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2009 DIGILAW 797 (CAL)

Samsul Sarkar @ Duburi v. STATE OF WEST BENGAL

2009-10-30

ASHIM KUMAR BANERJEE, KALIDAS MUKHERJEE

body2009
Judgment : MUKHERJEE, J. (1.) This appeal is directed against the judgment of conviction and sentence passed by the learned Assistant Sessions Judge, 2nd Court, Hooghly in Sessions Trial No. 73 of 2002 sentencing thereby the appellant to suffer rigorous imprisonment for ten years under Section 376 of the Indian Penal Code with a further direction to pay a sum of Rs.50,000/- under Section 357 of the Cr.P.C. as compensation to the victim in default to suffer S.I. for three years. (2.) The victim girl lodged complaint with the O.C. Balagarh P.S. District Hooghly alleging that on the last part of the Jaishta/ Ashar 1408 B.S. she worked in the house of Khodabox Sarkar of her village and used to boil and thrash paddy for 3-4 days. One day at noon when she went to the house of Khodabox Sarkar @ Duburi, the youngest son of Khodabox Sarkar named Samsul took her to his room inside the house and raped her. Samsul Sarkar used to perform the duty of making payment of wages in cash and kind (rice) to the labourers. When she started crying being raped by Samsul Sarkar, he promised that he would marry her and told not to divulge the incident to others. Accordingly, the victim out of shame and fear did not tell it to anybody. After that incident whenever she used to go to Samsul Sarkar for collecting money and rice for her wages, Samsul Sarkar raped her several times on the false pretext that he would marry her. Because of acquaintance with him she used to go to Samsuls room to watch T.V. during noon and he used to commit rape upon her with the promise of marriage. The victim became pregnant and when she asked Samsul he threatened to kill her. Subsequently, her parents understood everything and on being asked she divulged the matter. Her father told the villagers about the incident, but, Samsul declined his responsibility. Under such circumstances, the victim lodged the complaint on 16.02.2002. (3.) After receipt of the complaint, the Balagar P.S. Case No. 9 of 2002 dated 16.2.2002 was started and after completion of investigation charge-sheet was submitted. Charge was framed under Section 376 of the Indian Penal Code. The accused pleaded not guilty and claimed to be tried. Under such circumstances, the victim lodged the complaint on 16.02.2002. (3.) After receipt of the complaint, the Balagar P.S. Case No. 9 of 2002 dated 16.2.2002 was started and after completion of investigation charge-sheet was submitted. Charge was framed under Section 376 of the Indian Penal Code. The accused pleaded not guilty and claimed to be tried. (4.) In this case prosecution examined as many as 11 P.W.s. (5.) Learned Counsel appearing on behalf of the appellant submits that the victim girl after the alleged commission of rape did not narrate the incident to others and it was after eight months of pregnancy she allegedly disclosed it to her parents. It is contended that the abstinence on the part of the victim in disclosing the alleged commission of rape to others raises serious doubt about the veracity of the prosecution case. It is further contended that, during trial the learned defence Counsel submitted before the learned trial Court that the alleged commission of rape was out and out false and the prosecution had ample opportunity to make the prayer for DNA test of the child to ascertain the parentage of the child, but, the prosecution did not take any step as it appears from the evidence of the IX). It is submitted that the learned trial Court was not justified in placing the onus upon the defence holding that the accused did not pray for DNA test of the child to prove his innocence. (6.) The learned Counsel appearing on behalf of the State submits that it is for the accused to pray for holding DNA test of the child to prove his innocence and since it was not done by the accused, the learned trial Court, was justified in convicting the accused and passing the sentence under the impugned judgment. (7.) During the hearing of this appeal, the learned Counsel for the appellant submits that the necessary order may be passed for holding the DNA test to ascertain the parentage of the child and the appellant was willing for the DNA test and the submission was made accordingly by the learned defence Counsel before the learned trial Court. But, neither during the stage of investigation nor during the trial any order was made by the learned Magistrate or trial Court for holding the DNA test. But, neither during the stage of investigation nor during the trial any order was made by the learned Magistrate or trial Court for holding the DNA test. The learned Counsel for the appellant further submits that for holding DNA test consent was necessary and, as such, we directed the learned Counsel appearing for the State to ascertain whether or not the victim girl was willing for the DNA test of the child. The learned Counsel for the State has submitted the report of the concerned P.S. to the effect that the whereabouts of the victim girl are not known. Such being the position, we are to decide this appeal on merits. (8.) P.W.1 is the victim girl. It is in her evidence that she worked in the field and her father had no land. She has stated that she was the maid-servant in the house of the accused and the accused raped her in his house in the month of Ashar. It is in her evidence that the parents of the accused live in his house and the incident took place two years and five months ago; after rape she conceived and gave birth to a child; while she was carrying for eight months, she narrated the matter to her father and mother who disclosed it to the villagers; those persons told the accused, but, the accused denied his responsibility telling that he did not rape her; she gave birth to a child after carrying for nine months. (9.) It is in the evidence of P.W.1 that she is 19/20 years of age at the time of her deposition. P.W.2, the father of the victim has stated that his daughter is 19/20 years old at the time of deposition. P.W.1 has stated that she was not examined by the doctor which was also corroborated by her mother P.W.4. The learned trial Judge held that the non-examination of the victim by the doctor was not fatal. No documentary evidence was adduced regarding the age of the victim girl. (10.) In the case of Sudhangshu Pramanick and Ors. P.W.1 has stated that she was not examined by the doctor which was also corroborated by her mother P.W.4. The learned trial Judge held that the non-examination of the victim by the doctor was not fatal. No documentary evidence was adduced regarding the age of the victim girl. (10.) In the case of Sudhangshu Pramanick and Ors. v. State of West Bengal, reported in 2005 (3) CHN 420 the victim girl was between 15 years 9 months and 16 years 9 months on the date of incident and it was observed as follows: -"17.........It is a settled rule that if a full grown girl consents to the act of sexual intercourse on a promise of marriage and continued to indulge in such activity until she becomes pregnant, it is an act of promiscuity on her part and not an act induced by misconception of fact and the accused cannot be roped on a charge of rape. In this connection, the cases of Jayantirani v. State of West Bengal, reported in 1984 Cr.LJ 1535 (Cal), Hari Majhi v. State of West Bengal, reported in 1990 Cr.LJ 650 (Cal) and Uday v. State of Karnataka, reported in 2003 SCC (Cri) 775, may well be referred to..........." (11.) It is in the F.I.R. that because of acquaintance with the accused the victim used to go to Samsuls room to watch T.V. during noon and he used to commit rape upon her with the promise of marriage. The factual matrix of the instant case is similar with those of the case cited above. It has been held in the aforesaid decision that continued indulgence in cohabitation with a promise of marriage is an act of promisquity and not induced by misconception of fact and it does not come within the purview of Section 376 of the Indian Penal Code. (12.) Apart from the act of promiscuity, there are serious infirmities and inconsistencies in the instant case which raise serious doubt on the veracity of the prosecution case. (13.) The victim (P.W.1) could not say in her cross-examination when she informed her father and mother regarding the relationship with the accused person. But it is evident from the evidence of the father of the victim P.W.2 and the mother of the victim P.W.4 that the victim disclosed about the incident after eight months of pregnancy. (13.) The victim (P.W.1) could not say in her cross-examination when she informed her father and mother regarding the relationship with the accused person. But it is evident from the evidence of the father of the victim P.W.2 and the mother of the victim P.W.4 that the victim disclosed about the incident after eight months of pregnancy. This abstinence on the part of the victim from making disclosure about the incident as alleged is not in consonance with ordinary human conduct. It is true that a village rustic woman does not feel inclined to make disclosure if such an incident happens, but, in spite of that the non-disclosure on the part of the victim for such a long time is bound to be viewed with suspicion. There is also no reasonable explanation for the inordinate delay in lodging the F.I.R. (14.) As regards the very engagement of the victim girl in the house of the accused, it transpires from the evidence of the I.O. P.W.11 that the father of the victim girl did not tell him in his statement under Section 161 that his daughter was working in the house of the accused for four years and that accused Samsul used to reside in his house alone. So, the father of the victim girl being the vital witness regarding the very fact of engagement of victim girl to work in the house of the accused, in his earlier statement did not tell it to the I.O. and, such statement for the first time at the time of trial, diminishes the evidentiary value of his testimony on this point. (15.) It was the defence suggestion that the victim girl used to mix with Subhas and as a result thereof she conceived. On this point, P.W.5," before being declared hostile, could not say the name of the person who caused such pregnancy of Chandana. In the cross-examination by the defence after being declared hostile he has stated that Subhas had to pay the fine of Rs.3,000/- for Chandanas pregnancy. (16.) It was suggested by the defence that Baisakhi, the sister of Anjan Ghosh, married a muslim man and, as such, there was excitement in the village and that the villagers including this accused resisted the communal riot. (16.) It was suggested by the defence that Baisakhi, the sister of Anjan Ghosh, married a muslim man and, as such, there was excitement in the village and that the villagers including this accused resisted the communal riot. It is also the defence version that Chandana and her parents used to work in the houses of different people including Anjan Ghosh and due to the instigation of Anjan Ghosh, the accused has been falsely implicated in this case. On this point P.W.1 in her cross-examination has stated that there was probability of communal riot with the incident of marriage between Baisakhi and Kauser, but, could not say whether this accused resisted the communal riot. (17.) P.W. 4 the mother of the victim girl although denied it, the father of the victim girl being P.W.2 stated in cross-examination that one Hindu girl got married with one Mohamadan male being involved in love affair and that lady was the sister of Anjan Ghosh. He has also stated that his daughter used to work in the house of Anjan Ghosh. (18.) P.W. 6, a co-villager has stated in his Examination-in-Chief that he personally interrogated Samsul, but, he denied the allegation that he caused the pregnancy of Chandana. This witness was not declared hostile. The Doctor, who examined the accused Samsul Sarkar opined that the person was capable of doing sexual intercourse. In the cross-examination he has stated that there is specific medical test or examination to ascertain the paternity of any person and without observing that specific medical examination none can ascertain the paternity of any person. Under such circumstances the DNA test assumes much importance. We find that the learned trial Judge wrongly placed the onus upon the defence as to the DNA test to prove the innocence. We have already mentioned that prosecution did not pray for holding the DNA test to establish the paternity of the child and the fact, therefore, remains that without the paternity of the child being established, the conviction and sentence as recorded by the learned trial Judge can reasonably be said to have been based on surmise and conjecture. The evidence of the prosecutrix is not convincing and having regard to the totality of evidence, the appellant is entitled to get the benefit of doubt. The evidence of the prosecutrix is not convincing and having regard to the totality of evidence, the appellant is entitled to get the benefit of doubt. (19.) After giving anxious consideration to the submissions made by the learned Counsel for the parties and on perusal of the evidence on record we are of the considered view that the appellant is found not guilty of the charge under Section 376 of the Indian Penal Code. The learned trial Judge was not justified in recording the conviction and sentence under the impugned judgment. (20.) The appeal is allowed. (21.) We, therefore, set aside the impugned judgment of conviction and sentence. The appellant is acquitted and be released immediately, if not wanted in any other case. (22.) Let a copy of this judgment be sent to the Correctional Home where the appellant is now detained. Let a copy of this judgment along with the Lower Court Records be sent to the learned Court below immediately. Urgent xerox certified copy, if applied for, be handed over to the parties as early as possible.