to sexual intercourse with the accused under pressure or threat nor does

the evidence of PW2 indicate that she was convinced that the accused
would marry her so she continued to have physical intimacy with him.

Simply put, the evidence on record does not justify the conviction of the

accused/appellant for the offence punishable under section 376 IPC.

For the reasons aforestated and having regard to the totality of the

circumstances, I am of the view that prosecution failed to prove its case

beyond all reasonable doubt. Therefore the conviction and sentence of

the appellant is liable to be set aside.

Consequently, the appeal is allowed and the impugned judgment

of conviction and sentence is set aside.

The appellant-accused is acquitted of the charge for the offence

punishable under section 376 IPC.

He is discharged from bail bond.

A copy of this judgment along with lower court records be sent to

the trial court forthwith.

Urgent photostat certified copy of this judgment if applied for, be

given to the applicant upon compliance of requisite formalities.

(Asha Arora, J.)

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