Calcutta High Court (Appellete Side)
Lachmi @ Lakshmi Kanta Kamath vs The State Of West Bengal on 4 March, 2015
Author: Indrajit Chatterjee
Bench: Indira Banerjee, Indrajit Chatterjee
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Justice Indira Banerjee
And
The Hon'ble Justice Indrajit Chatterjee
CRA NO. 115 of 2009
(Arising out of Session Case No.11(12)2004 corresponding to C.G.R Case no. 2533 of
2004 and New Alipore Case No.170 of 2004)
Lachmi @ Lakshmi Kanta Kamath
-vs.-
The State of West Bengal
For the Petitioner : Mr. Pawan Kumar Gupta
For the State : Mr. Manjit Singh, ..........Public Prosecutor
Ms. Sreyashee Biswas
Mr. Somopriyo Roy Chowdhury
Heard On : 08/01/2014, 10/01/2014, 13/01/2014,
21/01/2014 & 22/01/2014.
Judgement on : 04/03/2015
Indrajit Chatterjee, J. : This is an appeal as filed under Section 374 (2) of the
Code of Criminal Procedure, 1973 directed against the Judgement and order of
conviction respectively passed on 17.05.2006 & 18.05.2006 by the Learned
Additional Sessions Judge, 2nd Fast Track Court, Alipore within the district of
South 24 Parganas in Sessions Trial No.2(5)2005 arising out of Sessions Case
No.11(12)2004 (corresponding to C.G.R case no.2533 of 2004 and New Alipore
Case no.170 of 2004 ) wherein the Ld. Trial Court was pleased to hold the
accused/appellant guilty in respect of the charge punishable under Sections 366
and 376 both of the Indian Penal Code (henceforth called as the said Code).
The Learned Trial Court was further pleased to sentence the present
appellant/convict to suffer rigorous imprisonment for 10 (Ten) years and
also clamped a fine of Rs.2000 in default to further RI for six months in
respect of the charge punishable under Section 366 of the IPC.
The Learned Trial Court was further pleased to pass the same
rigorous imprisonment and also the same fine for the offence punishable
under Section 376 of the said Code and further directed that both the
substantive sentences will run concurrently and further ordered that if the
fine amount is realised Rs.3000 will be paid to the victim (name not
disclosed). It was further ordered that the detention period of the
accused/convict be set off as per Section 428 of the Code of Criminal
Procedure.
It may be mentioned for future reference that this appeal was not
filed instantly and the accused/convict took three years to present this
appeal before this Court.
The fact before the Learned Trial Court can be stated in brief thus:
That PW-1 (the de facto complainant of this case) went to New
Alipore Police Station at 10 p.m. on 30.08.2004 and lodged one GD entry
no.2621 of the said PS wherein she alleged that her daughter (the victim)
was sent by her to buy some snacks at about 7:30 p.m. on that night but
she did not return till the GD entry was lodged.
It has further been revealed from the FIR that it was lodged with the
said Police Station at about 1:20 p.m. on 31.08.2004 as filed by the de
facto complainant after her daughter came back to her home at about 11
a.m. on that day and that she came to know from her daughter that the
present convict/appellant abducted her from that area alluring that he
would marry her. It is also there in the FIR that the victim and the present
appellant went to various places and took her to an abandoned shack and
raped her and thereafter they also visited other places and afterwards the
appellant left her in front of no.114 Lockgate 'bustee' (slum).
The de facto complainant suspected that the present accused allured the
victim who is deaf and dumb and a minor girl by telling her that he would
marry her. On receipt of this FIR New Alipore Case No.170 dated
31.08.2004was started. The matter was investigated by PW-11 i.e. SI Biplab Chakraborty and during the course of investigation he arrested the present accused from his house on that very date i.e. on 31.08.2004 at 9 p.m., got both the victim and the accused medically examined, collected the medical reports, forwarded the vaginal swab of the victim to the FSL (report not received) and got the victim to be tested radiologically to ascertain her age. He also seized the wearing apparels (not produced at the time of trial) of the victim as per seizure list and after completion of investigation he submitted charge sheet against the appellant/convict for the offence punishable under Sections 366 and 376 of the said code.
The prosecution to prove the case examined before the trial court as many as 11 (eleven) witnesses and of these witnesses PW-1 that is the victim, PW-3 that is the mother of the victim, PW-6 Dr. Nibedita Chattopadhyay, PW-8 Dr. T.K. Roy, PW-10 Dr. Arindam Bhattacharya and PW-11 that is the Investigating Officer of the case are important for my consideration.
Regarding documentary evidence I will concentrate on the medical reports including the ossification test report of the victim.
On behalf of the defence, it has been submitted that this appellant is already in custody for more than 9 years. It was argued on behalf of the convict/appellant that the age of the victim was more than 16 years and as such as per the law in force at that time the consenting age was 16. It was further contended by the defence counsel that when the FIR was lodged by the mother of the victim with the police officer of New Alipore Police Station the said police officer did not take the help of the interpreter even though admittedly the victim was deaf and dumb. He took the Court to the evidence of PW-1 to show that the victim herself admitted that this accused/convict was known to her and the said accused/convict used to visit their house even before the date of occurrence and she went to the house of the accused as called by him. He also took this Court to the evidence of PW-1 to show that this PW-1 candidly admitted that the accused did not use any force on her to go to his house and that it was true that there was a talk of marriage in between the victim and the accused and she also expressed her readiness to marry the appellant identifying him on dock.
The Learned counsel for the appellant further submitted that this PW-1 admitted that it was true that as the convict refused to marry her so the present case was filed against him. The Learned Counsel also submitted that even though the evidence of this PW-1 was recorded by the Learned Trial Court with the help of the interpreter but the doctors who examined the victim did not get the special services of such interpreter and as such any statement made to the doctor allegedly by the victim may not be believed by this Court. He further submitted by taking the Court to the FIR that PW-3 who lodged the FIR candidly admitted in the FIR that this PW-1 was allured by the present appellant and they went to various places and ultimately this accused/appellant raped her. He further submitted that the victim returned back on her own, the convict did not abscond and could be easily arrested by the police on the very next day. He also took this Court to the evidence of the doctors.
The Learned defence counsel further submitted that PW-6 who is one doctor found the hymen of the victim ruptured and on this point defence submitted that no question was put to the convict in his examination under Section 313 Cr.P.C and as such this portion of evidence will not go against the present accused. He cited the decision of the Apex Court as reported in AIR 2013 SC (Cri)1487 (Sujit Biswas Vs. State of Assam) to substantiate his contention that if any material evidence was not put to the accused while he was being examined u/s 313 Cr.P.C. by the trial court the same cannot be taken into consideration. He further submitted that this doctor did not find any external injury on the person of the victim. Regarding the evidence of PW-8, also one doctor, it was submitted by the defence counsel that this doctor also did not note any external injury on the body of the victim and there was no sign of recent trauma. Regarding the evidence of PW-10, also a doctor it was submitted by the defence counsel that this radiologist categorically opined on ossification test that the age of the victim was above 17 years but below 19 years and relying on this it was submitted by the Learned Advocate of the appellant that the victim was more than 16 years at the time of the incident and she was capable enough to give her consent even though she was deaf and dumb.
Learned Lawyer of the appellant also took the Court to the evidence of PW-3 i.e. the mother of the victim to convince this Court that the age of the victim was at least more than 16 years. He submitted that on scrutiny of her evidence it will reveal that her marriage took place at the age of 13 or 14 years, that she gave birth of the victim after 3 or 4 years of her marriage, she being her eldest daughter and by that analogy it was suggested by the Learned Lawyer for the defence that the age of this witness was 35 in the year 2005.
He further suggested on scrutiny of her evidence that this witness got married in the year 1983, that this victim was born either in 1986 or 1987 and naturally the age of the victim was more than 17 years at the time of alleged incident which took place in 2004. Learned counsel also attacked the prosecution story on the ground that no FSL report was produced before the Learned Trial Court, he also attacked the judgment of the Learned Trial Court by saying that the Learned Trial Court was practically swayed away with the prosecution story simply because the victim was a deaf and dumb lady. He also attacked the judgment of the Learned Trial Court on the ground that the defence case was not at all considered even though it was the trend of cross examination that this accused was falsely implicated on the ground that he did not want to marry the victim. It was also argued that the learned trial court did not take notice of the fact that this accused was not unknown to the victim.
Regarding the evidence of PW-6 and PW-8 he submitted that these doctors did not notice any external injury on the body of the victim which is enough to belie the prosecution story that actually she was ravished forcibly and this also suits with the case of the defence that the intercourse was consenting one.
On behalf of the prosecution it was argued by the Learned Public Prosecutor by taking us to the decision of the Hon'ble Apex Court as reported in AIR 2013 SC (Cri) Page 1922 (Ganga Singh Vs. State of Madhya Pradesh) wherein the Hon'ble Apex Court held apart from other things that in a case where the accused did not raise plea that sex was with consent and the finding that sexual intercourse was with consent cannot be recorded in the absence of such a plea.
Mr. Singh illustrated it by saying that in the instant case before the floor of the Trial Court as the accused/convict did not take the defence of consent while having sexual intercourse and as such that defence cannot be taken by this appellant before this Court.
He also cited another decision of the Apex Court as reported in AIR 2013 SC (Cri) Page1389 (Deepak Gulati Vs. State of Haryana) wherein the Hon'ble Apex Court held as regards rape or consensual sex that intercourse under promise to marry constitutes rape only if from initial stage accused had no intention to keep the promise.
Regarding the merit of the case he cited the decision of the Apex Court as reported in 1995 SCC (Cri) Page 977 (Karnel Singh Vs. State of M.P.) wherein the Hon'ble Apex Court held as regards the testimony of prosecutrix that corroborating evidence is not essential as she is not an accomplice or in the category of a child witness. Thus, he submitted that no corroboration is necessary to convict the accused in a rape case if the evidence of the prosecutrix is believable. On the same point he also relied on the decision of the Apex Court as reported in 2006 CRI.L.J. SC Page 139 (State of Himachal Pradesh Vs. Asha Ram) wherein the Apex Court held that evidence of prosecutrix is more reliable than that of an injured witness.
Regarding the argument of the defence that the Learned Trial Judge did not examine the accused/appellant properly under Section 313 of the Criminal Procedure Code Mr. Singh submitted that the appellant must prove that for this accused/convict was prejudiced and simply because some questions were not put to the accused that is not enough to vitiate the trial.
Thus, in this appeal to answer the pleas raised by the parties I am to answer the following points:
(1) Whether the victim had attained the age of consent i.e. 16 years of age as per law at the material of time and whether she was capable of giving her consent to cohabit?
(2) Whether the victim was raped or whether the cohabitation was consensual?
(3) Whether the victim was at all kidnapped or abducted to seduce her to illicit intercourse?
(4) Whether the accused at all took the defence of consensual cohabitation at the trial stage as was required in terms of Judgement of the Apex Court in Ganga Singh (Supra)?
(5) And, lastly whether the Learned Trial Court rightly found the accused/convict guilty of the offence punishable under Section 376 of the IPC?
I have perused the judgement in details vis-a-vis the evidence on record. It is well settled principle that the defence case is made out through the trend of cross examinations and also the answers given by the accused in his examination under Section 313 of the Criminal Procedure Code. The Learned Trial Court did not consider that the defence tried to make out a positive case while cross examining the witnesses that this convict was very much known to the victim, and that the accused had falsely been implicated in this case as he declined to marry this victim. The Learned Trial Court in its judgement proceeded to write that the case of the defence is just a case of denial of the prosecution story and that the accused is innocent who was falsely implicated in this case. However, it is not the real picture.
Now, as to the point no.1, this Court is of the definite view that the victim was more than 16 years of age and hence competent to give her consent in cohabitation as it was the law then. I am not unmindful that the victim is deaf and dumb but that infirmity is not enough to vitiate this consent.
I get support of my views regarding the age of the victim from the oral evidence as well as the expert evidence. The evidence of PW-3 i.e. the mother of the victim goes to show that her marriage took place when she was thirteen or fourteen years and that the victim was born after three or four years of her marriage, who is her eldest daughter and by that analogy, the age of this witness was thirty five in the year 2004 when this incident took place. Her evidence further revealed that she got married in the year 1983 and naturally the victim must have been born either in 1986 or in 1987 and naturally in the year 2004 when this incident took place this victim was either 18 or 17 years of age.
PW-8 i.e. the doctor who made the ossification test of the victim categorically stated in his report that on that date the age of the victim was at least more than 17 years and not above 19 years. It is needless to mention that there may be always an error of plus minus two in such assessment. It is a settled principle of law that this plus minus two benefit will go to the defence. Thus, the evidence of PW-3 and PW-8 belie the claim of the de facto complainant (PW-3) that her daughter was about 16 years. This victim lady naturally attained the age of discretion in having sexual intercourse. It is needless to say that prior to the amendment made in the Code in the year 2013 the consenting age in a case of consensual intercourse was 16 years. Thus, this point is answered in favour of the appellant.
Point no.2 I have already decided that the age of the victim was more than 17 years. Now, the question is whether she impliedly or expressly consented to the physical intercourse with this appellant. The evidence of PW-1, who is the star witness of this case, is to be taken into consideration at first. She deposed that this appellant was known to her prior to the incident (which was concealed in the FIR). She also deposed that the accused used to reside in their Basti (Slum) and his house was at a little distance from her house. She also admitted that she used to visit the house of the accused even before the occurrence. It is also clear from her evidence that she went to the house of the appellant as called by him and the appellant did not use any force on her to go there.
This witness further deposed that there was a talk of marriage in between her and the accused/appellant. She also admitted that the appellant did not assault her on that night and further that she was ready to marry the appellant.
In her cross examination, she further admitted that as the appellant refused to marry her so this case was filed against him falsely. This Court is not unmindful of the fact that this victim is deaf and dumb but the services of the interpreter were used by the Trial Court when her evidence was recorded. There is no reason to by-pass these vital answers which went in favour of the appellant. I can take support of Section 114 (e) of the Evidence Act that the judicial and the official acts have been regularly performed. It is natural that all these answers went against the prosecution. The prosecution did not exercise the option granted to it as per Section 137 of the Indian Evidence Act that is re-examination at the instance of the prosecution subsequent to the cross examination to unearth the truth after such damaging statements made by PW-1.
This Court is not unmindful of the fact that in her examination in chief this witness deposed that the present appellant laid her on a bed and assaulted her on various parts of her body. She also deposed that thereafter this appellant undressed her and committed rape on her twice and drove her out in the morning. In the FIR PW-3 wrote that after such rape on that night the appellant took the victim to different places and thereafter left the victim at no.114 Kanak Gate Basti at about 11 a.m. This is in sharp contradiction to the statement of the victim that she was driven out from the house of the appellant in the next morning. Thus, this PW-1 suppressed two vitals points that on that night they roamed hither and thither and that she was not left in front of no.114 Kanak Gate Basti.
It is needless to say that in a case of rape there is no need for corroboration of the evidence of the victim even by any medical evidence. Let us now take up the evidence of the doctors who attended the victim who deposed as PW-6 and PW-8. PW-6 categorically deposed in her cross examination that she did not find any external injury and further that she did not find any injury on the labia majora and symphysis pubis of the victim. It is true that this doctor opined that hymen of the victim was ruptured but this question was not put to the accused in his examination under Section 313 of the Criminal Procedure Code and as such in view of the decision of the Apex Court as decided in Sujit Biswas Vs. State of Assam (Supra) that ought not to have been considered by the Trial Court. It may not be out of place to mention that rupture of hymen is not a full proof of rape. Hymen of woman may be ruptured due to several reasons. My view gets support from the evidence of this witness (PW-6) that hymen of a girl may be ruptured if she is habituated in intercourse. PW-8 also deposed that he did not notice any injury at the external genitalia. This doctor categorically opined that this girl performed sexual intercourse but he did not find any sign of recent trauma. It may not be out of place to mention as I have told earlier that no services of the interpreter were requisitioned by these doctors. PW-6 was the Assistant Professor of Gynaecology and naturally she is not an expert to interpret the language of a deaf and dumb and as such the so called reporting to her by sign and gesture as allegedly made by the victim do not carry any weight. I cannot shut my eyes to the evidence of this doctor that when the victim was medically examined PW-3 was present.
Thus, it is apparent from the evidence on record that this victim did not resist that physical act. The FIR shows that this victim was found roaming in different places with this accused since 7 p.m. on that fateful night and the evidence further disclosed that this appellant enticed the girl with false promise of marriage. It is not a case of gang rape. There is also no evidence that the victim was put under threat of death or that she was shown any fire arms to handover her chastity in favour of this appellant. In one to one rape some injuries are highly expected and probable also. It is expected that without any fear of death the victim must have resisted to save her chastity from the perpetrator of the crime and even if no major injuries were detected there must have been some bruises or ecchymosis on her body. A clear body without any injury will support the case of the defence that it was physical intercourse on consent. It is true that in a case of rape there is no reason to go for corroboration as decided by the Apex Court referred to above while noting the argument of the defence.
There is also another recent decision of the Hon'ble Apex Court as reported in (2012) 7 SCC Page 178 wherein also the Apex Court held that corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. It further held that a prosecutrix complaining of having been victim of offence of rape is not an accomplice after the crime.
In spite of all these decisions regarding the merit of the evidence of the prosecutrix the Court must be satisfied that her evidence is reliable probable and also beyond doubt. The Apex Court in a recent decision as decided in Criminal Appeal No.1407 of 2013 dated November 21, 2014 (Manoharlal Vs. State of M.P), and as reported in (2014) 42 SCD 104 also asked for support from other material but find complete lack of corroboration on material particulars as the medical examination of the victim did not result in any definite opinion that she was subjected to rape. It is also the same before this court as discussed above. In that decision the Apex court could not believe the prosecutrix as she had allegedly accompanied the appellant to various places. In the instant case before this court same is the picture as I have already discussed.
This appellant did not abscond soon after the incident and that cannot be a circumstance in favour of the prosecution story that the appellant might have committed the offence. The appellant was arrested on the very date of filing of the FIR from his house at 9 p.m. and this will naturally go in favour of the appellant.
Now, the question is whether this attitude of this woman can be treated as her consent?
Even taking into view of the infirmity of this girl I am of the considered view that the total circumstances as depicted by the witnesses go to show that the physical intimacy in between the victim and the appellant was on consent. Taking the risk of repetition I like to say that this appellant was very much known to the victim and her mother.
I have already posed a question as to whether this incident may be called rape or consensual sex. I have already decided that the prosecutrix was more than 16 years at the time of the incident. The FIR goes to show that the victim was enticed away on a false pretext of marriage. I shall be coming to the point of kidnapping later on. I am not unmindful of the decisions of the Apex Court as decided in the cases referred to below:
Uday Vs. State of Karnataka, AIR 2003 SC 1639 :(2003 AIR SCW 1035) Deelip Singh alias Dilip Kumar Vs. State of Bihar, AIR 2005 SC 203 :
(2004 AIR SCW 6479) Yedls Srinivasa Rao Vs. State of A.P. (2006) 11 SCC 615; and Pradeep Kumar Verma Vs. State of Bihar & Anr., AIR 2007 SC 3059 : (2007 AIR SCW 5532) and also Deepak Gulati Vs. State of Haryana as reported in AIR 2013 SC (Criminal) 1389. In the latest decision as stated above the fact revealed before the Apex Court was much more to decide in favour of the accused/appellant that it was not a rape but a case of consensual intercourse. In that case before the floor of the Apex Court the prosecutrix got physically intimated on several dates and even passed several nights with the appellant. Every case is to be decided on the factual matrix before the particular court.
The Trial Court disposed of the point as regards the age of the victim in a shortcut manner and without giving benefit of expert opinion (Ext.1) and the oral evidence of PW-3 that is the mother even though the Trial Court ruled that the mother is the best person to say about the age of her child. The Trial Court relied on the evidence of the father of the victim to determine the date of birth of the victim without taking into consideration the evidence of the mother (PW-3) about which I have stated in details. The benefit ought to have gone in favour of the defence which was not extended to the appellant. As to Ext.1 (ossification test report) the Trial Court also proceeded wrongly relying on the decision of the Delhi High Court whereas it is a settled proposition of law as laid down by the Apex Court that the benefit of plus minus two in such expert evidence will always go in favour of the defence. Thus, herein also the appellant was not favoured with correct interpretation.
I cannot share the same view of the Learned Trial Court that in this case the consent was obtained either on fear or on misconception. Taking the risk of repetition I may say that it is difficult to say that when the accused gave the proposal to marry the victim he intended not to fulfil the same and as such the promise to marry was a mere hoax. I am not unmindful of the fact that when PW-1 was being examined she deposed that she was even willing to marry this convict/appellant but her offer was not reciprocated. This is another factor to be reckoned with.
It is hard to believe that the prosecutrix was not conscious or fully aware regarding the nature and consequences of the act to which she was going to be indulged. There was no doubt tacit consent of the prosecutrix and this consent cannot be said to be the result of misconception created in her mind as to the intention of the appellant to marry her.
It is true that in this present case no story of love affair came up before the Learned Trial Court. I am not unmindful of the evidence of PW-4 that this victim and the accused were seen together even one or two days before the incident and on that fateful night she also found the victim with the convict. The decision of the Apex Court in Monohar Lal (Supra) will certainly apply. This Court is also not at one with the view of the Learned Trial Court that the victim was not sufficiently intelligent to know the consequences. Thus, I am of the clear opinion that the cohabitation was consensual.
Point no.3 I am also to consider another circumstance of this case that the victim as per her own version went to the house of the accused on a call given by him and that she came to her residence alone. There is no evidence that she had to be rescued from the clutches of the appellant and as such the story of kidnapping does not appear to be convincing. Evidence of PW-1 i.e. the victim if properly scrutinised will make everyone convinced that she was not kidnapped. There is no iota of evidence from the mouth of this victim that she was forcibly taken by this appellant or that she was kept confined by the appellant.
On appreciation of evidence on record this Court is of the opinion that there was no clinching evidence that prior to that physical act she was confined in a room against her wishes or that she was kidnapped. I have already told that the doctors did not find any external injuries on the body of the victim and had she been forcibly kidnapped she must have sustained some injuries.
Thus, I am not at one with the findings of the Ld. Trial Court that the victim was kidnapped with intent that she may be forced or seduced to illicit intercourse and as such the order of conviction u/s 366 of the said Code cannot be supported by me and that finding and conviction are fit to be set aside and I do that.
Point no.4 Now the question is whether the decision of the Apex Court as reported in AIR 2013 SC (Criminal) 1922 which is commonly known as Ganga Singh's case will be applicable in this case or not. The point as decided by the Apex Court in that case was that as the plea that the sex was with consent was not taken by the accused before the Trial Court, the Trial Court was not justified in saying that the sexual intercourse was with consent in the absence of such plea. Unfortunately the fact was not so before the Learned Trial Court. In the Trial Court it was specifically pleaded by the accused that he was falsely implicated in this case as he declined to marry. The trend of cross examination of the witnesses also shows that the accused took a positive plea that the intercourse was on consent and as such the decision of Ganga Singh's case (Supra) will not apply in the present case. Thus, this point is answered accordingly in favour of the appellant.
Point no.5 Thus, considering every aspect I am of the considered view that the story of rape on the victim was not fully proved before the Learned Trial Court and in view of the discussions so long made it was a consensual cohabitation and cannot attract the provision of 376 of the said Code (as it was then). Regarding the order of conviction under Section 366 of the Indian Penal Code I have dealt with while discussing the point number 4 I accordingly set aside the impugned judgement, order and sentence passed by the Learned Additional Sessions Judge, Second Fast Track Court at Alipore within the District of South 24 Parganas as assailed and thereby allow this appeal. There will be no cost.
Let the Lower Court Records be sent down forthwith along with a copy of this judgement for compliance.
The appellant be set at liberty (if he has not already served out the sentence) and not wanted in any other case.
(Indrajit Chatterjee, J.) INDIRA BANERJEE, J.: While I agree with my learned brother that the conviction of the accused appellant under Section 366 of the Indian Penal Code is liable to be set aside, I am unable to agree that the conviction under Section 376 of the Indian Penal Code should also be set aside. The accused appellant has, in my view, rightly been convicted of the offence of rape under Section 376 of Indian Penal Code.
The victim, a deaf and dumb girl since birth, was about 17 years of age as per medical opinion, at the time when she was allegedly raped by the accused appellant. It is the case of the prosecution that the mother of the victim lodged a written complaint at New Alipore police station on 31st August, 2004 at about 1:00 A.M stating that the victim who had left the house for purchasing food, the previous evening, had gone missing. On making enquiries she had come to learn that the victim had last been seen with the accused appellant, who had been coming to the locality for about 2 years and had been residing at 113, Lockgate Basti (slum) for about 10-15 days.
On 31st August at about 11 a.m. the victim came back home and informed her mother that the accused appellant had taken her to an abandoned shanty at 113, Lockgate Basti, with the promise to marry her and had raped her. Thereafter, he had left her near 114, Lockgate Basti. Pursuant to the complaint lodged by the mother of the victim, investigation was started. The victim was taken to the SSKM Hospital for examination and her wearing apparel were also seized.
On receiving information that the accused appellant had returned to 113, Lockgate Basti, the Investigating Officer went there along with the victim, apprehended the accused and seized his wearing apparel. After completion of the investigation charge sheet was filed against the accused appellant under Section 366 and 376 of the Indian Penal Code.
It is true that in the First Information Report, the de facto complainant, being the mother of the victim, has alleged that the accused appellant and the victim went to various places after which the accused appellant took the victim to an abandoned shack and raped the victim. Thereafter the accused appellant and the victim went to different places and the accused appellant left the victim in front of No. 114, Lockgate Basti.
The victim has, however, herself given evidence in the Sessions Court as the First Prosecution witness, with the help of Shri Rameshwar Bandhopadhyay, the Head-in-Charge of the Boys' Section of the Kolkata Deaf and Dumb School, who acted as interpreter.
The victim identified the accused appellant in Court. In her evidence the victim stated that the accused appellant had called her, taken her to his house, undressed her, raped her twice and thereafter driven her out, in the morning, after which she returned home. The victim did not say anything about going anywhere else before or after the incident.
There is no reason to give greater credence to the FIR lodged by the victim's mother, on the basis of what she heard from the victim and others, to what the victim herself stated in Court. The evidence of the prosecutrix in a rape case, is more reliable than that of an injured witness, as held by the Supreme Court in State of Himachal Pradesh Vs. Asha Ram reported in 2006 Cri.L.J. (SC) 139.
In cross-examination, this witness (the victim) deposed that the accused appellant was known to her, and she used to visit the accused appellant before the incident. On the day of the incident, she went to accused appellant's place, on being called by him. The victim further deposed that the accused appellant did not take her to his place, forcibly.
She however categorically denied the suggestion that she had not been undressed or raped by the accused appellant. She maintained that she had been driven out in the morning, after being raped. She agreed with the suggestion that there was talk of marriage between herself and the accused appellant. She also confirmed that she had not been assaulted by the accused. She stated that she was willing to marry the accused person. As noted by my learned brother, she also stated that she had filed the case because the accused appellant refused to marry her.
From the evidence on record, discussed in details by my Learned brother, it is absolutely clear that the victim had not been kidnapped or abducted. No force had been applied on her. The accused appellant was known to the victim. The accused appellant called the victim and the victim went with him on her own. As per Medical opinion, the victim was slightly over 17 years of age when she was raped. Medical opinion with regard to age can never be exact and there may be variation of about 1 year on either side. The accused appellant will have to be given the benefit of variation of one year on the upper side, more so, since the illiterate parents of the victim could not give her exact date of birth. The de facto complainant claimed that her daughter was 16 years of age on a rough approximate calculation and there is every possibility of difference of a year or two. The charge under Section 366 is not substantiated by the evidence on record. I fully agree with my learned brother that the conviction under Section 366 of the Indian Penal Code is liable to be set aside.
The question is whether the conviction of the accused appellant under Section 376 of the Indian Penal Code is also liable to be set aside. In my view, the aforesaid question has to be answered in the negative.
In this case, the FIR was lodged without any delay, immediately after the incident. It is reiterated at the cost of repetition that the victim clearly deposed that the accused appellant lay beside her, undressed her, raped her twice and then drove her out. The victim remained unshaken in cross-examination.
The Prosecution Witness Nos. 3 and 5 being the mother and father respectively of the victim also confirmed that the victim returned home weeping, and told them that the accused appellant had taken her to a shanty near the railway line, undressed her and raped her twice.
The Prosecution Witness No. 3 (victim's mother) stated in Court that the victim had told her that the accused appellant told the victim that he would marry her. The Prosecution Witness No. 5 (victim's father) stated that the victim took him to the shanty where she had been raped and identified the shanty.
The victim subjected herself to medical examination at the P.G. Hospital, a premier government hospital in Kolkata, and her wearing apparel were seized by the police. The Prosecution Witness No. 6, Dr. Nibedita Chatttopadhyay, Assistant Professor of the Department of Gynaecology and Obstetrics of the PG Hospital, who had examined the victim, deposed that she had found the hymen of the victim ruptured. In cross-examination, this witness deposed that she did not find any injury on the person of the victim. She also did not find injury on the 'labia majora' and 'symphosis pubis' of the victim.
It is well known that sexual intercourse causes rupture of the hymen. Ofcourse, rupture of hymen may also be caused due to other reasons and is not conclusive evidence of sexual intercourse. However the fact that the hymen of the victim was ruptured supports the case of the prosecution that the victim was sexually assaulted.
The evidence of the victim requires no corroboration. It is well settled that conviction in case of rape can be based solely on the testimony of the prosecutrix as reiterated by the Supreme Court in Ramdas and Others v. State of Maharashtra reported in (2007) 2 SCC 170.
Moreover, it appears to me that the victim was a truthful witness. The victim did not resort to any exaggeration to falsely implicate the victim. She truthfully stated that she was not forcibly taken to the shanty, by the accused appellant. She went to his place on her own, on being called by him. She also stated that the accused appellant did not assault her and she candidly admitted that she was willing to marry the accused appellant.
The victim had apparently reposed trust in the accused appellant, but the accused appellant deceived her, taking advantage of her drawback of being deaf and dumb. Yet, the victim did not retaliate with vindictiveness. The accused appellant may not have tried to run away. However that, in itself does not suggest his innocence. The accused appellant possibly thought that he would be able to get away, because of the usual reluctance of victims of sexual violence to complain of the humiliation and insult to which they have been subjected, to avoid embarrassment, further humiliation and further insult in a socially insensitive set up, where the victim of a crime is looked upon as an accomplice to the crime. The unfortunate disability of the deaf and dumb victim, probably emboldened the accused appellant.
The evidence of the victim read with the evidence of her parents being the Prosecution Witness Nos. 3 and 5, the Prosecution Witness No. 6, Dr. Nibedita Chattopadhyay, Prosecution Witness No. 8, Dr. T.K. Ray and Prosecution Witness No. 11, Sri Biplab Chakravarty, who was the Investigating Officer establish beyond reasonable doubt, that the accused appellant had sexual intercourse with the victim, on the night before the FIR was lodged.
The accused appellant was charged inter alia with the offence of rape under Section 376 of the Indian Penal Code. The victim clearly stated that she had been raped. The prosecution examined eleven witnesses. The accused appellant, however chose to remain silent. The accused appellant did not adduce any oral evidence. He chose to remain silent. He did not take the plea of having had sex with the consent of the victim, by way of defence.
The accused appellant was examined under Section 313 of the Criminal Procedure Code. In course of his examination, the accused appellant even denied having sexual intercourse with the victim and pleaded innocence. A stray suggestion or two in cross examination that sexual intercourse was with consent, in the midst of many other suggestions, including the suggestion that there was no sexual intercourse at all and the allegation of sexual intercourse had been concocted with ulterior motive, cannot and does not, in my view, tantamount to taking the defence of consensual sex. As held by the Supreme Court in Ganga Singh Vs. State of Madhya Pradesh reported in AIR 2013 SC (Cri) 1922, where the accused has not raised the plea of having sex with the consent of the victim, the Court cannot arrive at the finding that sex was consensual.
In order to free an accused of the criminal charge of rape, the consent of the woman must be given freely, of her own wish, without any kind of pressure physical or emotional, without being put to fear of any drastic consequences of withholding consent, and after weighing the pros and cons of indulging in sexual intercourse with the accused. The consent should be spontaneous, stemming from the victim's own desire to sexually unite with the accused. A mere act of helpless resignation in the teeth of compulsion whether by reason of threat of physical violence, emotional blackmail, fear, coercion or duress cannot be consent, as understood in law. In this context it may be pertinent to note that there is a difference between submission and consent and mere non-resistance and/or passive giving in cannot be consent as understood in law. In my view, even emotional blackmail that might reasonably be perceived as a veiled threat to end an existing relationship by calling off an engagement or a marriage proposal would also vitiate the consent.
In Vijayan Pillai Vs. State of Kerala reported in (1989) 2 Ker LJ 234, Balakrishnan, J., held:
"....Consent is an act of reason accompanied by deliberation, a mere act of helpless resignation in the face of inevitable compulsion, non-resistance and passive giving in cannot be deemed to be 'consent'. Consent means active will in the mind of a person to permit the doing of the act of and knowledge of what is to be done, or of the nature of the act that is being done is essential to a consent to an act. Consent supposes a physical power to act, a moral power to acting and a serious and determined and free use of these powers. Every consent to act involves submission, but it by no means follows that a mere submission involves consent."
Jowitt's Dictionary of English Law, IInd Edn., Vol 1 explains consent as follows:
"An act of reason accompanied with deliberation, the mind weighing, as in a balance, the good or evil or either side. Consent supposes three things - a physical power, a mental power and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, mediated imposition, circumvention, surprise, or undue influence, it is to be treated as delusion, and not as a deliberate and free act of the mind."
A woman is said to consent only when she agrees to submit herself while in free and unconstrained possession of her physical and moral power to act in the manner she wanted, as observed by Ramaswami, J., in his concurring opinion in Anthony v. State reported in AIR 1960 Mad
308. Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former.
Obtaining consent of a woman by exercising deceit cannot be legitimate defence to exculpate an accuse from the offence of rape as held by the Supreme Court in Karthi alias Karthick Vs. State represented by Inspector of Police, Tamil Nadu reported in AIR 2013 SC (Criminal) 1740.
In Kaini Rajan Vs. State of Kerala reported in (2014) C Cr LR (SC) 105 the Supreme Curt reiterated that consent is an act of reason coupled with deliberation and denotes an active will in the mind of a person to permit the sexual intercourse.
In Deelip Singh @ Dilip Kumar Vs. State Of Bihar reported in (2005) 1 SCC 88 the Supreme Court held that the consent given pursuant to a false representation that that accused intended to marry the victim, could be regarded as consent given under misconception of fact, if on facts, it was established that, at the very inception, at the time of making the promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax. The consent ostensibly given by the victim, would then be of no avail to the accused, to exculpate him from the ambit of the second Clause of Section 375. In the aforesaid case the Supreme Court concluded that the victim had taken the decision to have a sexual affair only after being convinced that the accused would marry her.
In Deepak Gulati Vs. State of Haryana reported in AIR 2013 SC (Cri) 1389, the Supreme Court held that intercourse under promise to marry would constitute rape, only if it could be shown that from the initial state the accused had no intention to keep the promise.
In Jayanti Rani Panda Vs. State of Wet Bengal & Anr. reported in 1984 CRI. L.J. 1535 a Division Bench of this Court held that if a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity, it would be an act of promiscuity on her part and not an act induced by misconception of fact, to pardon the act of the girl and fasten criminal liability on the accused, unless the Court could be assured that from the inception the accused had no intention to marry her.
This is not a case of prolonged cohabitation. There is no instance of earlier cohabitation. The evidence reveals that the accused appellant called the victim to a shack, lay next to her, undressed her, raped her and threw her out. There is no evidence that the victim had earlier submitted to sexual relationship with the accused appellant. It is apparent that the accused appellant had no intention to marry the deaf and dumb girl, who was thrown out right after the sexual act.
The accused appellant may have been known to the victim. The victim might have agreed to go to his house. However, this in itself cannot and does not tantamount to giving consent to having sex with the accused appellant. Even if it is assumed that the victim harboured the wish to marry the accused appellant for which she readily went to the house of the accused appellant, when he called her, it cannot be deduced that of her own free will and volition, she consented to casual sex with the accused appellant, knowing that they might never get married.
In any case the defence of sexual intercourse with consent has to be taken specifically. A few suggestions in cross-examination by the cross-examining lawyer, suggesting that the intercourse was with consent, cannot be construed as the defence of consent. There is no reason why Ganga Singh's case (supra) should not apply in the present case.
With the greatest respect to my learned brother, I am unable to agree that a clear body without injury, would support the case of the defence that physical intercourse took place on consent. First of all, as observed above, the accused appellant did not take the plea of sexual intercourse with consent. In any case, failure to offer resistance does not amount to giving consent. Whether a case of sexual intercourse is consensual or not has to be determined having regard to facts of the case. Every case is to be decided on its own merits. The judgement rendered by Court in the particular facts of a case cannot operate as a precedent when the facts are different.
In State of Karnataka Vs. Krishnappa reported in 2000 SCC (Cri) 755 the Supreme court held:
"15. Sexual violence apart from being a dehumanising act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity - it degrades and humiliates the victim and where the victim is a helpless innocent child, it leaves behind a traumatic experience. The courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely."
In the aforesaid case the Supreme Court observed that a socially sensitised Judge was a better statutory armour in cases of crime against women than long clauses of penal provisions containing complex exceptions and provisos. In State of Punjab Vs. Gurmit Singh reported in (1996) 2 SCC 384 the Supreme Court held:
"21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity."
In A.P. Vs. Bodem Sundara Rao reported in (1995) 6 SCC 230 the Supreme Court held:
"9. In recent years, we have noticed that crime against women are on the rise. These crimes are an affront to the human dignity of the society. Imposition of grossly inadequate sentence and particularly against the mandate of the legislature not only is an injustice to the victim of the crime in particular and the society as a whole in general but also at times encourages a criminal. The courts have an obligation while awarding punishment to impose appropriate punishment so as to respond to the society's cry for justice against such criminals. Public abhorrence of the crime needs a reflection through the court's verdict in the measure of punishment. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large......."
I am of the view that the learned Sessions Court rightly convicted the accused appellant of rape under Section 376 of the Indian Penal Code. I am unable to agree with my learned brother that the conviction under Section 376 is liable to be set aside. Let the issue of whether the conviction under Section 376 of the Indian Penal Code is liable to be sustained or set aside, be referred to a Third Judge.
The accused appellant has been convicted under Section 376 of the Indian Penal Code, which provides for minimum punishment of imprisonment of seven years which may in appropriate cases extend to life imprisonment, or for a term which may extend to ten years. The accused appellant has apparently been in detention for over eight years, that is, over one year more than the length of minimum punishment under Section 376 of the Indian Penal Code. Having regard to the fact that the accused appellant has undergone detention for a period longer than the period of minimum punishment and on overall consideration of the facts and circumstances of the case I am of the view that the sentence imposed on the accused appellant may be reduced to the period of detention already undergone by him. The accused appellant may now be set free.
Urgent certified copy be supplied to the present appellant as per rules forthwith. A plain copy of this judgement be given to the Learned Advocate on record as this is one jail appeal.
(INDIRA BANERJEE, J.)