Calcutta High Court
Anath Bandhu Kundu vs The State Of West Bengal And Ors. on 4 March, 1996
Equivalent citations: (1996)2CALLT293(HC)
JUDGMENT Asish Baran Mukherjee, J.
1. The appeal arises out of conviction and sentence passed by the learned Sessions Judge, 5th Bench, City Sessions Court, Calcutta in S.C. Case No. 11 of 1994 being S.T. Case No. 2 of May, 1994 whereby the learned Judge sentenced the accused appellant to R.I. for seven years and fine of Rs. 5000/- in default to suffer further R.I. for one year on a charge of under Section 376 IPC.
2. The case of the complaint is appearing from the statement recorded at Jorasanko P.S. on 6.12.89 made by Kalpana Choudhury, alleged to be the victim girl who gave her age as 14 years. As per statement she was a resident of a village in District Murshidabad. She used to work for about two years in the house of accused appellant Anath Bandhu Kundu at 69, Tarak Pramanik Road, Calcutta as a maid. The accused, who was engaged in Jewellery business as Bombay, also possessed a flat there. In the month of July of the year when she made the statement, namely, in 1989 she accompanied the accused to the Bombay flat. Since he have no other servant or any member of the family staying there. About three/four months prior to the Durga Puja, probably in the month of July, she reached Bombay with the accused. From the very night the accused started to committed rape on her against her will. When objected he threatened her. The complainant stayed there for six(6) days and-such act was committed daily by the accused. Thereafter both of them returned to Calcutta. When in Calcutta she did not disclose the entire incident to the wife of the accused out of fear but she stated to her .that while under intoxication the accused used to embraced her. To this the wife of the accused told her not to disclose this fact to anybody else. She accordingly did not disclose the fact to any body else also, because the accused also threatened her that In the event of any disclosure he would kill her.
3. About 16/12 days prior to the Durga Puja, the complainant have to accompained the accused to the Bombay flat again where they stayed for 15 days at a stretch. On this occasion also the accused used to rape her under threat. One day before Durga Puja both of them came back to Calcutta and still then she used to stay In the Calcutta house of the accused.
4. One of the duties which the complainant had to conform in the Calcutta house was to apply oil on the body of the accused in the morning. There were frequent Guanels between the accused and his wife over this part of the duty. About 7/8 days prior to the date of making the statement to the Police, wife of the accused threatened her to the effect that unless she left the house, she would kill her. Being afraid she fled away from that house on Saturday last. Out of fear she did not disclose the fact to anybody but some of the Para Boys enquired on her on the date statement was made to the Police and she disclosed the entire incident to them. She does not know those names. Those local boys took her to the police Station and the complainant disclosed the incident to the Police who took it down and thereafter she gave her LTI after the statement was read over to her. She was accompanied by two women also besides some Para Boys.
5. Jorasanko P.S. Case No. 564 of 1989 was started on the basis of the said statement.
6. On 17.12.89 the accused was produced under arrest before the learned ACMM, Calcutta. The complainant was also produced on the same day. Investigation which continued in the Calcutta for some time it subsequently transferred to Bombay but latter it again was transferred to Calcutta under the order of this Court. Charge-sheet in this case was submitted on 31.1.94. Following commitment the case was tried by the learned Sessions Judge at City Sessions Court, Calcutta, the date of the charge-sheet as appears from the Challan submitted by police is 13.8.93 but curiously enough the dates put below are completely different. While at one place it has been mentioned as 13.8.93 in the proper column means for nature of complainant and the date of institution at other places the date has been mentioned as 10.9.81. This anamolies has not been explained anywhere in the record.
7. The prosecution in course of trial, examined nine witnesses, no witness was examined for the defence.
8. The learned Judge on a consideration of materials on record came to the conclusion that the prosecutrix was under 16 years of age on the relevant time and as such her consent was immaterial. He also concluded that there was reported rape on the complainant by the accused while staying at Bombay on two occasions. He also did not consider the delay in lodging the FIR as fatal having regard to the fact that the complainant was illiterate and without any ambition after she fled away from the house of the accused.
9. Being aggrieved this appeal has been preferred on the ground that the trial is initiated by reception and reliance on evidence which is admissible in law that the evidence of P.W. 2 to P.W. 4 are all hearsay. That the delay in lodging the FIR, was not properly explained that Trial Court was in error for basing conviction solely on the uncorroborated testimony of the victim girl, that, the age of the girl at the relevant time should not have been feated to be under 16 years, that charge-sheet was submitted beyond the period specified in Section 167(5) Cr.P.C. without there being any appropriate order for continuation of investigation beyond the period, that the examination of the accused under Section 313 was perfunctory, that conviction is passed on sociological considerations and on conjecture and sunrise, that the circumstances favourable to the defence were not considered by the Trial Court, that no adverse inference was drawn by the trial Court for non-examination of essential witness for the Trial Court did not record an order of acquittal from the offence under Section 506 with which the accused was also charged apart from Section 376 IPC.
10. The point of determination in this appeal is whether the conviction and a sentence is in accordance with law.
11. The charges framed under the accused appellant were under Section 376 and 506 IPC but the learned Judge in course of his discussion concentrated himself to Section 376 IPC alone and passed on the sentence accordingly. He did not make any reference to the charge under Section 506 IPC with which also the accused was charged.
12. Before taking up the evidence on this point for the purpose of appreciation in the background of the circumstances as revealed from the prosecution witnesses, I propose to tell that the decision which were cited by the learned Advocates representing the State as also the accused appellant. In the process I shall not take up those decisions which though cited at the Bar were completely out of context.
13. The accused appellant relied on a decision reported in 1995 AIR SCW 3012 where in a case under Section 376 IPC delay of six(6) days was held to be fatal when even after the alleged commission of the offence the prosecutrix attended a dancing performance and narrated the incident to her mother six(6) days after the alleged incident. It was held that in a case like this. It would be unsafe to rely on the word of the prosecutrix of having committed the offence without her consent but It would be' safe to lean In favour of the appellant and accord to him the benefit of doubt. Reference has been made to a case on the point of opinion of the Doctor on the point of age of a person, it has been held that in the matter of determination of age on the basis of radiological examination the margin of error as ascertained from such examination is two years on either side. Reference has also been made to a case on the point of delay in lodging the FIR where it has been held that the FIR in a criminal case is extremely vital and valuable piece of evidence for the purpose of corroborating oral evidence. Its importance can hardly be overestimated from the stand point of the accused. Delay in lodging the FIR quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets benefits of advantage of spontaneity, danger creeps in of the Introduction of coloured version, as a result of deliberation and consultation. As such delay in lodging the FIR need to be satisfactorily explained. In this case delay of twenty hours was held to be fatal, the Police Station being within 2 miles from the place of alleged incident. Reference has been made to another case on the point of material discrepancy which has been defined as discrepancy which are not normal and are not expected of a normal person. On the point of radiological examination the decision reported in 1989, Calcutta Criminal Law Reporter in 143 has been referred to. It deals with medical evidence of Rediologist which has been turned as nothing but the opinion of an expert that can be considered only for lending assurance to other evidence proving or disproving a particular fact. In the case it has been enunciated that in a case when the prosecutrix gives different versions regarding her age at different stages of investigation and trial, such evidence should not be relied on. The case reported in AIR 1964 SC 1622 deals with the importance 6f circumstantial evidence wherein the event of a case based only substantial evidence alone the principles be observed has been discussed. This in my opinion is not relevant to the point at hand.
14. The learned Advocate appearing for the State has also relied on a number of decisions in support of his contention that the conviction is passed on proper appreciation of evidence. The case which has been cited by him is not on the point. In that case in course of Investigation Police recorded the statement of main eye wllnc-ses fifty-six(56) days after the making of the FIR. There was satisfactory explanation for delay in recording the statement by the Police. Such delay recorded by the Sessions Judge and also ratified by the High Court as such Supreme Court did not interfere with it. Delay in recording FIR as in case in hand is completely different from the delay in recording the statement of an witness In course of investigation by Police and there cannot be any analogy between the two. In the case there was a delay of about five hours in lodging the FIR which in the facts and circumstances was held not to be fatal. Reliance has been placed in a case reported in Calcutta LT 1988(2) HC 121 on the point of delay in lodging the FIR which in that case was four months. I have carefully perused the said judgment and it is completely In a different context. In that case there was no doubt a delay of four months in lodging the FIR which was done by the mother of the alleged victim girl in the said case the prosecutrix had no contact with her mother for the period of four months during which she was in the company of the perpetrator of the crime roaming in different places in India and she could narrate the incident to her mother only after her return those places to her native place in West Bengal. The finding of the learned Judge consisting of the Division Bench is that a different view might have been taken if the victim girl was the informal and she did not lodge the FIR in time inspite of having opportunities to do so. On the point of determination of age on the basis of radiological examination which has been observed that it can not be regarded as conclusive since the age in that particular case could be anyhow between 17/19 years at the relevant time.
15. In the background of the legal position as appears from the different decisions on this point cited by the learned Advocates, I propose to discuss the evidence on record. It is the present day law that in a case like this the evidence of the prosecutrix if believed in material particulars and If it is found to be free from any material discrepancy may be accepted without any corroboration as a proof of the offence depending on the circumstance of the case though as a Rule of Prudence the Court Insistence corroboration to some extent. The essence of the evidence of the prosecutrix must be free from any blame.
16. It may be keep in mind that in the present case the FIR was lodged on 12.12.89 by the prosecutrix herself. It is in evidence that she has her parents alive and they stay in a village in the District of Murshidabad but they used to come to the place of work of the girl, nemely, the house of the accused every month for the collection of the salary given to her and on those occasions used to stay In the same room with the girl in the said house. But at no point of time, during cross-examination any of the parents were contacted and there is no explanation for the same. In fact, the parents are anywhere In the picture at any point of time, on the other hand some local boys residing in, the place where the house of the accused is situated and an couple of unknown women (who were neither interrogated nor examined) came to the help of the girl and It is at their instance that the girl narrated the alleged incidence to the Police giving rise to the present case. The alleged incident took place once about 3/4 months before the Puja in 1989, the girl would be the period as sometime in July and the other is about 15 days prior to the Puja of the same year. The place of occurrence is both at Bombay in the flat of the accused. As per the F.I.R. on the first occasion it was for six(6) days when she was violated daily and in the second case it was for 15 days and such violation was also a daily affair. In between the two, both the prosecutrix and the accused returned to Calcutta stayed in the same house with other members of the family when the parents as also the uncle of the alleged victim girl came as usual to the house of the accused for collecting salary and had also occasions to stay in the same room with their ward. As per the F.I.R. the age of the girl has given in December, 1989 was 14 years. The F.I.R. being the information given to the law enforcing authority should be treated as a vital document and the subsequent evidence given during trial is to be violated keeping in mind the sequences mentioned in the F.I.R. A narration of the F.I.R. is not essential but some of its part need be mentioned. It says that after their return to Calcutta the prosecutrix did not narrate the entire incident to the wife of the accused since the accused is a formal man having his wife and children staying in Calcutta but she narrated that in course of her stay at Bombay Flat the accused used to embrace her in an intoxicated condition. The wife of the accused Is reported to have told her not to tell it anybody else but deed no more. Again about 16 clays prior to the Durga Puja the prosecutrix accompanied the accused to the Bombay flat and stayed there for 15 days and had the same experience. Following this they again came back to Calcutta one day before Puja and the prosecutrix started to reside in the house of the accused. She fled from the house of the accused only on Saturday last (she made the statement to Police on 16.12.89) but she did not disclose the incident to anybody out of fear but after a few days she narrated everything to some Para Boys whose names are not known her and they brought her to the Police Station where she made the statement,
17. The age of the prosecutrix in a case like this is of much importance. Specially in a case when the prosecutrix has got enough opportunity to tell the incident to many a persons Including her near relation in order to determine whether the alleged violation is in fact against the will of the prosecutrix or wheau\er she was a consenting party to the same.
18. The radiological examination was done by P.W. 6, Doctor N. Mondal on 21.12.89. He found the age of the prosecutrix to be between 15/16 years on the date of such examination. The Doctor also examined both the alleged victim and the accused to ascertain if the accused was successfully burdened and the prosecutrix became the subject of rape. A scrutiny of this report given by the Doctor reveals that he did not give any opinion on the point of commission of rape even though in course of his evidence as P.W. 5, he stated that the prosecutrix had the experience of sexual intercourse before such examination. In the report he has answered a number of questions but that is not intelligible in view of the fact that he did not mentioned any of the questions but gave the replies in a cryptic manner, Even though he took care to mentioned the questions so far as they relate to the accused. The only evidence on the point of age apart from the statement of the girl is the determination made by radiological test. The admitted position of law is that in the event of determination of age on the basis of radiological test the mergin of error is two years on either side. While discussing the different case laws I have shown that opinion given by a Doctor regarding age on the basis of radiological test is nothing but an opinion and the same is required to be assessed on the basis of other materials on record. I have already staled that in this case the investigating machinery does not think It necessary to examine either of the parents or the uncle of the prosecutrix though it will appear from the evidence of prosecutrix herself that they used to visit her atleast once in a month and she had also occasion to go to the native place and stay with her family. The age given by the victim girl to be 14 years on the date of alleged offence and also on the date of FIR, there being a gap of six(6) months cannot be taken as conclusive. The reason which turns the prosecution to explain the delay In lodging the FIR, namely, illiteracy of the prosecutrix need also be considered while determining the evidentiary value of the age given by the prosecutrix. Therefore, there is no other alternative but to rely on the determination of age as revealed from radiological test which as I have told earlier is between 15/16 years on the date of examination. Allowing the margin of error to be two years the range of age is to be taken from 13 years to 18 years. It is the admitted proposition of law that when two versions are possible the version which suits with the defence case is to be accepted. After keeping in mind this proposition of law, it is necessary to discuss the evidence of the prosecutrix carefully on the point of the alleged offence. Since in this case it is her evidence alone on which the prosecution case rests. The rest of the evidence are absolutely hearsay having very little significance on the point of commission of the offence. In course of her evidence while stating that she acted as maid servant in the family of the accused for two years she out of her experience with the accused in the Government flat on the first occasion sometime in the month of July 1989 when according to her, inspite of resistance she was violated twice a day, once in the morning and the other in the night on the six days of her stay. She gave a graphic detail of the incident which is seldom available in a case like this from the mouth of tender girl, as the prosecution forcefully argued. She categorically stated that while in Calcutta after the first series of incident she narrated the entire incident to the wife of the accused when the wife and the children used to assault her and asked to leave the house. However, she stayed in the said house even thereafter and there was a proposal for taking her to Bombay once again and as such she again followed the accused to the Bombay flat where she used to bold the door of her room inside but according to her evidence accused used to torture her for opening the door and she have to do so on all the days. On her return to Calcutta she again reported'^ the entire incident to the wife of the accused inspite of threat held by the accused. Due to torture in the family of the accused she left the house and stayed in the house of a unknown lady at Maniktala for 15 days in course of which she reported the entire incident to the para Boys who took her to a local club and Police was informed. So according to her the reporting was done to some Para Boy of Manicktala where she used to stay with the unknown women. We get from her cross-examination that her father was a Lorry Driver and mother a fish-dealer. She used to work under the accused for Rs. 70/- a month. Her father and uncle used to visit the house of the accused for collecting monthly salary and used to stay together in the house of the accused. In course of performing her duties she was also required to go outside the house where she had an intimacy with a local boy named Habul living infront of the house of the accused. She is capable of going to her native place alone by Bus. Habul had also occasion to visit native place. On one occasion she accompanied the accused and the family members from her native place to Calcutta. This shows that even the accused and her family members had an occasion to go to the native, place of the prosecutrix. It is revealed from her evidence that while working in the house of the accused she was very intimate with Habul. There was a proposal for marriage between Habul and the girl but former was already married and his wife seriously objected and as such the event never happen. She admits that after her first visit to Bombay when she came back and when there was a proposal for her to go to Bombay again, she resisted but it was due to insistence of the wife of the accused and also threatening of the accused she had to go to Bombay again with the accused. While threatening of the accused may easily be explained from the point of view of the prosecution the insistence by the wife of the accused is something which cannot be explained and digested if we keep in mind that after her return from Bombay on the first occasion she narrated the entire incident to the wife of the accused which was followed by illtreatment by her and her children. Is it believable even after the occurrence of the first incident wife of the accused at least shall insist that she would accompany the accused alone to the Bombay flat? We get from her that their flat adjacent to the flats of the house of accused at Bombay and those flats are visible from the windows of the flat of the accused. He categorically admitted that on no occasion she disclose the incident to her mother when she came to the house of the accused and the plea taken by her is that it was due to the fear and threat held out by the accused. It is also her evidence that after her return from Bombay she enjoyed Durga Puja in Calcutta with the family members of the accused. It is her evidence that after her return at Bombay on the second occasion her mother visited the house of the accused for collecting the monthly salary. Is it believable that after her ordeal at Bombay, as the prosecutrix wants to say she had the tenacity to enjoy the Durga Puja in Calcutta along with the members of the family of the accused? Is it believable that even after the second series of incident and earlier assault by the accused due to her refusal to go to Bombay on the second occasion, she would keep silent even to her mother when she came to collect money from the accused?
19. P.W.2 and P.W.4 are said to be Para Boys to whom the incident was related by the prosecutrix on 16.12.89 that is the day when the FIR was made. The evidence of P.W. 2 i's that on the said clay he was in the Stall of one Bani Babu (P.W.4) when an elderly women brought one young girl and reported one Incident of sexual intercourse by the accused during July, 1989 when he was asked by Bani Babu to produce the girl to the Police Station which he did. It is true, that in course of his cross-examination that the accused encouraged sports and never obstructed the local Boys from participating in this sports but it is evident from the cross-examination that during Tournament the vehicle of the accused have to be shifted to the Main Road in order to facilitate the game. The evidence of P.W.3 who also describes himself as a friend of P.W.2 is to the same effect. We get from him that during the holding of sports in the locality the accused had to suffer. Nevertheless, he wants to say that the accused used to pay donations for functions in the locality. A suggestion that refusal to pay donation by the accused was the subject matter of harassing was however denied. P.W.3 stated to be the owner of Tea-Stall and a member of local Committee of a Political Party is a self-style Presiding Officer disposing to public complaints and giving proper direction for redress of public grievance. He also speaks of the girl being taken to her on 16.12.89 as she was in distress. A suggestion that the accused was assaulted prior to he was handed over to the Police was however denied. P.W.6 and P.W.7 are Police Personnel attached to Bombay Police who recorded some statement and also followed some information while the investigation was shifted to Bombay, none of them said anything material. P.W.8 speaks of the accused having a flat in Bombay in his wife's name P.W.9, S.I. of Police recorded the statement of P.W.I at the Police Station. He also investigated the case and submitted challan.
20. A careful scrutiny of the evidence as also the circumstance discussed earlier leads me to conclude that there was an utter valuation on the part of the prosecution to prove the charges against the accused appellant beyond all reasonable doubt. The delay in lodging the FIR is fatal in this case. The story given by the prosecutrix does not appear to be believable. There is nothing un-natural for her to accompany her Masters to Bombay on the first occasion when she might have gain some experience for which she was prepared but her second visit to Bombay with the same accused cannot be treated as possible in case she had the first experience and in case she narrated the same to the wife of the accused. Her evidence that wife of the accused insisted her to visit Bombay again with the accused and stay there alone knowing fully well the alleged incidence on the first occasion is absolutely impossible to believe. The evidence that even after her second experience which was bitter to her and which was on the insistence of accused who even assaulted her for her refusal to give consent for the second visit. And the story of enjoying the Puja with the accused and his family members in Calcutta after her return from the second series of incidence. can not be reconciled. In order to disclosure of the incident to either of her parents or the uncle who used to visit her monthly is not believalbe specially when she is reported to have described the incident to the wife of the accused even after her first visit to Bombay. It was very much natural for her to disclose the incident to her mother atleast, when she could told every thing to the Para Boys whose names are not even known to her. She had a lover staying in the house opposite to that of the accused. It was much natural for her to tell the incident to him atleast specially when she was in love with him and there was also proposal for the marrriage the two. She was never kept confined inside the house of the accused but she have to go to outside in course of performing her duty regularly.
21. On the point of age I have alreaduy stated that the same cannot be treated to be as below 16 and as such consent is very much relevant in a case like this. Two views of age being possible and the accepted legal position being an error of two years on either side the benefit of age must be reaped by the defence and as such her age could be something from 13 years to 18 years. As such can not be treated to be under 16 years of age at the time of the alleged occurrence. In this context reference has been made to one part of the Medical Examination of the prosecutrix dealing with a particular organ known as fourchette which as per the Medical Dictionary is a small tense band found joining the posterior parts of the labia minor and separated from the hymen by the fosia navicularis. This structure is stated to be very fragile and often tears during first intercourse. Even trawing the labia minor a well apart can tear the fourchette and it may thus be damaged even during washing of the parts. The Medical Report found this organ intact which is not possible if the version of the prosecutrix is accepted that she used to be violated regularly twice a day for six days on the first occasion and fifteen(15) days on the second occasion.
22. Thus it can not definitely be stated that the prosecutrix was subjected to sexual intercourse specially when the Medical Report does not contained any opinion on this point. Even though, the Doctor holding the examination speaks of such intercourse during evidence. Even if it is believed that the prosecutrix was subjected to such violation even though it cannot be said under the facts and circumstance that it was against her will. So far as age is concerned, it is a border line case and in the absence of any definite evidence that she was under 16 at the relevant time obvious conclusions will be she was a consenting party. In that event there cannot be any offence under Section 376 IPC. As a corollary to this finding charge under Section 506 IPC also can not stand. I have said earlier that the learned Judge Is silent in course of his judgment about this charge, although the accused was facing a trial for this charge also.
23. A careful scrutiny of the judgment of the learned Judge reveals that in my opinion that he was very much perturbed about the growing incident of sexual offences in this country and the sociological aspect, namely, rejection of a violated women by the society so much impressed him that he was carried out by omission and did not scrutinise the evidence of the prosecutrix carefully in the light of the statement of the prosecutrix as mentioned in the FIR, the improbabilities and also the circumstances on record. He took the opinion of Doctor regarding age is sacrosanct and concluded the age of the girl to be under 16 years. He also take no notice of the omissions to disclose the incident by the prosecutrix to her near and dear once, though they were easily accessible to her regularly atleast in a month. In the result the finding of the learned Judge is devoid of proper reasoning based on the evidence on record and also the circumstance which came out in course of the evidence including the inordinate delay in lodging the FIR. Accordingly, the order of conviction and sentence can not sustain.
24. In the result the conviction and the sentence is set aside. The appeal stands allowed. The accused appellant is acquitted all the charges framed against him and is released from his bail bond.