Calcutta High Court (Appellete Side)
Achinta Sarkar vs The State Of West Bengal on 20 May, 2022
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
CRA 277 of 2021
Achinta Sarkar
-Vs-
The State of West Bengal
For the appellant: Mr. Swapan Kr. Mallick, Adv.,
Mr. Mamdulal Manna, Adv.,
Ms. Sudeshna Das, Adv.,
Mr. Sayan Mukherjee, Adv.,
Mr. Urfan Ali Mondal, Adv.
For the State: Mr. Saswata Gopal Mukherjee, Ld. P.P.,
Ms. Faria Hossain, Adv.,
Mr. Anand Keshari, Adv.
Heard on: 11 April, 2022
Judgment on: 20 May, 2022.
BIBEK CHAUDHURI, J. : -
1.
The defacto complainant filed a petition before the learned Chief
Judicial Magistrate at Malda on 11th April, 2007 stating, inter alia, that on
10th March, 2007 at about 11.30 pm, accused Achinta Sarkar, appellant
herein trespassed into her bed room and committed rape upon her under
threatening of dire consequences. The defacto complainant raised alarm
which attracted her father Sudhir Singha. He apprehended the accused
and raised hue and cry. Hearing such hue and cry local villagers rushed
to the place of occurrence and came to know about the incident. At that
time one Phoni Mondal came to the spot and declared in presence of the
villagers that he would arrange marriage of the defacto complainant with
the appellant. He also promised to hold a village 'salishi' over the said
incident and requested the defacto complainant not to lodge any
complaint in the police station. The defacto complainant subsequently
contacted the accused persons but they flatly refused to fulfill their
promise. She was abused with filthy language and driven out from the
house of the accused No.1.
2. The defacto complainant further stated that she informed the
matter to the police attached to Baishnabnagar Police Station in writing
but police did not take any action against the accused person.
3. Learned Chief Judicial Magistrate transmitted the said petition filed
by the defacto complainant to the jurisdictional P.S directing the Officer-
in-Charge of the police station to consider the said petition as FIR and
start investigation following registration of a specific case against the
accused person.
4. The materials on record further suggest that the Inspector-in-
Charge, Baishnabnagar Nagar P.S received the said petition on 26th April,
2007 and registered Baishnabnagar P.S Case No.44 dated 26th April, 2007
under Section 376 of the IPC against the appellant. The investigation of
the case ended with submission of charge-sheet against the appellant
under Section 376 of the IPC. The case was committed to the Court of
Sessions since the offence under Section 376 of the IPC is exclusively a
session trial case. Subsequently, the learned Sessions Judge transferred
the case to the 1st Court of the learned Additional Sessions Judge at
Malda for trial and disposal.
5. The learned trial judge framed charge against the accused under
Section 376 of the IPC as the accused pleaded not guilty, trial of the case
commenced. During trial the prosecution examined nine witnesses.
Amongst them the defacto complainant deposed as PW1. PW2 is the
father of the defacto complainant. PW3 is her mother. PW4 Sukumar
Mondal, PW5 Bijay Singh and PW6 Rabi Singha are the local villagers and
neighbours of the defacto complainant. PW7 Dr. Debnath Sarkar is a
Medical Officer posted at Malda District Hospital at the relevant point of
time. On 21st July, 2007 he medically examined the appellant to ascertain
as to whether the appellant is capable of sexual intercourse in normal
circumstances. PW9 Dr. Sayantan Gupta is another Medical Officer who
conducted Medico Legal Examination of the defacto complainant. PW8
Nepal Chandra Sen is the Investigating Officer of the case.
6. After examination of the witnesses on behalf of the prosecution, the
accused was examined under Section 313 of the Cr.P.C. Defence case as
disclosed from the trend of cross examination of the witnesses on behalf
of the prosecution and examination of the accused under Section 313 of
the Cr.P.C appears to be complete denial of the prosecution case.
7. The learned trial judge on conclusion of trial of Sessions Trial No.25
of 2011 arising out of Sessions Case No.153 of 2011 convicted the
accused under Section 376 of the IPC by her judgment and order of
conviction dated 3rd August, 2021 and 4th August, 2021 respectively and
sentenced him to suffer rigorous imprisonment for a term of seven years
and a fine of Rs.10,000/-, in default further rigorous imprisonment for six
months. The appellant has assaulted the judgment and order of
conviction and sentence passed by the court below in the instant appeal.
8. Learned Advocate for the appellant at the outset attacks the
prosecution case on the ground of delay. It is submitted by the learned
Advocate for the appellant that the alleged incident took place on 10th
March, 2007 at about 11.30 pm. The defacto complainant filed a petition
under Section 156(3) of the Cr.P.C on 11th April, 2007. The FIR was
registered after about 1 and ½ months from the date of occurrence on
26th April, 2007. Delay in lodging the FIR especially in a case under
Section 376 of the IPC is fatal for the prosecution. It is not the case of the
prosecution that the defacto complainant out of shame and humiliation
could not lodge FIR in the jurisdictional police station. Specific case of the
defacto complainant is that she was allegedly raped on 10th March, 2007
at about 11.30 pm. At the time of incident she raised alarm which
attracted her father. The father of the defacto complainant, namely,
Sudhir Singh, PW2 rushed to the room of victim and apprehended the
accused. He raised hue and cry which attracted local people at the spot.
One Phoni Mondal also came to the spot and promised the defacto
complainant that he would give marriage of the accused with the defacto
complainant. Then the defacto complainant went to the house of the
accused to request them to keep their promise. When they refused to give
marriage of the defacto complainant with the appellant, she lodged a
complaint. In view of such circumstances, the learned Advocate for the
appellant has developed his alternative limb of argument raising a
question as to whether the alleged act between the defacto complainant
and the appellant on 10th March, 2007 was a consensual affair or not.
9. In order to substantiate his contention the learned Advocate for the
appellant has referred to the relevant portion of examination-in-chief of
the defacto complainant. Where she stated on oath that after registration
of the case, the accused married her and the said marriage was
registered. Thereafter, he resides with her for 3/4 months. As a result of
cohabitation between them she became pregnant then the appellant fled
away and did not come back. The defacto complainant gave birth to a
daughter in the said wedlock between her and the accused.
10. It is further submitted by the learned Advocate for the appellant
that the defacto complainant is the legally married wife of one Rintu
Singh. PW1 was specifically asked that her marriage with Rintu Singh is
still subsisting however the defacto complainant denied such suggestion.
11. It is further submitted by the learned Advocate for the appellant
that from the evidence of PW2 Sudhir Singh it is found that on the date of
occurrence at about 11.30 pm he was sleeping on the veranda in front of
their Thakurghar. His wife was sleeping on the veranda in front of the
room where the defacto complainant was sleeping. At about 11.30 pm the
wife of PW2 called him and stated that a person had trespassed into the
room of her daughter. Then both of them rushed to the said room and
caught hold of the appellant. At that time the defacto complainant told
that the appellant had raped her. It is also found from his evidence that
the appellant is a resident of another village, named, Nirol. He had his
maternal uncle's house at village Sukdebpur. PW2 and other villagers
took the appellant to the house of Phoni Mondal, maternal uncle of the
appellant. His maternal uncle requested them to release the accused on
condition that they would make arrangement of marriage of the defacto
complainant with the appellant. On the next morning they went to the
house of the accused at village Nirol but the relatives of the appellant
abused them and did not agree to give appellant's marriage with the
daughter of PW2. It is submitted by the learned Advocate for the appellant
referring to the evidence of PW2 that the defacto complainant did not
raise any alarm when the appellant allegedly committed rape upon her.
On the other hand, it is ascertained from the evidence of PW2 that the
mother of the defacto complainant woke up and came to understand that
some person had entered into the room of the defacto complainant. She
then informed the matter to the husband who was also sleeping on the
veranda of their Thakurghar both of them entered into the room and
apprehended the appellant. At that time of apprehension the defacto
complainant alleged that the appellant committed rape upon her. PW2
and PW3 did not see the incident. They reached the room of the defacto
complainant after the incident. It is submitted by the learned Advocate for
the appellant that had there been commission of sexual intercourse
against the will of the defacto complainant she must have resisted the
offender. It is very natural for her to raise hue and cry, but the defacto
complainant did not raise any alarm as it appears from the evidence of
PW2 and PW3. This goes to suggest that the prosecution case is not
beyond the shadow of doubt and the accused is entitled to get benefit of
doubt.
12. PW3 admitted in her examination-in-chief that after filing of the
case, the accused agreed to marry the defacto complainant. They stayed
together for about 5/6 months. Then both of them came to the house of
PW2 and stayed there for about 8/9 days. Thereafter, the accused left the
place saying that he was going elsewhere to earn his livelihood. Thereafter
he never returned to his house. In the mean time, her daughter became
pregnant and gave birth to a female child.
13. PW4 Sukumar Mondal, PW5 Bijay Singh and PW6 Rabi Singh are
local villagers. It is found from the evidence that on the date of occurrence
at about 11.30 pm PW2 Sudhir Singh called them. They came to the
house of Sudhir and found the appellant inside the room of the defacto
complainant. The defacto complainant narrated to them that the accused
threatened her and committed rape upon her. The witnesses then called
the maternal uncle of the appellant namely, Phoni Mondal. He promised
that he would make arrangement for marriage of the defacto complainant
with the appellant. However, the family members of the appellant were not
willing to give marriage of the appellant with the defacto complainant and
then the defacto complainant filed the case against the appellant. The
said witnesses also stated that subsequent to the filing of the case, the
appellant stayed with the defacto complainant as husband and wife for
about 6 months and in their wedlock a female child was born.
14. Medico Legal Examination of the defacto complainant does not
suggest any important evidence in support of the case because the
Medical Officer found that the victim was habituated to sexual
intercourse. Such Medico Legal Examination report was obvious because
the victim herself admitted that she stayed with the appellant for 5/6
months after her alleged marriage and she gave birth to a female child in
the said wedlock.
15. The learned P.P-in-Charge, on the other hand, submits that the
evidence of the defacto complainant and her parents were duly
corroborated by other witnesses. They found the accused in the room of
the defacto complainant at dead hours of night. They informed the matter
to the maternal uncle of the appellant, named, Phoni Mondal. He assured
the defacto complainant and her parents and other witnesses that he
would arrange for the marriage of the appellant with the defacto
complainant. Then he took the appellant away with him. With such
assurance the maternal uncle of the appellant willfully diverted the
defacto complainant and his family members from taking proper legal
action immediately after the occurrence. In order to avoid any legal action
the accused married the defacto complainant in court under Special
Marriage Act. Then he cohabitated with her as a result of which the
defacto complainant became pregnant.
16. It is submitted by the learned P.P-in-Charge that the evidence of the
defacto complainant ought to be considered under the backdrop of the
entire facts and circumstances. Delay in lodging complaint should be held
to be properly explained because the defacto complainant was made to
plea that the accused would marry her. Subsequently, the accused and
the defacto complainant stayed together for few months as husband and
wife. The said fact has not been denied by the accused. A suggestion was
put on behalf of the defence is that the defacto complainant is the married
wife of one Rintu Singh which she denied. Thus, it is submitted by the
learned P.P-in-Charge that in spite of delay in lodging FIR the prosecution
case cannot be held to be suspect. From the evidence of the defacto
complainant it is ascertained that on 10th March, 2007 at about 11.30 pm
when she was sleeping in her room, the appellant entered into her room
and committed rape upon her. She raised hue and cry. The father of the
defacto complainant (PW2) rushed to the room of his daughter and
apprehended the accused. Subsequently, local people assembled at the
P.O. The appellant was apprehended in the room of the defacto
complainant by her father. Subsequently, Phoni Mondal maternal uncle of
the appellant was intimated. He requested PW2 and other villagers to
release the accused on the promise that he would arrange defacto
complainant's marriage with the accused. On such assurance the accused
was handed over to Phoni Mondal. On the subsequent day when PW2 and
other villagers went to the house of the accused his parents and other
relatives abused them and denied to give marriage of their son with the
defacto complainant. Subsequently, the defacto complainant lodged the
petition under Section 156(3) of the Cr.P.C on the basis of which
Baishnabnagar P.S Case No.44 dated 26th April, 2007 was registered. It
also appears from the evidence on record that during the pendency of the
said case, the marriage of the defacto complainant with the accused was
solemnized under the said Marriage Act. Both of them stayed together for
few months. Then the accused renounced the defacto complainant. If the
evidence on record is considered as a whole, only one conclusion will
come that the appellant committed rape upon the defacto complainant on
10th March, 2007.
17. Having heard the learned counsels for the parties and on careful
perusal of the entire materials for the State and held that on 10th March,
2007 at about 11.30 pm the accused committed rape upon the defacto
complainant. Let me assigne the reasons in support of my decision:-
Firstly, it is not specifically denied by the accused that he was
apprehended on 10th March, 2007 at about 11.30 pm in the
room of the defacto complainant. The parents of the defacto
complainant apprehended him and at that time the defacto
complainant told them that she was ravished by the accused.
Secondly, it is not denied by the defence that the accused was
subsequently released on assurance made by the maternal
uncle of the appellant that he would arrange for the marriage
of the defacto complainant with the appellant. Believing on
such assurance the defacto complainant did not lodge
complaint against the appellant immediately after the
occurrence. Therefore, delay in lodging FIR in this case is of
little importance.
Thirdly, the appellant did not deny that his marriage was
solemnized with the defacto complainant during the pendency
of the case in the trial court. After marriage they resided
together as husband and wife. Then the appellant went away
leaving the defacto complainant unnoticed when she was
pregnant. Subsequently, she gave birth to a female child.
18. The learned trial judge considered the evidence on record in detail
and elaborately discussed all the reasons as to why the accused was
convicted. I am not in a position to take an alternative view considering
the evidence on record.
19. Therefore, I do not find any merit in the instant appeal.
20. The appeal is dismissed on contest.
21. The judgment and order of conviction and sentence passed by the
learned Additional Sessions Judge 1st Court at Malda in Sessions Trial
No.25 of 2011 arising out of Sessions Case No.153 of 2011 is affirmed.
22. Let a copy of this judgment be sent to the court below along with
the lower court record.
(Bibek Chaudhuri, J.)
