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2013 DIGILAW 909 (CAL)

S. K. Selim v. State of West Bengal

2013-12-09

KANCHAN CHAKRABORTY

body2013
Judgment : This appeal is against the Judgment and order dated 19.04.2012 and 20.04.2012 passed by the learned Additional District and Sessions Judge, F. T. Court No. 3, Lalbagh, Murshidabad in Sessions Trial No. 08’ July/2008 arising out of Sessions Serial No. 173/2007 thereby convicting the appellant, Selim Sk. Under Section 376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for seven years and to pay a fine of Rs.3,000/-, in default, to suffer rigorous imprisonment for six more months. On 17.01.2006, Tumpa Khatun, aged about 15 years, had been to a ‘Jalsa’ at Idgah Maidan, Habaspur. The appellant, Selim, one of the neighbourers, called her and told her that he had same matters to be spoken to her. He took her away to a dark place and suddenly put her clothing inside her mouth, laid her down on the ground forcibly, disrobed her and raped her. He also threatened her with dire consequence in case of disclosure of the incident. He brandished a knife and threatened to kill her also. Tumpa returned back home but did not disclose the fact for about two days. Thereafter, she narrated the incident to her mother and her mother disclosed the incident to her father. The father of Tumpa taken up the matter with the local people but nothing fruitful yielded. Since there was an effort of settlement, delay was caused in lodging the F.I.R. The F.I.R. was lodged on 01.08.2006 by Asadul Hoque, the father of Tumpa Khatun, which was registered as Bhagwangola Case No. 7/2006 dated 01.02.2006 against the appellant under Section 376 of the Indian Penal Code. The case was investigated into. The victim was medically examined in course of investigation. Her statement under Section 164 Criminal Procedure Code was recorded. The investigating officer, on conclusion of the investigation, filed a charge-sheet against the appellant under Section 376 of the Indian Penal Code. The appellant faced the trial as he pleaded not guilty. The learned Trial Court upon consideration of evidence on record found that the prosecution brought home the charge leveled against the appellant and accordingly, recorded the order of conviction and sentence which is impugned in this appeal. Mr. Chatterjee, learned Counsel appearing on behalf of the appellant contended that there was inordinate delay in filing of the F.I.R. which has not been explained. Mr. Chatterjee, learned Counsel appearing on behalf of the appellant contended that there was inordinate delay in filing of the F.I.R. which has not been explained. He also stated that the medical examination report of the victim has not supported the prosecution case. The oral testimony of the prosecutrix has not also been supported by corroborative evidence of other witnesses. The local people, like P.W. – 3, 4 and 5 were declared hostile. Time of incident mentioned in the F.I.R., 164 statement of the victim and as stated by the victim in Court are different. No injury was detected on the body of the victim although she claimed that she sustained some injuries while resisting the appellant. Mr. Chatterjee contended that all these discrepancies and shortfalls in the prosecution case together create a doubt as to the genuinity of the prosecution case. Accordingly, the Judgment appealed against is liable to be set aside. Mr. Binoy Panda, learned Counsel appearing for the respondent-State of West Bengal contended that this is a full proof case where the prosecutrix has given vivid description of the incident supported by her statement recorded under Section 164 Criminal Procedure Code. He contended that there was no enmity between the family of the victim and the appellant and his family. There was no reason for a minor girl to implicate the appellant falsely in such a case at the cost of her chastity. He contended that medical examination was conducted long after the date of incident and as such, there was no possibility of getting any sign of rape or injury on the private part or body of the victim. He contended that the learned Trial Court considered the evidence in proper manner and came to a right conclusion which is not required to be interfered with in this appeal. I have gone through the entire evidence on record, oral and documentary. It is true that there was considerable delay in lodging of the F.I.R. The F.I.R. which has been marked exhibit – 2 itself contains the explanation for such delay in filing of the same. I have gone through the entire evidence on record, oral and documentary. It is true that there was considerable delay in lodging of the F.I.R. The F.I.R. which has been marked exhibit – 2 itself contains the explanation for such delay in filing of the same. A careful reading of the evidence of the P.W. – 1, the victim, the P.W.-2, a local man, the P.W.-6, a local man, the P.W. – 8, father of the victim makes it abundantly clear that immediately after disclosure of the fact by the victim to her mother who, in turn, disclosed the fact to the P.W.- 8, father of the victim, there was an effort on the side of the family of the victim to settle the dispute by way of taking up the matter in a village meeting. The village meeting actually had taken place but ultimately failed. Thereafter, the family of the prosecutrix decided to report the incident to the police station by way of lodging the F.I.R. So, I find that the delay in lodging the F.I.R. has properly and satisfactorily explained by the prosecution and that cannot be a reason for disbelieving the case of the prosecution. It is on record that incident has taken place on 17.01.2006. The medical examination of the victim held on 06.02.2006 that is about 19 days after the incident. Naturally, there was no opportunity for the Doctor to detect any injury either in the private part of the victim or any part of her body. Therefore, absence of mark of injury on the private part of the victim and on the other part of her body appears to be insignificant. The prosecutrix who has been examined as P.W.- 1 stated categorically that he had been to the ‘Jalsa’ on the fateful night. The appellant, Selim called her for the purpose of talking with him and took her to a lonely place. Thereafter he committed rape her after pushing her wearing apparel inside her mouth. She tried to resist but was threatened at the point of knife. She did not disclose the incident to anybody for 2/3 days. Thereafter, she disclosed the matter to her mother and her mother, in turn, disclosed the incident to her father. Thereafter he committed rape her after pushing her wearing apparel inside her mouth. She tried to resist but was threatened at the point of knife. She did not disclose the incident to anybody for 2/3 days. Thereafter, she disclosed the matter to her mother and her mother, in turn, disclosed the incident to her father. She stated categorically that there was an effort of settlement in village salish but the matter was not settled as the appellant and his family did not accept the verdict of the salisi. The statement of the P.W.-1 has been supported by P.W.-8, the father of the victim, P.W.-6, a local man and P.W.-2, the scribe of the F.I.R. who happened to be a local man also. The P.W.- 6 stated that at about 9.00 p.m. the incident allegedly had taken place and he could recall that there was a religious function at Edgah which Tumpa, the victim attended. He heard that Selim, the appellant called Tumpa and Selim had taken her to a lonely place. P.W.-8, the father of the victim has stated that he came to know about the incident two days after the commission of the rape on Tumpa by the appellant. Mother of Tumpa disclosed it to him and on hearing that fact, he called meeting in the village but no decision could be taken. Thereafter, police was informed. The statement of the victim under Section 164 Criminal Procedure Code has been marked exhibit – 1. I have carefully gone through the contents of the exhibit – 1. It appears therefrom that the victim categorically stated therein that in the ‘Jalsa’ at the Edgah, Selim called her and said that he had something to say. She followed Selim to a nearby lonely place full of trees. Selim suddenly put her clothing inside her mouth, laid her down on the field and thereafter disrobed her and committed rape. She stated also before the Magistrate that Selim has threatened her with dire consequence at the point of a knife. She made it clear that she did not disclose the incident for 2/3 days but thereafter narrated the incident to her mother who, in turn, disclosed the incident to her father. The local people were also informed to arrange for a meeting so that there could be a settlement, which ultimately failed. She made it clear that she did not disclose the incident for 2/3 days but thereafter narrated the incident to her mother who, in turn, disclosed the incident to her father. The local people were also informed to arrange for a meeting so that there could be a settlement, which ultimately failed. I find sufficient corroboration of the statement of the P.W.- 1, the prosecutrix. There is no evidence on record to establish that the victim or her family had any axe to grind against the appellant. It is settled principle of law that conviction for committing rape can be recorded basing on sole testimony of prosecutrix without corroboration, if the testimony is found trustworthy and consistent. In the instant case, I find that the learned Trial Court has rightly came to a conclusion that the evidence of prosecutrix was consistent, trustworthy and cogent enough to rely on without corroboration from the statement of the other witnesses. In this case, the statement of the prosecutrix, however, has been corroborated by her father and two other co-villagers. Therefore, there is nothing on record to discard her evidence. From the foregoing discussion, I find that the appeal is lacking merit. The Judgment impugned is not suffering from any illegality or incorrectness. The evidence was properly appreciated by the learned Trial Court. Therefore, the Judgment is not required to be interfered with in this appeal. Accordingly, the appeal is dismissed. The Judgment impugned is affirmed.