Zindar Ali Sk vs State Of West Bengal & Anr

"REPORTABLE"

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 222 OF 2009 (Arising out of SLP (Crl.) No. 1380 of 2008)

Zindar Ali SK .... Appellant

Versus

State of West Bengal & Anr. .... Respondents

JUDGMENT

V.S. SIRPURKAR, J.

1. Leave granted.

2. This is an appeal against the judgment and order of conviction

passed by the Calcutta High Court, whereby, the appeal filed by the

accused/Appellant, was dismissed. The accused was convicted by Fast

Track, Fourth Court, Krishnagar, Nadia for an offence under Section 376 ,

as also an offence under Section 417 of the Indian Penal Code (hereinafter

for short "IPC"). As per the prosecution case, there was another accused

Naki Mollick in the matter, against whom the Chargesheet was submitted,

but, he being a juvenile, was sent to the Juvenile Court for facing trial. 2

3. As per the prosecution, accused Zindar Ali SK was trying to marry

with prosecuterix Chandmoni Khatoon with the help of Naki Mollick.

Prosecuterix was working as a weaver and on the day of incident, when

she was returning from her work, the accused caught her, taking

advantage of the dark and committed rape on her. The prosecution further

alleged that Naki Mollick abetted the commission of the offence and both

the accused persons threatened to kill her. The accused committed rape

on the prosecuterix several times forcibly and had also falsely assured to

marry her. However, the accused refused to marry the

complainant/prosecuterix and, therefore, the prosecuterix informed the

incident to her family members and neighbours. Salish (a meeting for

resolving the dispute) was held in the Village on 24.2.2003, wherein, it was

decided that the accused should marry the prosecuterix, however, Zindar

Ali refused to marry the prosecuterix. A complaint seems to have been

made to the Chief Judicial Magistrate who issued a direction on 10.7.2003

to the police to register an offence. This became necessary as though she

had approached the police, they advised her to settle the matter amicably

with accused. Ultimately, a Chargesheet was submitted for offences under

Sections 376, 417 and 120-B of IPC. However, it was found that the other

accused Naki Mollick was a juvenile and his trial, therefore, was separated.

As many as 14 witnesses were examined by the prosecution in support of

the prosecution case, including the prosecuterix, her father and mother.

Some documents were also filed, including the medical reports, age reports

etc. Doctors were also examined and ultimately, the accused abjured the 3

guilt and claimed that he had been falsely implicated, as he had refused to

marry the prosecuterix. Ultimately, the Sessions Judge negatived the

defence and came to the conclusion that the offences of rape and cheating

were proved against the accused, and convicted him on those two counts,

however, he was acquitted of the charge under Section 120-B of IPC.

4. As against this, an appeal came to be filed before the High Court,

however, the High Court has dismissed the appeal and that is how, the

matter has come before us.

5. Shri Bijan Kumar Ghosh, Learned Counsel appearing on behalf of

the Appellant, pointed out that the whole prosecution story was extremely

unnatural and weak. The Learned Counsel pointed out that the

prosecuterix was undoubtedly a grown up girl and though as per the

prosecution case, she was raped on 23.2.2003, she not only kept quiet, but

had also indulged in sexual intercourse with the accused again on

subsequent 2 or 3 days and reported the matter only on 27.2.2003 to the

Police Station who did not register the matter and commenced

investigation only after 5 months. The Learned Counsel argued that this

delay was fatal and further suggested that there was an element of

"consent" on the part of the prosecuterix, and as such, there was no

question of any rape. The Learned Counsel further suggested that even

otherwise, the absence of any injury on the person of the prosecuterix

suggests that the prosecuterix had surrendered to the advances made by

the accused and engaged herself in the intercourse as per her will, and 4

both the Courts below have failed to consider this important aspect. Lastly,

the Learned Counsel contended that in fact, there was no Salish or

meeting and there was no question of the accused refusing to marry the

prosecuterix during such meeting. The Learned Counsel suggested that

there was in fact, no sexual intercourse, muchless, against the consent of

the prosecuterix and the accused was falsely implicated on account of his

refusal to marry the prosecuterix, who herself wanted to marry him.

6. Both the Courts below have held on the basis of the evidence of the

prosexuterix, as corroborated by the other evidences that there was not

only a sexual intercourse between the accused and the prosecuterix, but

the same was without the consent and against the will of the prosecuterix

and as such, the accused was guilty of rape.

7. We have gone through the evidence led on behalf of the

prosecution. The prosecuterix was examined as PW-1 and deposed that

the accused was after her, requesting her to marry him, so also his friend,

the other accused also used to tell her that the accused wanted to marry

her. She, however, refused to oblige. She further deposed that the

accused forcibly caught her and put napkin inside her mouth and

committed sexual intercourse against her will and consent. She also

further deposed that the accused had threatened her and also raped her

subsequently for 2 or 3 days. Her wearing apparels were also torn. She

deposed that due to fear of her life, she did not disclose the incident of

rape to anybody, however, after 2/3 days of incident, when the accused 5

refused to marry her, she came home and reported the incident to her

parents. As per her deposition, a Salish was held, where, the accused

declined to abide by the decision taken in that meeting of about his

marrying the prosecuterix. She identified her wearing apparels, which were

seized by the Police. She also identified the accused. There is no

effective Cross-Examination to this witness. One question was asked

about her clinical and physical examination. It was suggested firstly that

she had suffered injuries on her private parts and person. The witness,

however, stated that there was no bleeding injury, meaning thereby, that

the injuries were insignificant considering that she was medically examined

after about 6 months. Such admission is meaningless. Her version

regarding rape, however, has gone unchallenged. She was asked about

the workplace and the boys being there, however, non-disclosure to the

boys would only be a natural behaviour and cannot lead us to the

conclusion that she had consented for the sexual intercourse. There was

no reason for the poor girl to falsely implicate the accused. There is no

suggestion of any love-affair with the accused also. Her version that she

was raped by the accused, goes totally unchallenged. Her version that

she was forcibly caught and a napkin was put inside her mouth before the

accused had committed rape on her, was a little exaggerated, but it does

not demolish her version that she was raped by the accused.

8. PW-2, Moshar SK, in his deposition, had spoken about the

Chandmoni and her father, telling him that Chandmoni was raped by the 6

accused. He had also spoken about the village meeting, where, it was

decided that the accused should marry Chandmoni. Again, there is no

Cross-Examination of this witness. Of course, this witness had stated that

he had not made any statement to the Police, as he was not interrogated.

Anther witness PW-3 Tajem SK (Mallick) also spoke about the village

meeting, which was held at the instance of Markam Ali SK, father of the

prosecuterix. He also claimed that he was not interrogated by the Police.

In his Cross-examination itself, it has come that there were about 200-250

persons present in the village meeting, where, it was decided that the

accused was guilty. The other witnesses examined on the question of the

village meeting was Saheb Ali SK and Markam Ali SK, the father of the

prosecuterix. It will not really be necessary for us to go to the evidence of

the village meeting, where, the accused allegedly admitted that he had the

sexual intercourse, particularly because the evidence of the prosecuterix

on that subject, has remained completely unchallenged and is sufficient to

nail the accused. PW-11 Noorjahan Bibi, who is the mother of the

Prosecutrix specifically spoke about the prosecuterix' reporting to her about

the forcible sexual intercourse committed by the accused Zindar Ali. She

also spoke that when she saw her torn cloths etc., she asked her as to

what had happened, whereupon, the prosecuterix told her about the rape

committed by the accused, however, she was not able to identify the

clothes. She had also spoken about the village meeting. There is again no

Cross-examination of the witness.

7

9. As for the medical evidence, from the evidence of the Dr. P.K. Roy,

PW-7, it becomes apparent that the girl was major. The medical certificate

granted by the Doctor suggests that the Hymen was torn at 6'O clock

position and the rugosity was lost and that the Prosecutrix suggested that

she was assaulted by Zindar Ali SK, about 6 months back. It is to be noted

that the girl was produced for medical examination only on 8.8.2003. The

Sessions Court, as well as, the High Court have rightly accepted the

evidence of the prosecuterix.

10. Shri Ghosh, Learned Counsel for the appellant, pointed out that

allegedly, though there was a village meeting Salish, but there was nothing

on record about the same and, therefore, an uncorroborated testimony of

the prosecuterix should not have been accepted by the Courts below.

11. We have seen that the prosecuterix has very specifically spoken

about the rape. It is, undoubtedly true that the First Information Report in

this case was lodged late, however, it has come on record that the

prosecuterix had filed a petition under Section 156(3) of the Code of

Criminal Procedure on 27.2.2003, on the basis of which, the direction was

issued by the Chief Judicial Magistrate, Krishnagar, Nakashipara Police

Station, for calling investigation into the said allegation. We fail to

understand this unusual stance of police. They high handedly advised the

Prosecutrix to "settle" the matter amicably. The High Court has, in our

opinion, very rightly criticized that the First Information Report should have

been registered only on 19.7.2003 and the direction issued by the Chief 8

Judicial Magistrate, Krishnagar on 10.7.2003 should not have been

followed for good long more than 17 days. All this, undoubtedly, resulted in

the prosecuterix being sent for the medical examination only after 6 months

of the offence. Very important evidence was therefore, lost. However, the

High Court came to the finding, on the basis of the evidence of PW-7 Dr.

Roy and the evidence of the prosecuterix, that prosecuterix was subjected

to sexual intercourse. We do not find anything wrong with that finding.

Once that position is obtained, the only question is whether the said sexual

intercourse was by the accused and whether it was without consent and

will of the prosecuterix. We feel that since the evidence of the prosecuterix

is acceptable, those findings would definitely go against the accused.

12. It is tried to be suggested that the girl did not complain about rape

even to the medical officer PW-7 and instead, complained only that she

was "assaulted", and that PW-7 had deposed that the tear was not injury,

as there was no bleeding. We cannot forget that the girl is an uneducated

rustic person, who had to work to sustain the family. It cannot also be

ignored that she had disclosed the facts to her parents whose version has

again gone unchallenged. She had also asserted that she had told about

the rape in the Village Meeting which version was supported by her parents

and other witnesses. Besides, her medical examination was conducted

after 6 months of the incident. We would, therefore, choose to go on the

basis of the evidence of the prosecuterix. In our view, though the High

Court has given a finding about the village meeting, which was supported 9

by the evidence of PW-2 Moshar SK, PW-3 Tajem SK (Mallick), PW-4

Saheb Ali, as also by PW-6 Markam Ali, the father of the girl, it is really not

necessary to go to that aspect in view of the clinching evidence by the girl.

We would, however, use that evidence as corroborating the fact of

immediate disclosure of rape by the girl. It cannot be forgotten that the girl

stuck to her statement made before the Chief Judicial Magistrate on

13.9.2003, though that statement is not a substantive statement, which

would only show the consistency in the evidence of the girl.

13. The shabby quality of investigation was severely criticized by the

learned counsel. There can be no dispute that the investigation in this

case is not at all satisfactory. There are discrepancies galore. However,

in this case, the truthful version of the prosecutrix cannot be ignored. It is

trite law that the defence cannot take advantage of such bad investigation

where there is clinching evidence available to the prosecution as in this

case. We, therefore, confirm the finding of the High Court that the accused

is guilty of the offence under Section 376 of IPC.

14. We cannot, however, persuade ourselves to agree with the High

Court about the offence of cheating. The evidence about the cheating is of

slip-shod nature and not believable. It is also self-effacing. After all, the

first act of the sexual intercourse was without the consent and the accused

had thereby, committed rape, however, the version that he gave a marriage

promise, would really go against the prosecution, whereby, it would mean

that the subsequent acts were done with the consent of the girl on account 10

of the promise of marriage. We do not think that such could be the

approach. After all, if the promise of marriage was given and the girl had

succumbed on that account, by itself, may not amount to cheating.

Besides this, the girl has very specifically stated that even subsequently,

she was ravished against her wishes. Therefore, the theory of promise of

marriage and the consent for sexual intercourse will wither away. We,

therefore, acquit the accused of the offence under Section 417 of IPC.

15. This takes us to the last argument about the quantum of sentence.

The Courts below have awarded 10 years of imprisonment and a fine of

Rs.5,000. In our opinion, considering the fact that the incident took place

about 6 years back and the fact that the accused is behind the bars for last

about 5 years, as also poverty on the part of the accused, we feel that the

sentence already suffered would be sufficient. The sentence of fine is

however, confirmed. Fine, if recovered shall be paid to the Prosecutrix.

She shall be intimated by sending notice to her. We, accordingly, modify

the sentence. The appeal is disposed of with this modification.

......................................J. (Tarun Chatterjee)

......................................J. (V.S. Sirpurkar)

New Delhi;

11

February 6, 2009.