Kalidas Mukherjee, J.@mdashThis appeal is directed against the judgment of conviction and sentence passed by learned Additional Sessions
Judge, Fast Track Court - II, Krishnanagar, Nadia in Sessions Trial No. IV of December, 2004 arising out of Sessions Case No. 36 of October,
2004 sentencing the appellants to suffer RI for life and to pay fine of Rs. 4,000/- each in default to suffer RI for four months u/s 376(2)(g) of the
Indian Penal Code.
2. The prosecution case, in short, is that on 13.6.2004 around 12 at night four persons entered into the house of the victim and by putting cloth on
her mouth lifted her away to a nearby field and committed rape upon her. The names of the accused persons are Kurman Sheikh, Shamsul Sheikh,
Idrish Sardar and Marfat Sardar. Each of them were armed with pistol and knife and they threatened her with dire consequences and also to kill
her husband if the incident was disclosed to anyone. The victim and some other families reside in a field and, as such, she could not disclose the
incident to any other person out of fear. After the said incident, the accused persons attempted several times to commit torture upon her. After
receipt of the complaint, the Tehatta P.S. Case No. 158 dated 25.7.2004 was started u/s 376(2)(g) of the Indian Penal Code. The charge was
framed against the accused persons u/s 376(2)(g) of the Indian Penal Code. The accused persons pleaded not guilty and claimed to be tried.
3. The learned Trial Judge upon consideration of the materials on record passed the impugned judgment holding that the evidence of the
prosecutrix was truthful and worthy of credence and no further corroboration was required when the probability factors echoed in favour of the
prosecution. The learned Trial Judge placed reliance upon the evidence of the prosecutrix (P.W.1), the evidence of P.W.2 and the independent
and disinterested witnesses, namely, P.W.6 and P.W.7. The learned judge ultimately convicted the accused persons and passed the sentence as
stated above.
4. Mr. Bhattachryya appearing on behalf of the appellant Nos. 1, 2 & 4 submits that there was delay of 42 days in lodging the FIR and this delay
has not been reasonably explained. It is contended that there are discrepancies between the evidence of the prosecutrix (P.W.1) and the
statements made by her before the learned Magistrate which was recorded u/s 164 Cr PC. Mr. Bhattacharyya contends that in the statement u/s
164 Cr PC there was no mention of holding ''salish''. Mr. Bhattacharyya submits that the alleged holding of ''salish'' has been introduced at the time
of trial.
5. Mr. Bhattacharyya contends that the seizure was made long after the incident and the I.O. did not send the wearing apparels to the chemical
examiner for examination. Mr. Bhattacharyya submits that the papers relating to the alleged ''salish'' were not produced at the time of trial. Mr.
Bhattacharyya contends that the evidence on record does not warrant conviction of the appellants and the learned Trial Judge was not justified in
passing the impugned judgment.
6. Mr. Kazi Saifuddin Ahmed appearing on behalf of the appellant No. 3 submits that in view of the serious discrepancies and improbabilities, the
learned Trial Judge was not justified in passing the impugned judgment of conviction and sentence. Mr. Ahmed submits that the impugned judgment
is not sustainable in law.
7. Mr. Ghosal appearing on behalf of the State submits that the weapons used by the accused at the time of the occurrence were seized and the
Prosecutrix is a rustic lady having no knowledge about the legal aspects of the matter. Mr. Ghosal contends that after the incident the prosecutrix
went to the Panchayat and her testimony regarding ''salish'' was also corroborated by other witnesses.
8. It appears from the evidence on record that the incident took place on 13.6.2004 and the information was lodged with the P.S. on 27.7.2004.
It is significant to note that there is no whisper in the FIR about the holding of ''salish'' by the Panchayat. It is only at the time of trial the prosecutrix
Introduced such case of holding ''salish'' at the Panchayat. Not only that the prosecutrix in her statement u/s 164 Cr PC did not state anything
about the holding of such ''salish''. It is true that in a case u/s 376 Indian Penal Code the evidence of prosecutrix itself is sufficient to warrant
conviction and corroboration is not necessary, ""provided the evidence of the prosecutrix is found worthy of credence and it inspires confidence.
9. P.W. 1 in her evidence stated that the incident took place about 5/6 months ago in the month of Jaishta/Ashar around 12 at night; at that time
she was lying in the verandah of her house; her two children were also lying by her side and at that time four persons whose faces were covered
with cloth came before her and pointed the pistol at her and lifted her from the verandah of her house to a nearby field which was located about
2000 cubits away from her house. It is in her evidence that ''patal'' plants were grown in the said field and the jute plants were grown on the three
sides while banana plants were grown on another side of the said field where the incident took place. She has stated that her wearing apparels,
namely, saree and blouse were taken off and thereafter the four persons raped on her one by one. She has stated that after cornmitting rape the
four persons brought her in a vacant field nearest to her house and left her there. It is in her evidence that she could identify the said persons,
namely, Samsul, Idrish, Kurman and Marfat. She has stated after bringing her in a vacant field, they removed their cloth from their faces and
threatened her not to disclose the said incident to anyone and thereafter they left the field.
10. P.W. 1 has stated that she came back home from the said field and she narrated the incident to her husband who was lying on another side of
the verandah at the material time when she was lifted by the accused persons. It is in her evidence that her husband was then sleeping. She has
stated that subsequently the accused persons came twice/thrice to her house and threatened her not to disclose the said incident to others.
11. P.W. 1 has further stated that after one month of the said incident was reported to the ''morols'' of the village and one ''salish'' took place
where the four accused persons confessed their guilt and in the said ''salish'' it was settled that the accused persons would pay Rs. 6,000/- each.
P.W. 1 has state that the accused persons ultimately refused to pay the said money and did not obey the resolution of the said ''salish'' and
thereafter the ''salishdars'' instructed her to lodge complaint with the P.S. It is also in her evidence that she made a statement before the learned
Magistrate which was recorded u/s 164 Cr PC.
12. P.W. 1 in her cross-examination has stated that Rafique, Faimuddin and Mansur, the members of the Anchal Panchayat, were the ''morols'' of
the village to whom she reported the incident. She has stated that Monsur was the member of the Gram Panchayat and he was elected from the
Congress Party and the accused persons with their family members were the supporters of CPI(M) Party. P.W. 5 who was present in the alleged
''salish'' has stated in cross-examination that Aayasa Bibi is his wife who contested the Gram Panchayat election from Congress Party.
13. From the evidence of P.W. 1 it is clear that she made disclosure of the said incident to the ''morols'' of the village after one month of the
incident and thereafter the alleged ''salish'' was held. This non-disclosure about the incident by the prosecutrix or her husband to the other persons
of the village or their abstinence from lodging complaint with the P.S., is not in consonance with the ordinary human conduct. It is also evident from
the testimony of the prosecutrix that there was political rivalry between the accused persons and the said ''morols'' of the village who held ''salish''
at the instance of the prosecutrix. This political rivalry is also a circumstance which is to be, considered while appreciating the evidence of the
prosecutrix and the veracity of the prosecution case.
14. It is in the cross-examination of P.W. 1 that she sustained scratch mark injury on her body due to the said incident and it was shown to the
Doctor. But the Doctor (P.W.9) has stated that on 27.7.2004 he examined the prosecutrix and found no injury in any part of her body and the
private parts. He opined that the incident of rape could not be confirmed. The statement of the prosecutrix that she suffered scratch mark injuries
on her body and that she had shown the same to the Doctor, did not find corroboration from the evidence of the Doctor (P.W.9).
15. P.W.3 is the learned Judicial Magistrate who recorded the statement of the victim u/s 164 Cr PC. In the cross-examination he has stated that
P.W. 1 did not state to him that she was brought in a ""patal'' field which was located about 2000 cubits away from her house or that the place of
occurrence was surrounded by jute field in its three sides while there were banana plants in one side of the field. He has stated that the P.W.1 did
not state to him that the accused persons threatened her not to disclose the said, facts on the threatening that they would kill her husband. It is also
in his evidence that P.W. 1 did not state to him that one ''salish'' took place at her instance or that the accused persons confessed their guilt in the
said ''salish'' in her presence. This abstinence of the prosecutrix from stating the material facts, gamely, holding of ''salish'', confession made by the
accused persons in the ''salish'' in her presence and the location of the place of occurrence are bound to be viewed with grave suspicion. It is worth
mentioning here that in the FIR the date of incident was stated as 13.6.2004, but, P.W.1 has stated in her chief that the incident took place about
5/6 months ago in the month of Jaishta/Ashar. She could not say the specific date of the incident or the holding of ''salish''.
16. P.W. 6 Saidul Sheikh has stated that around 12 at night he was coming back home after sprinkling water in the paddy field and in the way
back home he found four accused persons in the said field. He has further stated that on query, the four accused persons told him that they were
coming back after hearing songs performed in the village Mirgi. It is in his evidence, that the house of P.W. 1 is situated by the side of his house
and after coming back home he heard the cry of P.W. 1, but, did not go to her house during night and on the next morning P.W. 1 on being asked
told him that the said four accused persons brought her in a field and committed rape on her. But, P.W. 1 did not state specifically that she told
P.W. 6 about the commission of rape upon her by these four accused persons. On the contrary, it is in her evidence that one month after the
incident she told the ''morols'' of the village about the occurrence. P.W.6 has stated that he did not narrate the incident to anyone.
17. P.W. 5 & P.W. 7 who allegedly attended the ''salish'' did not state about the date and place of holding the ''salish''. P.W. 7 in chief has stated
that after 4/5 days of the incident police officer came to the village and seized some articles from the respective houses of the accused persons. The
alleged incident happened an 13.6.2004. According to P.W.7 the seizure was made on 17/ 18th of June, 2004, but, the seizure list (Ext. 5) shows
that the seizure was made on 28.7.2004. The FIR was lodged about 44 days after the incident. So, the evidence of P.W.7 that the Police Officer
came to the village 4/5 days after the incident cannot be believed.
18. P.W.8 Abu Bakkar Sk. has stated that he signed seizure list at 12 midnight sitting at the house of Ramjan i.e the husband of P.W. 1. The
seizure list (Ext. 5) shows that revolver and other articles were seized from the possession of the accused persons at Pratapnagar village. The date
of seizure under Ext. 5 is 28.7.2004 from 2.05 hours to 3.15 hours at Pratapnagar village. The evidence of P.W.8 that he signed the seizure list
around 12 at night sitting at the house of Ramjan, raises serious doubt as to the time and place of seizure.
19. It is in the evidence of the I.O. (P.W. 11) that he did not send the wearing apparels of the victim to the chemical examiner for examination.
20. As to the evidence of P.W. 2, P.W. 5 and P.W.7 contradictions were taken by the defence in the cross-examination of the I.O. The I.O. has
stated that P.W.2 did not state to him that his wife was sleeping in another bed which was a little distance away from his bed in the verandah of his
house and that on being informed he reported the entire incident to the ''morols'' of the village or that ''salish'' took place over the incident of
committing rape on his wife. The I.O. has further stated that P.W.5 did not state to him that he came to know from the said ''salish'' that all the four
accused persons gagged the mouth of the victim and brought her in the field by showing the pistol and bhojali and that the four accused persons
committed rape on her. It is in the cross-examination of the I.O. that P.W.7 did not state to him that the victim called one ''salish'' in the village over
the issue of committing rape upon her. It, therefore, follows from the cross-examination of I.O. that the P.Ws introduced the case of holding
''salish'' for the first time at the time of trial and in their earlier statements they did not state to the I.O. about such holding of ''salish''. Their
testimony as regards the holding of ''salish'' made for the first time at the time of trial, therefore, signifies embellishment and fabrication. No paper
regarding the resolution taken at the ''salish'' was produced by the prosecution, although, the P.W. 1 and P.W.7 stated that the resolution taken at
the ''salish'' was reduced into writing.
21. Another significant feature of the case is that P.W. 1 and her husband P.W.2 both were sleeping in the same verandah, although, at a different
placed but, they did not raise any hue and cry at the time the accused persons allegedly put cloth on the mouth of the victim and lifted her away. It
is also in the evidence of prosecutrix that her children were lying with her. The abstinence of the prosecutrix and also her husband who was lying in
the same verandah and did not wake up, from raising any alarm, is not in consonance with probability. The disclosure about the incident to the
''morols'' of the village one month after the incident is also very doubtful. It casts a serious shadow of doubt on the veracity of the prosecution case.
Moreover, there was discrepancy on material particulars between the testimony of P.W.I, and her statement recorded u/s 164 Cr PC. In the FIR
also there was no mention of holding ''salish''. The alleged holding of ''salish'', under the circumstance of the case, therefore, is not credible. The
case of holding ''salish'' has been introduced subsequently at the time of trial and it is an afterthought. We also find that the delay in lodging the FIR
has not been reasonably explained and it speaks of fabrication.
22. Having regard to the serious discrepancies and the improbabilities as discussed above we are of the considered view that the evidence of
prosecutrix is not worthy of credence and it does not inspire confidence. The learned Trial Judge was not justified in passing the impugned
judgment. The prosecution has failed to prove the charge against the appellants beyond reasonable doubt. The appellants are, therefore, found not
guilty of charge brought against them.
23. The appeal is allowed. The impugned judgment is set aside. The appellants are acquitted of the charge and be set at liberty, if not wanted in
any other case.
24. Let a copy of this judgment be sent to the Correctional Home where the appellants are now detained.
25. Let a copy of this judgment along with the L.C.R. be sent down to the learned Court below immediately.
Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.
Ashim Kumar Banerjee, J.
26. I agree