Calcutta High Court
Biram Soren vs The State Of West Bengal on 19 September, 1991
Equivalent citations: 1992CRILJ1666
JUDGMENT S.P. Rajkhowa, J.
1. This appeal arises out of conviction and sentence in Sessions Case No. 60 of 1985 in the court of the Additional Sessions Judge. 1st Court, Balurghat. The accused was tried for an offence under Section 376 of the Indian Penal Code. The trial ended in his conviction and sentence. The learned Addl. Sessions Judge by his impugned judgment and order D-7-3-88 has convicted the accused-appellant under Section 376 of the Indian Penal Code and has sentenced him to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 100/- in default further rigorous imprisonment for one month.
2. The prosecution ease is that on 30-10-83 there was a football match in the field of Fetepur near Chakbhatshala village to which the prosecutrix and her family belong, within Balurghat Police Station. Most of the villagers had gone to witness the football match. The father and the mother of the prosecutrix Dulali Hansda went to market leaving their daughter alone at their house. The other inmates of the house went to witness the football match. It was about 4 in the afternoon Dulali was husking paddy by "Dheki" (a kind of husking impliment) when accused Biram Soren came and caught hold of Dulali from behind and tied her mouth by cloth and thereafter he committed rape on her by force resulting in bleeding injuries in her private parts. After committing rape the accused left the place. Due to profuse bleeding and injury in her private parts she fell unconscious. The inmates of the house came back home before sunset. She was taken to the Balurghat hospital where she told the story of rape on her by the accused to the doctor and to other relations. After medical examination the doctor gave the finding that it was a case of rape.
3. The incident was reported at Balurghat Police Station on 11-11-83 at about 9.30 a.m. by filing a written complaint by Baburam Hansda, father of the prosecutrix which has been treated as the First Information Report and marked Ext. 2.
4. The defence case is that the accused was in love with Dulali and he wanted to marry her but Baburam Hansda, father of Dulali, refused to accept the proposal of marriage as the accused is a poor man and that Baburam threatened the accused with dire conseuqences for daring to put up a marriage proposal and that this is the reason why the accused had been falsely implicated in this case.
5. Relying on the evidence on record along with the surrounding circumstances and discarding the defence story, the learned Addl. Sessions Judge has held that the prosecution has been able to prove its case against the accused beyond all reasonable doubt and convicted and sentenced him as already stated above.
6. The learned counsel for the appellant unsuccessfully wanted to raise the plea that the accused had neither committed sexual intercourse with the prosecutrix nor had committed rape on her. But in view of overwhelming evidence on record pointing to the involvement of the accused, the learned counsel has dropped that plea and has insisted that the prosecutrix was a consenting party and as she was above sixteen at the time of the incident the question of consent is very material.
7. We have gone through the evidence on record several times and during hearing the evidence on record has been discussed threadbare. At the outset we put the record straight by saying that the prosecution case suffers from various infirmities. The first infirmity that will attract notice of anybody is that there was unusual delay in lodging the F.I.R. The occurrence took place in the afternoon of 30-10-83 and the occurrence was reported at the police station on 11-11-83 at about 9.30 a.m. P.W. 2 Baburam Hansda, father of the prosecutrix has tried to explain the delay in lodging the F.I.R, by saying that he could not file the F.I.R. at the earliest opportunity due to the illness of his daughter Dulali who was hospitalised for 7 days. But we get another version of delay in the evidence of P.W. 5 Nripen Soren who is the brother-in-law of the prosecutrix. He has married Santi, elder sister of Dulali and lives in the house of his father-in-law i.e. in the house of P.W. 2 Baburam. He has stated in his cross-examination that a few days after the incident there was a discussion and a 'Salish' and thereafter ejahar was lodged for punishment of the accused. Except this statement of P.W. 5. prosecution has not brought on record anything as to what transpired when the discussion on the incident took place, who were the persons who took part in the discussion and with what result. It may be argued that the members of the prosecution did not like to report the matter at the police station so as to keep the honour of the prosecutrix and the prestige of the family and to settle and matter through discussion among the villagers. But that evidence is not forthcoming. As such we hold that the prosecution has failed to explain the unusual delay in lodging the F.I.R. to clear the conscience of the court.
8. The second infirmity is that except the evidence of P.W. 7 Dr. Kalyan Kr. Nag there is no other evidence to conclusively ascertain the age of the prosecutrix. No school certificate was produced to show the date of her birth. It is on record that Dulali read up to Class III; but as deposed by P.W. 2, he did not mention the age of Dulali at the time of her admission in her school and that he did not obtain any certificate from the school relating to her age. P.W. 7 has stated that the prosecutrix was referred to the Radiologist for ossification test to determine her actual age. But prosecution has not placed before the court the Radiological report if there was any. As such we are not getting any help from any Radiological Test. Although P.W. 7 has stated that the prosecutrix was referred to the Radiologist for ossification test to determine her actual age yet in cross-examination he has stated that without ossification test the age of a human being can be ascertained by clinical test which is more authentic than ossification test and on clinical test it appeared to him that the girl was 16 years of age. The findings of the clinical test conducted by him on 30-10-83 are that the prosecutrix had 28 permanent teeth and there was some space there for the molar teeth. Her breast developed like that of a young teen-aged girl. The prosecutrix herself told him that she was having menstruation for about 2 years. In absence of ossification test we find it hard to accept the opinion of P. W. 7 that clinical test is more authentic than the ossification test in determining the age of human being. Had it been so, he would not have himself referred the prosecutrix to the Radiologist for ossification test. On the other hand P.W. 1 Dulali Hansda (prosecutrix) has stated that her age was about 15/16 years at the time of the incident. P.W. 3 Smt. Muki Soren, mother of the prosecutrix has stated in her cross-examination that she cannot say the date of birth of her daughter but that her exact age was 16/17 years at the time of the incident. Similarly P.W. 5 Nripen Soren, brother-in-law of the prosecutrix has stated in his cross-examination that at the time of the incident Dulali was 16/17 years of age. From the evidence of P.W. 1, P.W. 2, P.W. 3, P.W. 5 and P.W. 7 as discussed above we come to the conclusion that the prosecutrix was more than 16 years of age at the time of the incident.
9. The third infirmity is that the accused was not medically examined. It is beside the point whether after so many days any injury could have been detected on the person of the accused.
10. Now as regards, the offence of rape, P.W. 1 has stated that at about 4 p.m. while she was husking paddy the accused Biram Soren came and caught hold of her from behind and tied her mouth with a piece of cloth and committed rape on her by force. As a result of this she felt pain in her private parts and there was profuse bleeding P.W. 7 examined the prosecutrix at 9.10 p.m. on 30-10-83 at Balurghat General Hospital. He was attached to the hospital as a gynaecologist. On examination he found :
1) Valva, Thigh, Mons Venaris all smeared with fresh blood and clotted blood.
2) Hymen -- torn -- fresh tear-posterior part;
3) Vagina -- extensive laceration of vagina -- right lateral wall of the vagina -- up to the vault of the vagina is full of blood with recently formed clot.
11. Vaginal swab was taken and sent. Vagina was stitched with local anesthesia. The vaginal injury might be caused by sexual intercourse. P.W. 7 took the history of the case from the prosecutrix who stated before him that Biram Soren forcibly introduced his penis into her genital organ at about dusk. She was hurt by that and she had severe bleeding from her organ. On the basis of his findings and upon recording the case history from the prosecutrix, he gave the opinion that the vaginal injury was due to sexual intercourse. P.W. 1 has stated that she told the story of rape on her to the doctor, to her elder sister Santi Hansda, to her parents and to the wife of her brother Naren Hansda. This statement finds corroboration in the evidence of the doctor (P.W. 7), mother (P.W. 3) Santi Hansda (P.W. 4) and Nripen Soren (P.W. 5). Thus on the basis of evidence on record we have no hesitation to give a clear finding that there was sexual intercourse between the accused and the prosecutrix on the date of the incident.
12. Now the crucial point is whether this sexual intercourse between the accused and the prosecutrix took place with or without the consent of the prosecutrix. P.W. 1 has stated in her cross-examination that she resisted vehemently when the accused caught hold of her. She resisted when the accused placed his hands on her breast and thus a scurrfle ensued between them as a result of which the blouse on her wearing got torn. While she resisted the accused sustained some scratch injury on his person. She also sustained some scratch injury on the upper part of her body. No other prosecution witness has corroborated the fact that the prosecutrix had sustained some scratch injury on the upper part of her body. P.W. 7 has stated inter alia that generally there is resistance if somebody wants to commit rape on an unwilling woman. In that case i.e. if resistance is offered, there is the possibility of marks of violence on the breast, thigh and other parts of the victim. But from the injury report given by him it appeared to him that he did not note any such mark of injury on the person of the prosecutrix. From the injuries in and around the vagina, P.W. 7 came to the conclusion that it was a case of rape. But neither prosecution nor defence made any searching question to P.W. 7 as to whether the extensive laceration found by him was due to resistance offered by the prosecutrix coupled with forcible attempt to commit rape by the accused or whether such laceration might be caused when a girl experiences sexual intercourse for the first time in her life and that too with her consent. To prove absence of consent, the prosecution has tried to show that the accused was so brutal in ravishing the prosecutrix that soon after ravishment she had lost her senses and regained it only after some hours at the hospital and that is the reason why the prosecutrix could not disclose the name of the culprit soon after the occurrence when her parents returned home from market at about 5/5.30 p.m. On seeing her lying unconscious arrangement was made to immediately remove her to the hospital and accordingly she was taken to Balurghat hospital. P.W. 7 has opined that as she was profusely bleeding there was chance of unconsciousness. But at the same time he has stated that when the prosecutrix was brought to the hospital she was conscious. It is seen in the evidence of P.W. 5 that he met the party carrying the prosecutrix when they came by the bank of the river on way to the hospital and at that place P.W. 5 found Dulali in her sense and she was also talking although she was moaning with pain. This clearly shows that she had opportunity to disclose the incident and the name of the accused. At that time her parents and others were also present. In our opinion the evidence of the prosecutrix cannot be swallowed whole without a grain of salt. The accused is not a stranger. He is a co-villager. There may or may not be any love affair between them but it is not understood as to why she was not disclosing the name of the culprit before her parents when they reached home by about 5/5.30 p.m. on the date of occurrence which took place at about 4 p.m. It appears to us, that the element of losing consciousness was introduced as an afterthought. It is clear that the prosecutrix did not like to disclose the name of the culprit and only when P.W. 7, on examination of her, found that bleeding from her private parts was due to the injuries such as laceration and tearing of the hymen and not because of menstruation and when he formed an opinion that this was because of sexual intercourse, the prosecutrix disclosed that she was raped by accused Biram Sorcn. In a case of this nature it may sometimes so happen that even if the name of the culprit is known, the victim and other members of her family may try to suppress the incident to save them from public humiliation and with an eye to the future of the victim. But here in this case the prosecutrix and other members of the prosecution have denied any love affairs between the prosecutrix and the accused. They have also denied that the accused had offered to marry the prosecutrix before the incident. Then after about 11 days from the date of the occurrence the F.I.R. was lodged. The natural conclusion will be that, love or no love, the situation provided them with a chance to have physical union. Most of the villagers were away to see a football match. Some of the inmates were also away for the same purpose and the parent of the prosecutrix went to the market. She was left alone. Intimate passion ran high in both of them which took the upper hand of reason and they fulfilled their carnal desire by enjoying sex. The fresh tear of hymen and the extensive laceration of the vagina were due to the fact that she experienced sexual intercourse for the first time in her life. Absence of any other injury on any part of the body of the prosecutrix gives a lie to her statement that there was a scuffle and as a result the blouse on her wearing was torn. Non-disclosure of the incident of sexual intercourse and the name of the appellant at the earliest opportunity even though she was found conscious and talking to her parents on way to hospital and absence of external injuries such as nail marks on breasts, scratches and abrasions on thighs, buttock, back etc. suggest consent. We are aware of the note of caution sounded by the apex court in the case of State of Maharashtra v. Chandra Prakash in dealing with the case of a rape victim. It has observed in para 18 of the reported judgment, "The Court must not be oblivious of the emotional turmoil and the physiological injury that a prosecutrix suffers on being molested or raped. She suffers a tremendous sense of shame and the fear of being shunned by society and her near relatives, including her husband. Instead of treating her with compassion and understanding as one who is an injured victim of a crime, she is, more often than not, treated as a sinner and shunned. It must, therefore, be realised that woman who is subjected to sex-violence would always be slow and hesitant about disclosing her plight. The Court must, therefore, evaluate her evidence in the above background". We shudder at the injuries sustained by the prosecutrix in her private parts. Yet we are constrained to hold that it is not a case of rape for the reasons stated above.
13. The result is that the appeal succeeds and the same is allowed. The impugned order of conviction and sentence is set aside and the accused is acquitted of the charge under Section 376, I.P.C. The accused who is in jail be set at liberty forthwith.
J.N. Hore, J.
14. I agree.