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2018 DIGILAW 367 (CAL)

Tareque Bazikar v. State of West Bengal

2018-05-10

ASHA ARORA

body2018
JUDGMENT : Asha Arora, J. 1. This appeal is directed against the judgment and order of conviction and sentence dated 29th May, 2008 passed by the learned Additional Sessions Judge 2nd Fast Track Court, Alipore, South 24 Parganas in Sessions Trial No. 5(7) 2006 arising out of Sessions Case No.53(6) 2006 whereby the accused/appellant was convicted for the offence punishable under Section 376 IPC and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.5000/- in default of which to suffer rigorous imprisonment for six months for the aforesaid offence. 2. Prosecution case, bereft of unnecessary details is as follows: On 8th February, 2005 the defacto complainant Kasem Baidya lodged a written complaint at Baruipur Police Station alleging that his neighbour Tareque Bazikar (appellant herein) had sexual relation with his daughter Ashmira Khatoon, aged about 21 years on the assurance that he would marry her. When Ashmira became pregnant pursuant to such relationship, accused got her pregnancy aborted by giving her medicines. On 25th December, 2004 a ‘salish’ was held in the village to resolve the matter where it was decided the appellant/accused would marry Ashmira but he refused to do so which prompted the defacto complainant to lodge the complaint. On the basis of the written complaint of PW 1 Kasem Baidya, PW3 A.S.I. Anjan Barman initiated Baruipur P.S. case No. 34 dated 8/2/2005 under section 376/313 IPC against the accused/appellant. Investigation into the case culminated in the submission of the charge-sheet under section 376/313 IPC against the accused/appellant. 3. The trial Court framed charge under section 376/313 IPC against the accused/appellant who pleaded not guilty to the indictment and claimed to be tried. During the trial prosecution examined nine witnesses and produced several documents which were exhibited. 4. PW1 is the father of the victim, PW2 is the victim, PW3 is the police officer who registered the case and drew up the F.I.R., PW4 is the scribe of the F.I.R., PW5 is the co-villager in whose presence a ‘salish’ was held to resolve the matter. This witness testified in his evidence that the matter could not be settled since the accused refused to marry Ashmira. PW6 is another co-villager who was declared hostile by prosecution. PW7 is the Judicial Magistrate who recorded the statement of the victim under section 164 Cr.P.C.. This witness testified in his evidence that the matter could not be settled since the accused refused to marry Ashmira. PW6 is another co-villager who was declared hostile by prosecution. PW7 is the Judicial Magistrate who recorded the statement of the victim under section 164 Cr.P.C.. PW8 is the doctor who held medical examination of the victim and conducted the potency test of the accused. PW9 is the Investigating Officer. 5. Defence version is innocence and complete denial of the prosecution story. 6. Upon conclusion of trial the learned Judge convicted the accused/appellant for the offence punishable under section 376 IPC and sentenced him as aforesaid. 7. Castigating the prosecution case on multifarious counts, learned counsel for the appellant submits that the inordinate delay in lodging the F.I.R. has not been explained which makes the prosecution version doubtful. It has further been argued that the evidence of PW1 is hearsay and is not legally admissible. It is pointed out that as per the evidence of PW1 the victim disclosed the incident to her mother who disclosed the same to PW1. This witness has no direct knowledge of the incident. His evidence cannot therefore be relied upon. Learned counsel for appellant sought to empress that the two vital witnesses namely, the victim’s sister and mother to whom she narrated the incident have not been examined. It has also been canvassed that the uncorroborated testimony of the victim is far from trustworthy. To buttress his submissions learned counsel for the appellant placed reliance upon Kaini Ranjan versus State of Kerala reported in 2014 AIR (SC) 261 and K.P. Thimmappa Gowda versus State of Karnataka reported in 2011 (14) SCC 475 . Reference has also been made to the decisions reported in 2010 (2) CHN 413 in the case of Samsul Sarkar @ Duburi versus State of West Bengal and Vijayan versus State of Kerela reported in 2008 (14) SCC 763 . 8. Repudiating the submissions advanced on behalf of the appellant, learned advocate appearing for the State countered that no corroboration is required to the evidence of the victim which is in conformity with her statement under section 164 Cr.P.C.. 8. Repudiating the submissions advanced on behalf of the appellant, learned advocate appearing for the State countered that no corroboration is required to the evidence of the victim which is in conformity with her statement under section 164 Cr.P.C.. Placing reliance upon the decision reported in (2017) 2 SCC 51 in the case of State of Himachal Pradesh versus Sanjay Kumar Alias Sunny it has been argued that the testimony of a victim of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of such statement, the courts should find no difficulty to act upon the uncorroborated testimony of such a victim to convict the accused. On the point of delay in lodging the F.I.R. learned advocate appearing for the State referred to the case of Dildar Singh versus State of Punjab reported in (2006) 10 SCC 531 and (2010) 8 SCC 714 in Satpal Singh versus State of Haryana. It has been contended that the delay in lodging the F.I.R. has been convincingly explained. There is therefore no reason to doubt the prosecution case on this score particularly in a case of sexual assault. 9. It is well settled that corroboration is not the Sine qua non for a conviction in a case of sexual assault. It is to be seen whether the uncorroborated testimony of the victim inspires confidence and is creditworthy. It is also true that delay in lodging the F.I.R. is not fatal to the prosecution in a case of sexual assault since such an offence cannot be equated with other offences. There are several factors which weigh in the mind of the victim and her family members before they decide to lodge a complaint at the police station. Keeping these aspects in mind the evidence led by prosecution needs to be evaluated. 10. PW1 stated in his evidence that the accused had sexual relation with his daughter with a promise to marry her. Pursuant to such physical relation, when his daughter became pregnant he made her consume medicines and got her pregnancy aborted. Ashmira disclosed this fact to her mother who narrated the matter to PW1. In his cross-examination PW1 stated that he had no knowledge about the pregnancy of his daughter nor was he aware of the relationship between accused and his daughter. Ashmira disclosed this fact to her mother who narrated the matter to PW1. In his cross-examination PW1 stated that he had no knowledge about the pregnancy of his daughter nor was he aware of the relationship between accused and his daughter. PW1 testified that about one week prior to the date of ‘salish’ his wife disclosed the aforesaid fact to him. Now this is an incredible story which PW1 sought to make out with a view to explain the long delay in lodging the FIR. It is unlikely and unnatural that the father would not be aware of his daughter's long relationship with the accused who was a neighbour and would often come to their house. At this juncture it is significant to mention that in his cross-examination PW1 categorically asserted that accused never came to their house but in his written complaint PW1 averred that the accused would often visit their house and would take his daughter to the cinema and circus. Being quizzed in cross examination PW1 stated that “he had no knowledge whether the accused used to mix with his daughter in the park, cinema and other places.” It has surfaced in the cross examination of PW2 Ashmira Khatoon that she had love affair with the accused for 3/4 years. It is far from believable that during this long period the father of the victim remained unaware of the liaison between his daughter and accused. PW2 testified in her evidence that accused would call her to his house in the absence of his family members and have sexual intercourse with her on the assurance of marrying her. Due to such physical intimacy she became pregnant. When the accused came to know about this he aborted her pregnancy by giving her some medicines. PW2 stated that she disclosed this fact to her sister Kashmira Bibi who in turn informed their mother. Curiously enough, neither the sister nor the mother of the victim have been examined to corroborate her evidence. It is also surprising that this clandestine relationship continued for more than two years but none of the neighbours or the family members of the accused were aware of it. From the evidence of PW1 it transpires that PW2 had disclosed the matter to her mother and sister. It is also surprising that this clandestine relationship continued for more than two years but none of the neighbours or the family members of the accused were aware of it. From the evidence of PW1 it transpires that PW2 had disclosed the matter to her mother and sister. It is indeed unnatural that the mother of the victim would have kept quiet and not inform her husband or lodge any complaint against the accused. For reasons best known to prosecution, the two material witnesses namely, the mother and sister of the victim have not been examined. There is no explanation for non-examination of these two witnesses. It is well settled that conviction for an offence punishable under section 376 IPC can be based on the sole testimony of the prosecutrix if her evidence is found to be credible and trustworthy. In the present case, for the reasons stated, the testimony of PW2 is far from creditworthy. Apart from this, it transpires from the evidence on record that the village ‘salish’ was held on 25/12/2004 while the written complaint was lodged on 8/2/2005 pursuant to the refusal of the accused to marry the victim. PW5 who was present in the village ‘salish’ testified in his evidence that in the said ‘Salish’ the family members of Ashmira stated that accused should marry her but he refused so the matter could not be settled. If the matter could not be resolved in the ‘salish’, who or what prevented the victim or her father from lodging the FIR promptly thereafter instead of sitting over it for more than one month. There is no plausible explanation for the inordinate delay in lodging the FIR. The decisions relied upon by the learned advocate for the State on this point are clearly distinguishable on facts from the present case. 11. Now the question is whether the evidence on record is sufficient to justify the conviction of the accused/appellant for the offence punishable under section 376 IPC. PW2 stated in her evidence that she had love affair with the accused and when she would go to his house in the absence of his family members, he would have sexual intercourse with her with a promise of marriage. Such relationship continued for 3/4 years. The genesis of the physical intimacy was love affair as has been clearly spelt out by PW2 in her evidence. Such relationship continued for 3/4 years. The genesis of the physical intimacy was love affair as has been clearly spelt out by PW2 in her evidence. It is also evident that PW2 willingly indulged in sexual intercourse with the accused. According to PW2 she consented to physical intimacy with the accused on his assurance that he would marry her. It is difficult to believe that the victim continued to have sexual relation with the accused for such a long period without thinking that the promise to marry may be a mere hoax. It is reasonably expected that as an adult the victim had considered the pros and cons of the illicit relationship in which she indulged for such a long period. It is not the prosecution case that the victim would submit to sexual intercourse with the accused under pressure or threat nor does the evidence of PW2 indicate that she was convinced that the accused would marry her so she continued to have physical intimacy with him. Simply put, the evidence on record does not justify the conviction of the accused/appellant for the offence punishable under section 376 IPC. 12. For the reasons aforestated and having regard to the totality of the circumstances, I am of the view that prosecution failed to prove its case beyond all reasonable doubt. Therefore the conviction and sentence of the appellant is liable to be set aside. 13. Consequently, the appeal is allowed and the impugned judgment of conviction and sentence is set aside. 14. The appellant-accused is acquitted of the charge for the offence punishable under section 376 IPC. 15. He is discharged from bail bond. 16. A copy of this judgment along with lower court records be sent to the trial court forthwith. 17. Urgent photostat certified copy of this judgment if applied for, be given to the applicant upon compliance of requisite formalities.