SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Unknown vs The State Of West Bengal on 26 July, 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 730 of 2008

Habibur Rahaman @ Habai

…Appellant
Versus

The State of West Bengal

…Respondent

For the appellant : Ms.Anasuya Sinha, Advocate
Mr. Rajiv Lochan Chakraborty, Advocate
Mr. Debapratim Guha, Advocate
Mr. Priyajit Kundu, Advocate

For the State : Mr. Pratick Bose, Advocate

Heard on : 30/4/2018, 05/7/2018 23/7/2018.

Judgment on : 26th July, 2018.

Asha Arora, J.:

This appeal is directed against the judgment and order of conviction and

sentence dated 10/9/2008 and 12/9/2008 passed by the learned Additional Sessions

Judge, 1st Fast Track Court, Berhampore, Murshidabad in Sesions Trial No. 3(1) of
2005 arising out of Sessions Serial no. 837 of 2003 convicting the appellant/accused

for the offence punishable under section 376 IPC and sentencing him to suffer

rigorous imprisonment for seven years and to pay a fine of Rs. 15,000/- in default of

which to suffer rigorous imprisonment for a further period of six months for the

aforesaid offence.

Prosecution case in brief as alleged by the prosecutrix in the FIR lodged by her

on 13/7/2002 at 15.25 hrs. at Rejinagar Police Station is as follows:

On 2/1/2001 the accused (appellant) Habai Sk., a neighbour of the prosecutrix,

came to her house during the absence of her family members and committed rape on

her. When the prosecutrix cried out, the accused pressed a cloth on her mouth and

asked her not to disclose the incident to anyone as he would marry her. Thereafter the

accused had sexual intercourse with the prosecutrix on several occasions with the

assurance that he would marry her. On 10/5/ 2002 when the accused refused to

marry the prosecutrix, she divulged the incident to her parents and the villagers

pursuant to which there was a village salish. The accused refused to abide by the

decision of the salish and fled away which prompted the prosecutrix to lodge the

FIR.

On the basis of the FIR (exhibit 1), a proceeding being Rejinagar P.S. Case

No. 64 of 2002 dated 13/7/2002 under section 376 IPC was initiated against the

accused. After due investigation charge-sheet was submitted against the accused
under section 376 IPC. The trial Court framed the charge for the offence punishable

under section 376 IPC against the accused who pleaded not guilty to the arraignment

and claimed to be tried.

In course of trial prosecution examined twelve witnesses. PW1 is the

prosecutrix, PW2 is the mother of the prosecutrix, PW3 is a formal witness who

scribed the FIR as dictated by the prosecutrix, PW4 was the Headmaster of Takipur

High Madrasah School where the prosecutrix was studying in class VII at the

relevant time. In his capacity as the Headmaster of the aforesaid school, this witness

issued a certificate dated 1/4/2002 (exhibit 3) in favour of the prosecutrix certifying

therein her date of birth as 6/9/87 according to the entry in the admission register

(exhibit 4) maintained by the school in the official course. PW5 is a co-villager who

was called by the prosecutrix’s father on 10/5/2002 and after hearing about the

incident from the prosecutrix, he went to the house of the accused/appellant who,

according to PW5 admitted the factum of rape upon the prosecutrix but expressed

his inability to marry her as he was unemployed at that time. PW6 is the Medical

Officer who medically examined the accused on 22/7/2002 and found him to be

capable of sexual intercourse. PW7 is another co-villager who was a member of the

Gram Panchayat at the relevant time. PW7 testified regarding the fact that he was

called by the prosecutrix’s father on 10/5/2002 and on reaching his house he found

PW5, another panchayat member from CPM party present there. PW7 testified that
the prosecutrix narrated the incident to him whereafter he and PW5 went to the

house of accused but did not find him. According to PW7, even on subsequent

occasions the accused was not available in his house when they went there. PW8

was the Officer-in-Charge of Rejinagar P.S. at the relevant time who received the

FIR from the prosecutrix and registered the case on the basis thereof. He endorsed

the case for investigation to S.I. Ujjal Kumar Dutta (PW11). PW10 is the Medical

Officer who medically examined the prosecutrix on 22/7/2002. PW11 is the Sub

Inspector of police who held investigation and PW12 is the Judicial Magistrate who

recorded the statement of the prosecutrix under section 164 CrPC which has been

marked exhibit 2/2. Besides the oral evidence of the witnesses referred, prosecution

relied upon several documents which were tendered in evidence.

Defence version is innocence, complete denial of the prosecution story and

false implication of the accused. No evidence has been led in support of the defence

plea.

Upon hearing the learned counsel for the parties and after perusal of the

evidence on record the learned trial Judge found the accused guilty of the offence

punishable under section 376 IPC. He was accordingly convicted and sentenced as

aforesaid.

Ms. Sinha, learned counsel appearing for the appellant argued that the

inordinate delay in lodging the FIR has not been explained. It is pointed out that the
alleged incident occurred on 2/1/2001 but the prosecutrix disclosed the incident to

her parents on 10/5/2002 when the accused allegedly refused to marry her whereas

the FIR was lodged on 13/7/2002 without any explanation accounting for such

delay. Referring to the cross examination of the prosecutrix wherein she admitted

that she lodged the FIR against the accused so that he may marry her and she had

demanded one lac twenty thousand from the accused, learned counsel for the

appellant sought to impress that the prosecutrix was a consenting party so the

conviction of the appellant for the offence of rape is not justified. It has also been

pointed out that the medical evidence of PW10 who examined the prosecutrix does

not support the prosecution story of rape. It has further been argued that the

prosecutrix was not a minor at the time of the incident as contended by the

prosecution in view of the fact that under the Mohammedan Law a girl attains the

age of majority on attaining puberty. According to the learned counsel for the

appellant, the prosecutrix was not a minor as she had attained puberty at the time of

the incident. Another branch of argument is that the present case is an appropriate

one for invoking the proviso to section 376 IPC for imposing a lesser sentence

considering the special reasons that the case is an old one and the fact that the

appellant married the prosecutrix during the pendency of the appeal and they have

two children. To buttress her submission learned counsel for the appellant placed

reliance upon the case of Baldev Singh and others versus State of Punjab reported
in 2012 (2) Supreme Court Cases (Cri) 706 and Ravindra versus State of

Madhya Pradesh reported in 2015(4) Supreme Court Cases 491.

It is well settled that in a case relating to sexual assault, mere delay in lodging

the FIR does not render the prosecution version doubtful. Delay per- se is not a

mitigating circumstance for the accused where the offence of rape is involved. In the

instant case the delay has been reasonably explained in the FIR as well as in the

evidence of the prosecutrix (PW1) who categorically stated that “there was delay in

lodging the complaint on the ground of village salish.” PW1 did not disclose the

incident to anyone since the accused promised to marry her. On 10/5/2002 when the

accused refused to marry her she disclosed the incident to her parents and to some

villagers pursuant to which there was a village salish. The evidence of the prosecutrix

in this regard has been corroborated by PW5 and PW7 the two co-villagers and

panchayat members who were called by her father on 10/5/2002 to settle the matter.

In normal course a victim of sexual assault is reluctant and hesitant to disclose an

incident of rape even to her family members much less before the police. There is a

tendency to conceal such an incident because it involves the reputation of the victim

as well as the honour of the family. Therefore prosecution version cannot be

disbelieved on account of delayed FIR.

It is equally well settled that the evidence of the victim of sexual assault is

entitled to great weight absence of corroboration notwithstanding. In the case of Om
Prakash versus State of Uttar Pradesh reported in 2006 CRILJ Supreme Court

2913 the Supreme Court held as follows in paragraph 13 of the judgment:

“13. It is settled law that the victim of sexual assault is not treated as

accomplice and as such, her evidence does not require corroboration from any

other evidence including the evidence of a doctor. In a given case even if the

doctor who examined the victim does not find sign of rape, it is no ground to

disbelieve the sole testimony of the prosecutrix.”

The prosecutrix (PW1) recounted her ordeal in her evidence in the following

manner which is quoted hereinbelow:

“An occurrence of rape took place on 2.1.01 at about 7/7-30 PM inside our

own house. At that relevant time my parents were not present in our house.

Taking advantage of the absence of our parents, Habai Sk. of our village came

to our house and called me as his sister and asked me where my parents were. I

replied that my mother went to a different village and my father went to work

as a labourer and did not yet return home. At that time I was sitting in our

room and was engaged in reading my books. At that time he entered my room

where I was engaged in my studies and suddenly caught hold of me and

removed my wearing apparels (Salowar and Kamij) from my body and he also

removed his wearing pant and penetrated his penis into my vagina and started

rubbing and ejaculated himself on my private parts Then I began to raise shout
but I was prevented from shouting by gaging my mouth with a napkin and by

giving me assurance that he would marry me and on that assurance of marrying

me I did not raise any shout. He raped me in this way against my will. Since

there after I did not disclose such occurrence to anybody as he assured to

marry me and I concealed the matter from my parents. Thereafter on 10.5.02

he refused to marry me. Then I disclosed the incident of rape to my parents.”

The prosecutrix withstood the test of extensive cross- examination. No dent

could be made in her testimony which remained unscathed. Nothing could be

elicited in the cross examination of PW1 to demolish her evidence. The defence plea

of false implication does not appeal to reasoning. There was no apparent reason for

a minor girl to falsely implicate the accused by putting her reputation at stake.

Above all, it is incredible and improbable that the parents and relatives of a girl of

tender age would bring dishonour to their family by inventing a false charge of rape

against an innocent person.

The dispute raised regarding the age of the prosecutrix is also of no avail for

the simple reason that in her evidence PW1 and her mother (PW2) categorically

asserted that at the time of the incident the prosecutrix was 13 ½ years old and was

studying in class VII. Their evidence is corroborated by exhibits 3 and 4 proved by

PW4 who was the Headmaster of Takipur High Madrasha School at Rejinagar

where the prosecutrix was studying in class VII at the relevant time. Exhibit 3 is the
certificate of age issued by PW4 on the basis of the date of birth of the prosecutrix as

mentioned in the school admission register(Exhibit 4). The date of birth of the

prosecutrix as per entry in the admission register is 6/9/1987. Under the

Mohammedan Law a girl becomes a major on attaining puberty which is presumed

to be reached at the age of 15 unless there is evidence to show that puberty was

attained earlier. In this context it is significant to refer to the cross- examination of

PW1 wherein it has emerged that at the time of the occurrence her mensturation had

not started. It is therefore evident that the prosecutrix was a minor at the time of the

incident. The argument that the prosecutrix was a consenting party is wholly

devoid of merit for the simple reason that a minor’s consent if any, is of no

consequence.

The residual point for determination is whether it is a fit case for invoking the

proviso to section 376 IPC ( as it stood prior to its amendment by Act 13 of 2013)

for imposing a lesser sentence for ” adequate and special reasons”. In Baldev

Singh’s Case (Supra) the appellants were convicted under section 376(2)(g) and

section 342 IPC and sentenced to ten years rigorous imprisonment and to pay a

fine of Rs. 1000/- each and the sentence was upheld by the High Court. On appeal

before the Supreme Court an application on affidavit was filed stating that the

appellants and the prosecutrix are married (not to each other) and the prosecutrix has

two children. The parties want to finish the dispute, having entered into a
compromise and that the appellants may be acquitted. Considering the aforesaid

aspects the Supreme Court held as follows in paragraph 4 of the judgment:

“4. Section 376 is a non compoundable offence. However, the fact that the

incident is an old one, is a circumstance for invoking the proviso to section

376(2) (g) and awarding a sentence of less than 10 years, which is ordinarily

the minimum sentence under that provision, as we think that there are

adequate and special reasons for doing so.”

In the same context in Ravindra’s case(Supra) the Supreme Court observed

that the case of the appellant is a fit case for invoking the proviso to section 376 for

awarding lesser sentence as the incident is 20 years old and the parties are married

(not to each other) and have entered into a compromise, are adequate and special

reasons.

The relevant paragraphs 17 and 18 of the judgment in Ravindra’s case reads

as follows:

“17. This Court has in Baldev Singh v. State of Punjab, invoked the

proviso to section 376(2) IPC on the consideration that the case was an old one.

The facts of the above case also state that there was compromise entered into

between the parties.”

“18. In light of the discussion in the foregoing paragraphs, we are of the

opinion that the case of the appellant is a fit case for invoking the proviso to
Section 376(2) IPC for awarding lesser sentence, as the incident is 20 years old

and the fact that the parties are married and have entered into a compromise,

are the adequate and special reasons. Therefore, although we uphold the

conviction of the appellant but reduce the sentence to the period already

undergone by the appellant. The appeal is disposed of accordingly.”

In the present case the incident occurred more than 16 years ago. A

supplementary affidavit affirmed by Hasina Bibi has been filed on behalf of the

appellant stating that during the pendency of this appeal the appellant married the

prosecutrix in the year 2009 and their marriage was registered on 10/9/2009. In

support of such contention a copy of the marriage registration certificate has been

produced. It has also been averred in the supplementary affidavit that out of the

wedlock the prosecutrix gave birth to two children in the year 2011 and 2013. A

copy of the birth certificate of the son Raj Rahaman and daughter Muskan Parvin

have been brought on record to substantiate such contention. It has further been

stated in the supplementary affidavit that Hasina Bibi is residing in her matrimonial

home with her husband and children. The fact that the prosecutrix and the appellant

are married (to each other) and have settled in life with their children appears to be

“adequate and special reason” for imposing lesser sentence. Considering the facts

and circumstances hereinabove discussed and in view of the aforesaid decisions, I am
of the opinion that the present case is an appropriate one for invoking the proviso to

section 376 IPC for imposing lesser sentence.

For the reasons aforestated, although the conviction of the appellant is upheld,

the sentence is reduced to the period already undergone by the appellant.

The appeal is thus disposed of.

Lower court records along with a copy of this judgment be sent down to the

trial court.

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

to the applicant upon compliance of requisite formalities.

(Asha Arora, J.)

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation