Joymalya Bagchi, J.@mdashThe appeal is directed against the judgment and order dated 25th March, 2013 passed by the learned Additional Sessions Judge, 4th Court, North 24 Parganas at Barasat convicting the appellant for commission of offence punishable u/s 376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 10,000/- in default to undergo simple imprisonment for three months more.
2. The prosecution case as alleged against the appellant is as follows:
One Pabitra Dey (P.W. 1) lodged a complaint with the Officer in charge of Ashokenagar Police Station alleging that on 17th July, 2012 at about 11 a.m. the appellant called his wife (P.W. 3) to his residence and when she went there, she was taken inside the room, volume of the television was increased and after closing the door of the room she was ravished. The victim was threatened by the appellant that if she disclosed the incident to anybody, the appellant would murder him. After returning home victim disclosed the incident to de facto complainant and tried to commit suicide by hanging with the help of a rope as she was ashamed and not in a position to show her face to society. She was however, saved by a neighbour, namely, Dipankar Nath (P.W. 2). He saw the incident of her attempting to take her life around 10 p.m. in the night and saved her. She was taken to Habra Hospital and subsequently shifted to Barasat Hospital and then to R.G. Kar Hospital at Calcutta for better treatment. Pursuant to such written complaint, Ashokenagar Police Station case No. 371 dated 18th July, 2012 u/s 376 of the Indian Penal Code was registered for investigation. In conclusion of investigation charge sheet was filed u/s 376 of the Indian Penal Code against the appellant. The case being a sessions triable one was committed to the Court of Sessions, North 24 Parganas and transferred to the Court of Additional Sessions Judge, 4th Court at Barasat, North 24 Parganas for trial and disposal. Charge was framed u/s 376 of the Indian Penal Code. The appellant pleaded ''not guilty'' and claimed to be tried. In course of trial prosecution examined as many as eight witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. It was his specific defence that the victim was known to him and used to regularly visit his house. As her husband was incapable of sexual intercourse, she had started mixing with him and they met together several times. On the date of incident the victim had come to his house and his wife was not at home. She cooked his meal and thereafter she suddenly hugged him from behind and they met intimately. Thereafter the victim suggested that they should elope. As he disagreed, the victim threatened him and left his house. The defence however, did not examine any witness to probabilise its defence. In conclusion of trial, the trial Court by the judgment and order dated 25th March, 2013 convicted the appellant for commission of offence punishable u/s 376 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for seven years and fine of Rs. 10,000/- in default to undergo simple imprisonment for three months more.
3. P.W. 1 is the husband of the victim (P.W. 3). He has stated that the appellant had raped his wife on 17th July, 2012 at about 11 a.m. On the next day i.e. on 18th July, 2012 he lodged a written complaint at Ashokenagar police station. He has proved the written complaint and his signature thereon. He further stated that his wife was treated at Habra Hospital and thereafter at Barasat Hospital and lastly at R.G. Kar Hospital in Kolkata as she had attempted to commit suicide by hanging. His brother Amal Dey informed that the appellant had committed rape upon his wife and out of shame she had attempted to commit suicide. Victim had narrated the incident to Amal. In cross-examination, he stated that their marriage had taken place two years ago and the same was a negotiated one. He stated that the village of the appellant is adjacent to his village and the wife of the appellant is the sister of his wife by village courtesy. They were on visiting terms. Wife of the appellant used to keep her handicapped son in the custody of the victim. He stated that his wife used to visit the house of the appellant. He stated that he cannot say who wrote the first information report. He however clarified that the first information report was written as per his instruction.
4. P.W. 2 Dipankar Nath is a neighbour. He stated that the victim tried to commit suicide by hanging at her home and he took her to hospital along with her husband and other members. He also stated that the appellant had raped the victim at his house. In cross-examination, he stated that he had returned to his residence at 9.45 p.m. on 17th July, 2012. His house is adjacent to the house of P.W. 1. The area is a thickly populated one. He stated that he along with Sanjib Dey, Babai Dey and Nantu Dey went to the house of the appellant on 17th July, 2012 around 10.30 to 11 p.m. Then they went to the hospital along with others. He had a talk with the victim at R.G. Kar Hospital when she regained consciousness. The victim had also talk with her husband at R.G. Kar Hospital. He stated various people were interrogated by the police. He also stated that the victim used to visit the house of the appellant. He stated that he had good relation with P.W. 1 and the victim.
5. P.W. 3 is the victim and the most vital witness of this case. She stated that on 17th July, 2012 the appellant had come to her house and called her to his house. After some time she went to the house of the appellant and latter had asked her to cook his food. Accordingly, she cooked a meal. When she informed him that cooking was over he closed the door and windows of the house and kept the television running. Then he raped her against her will. She stated that at that time the mother of the appellant who was of unsound mind and the handicapped child of the appellant was in the house. Mother was in the puja room and the child was in the cot. After the rape, the appellant freed herself by loosing her hands and mouth. The appellant threatened her not to disclose the incident to anyone otherwise he would murder her husband. He also stated that such incidents occur and there was nothing to worry nowadays. She returned home weeping and narrated the incident to her friend Bandana Nath (P.W. 5). Thereafter out of shame she tried to commit suicide at her home. She regained consciousness at R.G. Kar Hospital and returned home on 19th July, 2012 from the said Hospital. On 20th July, 2012 she was interrogated by the police and was medically treated at Ashokenagar State General Hospital. She has proved her signature on the medical report of that Hospital. She also narrated the incident to the Magistrate. She proved her signature on the statement. In cross-examination, she stated that her house and that of the appellant was intervened by a road. She deposed about the topography of the house of the appellant. She has stated the names of her in laws who resided at her matrimonial home. She stated that there was no quarrel between herself and the wife of the appellant. When she enquired of the wife of the appellant, the appellant stated that she was not there. She was wearing night dress and had scarf over her body. She stated that Bandana and other neighbours advised her to institute the case.
6. P.W. 4 is the learned Magistrate who recorded statement of the victim P.W. 3.
7. P.W. 5 Bandana Nath is a neighbour of the victim. She is the wife of P.W. 2. She stated that on 17th July, 2012 at 12 noon she went to the house of the victim for gossiping and found her crying. The victim narrated the incident to her. She narrated the matter to the neighbours who went to the house of the appellant but could not find him. The family of the appellant consisted of his mother, wife, son, brother and brother''s wife. She stated that the victim tried to commit suicide on 17th July, 2012 out of shame. She was shifted to Habra Hospital, thereafter to Barasat Hospital and then to R.G. Kar Hospital at Calcutta. In cross-examination, she has stated that the appellant slapped the victim on her cheek at the time of incident.
8. P.W. 6 is the medical officer of Ashoknagar State General Hospital who examined the appellant and stated that he was capable of sexual intercourse.
9. P.W. 7 is a doctor of Ashok Nagar State General Hospital who examined the victim and stated that commission of rape was a possibility. She found bruise mark in the left throat of the victim. She stated that such type of mark could be found from tying cloth on the neck. In cross-examination, she stated that single man may commit rape on a major lady.
10. P.W. 8 is the Investigating Officer of the case. He stated that A.S.I. Tapas Roy received the written statement and drew up the first information report. He stated that he has prepared rough sketch map of the place of occurrence. He further stated that he did not examine Indrajit Saha, the scribe. He stated that the victim failed to produce her night wear.
11. Learned counsel appearing for the appellant submitted that vital witnesses namely the scribe and the neighbours of the appellant have not been examined. He further submitted that the medical document of R.G. Kar Hospital where the victim was admitted was not exhibited. He submitted that scarf used by the victim to attempt to commit suicide has not been seized. He also stated that as victim was advised to lodge criminal case by P.W. 4 it is likely that the prosecution case is an afterthought to cover up the real incident. It is also his version that attending circumstances in the case do not establish the case of forcible sexual intercourse and the prosecution has not been able to prove its case beyond reasonable doubt. He has relied on the decisions in the cases of i)
12. Mr. Dipanjan Datta learned amicus curiae submitted that it is probable that there was an illicit association between the victim and the appellant and subsequently the appellant was falsely implicated to cover up the real event. There was a substantial age difference between that of P.W. 1 and the victim giving rise to a possibility of matrimonial disharmony.
13. Mr. Ghosh, learned counsel appearing for the State submitted that the evidence of P.W. 3 (victim) is corroborated by P.W. 5 Bandana Nath. Such evidence clearly makes out a case of forcible intercourse. The appellant has admitted the presence of the victim at his house at the fateful day and had also stated in his examination u/s 313 of the Code of Criminal Procedure that they had become intimate on that day. He further submitted that the medical witness P.W. 7 has stated that commission of rape was a possibility. He further submitted that the injury mark on the neck probabilises the case of attempted suicide immediately after the incident of rape which corroborates the prosecution case. He accordingly prayed for dismissal of the appeal.
14. P.W. 3 the victim in the instant case has admitted that she was on visiting terms with the family of the appellant. She had good relation with the wife of the appellant and it had come on evidence that the handicapped child of the appellant was kept in her custody. It is, therefore, not unnatural for the victim to respond to the call of the appellant on the fateful day to go at his house. Accordingly, the victim went to the residence of the appellant and such fact has not been denied by the appellant also in his examination u/s 313 of the Code of Criminal Procedure. It is the case of the victim that after coming to the appellant''s house she found that the wife of the appellant was not in the house. The appellant stated that his wife had gone to the dentist. Mother of the appellant is a person of unsound mind and she was in her puja room. The handicapped son was in the cot. The appellant asked the victim to cook vegetable for him and the victim obliged. Thereafter when the victim told him that she had finished cooking, the appellant suddenly closed the door and windows of the room and forcibly raped her. Thereafter the victim returned weeping to her matrimonial home. She was overcome with remorse and shame. Out of shame, she was unable to confide the incident to her in laws but did so to a friend (P.W. 5) who used to visit her regularly for gossiping. Thereafter in the night before her husband arrived, driven out of shame, she attempted to commit suicide. Such version transpired from the evidence of P.W. 3 and is corroborated by her friend P.W. 5. Bearing in mind the nature of the relationship between the victim and the appellant, it is quite natural that the victim was startled at the behavior of the appellant, forcibly violating her. She came back to her house weeping and was in deep remorse. She was unable to come to terms with such brutal act of sexual assault perpetrated at the behest of a man who was well known to her and with whose family she had visiting terms. She was in deep remorse and shame and was unable to divulge such facts to her husband or her in laws. Victim was also being threatened by the appellant not to divulge such incident to anyone failing which her husband would be murdered. Naturally she confided in a close friend, P.W. 5 Bandana Nath. Bandana narrated the incident to neighbours and such neighbours went to the house of the appellant. Such incident, therefore, became known to the members of the locality. The husband was away from home and was about to return at 10 p.m. Unable to bear the trauma and overwhelmed with shame and depression, the victim attempted to end her life. The incident was noticed by P.W. 2 and others and through their timely intervention her life was saved and she was taken to the hospital for treatment. She narrated the incident in the hospital to P.W. 2 and her husband and the criminal case was registered.
15. Learned counsel for the appellant submitted that it is the evidence of P.W. 1 in Court that Amal Dey had intimated him about the incident while in the FIR it is stated that he heard it from the victim. He criticised the prosecution case on such inconsistency as well as for non-examination of Amal Dey.
16. I find from the evidence of P.W. 3 that she had narrated the incident to Bandana P.W. 5. Bandana in her evidence has stated that she informed the neighbours about the incident and they went to the house of the appellant. It is, therefore, clear that the matter was known to the locality even prior to the husband''s arrival at the residence. P.W. 1 stated that Amal had heard the incident from the victim, P.W. 3. P.W. 2 stated that the victim had a talk with her husband in hospital. Hence, the minor variance in the deposition of P.W. 1, for unfolding of the prosecution case as to the source from where her husband became aware of the incident does not militate against the truthfulness or genuineness of the version of sexual assault perpetrated upon P.W. 3 by the appellant. It has also been argued that the scribe and the neighbours of the appellant have not been examined. I find that P.W. 1 has proved the written complaint. Registration of FIR in the written complaint of P.W. 1 is also established through the evidence of P.W. 8, the Investigating Officer. Hence, non-examination of scribe is not a vital flaw in the prosecution case. It is the evidence of P.W. 3 that rape was committed after closing the windows and door of the room and turning on the television at high volume. Hence, non-examination of the neighbours of the appellant cannot be said to be of much relevance to prove the rape committed by the appellant inside the room behind closed doors.
17. Reliance has been placed on the case of Kaini Rajan vs. State of Kerala (supra) wherein the Apex Court disbelieved the version of prosecutrix on the ground that the incident occurred at 8.30 a.m. beside a public road. Prosecution case was disbelieved on the ground that had the victim raised objection there would have been large number of people to save her. In the instant case, rape was committed within four corners of the room of the appellant and that too behind closed doors and windows. Accordingly, this case is clearly distinguishable on facts to that in Kaini Rajan vs. State of Kerala (supra).
18. Prosecution version has also been criticised on the ground that there is no seizure of treatment records of the victim at R.G. Kar Hospital. I am in agreement with the learned counsel for the State that the investigation in the instant case was conducted in a shoddy and perfunctory manner. It is however, trite law that deficiencies in investigation should not strike a death knell to an otherwise reliable prosecution case. The Investigating Officer ought to have seized the documents relating to the treatment of the victim at R.G. Kar Hospital. It is however, nobody''s case that she was not treated at the said Hospital. It has also been argued that ligature has not been seized during investigation. No adverse inference for non-seizure of ligature or the medical documents can be drawn in the facts of the case as the medical examination of the victim at Ashoknagar State General Hospital shows ligature marks round her neck which probabilises the prosecution case of her attempting to commit suicide immediately after the incident of rape.
19. It has been further argued that no injury was found on the body and hands of the victim although there is evidence on record that her hands were tied. I find that the medical examination of the victim took place after three days of the incident at Ashoknagar Hospital. Therefore, absence of injuries in the said medical report cannot be a ground to disbelieve her version. Reliance on Suresh Podder & Another vs. State of West Bengal (supra) is misplaced in the instant case. In the cited case forcible rape occurred in open field and the mother to whom the victim narrated the incident was not examined. P.W. 7 has opined that commission of rape is a possibility. Absence of injury cannot militate against the prosecution case bearing in mind the time gap between the date of occurrence and the examination of the witness at the said hospital. P.W. 5, Bandana to whom the victim narrated the incident had been examined in this case. The aforesaid factual matrix clearly renders the instant case distinguishable from that of Suresh Podder (supra).
20. The evidence of P.W. 3 is corroborated by P.W. 5. Due to the act of unexpected forcible sexual assault perpetrated on her, the victim was in remorse and even attempted to commit suicide. This is proved by the evidence of P.W. 2 as well as the ligature mark on her neck as transpired from the medical evidence of P.W. 7. Accordingly, the version of the victim P.W. 3 that she was subjected to forcible sexual intercourse by the appellant and subsequently she attempted to end her life out of remorse and shame is proved beyond reasonable doubt.
21. In Ahmad Abbas Choudhary vs. State of Assam (supra) the Apex Court held that the prosecution has to prove its case beyond reasonable doubt. The facts of the instant case show that the appellant had admitted to the presence of the victim at the place of occurrence and the fact that both of them had become intimate on that date. The only issue was whether such act was forcible or not. I have discussed the evidence on record particularly the evidence of P.W. 3 and P.W. 5 which clearly show that the act of the appellant was a forcible one and that as a result of forcible sexual assault perpetrated on her, the victim shortly thereafter out of shame and remorse attempted to commit suicide. Prosecution version, therefore, does not suffer from any inconsistency or irregularity and the same has been proved beyond reasonable doubt.
22. It has been argued at length that the appellant and the victim were on visiting terms and, therefore, it ought to be presumed that such relationship prompted consensual sexual intercourse. It has also been argued that the victim was unhappy in her matrimonial life and consequentially indulged in extra marital sexual liaison with the appellant. I find that the matrimonial life is only of two years. There is nothing on record to show that there was any matrimonial discord. No complaint is forthcoming about the inability of the husband of the victim to discharge matrimonial obligations. It is common experience that the offence of sexual assault are mostly perpetrated by the persons who are relatives or acquaintances of the victim and even members of her own family. National Crime Records Bureau, 2012 statistics show that 98% rapes in India are committed by persons known to the victim, acquaintances or relatives. It is all but natural that a lady will not initially exhibit any hostility or suspicion when in the company of a relation, acquaintance or family friend. Response of the victim to the request of the appellant to go to his house and cook his meal must be seen in that light. Taking advantage of the unsuspecting attitude of the victim, the appellant forcibly violated her. In the existing social milieu, I am therefore of the view that it would be wrong to attribute the conley and decorous attitude initially exhibited by the victim as circumstances probabilising her consent to the sexual act. They are prompted by the close relationship between the families of the victim and the unsuspecting faith of the victim arising from such relationship in the prevailing social milieu. It was beyond imagination of the victim that the appellant, a family acquaintance, would take advantage of her trust and forcibly violate her. Such unexpected act of sexual assault from a quarter she least expected put her in deep remorse and depression even prompting her to commit suicide. The easy and casual relationship between the families of the victim and the appellant is no ground to infer consensual relationship between them. On the other hand, it has given a convenient opportunity to the appellant to satisfy his lust upon the unsuspecting victim.
23. For the reasons aforesaid, I uphold the conviction and sentence imposed upon the appellant by the learned trial Court.
24. The appeal is dismissed.
25. Copy of the judgment along with the Lower court records be sent down to the trial Court immediately.
26. I record my appreciation for the able assistance extended by Mr. Dutta as amicus curiae for disposal of the appeal.
27. Photostat certified copy of the order, if applied for, be given to the parties on priority basis.
