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2017 DIGILAW 984 (CAL)

Tapas Kumar Palmal v. State of West Bengal

2017-12-15

JOYMALYA BAGCHI, MOUSHUMI BHATTACHARYA

body2017
JUDGMENT : Moushumi Bhattacharya, J. 1. This appeal is against a Judgment and order of conviction dated 21st July 2011 and 26th July 2011 passed by the Additional Sessions Judge, Fast Track, 4th Court, Paschim Medinipur, convicting the appellant under section 376 of the Indian Penal Code. By an order dated 5th June 2012 passed by a co-ordinate bench of this Court, the application for bail being CRAN No. 2659 of 2011 was rejected and the appeal was directed to be made ready and placed before the appropriate bench for hearing. The appeal is taken up for hearing today. 2. We have heard learned Counsel for the parties. The First Information Report: 3. The prosecution case against the appellant is of one Sri Ranjit Kumar Palmal, the de-facto complainant, who filed a written complaint before the officer-in-charge (O.C.) of Keshpur P.S. stating, inter-alia, that on 14th January 2010, on the eve of Poush Sankranti, when he was sitting beside a fire with his wife Tapati, his brother Sri Asit Palmal, and Asit Palmal's wife, he suddenly saw Kalyani Rani Palmal, (the victim and wife of his other brother Sri Sujit Palmal), approach them, distraught and trembling, wearing only a petticoat and a torn blouse. She was gagged and her hands tied with the sari which she had been wearing. She collapsed on reaching the place when Ranjit Palmal and the others were sitting. Tapati and Khukumoni, the victim's sisters-in-law, covered her body with the sari after freeing her hands and removing the gag from her mouth. On administering first-aid, the victim regained her consciousness. 4. The victim narrated that she had taken her goats for grazing to Sarisabari when all of a sudden the accused, Tapas Palmal, grabbed her from behind and pushed her to the ground. He thereafter gagged her and tied her hands with the sari which she was wearing and raped her. The rape was committed when the victim had gone to bring back her goats that had gone for grazing. After narrating the incident, the victim lost her consciousness again. She was taken to Keshpur Hospital by some of the witnesses present in Ranjit Palmal's house. The attending doctor at Keshpur Hospital referred her to Medinipur Medical College and Hospital. The police seized the clothes of the victim and prepared a seizure list in the presence of a witness who duly signed the seizure list. She was taken to Keshpur Hospital by some of the witnesses present in Ranjit Palmal's house. The attending doctor at Keshpur Hospital referred her to Medinipur Medical College and Hospital. The police seized the clothes of the victim and prepared a seizure list in the presence of a witness who duly signed the seizure list. The de facto complainant stated that one Tapas Kumar Palmal, a resident of the same village and son of Sri Ajit Palmal had raped the victim after gagging her and forcibly pushing her down on the ground. 5. The original written complaint by the de facto complainant/PW-1 was treated as the FIR dated 14.01.10 under section 154 Cr.PC. The charge against the accused was framed under section 376 and Tapas Kumar Palmal was named as the accused in the FIR. 6. On receipt of the written complaint from Sri Ranjit Kumar Palmal, the O.C. of Keshpur P.S. started Case No. 2/10 dated 14/01/10 under section 376 I.P.C. and entrusted its investigation to sub-inspector (S.I.) Sri Somnath Sanki. A charge sheet was filed against the accused Tapas Kumar Palmal, who was named in the F.I.R. under section 376 I.P.C. 16 witnesses were examined by the prosecution. The prosecution also relied upon several documents which were brought into evidence as Exhibits No. 1 to 10. The Witnesses: 7. PW-1 is Sri Ranjit Kumar Palmal, the de facto complainant and the brother-in-law of the victim. 8. PW-2 is Smt. Khukumoni Palmal, sister-in-law of the victim. She identified the accused on the dock. 9. PW-3 is Smt. Tapati Mondal, another sister-in-law of the victim. She corroborated the evidence of PW-1 and PW-2. 10. PW-4 is Sri Nisith Palmal, another brother-in-law of the victim. He identified the accused on the dock and deposed that the accused was a resident of the same village. He deposed that at the time the crime was committed he had gone to a Pous Mela, which was being held at a distance of about 10 to 12 km from his house. He deposed that on returning home his wife Khukumoni (PW-2) narrated the incident to him. 11. PW-5 is the victim Smt. Kalyani Rani Palmal. Besides narrating the incident, she deposed that she was medically examined and admitted to a hospital for treatment. Her written consent to be medically examined has been brought into evidence as Exhibit- 4. He deposed that on returning home his wife Khukumoni (PW-2) narrated the incident to him. 11. PW-5 is the victim Smt. Kalyani Rani Palmal. Besides narrating the incident, she deposed that she was medically examined and admitted to a hospital for treatment. Her written consent to be medically examined has been brought into evidence as Exhibit- 4. Her signatures in the statements under section 164 Cr.P.C. have also been brought into evidence as Exhibits -5/1, 5/2 and 5/3 respectively. She has given her statement before a Judicial Magistrate. 12. PW-6 is Sri Sujit Palmal, is the husband of the victim. 13. PW-7 is Sri Asit Palmal, is the brother-in-law of the victim. 14. PW-8 is Sri Dilip Palmal, is known to the victim, the de facto complainant, as well as the accused and has identified the accused on the dock. He has deposed that his house is situated about 60/70 Q BTS away from the house of the de-facto complainant. He further deposed that he was in his house when he heard the sound of crying from the house of the de facto complainant. On rushing to the house of the de facto complainant, he found the victim lying senseless on the ground. 15. PW-6, 7 & 8 have corroborated the depositions of PW-1 and PW-5. 16. PW-9 is Sri Panchanan Jana who is an independent witness and who had also rushed to the house of the de facto complainant, on hearing the commotion. He found that the victim in an unconscious state lying in the courtyard of the house of the de facto complainant. This witness accompanied the victim to the hospital. 17. PW-10 is Sri Sachindranath Mondal is also an independent witness and has identified the accused on the dock. He had also gone to the house of the de-facto complainant on hearing a hue and cry and found the victim lying on the ground in a senseless condition and her family members sprinkling water on her face. This witness also accompanied the victim, the de facto complainant, along with other family members of the victim, to Keshpur Hospital. The F.I.R. was lodged in his presence. 18. This witness also accompanied the victim, the de facto complainant, along with other family members of the victim, to Keshpur Hospital. The F.I.R. was lodged in his presence. 18. PW-11 is the first attending Doctor of the V.G. of Keshpur hospital who examined the victim on 14/01/10 and he deposed during the examination that the victim had told him that she had been forcibly raped by Tapas Palmal at about 5.30 p.m. on 14/01/10. The report prepared and signed by this witness has been brought into evidence as Exhibit-6. This witness in his cross-examination stated that he did not find any visible external injury on the victim's person. 19. PW-12 is the Recording Officer of Keshpur P.S. for case No. 2/10 dated 14/01/10. The formal F.I.R. prepared and signed by him has been brought into evidence as Exhibit-7. In his cross-examination, the witness deposed that he has no personal knowledge of the facts of this case. 20. PW-13 is the first Investigating Officer of this case. He was entrusted with the investigation of case No. 2/10 dated 14/01/10 of Keshpur P.S. under section 376 I.P.C., perused the written complaint and visited the P.O. He prepared a rough sketch map of the P.O. along with an index, which has been brought into evidence as Exhibit-8. He examined the available witnesses under section 161 Cr.P.C. and collected the medical examination report which has been brought into evidence as Exhibit-9. He also seized the clothes which the victim was wearing when the crime was committed on her, which has been brought into evidence as Exhibit-2. The search list of the accused has been brought into evidence as Exhibit-3. He subsequently denied that he prepared Exhibit-3 for the purpose of this case and also denied that he had recorded the statement of the victim at the hospital in the presence of other witnesses. It has been admitted by him that the seized articles have not been produced during his evidence on the dock. 21. PW-14 is the second I.O. of this case who was entrusted the case on 17/02/10 and submitted the charge-sheet against the accused named in the F.I.R. after completion of the investigation. He deposed that he had collected the medical report of the victim which has been brought into evidence as Exhibit-10 (or Exhibit-9 as mentioned on the 5th line from the top of this page?) 22. He deposed that he had collected the medical report of the victim which has been brought into evidence as Exhibit-10 (or Exhibit-9 as mentioned on the 5th line from the top of this page?) 22. PW-15 is the Doctor who examined the accused Tapas Kumar Palmal on 10/02/10 and found that the accused was capable of sexual intercourse. The medical report of the accused has been brought into evidence as Exhibit-10. In his cross-examination the witness deposed that during examination he did not find any injury in the private parts of the accused. 23. PW-16 is Dr. Somnath Das, a medical officer who examined the victim on 14/01/10 and found several injuries on her person including nail scratch abrasions on the victim's arms, breasts, thighs, knees and shin bone. The witness further stated that there was evidence of forcible intercourse and the examination report of the victim prepared and signed by PW-16 has been brought into evidence as Exhibit-9. 24. Learned Counsel appearing for the appellant submitted that the impugned judgment and order dated 21/07/2011 was passed despite the unsatisfactory nature of the evidence-on-record. The appellant was sentenced to ten years rigorous imprisonment and a fine of Rs. 5,000/- (Rupees Five Thousand) was imposed, in default of which six additional months of rigorous imprisonment was directed. Learned Counsel further submitted that the case of the prosecution is based on contradictory statements of the prosecution witnesses. He gave a few instances of this; PW-1, the de facto complainant, fails to mention several facts in the F.I.R. which was mentioned in his deposition. He further submitted that the learned Judge should have considered the deposition of PW-11 that no external injury was found on the victim's body. Moreover, according to PW-15, there was no injury in the private parts of the accused. Had it been a case of forcible sexual intercourse, some sort of injury should have been found in the private parts of the accused. The appellant has also stated that the evidence of the victim is unreliable. Appellant submits that the learned Judge should have considered the fact of there being no eyewitnesses to the alleged crime. Further, it has also been submitted that the examination of the accused/appellant under section 313 Cr.P.C. by the learned Judge is unsatisfactory. The appellant has also stated that the evidence of the victim is unreliable. Appellant submits that the learned Judge should have considered the fact of there being no eyewitnesses to the alleged crime. Further, it has also been submitted that the examination of the accused/appellant under section 313 Cr.P.C. by the learned Judge is unsatisfactory. All the circumstances taken into account in convicting the appellant were not brought to the notice of the appellant and the appellant was not given a reasonable opportunity of personally explaining the circumstances. No statutory warning was also given to the appellant. In light of the aforesaid, the conviction should be set aside and the appellant acquitted. It is further submitted that in the event, the conviction is upheld, the sentence may be reduced. Analysis of Evidence: The Victims Version: 25. On the date of the complaint, the victim Kalyani Rani Palmal (PW-5) was married to Sujit Palmal (PW-6) and has two sons. In her evidence she states that she had taken her goats for grazing at Sarisabari, when the accused grabbed her from behind and covered her mouth. On turning to face the attacker, the victim saw that he was Tapas Palmal, the accused. The victim knew the accused as he resided in the same village as the victim. Since the victim shouted and screamed, the accused gagged her mouth and hands with the sari she was wearing and then forcibly pushed the victim to the ground and forcibly tried to rape her. The victim kicked the accused a couple of times to defend herself but the accused fled from the place of occurrence after raping the victim. The victim thereafter walked back to her house and found Tapati Palmal PW-3, Khukumoni Palmal PW-2, Dilip Palmal PW-8, Asit Palmal PW-7 and Ranjit Kumar Palmal PW-1/de-facto complainant sitting beside a fire place by the side of the house of Ranjit Palmal. Upon reaching her house the victim lost her consciousness and collapsed on the ground. On regaining her sense, she narrated the incident to the witnesses who were present. The victim was taken to Keshpur Hospital by Ranjit Palmal, Asit Palmal, Dilip Palmal and Panchanan Jana for medical treatment where she narrated the incident to the attending Doctor. The victim was thereafter referred to Medinipur Medical College and Hospital for better treatment prior to which Ranjit Palmal lodged the FIR. The victim was taken to Keshpur Hospital by Ranjit Palmal, Asit Palmal, Dilip Palmal and Panchanan Jana for medical treatment where she narrated the incident to the attending Doctor. The victim was thereafter referred to Medinipur Medical College and Hospital for better treatment prior to which Ranjit Palmal lodged the FIR. The victim was admitted at Medinipur Medical College and Hospital and medically examined after two days of the incident. She recorded her statement before a Judicial Magistrate at Medinipur Judges Court under section 164 Cr.PC. According to the victim, she received nail scratches on her chest and other places on her body and a proper medical examination was conducted on her. 26. In her cross-examination, there is no material departure from the account of the incident narrated by her. She states that she tried her best to resist the accused even when he was trying to undress her but was overpowered. She states that she may not have disclosed all particulars to the police during investigation including the exact time or duration of the incident at the place of occurrence. She clarifies that her statement was recorded by a Judicial Magistrate after 20/25 days of the occurrence. She denies having an illicit relationship with the accused or that she had falsely deposed out of a grudge against the accused. 27. The account of the victim is almost identical to the evidence of PW-1/de/acto complainant who was present on 14th January when the victim returned home after the incident in a distraught conditions. Witnesses of Fact: Evidence of PW-1/De-factor Complainant: 28. In his evidence PW-1 states that the victim had dust all over her body and PW-1's wife Tapati (PW-3) and sister-in-law Khukumoni (PW-2) untied the mouth and hands of the victim and covered her with the sari which had been used to gag her. The victim narrated the incident after regaining her sense to PW-1 and the others present. PW-1 took the victim to Keshpur Hospital and thereafter lodged and signed the FIR. He then took the victim to Medinipur medical College where the victim was examined and her clothes seized by the police during investigation. PW-1 put his signature on the seizure list. Subsequently, PW-1 accompanied the police to the house of the accused for his arrest. PW-1 took the victim to Keshpur Hospital and thereafter lodged and signed the FIR. He then took the victim to Medinipur medical College where the victim was examined and her clothes seized by the police during investigation. PW-1 put his signature on the seizure list. Subsequently, PW-1 accompanied the police to the house of the accused for his arrest. In his cross-examination, PW-1 states that he did not specifically mention certain details in the FIR in relation to the physical condition of the victim after she returned home. On seeing the victim and raising a hue and cry, about 50 neighbours rushed to his house. PW-1 denies that any false case has been made out against the accused out of enmity or otherwise. Evidence of The Family Members of the Victim: 29. The evidence of PW-2, Khukumoni Palmal (sister-in-law/Jaa of the victim), PW-3 Tapati Palmal (sister-in-law/Jaa of the victim), PW-7 Asit Palmal (brother-in-law of the victim) are identical to the evidence of PW-1. All these witnesses were sitting around a fire on 14th January, 2010 and saw the victim approach them trembling and distressed with her mouth and hands tied up with the sari she was wearing. They also saw the victim become senseless and collapse on the floor. They sprinkled water on the victim's face after which she regained her sense and heard the incident narrated to them by the victim, including naming the accused person who had forcibly raped her. The cross-examination of these witnesses do not reveal any factual or material discrepancies. In fact, PW-2 says that she along with other people from the village visited the place of occurrence the morning after the incident and found that "DHASTA Dhasti Hoyeche ar Sorse Gach Marai Hoye Gacha." Both PW-2 and PW-3 have deposed that Tapas Palmal the accused is a resident of the same village as the victim and the de facto complainant. Evidence of the Neighbours: 30. PW-8 Dilip Palmal, PW-9 Panchanan Jana and PW-10 Sachin Mondal are all neighbours of the de facto complainant who were in their respective houses when they heard a commotion and rushed to the house of the de-facto complainant. On reaching the de facto complainant's house, they found the victim unconscious and lying senseless on the ground. PW-8 Dilip Palmal, PW-9 Panchanan Jana and PW-10 Sachin Mondal are all neighbours of the de facto complainant who were in their respective houses when they heard a commotion and rushed to the house of the de-facto complainant. On reaching the de facto complainant's house, they found the victim unconscious and lying senseless on the ground. They found PW-2 and PW-3 sprinkling water on the victim's face upon which the victim regained her senses and narrated the incident to those present including these three witnesses. These witnesses took the victim to Keshpur Hospital and thereafter to Medinipur Medical College. PW-8 put his signature in the FIR and was present until the victim was admitted to Medinipur Medical College and Hospital. The cross-examination of these witnesses do not reveal any material or factual discrepancies. In his cross-examination PW-8 states that he did not tell the police a few factual details but none of these an amount to any material discrepancy or departure from the evidence given by him. 31. The evidence of PW-4 Nisith Palmal (brother-in-law of the victim) and husband of PW-2 and PW-6 Sujit Palmal (husband of the victim), reveal that both these witnesses were away from their house and had gone to visit a Mela which was being held on the occasion of Poush Sankranti and at some distance from their house. Both these witnesses heard of the incident from their respective wives on returning home. The wife of PW-6 is the victim in the present case. The cross-examination of PW-4 and PW-6 do not reveal any material inconsistencies with the evidence of PW-1, PW-2, PW-3 and PW-7 who actually saw the victim return home in a distraught condition after the incident. Evidence of Medical Witnesses: 32. PW- 11 was attached to Keshpur R.H. as medical officer and examined the victim on 14.01.10, the date of the incident. In his evidence, he states that the victim told him of the incident and also of the identity of the accused and that the victim was fully conscious and alert at the time of recounting of the occurrence. PW-11 prepared a report and signed it in the emergency department. In his cross-examination, he has referred to the report and deposed that it appears from the report that there is no mention of any external injury on the body of the victim. PW-11 prepared a report and signed it in the emergency department. In his cross-examination, he has referred to the report and deposed that it appears from the report that there is no mention of any external injury on the body of the victim. On further cross-examination held on a subsequent date, he states that after examining the victim and administering First-aid to her, he referred the victim to Medinipur Medical College and Hospital for necessary gynaecological test. He reiterates that he did not find any external visible injury and that the patient did not depose as to any injury during the occurrence. He further expressed a view that in the case of a forcible rape it is expected that the victim would receive some sort of injury on her person. 33. PW-16 was posted in the department of FSM in Medinipur Medical College and Hospital as an assistant professor and conducted a medical examination on the victim which has been detailed in the evidence of PW-16. He states that on examination of the victim, several injuries were noted on her body including nail scratch abrasions on the victim's right elbow joint, nail scratch abrasions on the right breast of the victim as well as the right thigh and knee joint and tenderness on the victim's buttocks. PW-16 categorically states that there was evidence of forcible intercourse with the victim. He has prepared a report and containing his observations and views signed the same. In his cross-examination he has reiterated the scratch marks and other injuries visible on the victim's body. Significantly, he also states that there was congestion on the walls of the victim's vagina and proceeds to say that it is not necessary to have abrasion and lacerated wounds on the back side of the victim in the case of forcible intercourse. He states that the cloths of the victim were handed over to the police and sent for chemical examination. 34. PW-15 was an administrator of Medinipur Medical College and examined the accused whereupon he found that the accused was capable of sexual intercourse on basis of which he prepared a report and signed it. In his cross-examination he states that he did not find any injury on the person of the accused which may be found on an attacker in the case of forcible intercourse. 35. In his cross-examination he states that he did not find any injury on the person of the accused which may be found on an attacker in the case of forcible intercourse. 35. PW-12, PW-13 and PW-14 are police personnel who were attached to Keshpur P.S., at the relevant point of time and were. entrusted with the investigation of this case. PW-13 visited the place of occurrence and prepared a rough sketch map with index on that basis. He examined all the witnesses and recorded their statements on 15.01.10 including that of the victim. He lists out the various statements in his cross-examination which were not disclosed to him by the victim including the fact that during the act of committing rape, the victim kicked the accused and the latter fled from the place of occurrence. Findings: 36. From the evidence on record, I have no doubt that the accused raped the victim on 14.01.10 at the place of occurrence. In coming to the aforesaid conclusion, I have taken note of several undisputed facts which appear from the evidence of the principle witnesses in the instant case. These are: (i) The victim PW-5 has said that she was attacked from behind when she had gone to graze her goats at Sarisabari. She has specifically stated that the incident occurred at dusk and that it was not dark. She also states that on being attacked from behind, she turned around and found that it was the accused Tapas Palmal. Hence, there is no ambiguity as to the identity of the accused. The accused was identified on subsequently dark by PW-2, PW-3, PW-4, PW-6, PW-7, PW-8, PW-9 AND PW-10, all of who have stated that the accused used to reside in the same village as the witnesses. (ii) The evidence of PW-1, PW-2, PW-3 PW-5 and PW-7 match the account of the victim (PW-5) from the time the victim reached the house of PW-1 till she was taken to Medinipur Medical College and Hospital. The aforesaid witnesses were the family members of the victim and were present when the victim returned home and personally heard the victim narrate the incident. There are no contradictions in the evidence of these four witnesses and their cross-examination has also not made any dent whatsoever in their accounts of what they actually heard from the victim. The aforesaid witnesses were the family members of the victim and were present when the victim returned home and personally heard the victim narrate the incident. There are no contradictions in the evidence of these four witnesses and their cross-examination has also not made any dent whatsoever in their accounts of what they actually heard from the victim. (iii) The evidence of PW-8, 9 and 10 also match the firsthand accounts of the witnesses (PW- 1, 2, 3 and 7) who had actually seen the victim return to her house in a distraught condition. The evidence of these witnesses is important since all of them had rushed to the house of PW-1 on hearing a commotion and saw the victim lying senseless on the ground. Later on, they also personally heard the victim recount the incident after she regained her consciousness. (iv) The evidence of PW-4 and PW-6 match the accounts of the witnesses who saw the victim returned home since PW-4 and PW-6 heard of the incident from their respective wives. The victim (PW-5) is the wife of PW-6. PW-2 is the wife of PW-4. (v) The distraught condition of victim when she returned home and her physical appearance is testimony to a forced physical encounter between the victim and the accused, This would be evident from her returning home in a torn blouse and petticoat, which is most unusual for a woman in a rural setting. The evidence of the witnesses who saw the victim approaching, particularly PW-2 shows that the victim had dust on her body. PW-2 has clarified that the dust was from the "earth" i.e. the ground on which the victim had forcibly been pushed down upon. Further, her hands and mouth were tied with the sari she was wearing and according to the witnesses present in the same, she was trembling and lost her consciousness upon reaching the house of PW-1. All these facts were personally witnessed by PW-1, PW-2, PW-3 and PW-7 and later on by PW-8, 9 and 10. Unless a woman has been subjected to a forced physical encounter, she would not have returned home in the condition in which the victim returned home on the date of the occurrence. These facts also show that the physical encounter between the victim and the accused was not a consensual one. Unless a woman has been subjected to a forced physical encounter, she would not have returned home in the condition in which the victim returned home on the date of the occurrence. These facts also show that the physical encounter between the victim and the accused was not a consensual one. (vi) From the record it is evident that PW-8, PW-9, PW-10 and PW-16 are independent witnesses. PW-8, PW-9 and PW-10 are neighbours of PW-1 who also knew the accused as a resident of the same village. They are not family members of the victim, PW-1 the de facto complainant or any of the other witnesses who had been sitting beside a fire on 14.01.2010. The evidence of PW-8 PW-9 and PW-10 is similar on facts and we have found no material to disregard the statements made by the independent witnesses. In fact, these witnesses have personally seen the trauma of the victim after the incident and heard her recount the incident including the disclosing the identity of the accused. (vii) The evidence of PW-16, the assistant professor posted at Medinipur Medical College and Hospital who conducted the medical examination on the victim, shows that there were substantial marks of injury on the body of the victim. The fact of the nail scratches on the victim's body is supported by the evidence of the victim herself. PW-16 prepared a report on the basis of the medical examination and categorically states that there was evidence of forcible intercourse with the victim. The medical test involved vaginal smear of the victim being sent for chemical examination. In his cross-examination, the witness has deposed of congestion on the walls of the victim's vagina. The evidence of PW-16, by all means an independent witness, clearly points to the fact that the accused had raped the victim on 14.01.2010. The medical examination was conducted on the victim shortly after the occurrence and on accepted parameters which fact is supported by the evidence of the victim herself. (viii) The evidence of PW- 11, the M.O. attached to Keshpur R.H. has to be discounted in this regard since according to PW-11, he referred the victim to Medinipur Medical College and hospital for a comprehensive gynaecological examination. It can be presumed that this was done due to a lack of infrastructure or gynaecologists in the local Keshpur hospital. (viii) The evidence of PW- 11, the M.O. attached to Keshpur R.H. has to be discounted in this regard since according to PW-11, he referred the victim to Medinipur Medical College and hospital for a comprehensive gynaecological examination. It can be presumed that this was done due to a lack of infrastructure or gynaecologists in the local Keshpur hospital. Needless to say, in the facts of this case, a gynaecological examination on the victim was absolutely crucial to prove an act of forcible physical intercourse with the victim. (ix) The de facto complaint lodged and signed the FIR on the very date of occurrence i.e. 14.01.10, before admitting the victim to Medinipur Medical College and Hospital. PW-1 cannot be faulted for hesitation or delay in informing the police of the occurrence. The statements of the available witnesses were recorded on that very night i.e. at 22.50 hrs. on 14.01.10 and the statements of the other witnesses were recorded on the following day i.e. 15.01.10, the statement of the victim was recorded on the following day i.e. 15.01.10 at Medinipur Medical College and Hospital. Hence, there was no intervening time lag by reason of which the witnesses could have made statements based on an imperfect recollection. (x) PW-15, the administrator attached to Medinipur Medical College and Hospital examined the accused on 10.02.10 and found him to be capable of sexual intercourse, on the basis of which a report was prepared and signed by PW-15. In cross-examination he deposed that there were no injury marks and person of the accused. While the fact of the accused being capable of sexual intercourse is significant the fact that no injury was found on the person on the body of the accused, is not significant since the accused was the perpetrator of the offence. The fact that the victim had resisted by kicking him a few times (evidence of the victim) may not have resulted in any visible injury on his physical person. (xi) In his evidence under section 313 of the Cr.PC, the accused has uttered a solitary line "..........Kalyani had consent in such act." However, we find no evidence from the materials on record to persuade us to believe that the occurrence complained of was not rape but a consensual act of physical passion between the victim and the accused. (xi) In his evidence under section 313 of the Cr.PC, the accused has uttered a solitary line "..........Kalyani had consent in such act." However, we find no evidence from the materials on record to persuade us to believe that the occurrence complained of was not rape but a consensual act of physical passion between the victim and the accused. In a love relationship even in a physical one, the victim would not ordinarily be subjected to painful physical abrasions or gagging. No evidence has been led by any of the independent witnesses or even those deposing for the victim that this was an act other than a forced physical intercourse perpetrated by the accused on the victim. The injuries found on the buttocks, breast, thighs and hands of the victim corroborate the evidence of the victim and the witnesses who had first seen her after she returned home in a traumatised state. The injury on particular positions on the victim's hands and elbows show that the victim's hands were tied up by the accused before she was raped. In a pure test of probabilities and in view of the nature and extent of injuries on the body of the victim and the vaginal injuries/congestion in particular, I find that there indeed has been a forcible act of nonconsensual intercourse by the accused on the victim. In other words, the accused raped the victim. (xii) It is significant that the victim walked from the place of occurrence to the house of PW-1 which according to the rough sketch map prepared by PW-13 covers a distance of about 300 metres. The index to the sketch map shows that the intervening area comprises of mustard fields and cultivated land belonging to various persons, including some of the witnesses. The fact that the victim and the accused were not found at the place of occurrence by a third person is a factor to be taken into consideration for discounting the suggestion of a relationship between the victim and the accused of which no evidence has been led by any of the witnesses. None of the independent witness also have given any evidence in this regard or made any statement suggesting any kind of relationship between the victim and the accused. On the other hand, PW-2 has made a specific statement that the accused is in the habit of disturbing the women of the village. None of the independent witness also have given any evidence in this regard or made any statement suggesting any kind of relationship between the victim and the accused. On the other hand, PW-2 has made a specific statement that the accused is in the habit of disturbing the women of the village. (xiii) The evidence in this case is substantial. 16 witnesses have deposed on the facts of the case and on the medical condition of both the victim and the accused. There is overwhelming evidence pointing to the guilt of the accused in relation to the offence complained of. This is not. a matter where I have been invited to consider the evidence led by a handful of witnesses which could have resulted in incomplete or unsatisfactory conclusions. Conclusion: 37. For these reasons, I have no hesitation in holding that the case of the prosecution has been proved beyond reasonable doubt. 38. The conviction is upheld. 39. However, in view of the fact that the judgment on the Lower Court was passed on 21st July, 2011 and that the accused has already served his sentence for more than six years, I intend to reduce the sentence passed by the First Court from 10 years to 8 years of rigorous imprisonment. The quantum of fine will have to be paid in default of which the accused shall serve rigorous imprisonment for six months more. The period of detention undergone by the appellant during investigation, enquiry and trial shall be set off against his substantive sentence in terms of section 428 of the Code of Criminal Procedure. Joymalya Bagchi, J. I agree.