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2012 DIGILAW 1009 (CAL)

Nikhil Sardar v. STATE OF WEST BENGAL

2012-12-05

KANCHAN CHAKRABORTY

body2012
Judgment :- Kanchan Chakraborty, J. This appeal is directed against the judgment and order dated 17.12.2009 passed by the learned Additional Sessions Judge, Fast Track Court No. IV, Krishnagar, Nadia in Sessions Trial No. XIII (9) 2007 thereby convicting the appellant Nikhil Sardar for committing offence under Section 376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for seven years with fine of Rs.1,000/-. The judgment impugned has been assailed on the following grounds:- (i) that the learned Trial Court failed to apply its judicial mind in the matter of appreciating evidence in its true and proper perspective; (ii) that the learned Trial Court erred in holding that the victim girl was below 16 years on the date of the alleged incident; (iii) that the learned Trial Court failed to appreciate that the victim girl was a consenting party to the sexual relationship and, as such, the appellant cannot be said to have committed the offence of rape; (iv) that the learned Trial Court was oblivious of the fact that the pregnancy of the victim girl, as claimed by the prosecution, was doubtful; (v) that the learned Trial Court also failed to appreciate that there was inordinate delay of fifteen months in lodging the First Information Report and the reasons provided by the prosecution for such delay was not sufficient and satisfactory; and (vi) that the judgment being otherwise bad in law, is liable to be set aside. This case was initiated by Rekha Sardar, aged 17 years on 08.03.2006, by way of lodging one First Information Report in Tehatta Police Station. The allegations in the First Information Report lodged by her, in a nutshell, is that on 01.01.2005, Nikhil Sardar, the appellant herein, who happened to be a neighbour of the victim, called her at his residence in absence of all the inmates of Nikhil Sardar. The victim girl, Rekha went to Nikhil’s house on good faith but Nikhil forcibly committed sexual intercourse with her against her will and when she tried to raise hue and cry, she was assured by Nikhil that he would marry her. Relying on such assurance of Nikhil, Rekha and Nikhil continued their sexual relation till Rekha conceived and was carrying for four months. Relying on such assurance of Nikhil, Rekha and Nikhil continued their sexual relation till Rekha conceived and was carrying for four months. When pregnancy of Rekha was made public and Nikhil was asked to marry Rekha by the villagers in a salish, he initially agreed to marry her but, afterwards, refused to do so. Since Nikhil refused to marry Rekha, Rekha lodged the First Information Report and, accordingly, Tehatta Police Station Case No. 55 of 2006 was started and investigated into. In course of investigation, st atementof the victim Rekha was recorded under Section 164 of the Code of Criminal Procedure. Rekha was medically examined. On conclusion of investigation, the Investigating Officer of the case submitted charge sheet against the appellant under Sections 376/417 of he Indian Penal Code. The appellant was arrayed to face the charges under Sections 376/417 of the Indian Penal Code. As he pleaded innocence and wanted to be tried, the trial commenced. The learned Trial Court recorded oral evidences of as many as twelve witnesses examined on behalf of the prosecution. The ossification Test Report, one marriage salisynama, potency test report of accused, medical report of the victim girl, formal First Information Report, rough sketch map of the place of occurrence and statement of the victim girl under Section 164 of the Code of Criminal Procedure were admitted into evidence and marked exhibits on behalf of the prosecution. The X-ray plates of the victim girl taken for the ossification test were placed before the Court on behalf of the prosecution, admitted into evidence and marked material exhibits I series. No witness was examined on behalf of the accused/appellant. The learned Trial Court, upon consideration of the evidences on record, oral and documentary, came to the findings that the prosecution brought home the charge underSection 376 of the Indian Penal Code. Accordingly, the learned Trial Court recorded conviction of the appellant and passed the order of sentence, which is impugned in this appeal on the grounds mentioned above. Mr. Biswas, learned counsel appearing on behalf of the appellant contended that the learned Court failed to consider the prominent fact, which was found available from the evidence on record, that the victim was a consenting party. Sexual intercourse allegedly started from 01.01.2005 and continued till the victim became pregnant and was carrying for four months. Mr. Biswas, learned counsel appearing on behalf of the appellant contended that the learned Court failed to consider the prominent fact, which was found available from the evidence on record, that the victim was a consenting party. Sexual intercourse allegedly started from 01.01.2005 and continued till the victim became pregnant and was carrying for four months. He also contended that the learned Trial Court wrongly determined that the victim was below sixteen years at the time the first incident dated 01.01.2005 had allegedly taken place. Mr. Biswas contended that the fact of pregnancy of the victim was not also determined by sufficient evidence. There was inordinate delay in lodging the First Information Report and there were contradictory statements of the witnesses, which, obviously has made the prosecution case doubtful. It is further contended by Mr. Biswas that when a woman, above sixteen years of age, had sex on several occasions with the appellant and First Information Report was lodged after becoming pregnant out of such sexual intercourse, the appellant should be given benefit of doubt as the two views are reasonably possible, one that the appellant is guilty and the other that he is innocent. In support of his contention, Mr. Biswas referred to a decision of the Hon’ble Apex Court in K.P. Thimmappa Gowda vs. State of Karnataka, reported in 2011 SAR (Criminal) 367. Mr. Ghose, learned advocate appearing on behalf of the respondent-State of West Bengal contended that when a rape was committed against will of a woman, the question whether the woman was a major or minor become immaterial. Sexual intercourse with a woman against her will is amounting to the offence of rape. He contended further that in the instant case the evidence adduced on behalf of the prosecution altogether suggested clearly that the victim Rekha was below 16 years on 01.01.2005 when she was raped forcibly and, thereafter, a promise to marry was made by the appellant. It is true, Mr. Ghose contended, that she continued sexual relationship with the appellant for quite a long period till she found herself carrying for four months, but that fact does not exonerate the appellant from the offence of committing rape on 01.01.2005. It is true, Mr. Ghose contended, that she continued sexual relationship with the appellant for quite a long period till she found herself carrying for four months, but that fact does not exonerate the appellant from the offence of committing rape on 01.01.2005. Since Rekha was minor at the relevant point of time, when she experienced sexual intercourse for the first time with the appellant and that too against her will, question of being a consenting party does not arise in view of Section 90 of the Indian Penal Code. She, subsequently, became a consenting party under a misconception of the fact that the appellant would marry her. Since she was a minor at that relevant period of time, Section 90 of the Indian Penal Code squarely applies in this case. Mr. Ghose contended that this is a case, which has been established by sufficient and satisfactory evidence. The learned Trial Court appreciated the evidence in a perfect manner and arrived at a conclusion correctly. There is no necessity, Mr. Ghose contended, to upset the judgment impugned. In this case, the incident dated 01.01.2005 was not witnessed by any person. Therefore, the prosecutrix is the most vital and important witness. It is trite law that in a case of rape, corroboration of the statement of the prosecutrix by evidence of other witnesses is not required unless and until Court finds her testimony is not reliable and acceptable. The victim Rekha Sardar was examined as P.W. 2 on 5th February, 2008. On that date she mentioned her age as 19 years. She has stated that three years back she was called by the appellant and, when she went to the house of the appellant, the appellant forcibly committed rape on her by putting gag in her mouth. She raised hue and cry. The appellant told her not to be worried because he would marry her. She stated further that she had sexual intercourse with the appellant on several occasions thereafter and, ultimately, she became pregnant for four months. She proposed the appellant to marry her but was refused. Accordingly, she disclosed the incident to her parents. A village salis (meeting) was held wherein the appellant attended and agreed to marry her but, subsequently, refused to do so. Ultimately, she terminated her pregnancy. She had to lodge First Information Report against the appellant. She proposed the appellant to marry her but was refused. Accordingly, she disclosed the incident to her parents. A village salis (meeting) was held wherein the appellant attended and agreed to marry her but, subsequently, refused to do so. Ultimately, she terminated her pregnancy. She had to lodge First Information Report against the appellant. She stated further that in the village meeting a salisnama was prepared in writing. The First Information Report (Exbt. 5) was also lodged by the prosecutrix wherein she also stated that the appellant committed rape on her against her will by putting gag in her mouth. The appellant told her not to be worried because he would marry her. Thereafter, with such assurance of marriage, the appellant and the prosecutrix had sexual intercourse on several times in several places. As a result, she became pregnant for four months. When the appellant refused to marry her, she filed the First Information Report. She also stated in the First Information Report regarding the village meeting wherein the appellant appeared and agreed to marry her. In fact and in substance, the P.W. 2, i.e., the prosecutrix, corroborated the facts stated in the Exbt. 5, i.e., the First Information Report. The P.W. 3 is the father of the prosecutrix. He stated that his daughter raised alarm when she was raped. He stated that three months after the pregnancy of Rekha, he was told about the incident. A village meeting was called on and the appellant agreed to marry the prosecutrix, but, subsequently, refused to do so. Then, the prosecutrix lodged the First Information Report. The P.W. 3, the father of the prosecutrix, stated that at the relevant time Rekha was 14 years old. The P.W. 4, Sadhan Sardar, is a neighbour of the prosecutrix. He stated that the prosecutrix raised alarm and then the appellant assured to marry her. Nowhere within the length and breadth of his deposition, the P.W. 4 stated that he was told about the incident by Rekha. Rekha, i.e., the prosecutrix, has not also stated that she narrated the incident to the P.W. 4. The P.W. 5 is also a local man. He stated that the appellant forcibly committed rape on Rekha with assurance to marry her. He stated further that when Rekha was pregnant for three months, the appellant refused to marry her. The matter was informed by Rekha to her parents. The P.W. 5 is also a local man. He stated that the appellant forcibly committed rape on Rekha with assurance to marry her. He stated further that when Rekha was pregnant for three months, the appellant refused to marry her. The matter was informed by Rekha to her parents. The P.W. 6, another local man, came to know that Rekha was raped by the appellant and that she became pregnant. Over the issue there was a village meeting wherein he was present and signed the salisnama. In the crossexamination he stated that the appellant refused to marry Rekha and, thereafter, the case was initiated. The P.W. 7, the mother of the prosecutrix, stated that the prosecutrix tried to raise alarm but was prevented by the appellant. After rape the appellant assured the prosecutrix to marry her and that fact was told by the prosecutrix to the P.W. 7. She stated further that the intimacy between the appellant and the prosecutrix had grown and, as a result, she became pregnant for three months. Thereafter, she stated further, she was told by the prosecutrix about the entire incident. The matter was informed to the neighbourers and a meeting was called on. The appellant appeared in the matting, agreed to marry Rekha in writing but, afterwards, refused to do so. The P.W. 7 stated that the age of Rekha on 26.03.2008 (the date the P.W. 7 was examined) was about 18 years. The P.W. 9, a local man, stated that Rekha told him and others that she was raped by the appellant and, thereafter, they had sexual intercourse on several occasions and she became pregnant. There was a village meeting wherein the appellant confessed his guilt and assured that he would marry Rekha, but he did not keep his word and when the date was fixed for marriage, the appellant fled away from the village. The P.W. 10 is the doctor who examined Rekha on 20.03.2006. Rekha disclosed to the P.W. 10 that she was 17 years old on that date. The P.W. 1 is the radiologist who conducted ossification test of Rekha on 09.04.2006 and came to a finding that age of Rekha was 16½ years with allowable variation. His report was marked as Exbt. 1 and the X-ray plates taken for that purpose was marked material Exhibits I series. The P.W. 1 is the radiologist who conducted ossification test of Rekha on 09.04.2006 and came to a finding that age of Rekha was 16½ years with allowable variation. His report was marked as Exbt. 1 and the X-ray plates taken for that purpose was marked material Exhibits I series. The learned Trial Court while appreciating the evidence of the witnesses, came to a finding that the victim girl was a consenting party to the sexual intercourse with the appellant and she continued her sexual relation with the appellant till she was carrying for three months, i.e., for about 14 months. The learned Trial Court came to a conclusion that although the victim was a consenting party, she participated in the intercourse on the false promise of marriage offered by the appellant. The learned Trial Court also came to a finding that the victim was below 16 years of age on 01.01.2005. Therefore, the consent of victim was immaterial in this case. It also appears from the judgment impugned that the learned Trial Court found that the victim was taken into the house of the appellant where the appellant applied some force upon her to have sexual intercourse and the victim, accordingly, resisted the appellant and, at that time, the appellant assured her that he would marry the victim very soon and only thereafter the victim submitted her body to the appellant. I have carefully gone through the First Information Report as well as the evidence of the P.W. 2 and, with due respect, take note of the fact that the learned Judge had actually given a mis-description of the fact. The First Information Report says categorically that the victim girl was raped against her will by the appellant by putting gag in her mouth. She raised alarm and, then, the appellant told her not to be worried because he would marry her. Therefore, it is not correct to say that the victim resisted the appellant from committing rape on her. The learned Trial Court misread the evidence and, accordingly, misdescribed the fact in the judgment. To be stated precisely, there was no resistance, whatsoever, from the side of the prosecutrix as it appears from the evidence of the prosecutrix and the fact stated in the First Information Report. The learned Trial Court misread the evidence and, accordingly, misdescribed the fact in the judgment. To be stated precisely, there was no resistance, whatsoever, from the side of the prosecutrix as it appears from the evidence of the prosecutrix and the fact stated in the First Information Report. The statement of the prosecutrix as well as the fact stated in the First Information Report altogether indicates that she tried to raise alarm after commission of the rape and, at that time, the appellant assured her that he would marry her. Therefore, although the fact and evidence has been misread and mis-described, the learned Trial Court was correct in coming to a conclusion that the victim Rekha Sardar had given consent to have sexual intercourse with the appellant without any protest at the first instance. After she was raped, she tried to make some objection and was assured by the appellant that he would marry her. Thereafter, they both continued sexual relation for about 14 months till the victim was carrying for three months and reported the incidents to her parents. Naturally, the question comes in whether the victim was a minor at the relevant period of time or not. According to the learned Judge, the victim was below 16 years of age on 01.01.2005. If so, consent on her part becomes immaterial. It is the case of the appellant that the victim was more than 16 years at the relevant period of time. Therefore, when she was a consenting party and more than 16 years of age and continued sexual relationship with the appellant and there was inordinate delay in lodging the First Information Report in respect of the incident dated 01.01.2005, two views are possible and in that case, the view which creates doubt as to the genuinety of the prosecution case, obviously, go to favour the appellant. The First Information Report, which was marked Exbt. 5, was lodged on 08.03.2006. In the First Information Report, the victim mentioned her age as 17 years, i.e., she was 15 years and 9 months old on 01.01.2005. The P.W. 1, the Radiologist, who conducted the ossification Test of the victim, stated that on 19.04.2006 victim was 16½ years old with allowable variations. That means, on 01.01.2005, the victim was either 14 years 10 months or 17 years 4 months at that time. The P.W. 1, the Radiologist, who conducted the ossification Test of the victim, stated that on 19.04.2006 victim was 16½ years old with allowable variations. That means, on 01.01.2005, the victim was either 14 years 10 months or 17 years 4 months at that time. While examined in Court on 05.02.2008, the prosecutrix mentioned her age as 19 years. If so, on 01.01.2005 she was little less than 16 years of age. The statement under Section 164 of the Code of Criminal Procedure of the victim (Exbt. 8) was recorded on 17.03.2006. She stated to the learned Magistrate while recording statement that she was 17 years old on that date. If so, she was nearly16 years old on 01.01.2005. The evidence of the P.W. 3 that at the relevant period of time, Rekha was 14 years old, cannot possibly be accepted. The P.W. 7, the mother of the victim, was examined on 26.03.2008 and she stated that her daughter was 18 years old on that date, i.e., she was 15 years old on 01.01.2005. On careful scrutiny of the evidence on record over this issue, I find that it was really difficult for the learned Trial Court to ascertain what was the age of the victim on the relevant date, i.e., on 01.01.2005. But, if all the evidences are taken together, it can well be said that she was approximately 16 years old or nearly 16 years old on that date. In other words, she was a quite grown up lady and, obviously having knowledge of consequences of sexual intercourse, which she had with the appellant for the first time on 01.01.2005 at her own will and, thereafter, for about 14 months till she was carrying for ¾ months and reported the incidents to her parents. It is clear from the testimony of the prosecutrix that she continued the said physical relation with the appellant till she was carrying for 3 months. She did not narrate the incident to anyone even to her parents. When she became pregnant for four months, she proposed the appellant to marry her, but she was refused. She narrated the incident to her parents who passed it over to the co-villagers and a village meeting was called on over the issue. Although, the appellant initially agreed to marry the prosecutrix in that meeting, he subsequently declined to do so. When she became pregnant for four months, she proposed the appellant to marry her, but she was refused. She narrated the incident to her parents who passed it over to the co-villagers and a village meeting was called on over the issue. Although, the appellant initially agreed to marry the prosecutrix in that meeting, he subsequently declined to do so. The pregnancy of Rekha was terminated and the First Information Report was lodged thereafter. It is true that in course of trial, salishnama was admitted into evidence, the signatures thereon were proved and marked exhibits on behalf of the prosecution. From the salishnama which was marked exhibits 2 series, it appears that “Ashirbad” of the appellant will be held on 22.02.2006 from the side of the prosecutrix family. It was also decided in the meeting by few gentlemen of the village that the father of the prosecutrix would pay Rs.30,000/-to the appellant. There was nothing in the salishnama, which suggests that the appellant and the prosecutrix had any sexual relation and that the prosecutrix became pregnant because of having sexual relation with or alleged rape by the appellant. The contents of the salishnama were not admitted into evidence. It was prepared on 21.02.2006 as written on the first line of the same. There is interpolation of the date so mentioned in the salishnama. It was initially written as 21.03.2006 but, subsequently, 21.03.2006 was changed into 21.02.2006. A bare reading of the same suggests also that the very next date of the meeting was fixed for “Ashirbad” of the appellant from the side of the prosecutrix family. This salishnama supports the prosecution case that there was a salis but that does not help in any way the prosecution case to the effect that the prosecutrix was pregnant at that time and that was due to rape on her by the appellant on 01.01.2005. It is to be taken note of the fact that the alleged incident had taken place on 01.01.2005 and that meeting was held on 21.02.2006. The First Information Report was lodged on 08.03.2006. Rekha was pregnant for ¾ months at that time. Therefore, a simple arithmetic would indicate clearly that she did not become pregnant due to her cohabitation with the appellant on 01.01.2005. The First Information Report was lodged on 08.03.2006. Rekha was pregnant for ¾ months at that time. Therefore, a simple arithmetic would indicate clearly that she did not become pregnant due to her cohabitation with the appellant on 01.01.2005. It is found from the evidence of the prosecution witnesses that she was continuing physical relationship with the appellant since 01.01.2005 and continued for about 14 months when she found herself carrying 3 months. Thereafter, the meeting (salish) was held and one month after the meeting, the First Information Report was lodged. It is already found that the prosecutrix was a grown up girl of nearly 16 years on 01.01.2005 and knew the consequences of having sexual intercourse. According to the P.W. 10, her pregnancy was terminated about seven days before the P.W. 10 examined the prosecutrix on 20.03.2006. Therefore, it is found that her pregnancy was terminated after lodging of the First Information Report. It also makes clear that she did not terminate her pregnancy on the date the alleged meeting of the villagers had taken place. There was no reason for the prosecutrix to wait for lodging the First Information Report till 08.03.2006 when the appellant refused to marry her on 22.02.2006. The P.W. 6, a man who was present in the said meeting and identified his signature in the salishnama (Exbt. 2/2), stated in his cross-examination that pressure was created on the appellant in the meeting to marry Rekha and the appellant refused to marry Rekha. Thereafter, the case was filed. All the facts above altogether leads to the conclusion that the appellant, being a fully grown up girl, aged almost 16 years, had consented to participate in sexual activities with the appellant and that she continued that relation with the appellant for about 14 months till she was carrying for ¾ months. Even we accept that she did so on the false assurance that the appellant would marry her, in that case also it is really hard to accept the prosecution case. From the evidence recorded by the learned Trial Court, two views are reasonably possible. Even we accept that she did so on the false assurance that the appellant would marry her, in that case also it is really hard to accept the prosecution case. From the evidence recorded by the learned Trial Court, two views are reasonably possible. The first one is that the prosecutrix being a grown up lady had consented to have sexual relation with the appellant knowing the consequences of such relation and continued to do so till she was refused by the appellant to marry; and the second one is that the prosecutrix was raped on assurance or false pretext that she would be married by the appellant and force was applied to her. In such a case, the possibility goes in favour of the accused/appellant is to be accepted because he is entitled to get benefit of this. It is already found that the learned Trial Court half-heartedly accepted the prosecution case and recorded conviction simply because on calculation he came to a findings that the victim was little less than 16 years of age on 01.01.2005. While discussing the evidence, the learned Trial Court failed to suppress his anxiousness as to the veracity of the prosecution case. The appellant was forced to marry the prosecutrix in a village meeting. The salishnama although placed in Court, was not proved. Only signatures thereon on were proved. Even it is accepted that the contents were also considered by the learned Trial Court in order to extend justice, in that case also, it is found that nowhere within the length and breadth of the salishnama it has been spelt out that the prosecutrix became pregnant by the appellant and having any sexual relation with him or that she was pregnant on that particular date. There was delay in lodging the First Information Report for about 14 months and no explanation for such delay was given. There is nothing in the evidence of the prosecutrix that when she became pregnant, she reported the matter to her parents and asked the appellant to marry her. She waited for four moths even after becoming pregnant, to report the incident to her parents after being refused to be married by the appellant. This being the position, the benefit of doubt obviously goes in favour of the appellant. In such a case, the decision of the Hon’ble Apex Court in K.P. Thimmappa Gowda (supra) applies squarely. She waited for four moths even after becoming pregnant, to report the incident to her parents after being refused to be married by the appellant. This being the position, the benefit of doubt obviously goes in favour of the appellant. In such a case, the decision of the Hon’ble Apex Court in K.P. Thimmappa Gowda (supra) applies squarely. In view of the discussion above, I find that the judgment impugned is liable to be interfered with and to be set aside. The appellant should have been given benefit of doubt in view of the facts and circumstances of the case and evidence on record. Accordingly, the appeal succeeds and the judgment impugned is set aside. The appellant be set at liberty at once and be discharged from the bail bonds, if any. Interim order, if there be any, stands vacated. There will, however, be no order as to costs.