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2011 DIGILAW 1363 (CAL)

Manik Roy Alias Bishadu v. STATE OF WEST BENGAL

2011-09-28

G.C.GUPTA, RAGHUNATH RAY

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JUDGMENT GIRISH CHANDRA GUPTA 1. THIS appeal is directed against a judgment dated 25th February, 2008 by which the learned Additional District and Sessions Judge, Fast Track 2nd Court, Jalpaiguri, in Sessions Case No. 102 of 2003 corresponding to Sessions Trial No. 29 of 2003 (State of WB vs. Manik Roy) convicted the accused of an offence punishable under Section 376 I.P.C. By an order dated 26th February, 2008 the convict was sentenced to simple imprisonment for 10 years as also to pay fine of sum of Rs. 5,000/-, in default to suffer further simple imprisonment for a year for the aforesaid offence. 2. The facts and circumstances of the case of the prosecution briefly stated are as follows: - On 9th August 2000, the prosecutrix, aged about 16 years, lodged a written complaint alleging, inter alia, that during the period between the months of Aghrayan and Chaitra of 1406 B.S she was at her maternal uncles house in order to look after her ailing maternal grandfather. The accused Manik Roy @ Bishadu, aged about 25 years, a neighbor of the maternal uncle of the de facto complainant was a frequent visitor to the house of the maternal uncle of the prosecutrix. The maternal uncles and their respective wives were a daily labourers. The grandmother also occasionally used to remain absent. At an opportune moment in the month of Falgun ( 1406 B.S.) the accused called at the maternal uncles house of the prosecutrix when no one was there except for the ailing grandfather in a different room. The accused entered the house talking from outside and finding the victim alone raped her. The prosecutrix out of fear and shame did not disclose the incident. Subsequently the accused on the basis of a false promise to marry made her to maintain silence and to submit for further intercourse. As a result her menstruation stopped which she brought to the notice of the accused. He again asked her to keep silence and assured that he would marry her. After 2 or 3 months had elapsed the mother of the prosecutrix noticing unusual signs suspected her and took her to a doctor when the fact that she was pregnant was discovered. Thereafter, the mother of the prosecutrix met the father of the accused. He proposed to hush up the mater in lieu of money. After 2 or 3 months had elapsed the mother of the prosecutrix noticing unusual signs suspected her and took her to a doctor when the fact that she was pregnant was discovered. Thereafter, the mother of the prosecutrix met the father of the accused. He proposed to hush up the mater in lieu of money. The prosecutrix was not willing to accept the proposal. The matter was brought to the notice of the gram panchayat. A meeting was convened on 30th July, 2000. Neither the accused person nor the members of his family appeared thereat. In the circumstances she lodged a written complaint. During the investigation her ossification test was conducted and the reports thereof are exbts. 4 and 5. According to ossification test report on 16th September, 2000 the prosecutrix was above 16 years but below 18 years of age. The potency test of the accused was also conducted and he was found sexually capable. The report in that regard is ext.6. Subsequently, on 20th October 2000 the prosecutrix was delivered of a male child. DNA test was conducted in order to ascertain the paternity of the child. The result thereof is that the prosecutrix is the biological mother of the child and the accused is the biological father of the child as would appear from exbts.8 and 9. 3. Mr. Amit Moitra, learned Advocate appearing for the appellant assailed the impugned judgment on the following grounds: (A) He submitted that it is not the case of the prosecution that there was no one in the house where the alleged rape took place. The ailing grandfather admittedly was there. If the prosecutrix was forcibly raped she was expected to raise hue and cry which does not appear to have been done in this case nor did the police seize any torn wearing apparels which could show any sign of resistance. The nearest neighbor Bulobala Roy was not even examined. He therefore contended that the prosecutrix was in fact a consenting party. (B) The Second submission was that the F.I.R is grossly belated and therefore does not inspire confidence. (C) His third submission was that there is no proof of the fact that the prosecutrix at the material point of time was a minor. (D) Lastly he contented that out of grudge a false F.I.R had been filed. 4. Mr. (B) The Second submission was that the F.I.R is grossly belated and therefore does not inspire confidence. (C) His third submission was that there is no proof of the fact that the prosecutrix at the material point of time was a minor. (D) Lastly he contented that out of grudge a false F.I.R had been filed. 4. Mr. Prasun Dutta, learned Advocate appearing for the State disputed each of the submissions advanced by MR. Moitra. Whether the prosecutrix was a consenting party is the bone of contention. We already have indicated the case of the prosecution appearing from the written complaint and the documentary evidence adduced in the case. The prosecutrix was examined as the P.W.1. She deposed in court inter alia as follows : My ailing grandfather was in his room and whereas I was in separate room. Accused Manik Roy availed of such opportunity and entered inside my room. He caught hold of me and pressed my mouth by his hand and also denuded me and committed sexual inter course upon me forcibly against my will and without my consent. Out of fear I could not express this incident to others. Few days thereafter Manik again came to the said house and proposed to me not to disclose this matter to other and thus he would marry me. But he did not comply with his said promise. Rather he committed sexual intercourse with me thrice four times on the promise of marriage. The cross-examination of the prosecutrix with respect to what was deposed by her during examination-in-chief is as follows :- I mentioned in the written F.I.R. that Manik entered in my room and thereafter he caught hold of me forcibly and also pressed my mouth and also denuded me and thereafter he committed sexual intercourse with me against my will and without my consent. If Manik Roy would agree to marry me I could not lodge any F.I.R. against him. Prior to going before the Doctor at Dhupguri I did not disclose anything about the incident to my mother. I never disclosed about the incident to any one. I was brought to Dhupgari Hospital in the last part of the month of Bhadra. From Dhupguri I was directly carried to the house of my MAMA by my mother. At that time was carrying six months. 5. I never disclosed about the incident to any one. I was brought to Dhupgari Hospital in the last part of the month of Bhadra. From Dhupguri I was directly carried to the house of my MAMA by my mother. At that time was carrying six months. 5. FOLLOWING significant suggestions were given to the prosecutrix during her cross-examination:- Not a fact that accused Manik Roy never committed a sexual intercourse with me. I along with all the members of my family had intention for my marriage with accused Manik. Not a fact that as the family members of the accused Manik Roy were not ready and willing for such marriage we have falsely implicated Manik in this case with false allegations. The trend of cross-examination it would appear was a guarded one and the prosecutrix, an illiterate young woman, withstood the cross-examination well. Why did she not raise a hue and cry or what happened to her wearing apparels were not even asked to the prosecutrix while she was in the box. It is true that Bulobala Roy is the closest neighbor of the place of occurrence. But we have not been told the purpose likely to have been served by citing the said Bulobala Roy as a witness to this case. 6. There is a distinction between a victim of rape and a victim of any other type of physical injury. In the case of latter type of injury the victim may not suffer from any inhibition in disclosing the same which usually is there in the case of the former type of injury which has been judicially noticed by the Supreme Court in a number of cases. In the case of State of Maharastra Vs. Priya Sharan Manaraj and Others reported in 1997 (4) SCC 393 , their Lordships of the Apex Court opined that it often happens that such victims do not complain against such illegal acts immediately because of factors like fear or shame or uncertainties about the reactions of their parents or husbands in case of married girls or women and the adverse consequences which, they apprehend, would follow because of disclosure of such acts. In the case of Omprakash Vs. In the case of Omprakash Vs. State of U.P. reported in 2006 (9) SCC 787 their Lordships opined that In normal course a victim of Sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian woman has a tendency to conceal such offence because it involves her prestige as well as a prestige of her family. Only in few cases, the victim girl or the family members have courage to go before the police station and lodge a case. In the instant case the suggestion given on behalf of the defence that the victim has falsely implicated the accused does not appeal to reasoning. There are still more reasons why the victims of rape fight shy. In the case of Bodhisattwa Goutam Vs. Subhra reported in 1996 (1) SCC 490 Their Lordships opined Conviction rates for rape are still lower than any other major crime and the women continue to argue even today that in rape cases the victimised women, rather than the rapists, were put on trial. A large number of women still fail to report rapes to the police because they fear embarrassing and insensitive treatment by the doctor, the law enforcement personnel and/or the cross-examining defence attorneys : The fear has to be allayed It is, therefore, not very difficult to follow why did the victim not disclose the incident to her maternal uncles or anyone else in the family or outside. Anyone who has the misfortune of finding herself in such a situation would naturally be interested in retrieving the situation without suffering any ignominy. This mentality of the victim was exploited by the accused both for the purpose of buying her silence and exploiting her further giving her false hope of marriage which he never intended to perform. It is not his case that he encountered any insurmountable difficulty to marry the woman nor is it his case that there was any caste restrictions or any other social restriction which stood in the way. During the hearing on the question of sentence under Section 235(2) of the Code of Criminal Procedure he stated that he had old parents, wife, a minor child and another in the womb to support. The examination took place after long 8 years or even longer from the day of the incident. 7. During the hearing on the question of sentence under Section 235(2) of the Code of Criminal Procedure he stated that he had old parents, wife, a minor child and another in the womb to support. The examination took place after long 8 years or even longer from the day of the incident. 7. HAD the prosecutrix been a woman of a promiscuous nature she might have agreed to go in for abortion which appears to have been suggested by the father of the accused. We are as such unable to agree with Mr. Moitra that the prosecutrix was a consenting party. Mr. Moitra cited a judgment in the case of Uday Vs. State of Karnataka reported in 2003 (1) C.L.R. (SC) 555. That judgment in our opinion has no applicability to the facts and circumstances of this case because in that case the prosecutrix was an educated woman and she was deeply in love with the accused. She was also aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept a secret as long as she could. 8. DESPITE this. She did not resist the overtures of the appellant, and in fact succumbed to them. She thus freely exercised a choice between resistance and assent. No elaborate reasoning is required to establish the obvious that the factual scenario in the case before us is altogether different. Why was the F.I.R belatedly lodged is a question which we suppose has been answered by us while dealing with first submission of Mr. Moitra which we need not reiterate. The third submission that she was not a minor is not a fact. There is no doubt that she was below 18 years of age on the date of occurrence. Therefore, she was a minor but for the purpose of Section 376 of the Indian penal Code that minority may not be of much importance. The third submission that she was not a minor is not a fact. There is no doubt that she was below 18 years of age on the date of occurrence. Therefore, she was a minor but for the purpose of Section 376 of the Indian penal Code that minority may not be of much importance. The prosecutrix herself deposed during her examination in- chief that on the date of occurrence she was nearly 16 years old which we think had been corroborated by the ossification test. The report whereof is exbts. 4 and 5. The last point submitted by Mr. Moitra in a sense goes against his client because he has not disclosed any other reason why the prosecutrix should nourish a grudge against him. In the facts of the case if the prosecutrix nurtured a grudge against him she cannot be blamed either. Mr. Moitra also cited the judgments in the case of State of U.P. Vs. Krishna Gopal reported in AIR 1988 (SC) 2154 and the judgment in the case of Narsappa Vs. State of Karnataka reported in AIR 2007 3 (SC) ( CRL) 674, in support of his contention there is no proof that the prosecutrix was a minor. This submission has already been dealt with. These judgment do not lend any further assistance to the appellant. All the points raised by Mr. Moitra have thus been disposed of . In the facts and circumstance of the case, the learned Trial Court has taken a possible view of the matter and there is no reason why we should interfere with the judgment and order passed by the learned Trial Court. 9. IN the result, the appeal fails and is dismissed. The appellant is directed to surrender forthwith to serve out the sentence passed by the trial Court. The Trial Court is directed to use coercive measure if the appellant does not surrender within six weeks from date. Lower Court Records with a copy of this judgment be sent down to the learned trial Court forthwith. Urgent xerox certified copy of this judgment, if applied for, be delivered to the learned Advocates for the parties, upon compliance of all formalities.