Sudhangshu Pramanick and ors. Vs. State of West Bengal - Court Judgment

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- arun kumar bhattacharya, j.1. the hearing stems from an appeal preferred against the judgment and order of conviction and sentence passed by the id. assistant sessions judge, diamond harbour in sessions trial no. 5(4) 2001 on 02.04.2002.2. the miniaturized version of the prosecution is that the de facto complainant's sister jayasree mondal used to visit the house of their neighbours accused khokan maity and sandhya maity where accused sudhangshu pramanick used to frequent. on 11.09.1997 corresponding to 25th bhadra, 1404 b.s. at about 1.30 p.m. with the active assistance of the said khokan and sandhya, accused sudhangshu pramanick committed rape on her said sister on a false assurance of marriage, resulting in her pregnancy followed by abortion by the accused persons through a local doctor. salish was held over the incident on different dates, and in such a meeting on 28.07.1998 though the accused persons admitted the guilt of accused sudhangshu of causing pregnancy of jayasree followed by abortion, accused sudhangshu refused to marry her. hence, accused sudhangshu was charged under section 376 ipc, while other two accused persons were charged under section 376/109 ipc.3. the defence case as suggested to p.w. 10 and as contended by the accused persons during their examination under section 313 cr. pc is a complete denial of the alleged offence and that they have been falsely implicated in this case out of animosity.4. 13 witnesses were examined on behalf of the prosecution, while none was examined on behalf of the defence, and after considering the facts, circumstances and materials on record, the id. court below found accused sudhangshu and accused khokan maity and sandhya maity guilty under section 376 ipc and under section 376/109 ipc respectively, convicted them thereunder and sentenced accused sudhangshu to suffer r.i. for eight years and to pay fine of rs. 5000/- i.d. to s.i. for five months and accused khokan and sandhya to suffer r.i. for seven years each and to pay fine of rs. 2000/- each i.d. to s.i. for two months each.5. being aggrieved by and dissatisfied with the said order of conviction and sentence, the accused persons have preferred the present appeal.6. all that now requires to be considered is whether the id. court below was justified in passing the said order of conviction and sentence.7. out of the above 13 witnesses, p.w. 1 jayasree mondal (victim girl), p.w. 2 (de facto complainant), p.w. 4 tapas giri (co-villager), p.w. 5 nemai pramanick (cousin brother of accused sudhangshu), p.w. 8 dr. a.k. roy [m.o. (radiologist)], p.w. 10 smt. bhagabati mondal (de facto complainant's wife) and p.w. 12 dr. s.r. mitra (m.o. of diamond harbour s.d. hospital) are vital, others being formal.8. according to the evidence of p.w. 1, she used to work as a maid-servant in the house of accused khokan and sandhya where accused sudhangshu used to pay visit. both accused khokan and sandhya suggested her to be engaged sexually with accused sudhangshu and he would marry her. a love affair between her and accused sudhangshu grew up which continued for 10/15 days to take a full shape, and after about a month accused sudhangshu indulged in sexual intercourse with her on 25th bhadra, 1404 b.s. at about 1.30 p.m. in the said house of accused khokan saying that he loved her and would marry her. thereafter he raped her on several occasions in the said house of accused khokan resulting in her pregnancy for about three months which was terminated through a quack mohan pal at dasmail. she informed of all these to her boudi bhagabati mondal (p.w. 10), and the neighbouring people also knew of all these things. after her abortion, she came back to the house of khokan and stayed there for about a month and thereafter she went back to her house and disclosed everything to the inmates of the house. a salish was held in the village over the incident in the month of baisakh. in cross-examination she deviated from her evidence-in-chief saying that on the very first day of her joining the work, accused khokan and his wife sandhya asked her to fall in love with accused sudhangshu. nevertheless, that she had a love affair with accused sudhangshu who indulged in sexual intercourse with her on several occasions remains uncontroverted in her cross-examination.9. on principle the evidence of a victim of sexual assault stands on par with the evidence of an injured witness as she is the best witness and is not likely to exculpate the real offender; the evidence of sex offence is entitled to great weight, absence of corroboration notwithstanding, as was held in the case of bhoginbhai v. state of gujarat, reported in : 1983crilj1096 and state of maharashtra v. chandra prakash kewal chand, reported in : 1990crilj889 . the evidence in all such cases is that of the victim herself. substantial corroboration of prosecutrix's version cannot be insisted upon in all cases. the court must bear in mind human psychology and behavioural probability when assessing the testimonial potency of the victim's version. the inherent bashfulness, the innocent naivete and the feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabilise the hypothesis of false implication. corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law but a guidance of prudence under given circumstances. no woman of honour will accuse another of rape since she sacrifices thereby what is dearest to her, as was observed in krishan lal v. state of haryana, reported in 1980 cr. lj 926 (sc). in the case of b. b. hirjibhai, reported in 1983 cr. lj 1096 (sc), it was held that in the indian setting, refusal to act on the testimony of a victim of sexual assault to the absence of corroboration as a rule, is adding insult to the injury. why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the lid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion?... a girl or a woman in the tradition bound non-permissive society of india would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. she would be conscious of the danger of being ostracized by the society including her own family members, relatives, friends and neighbours. still, in the case on hand, the above evidence of p.w. 1 in material particulars is corroborated by p.w. 2, p.w. 4, p.w. 5 and p.w. 10. p.w. 2 deposed that his sister used to visit the house of accused khokan occasionally and work there. a love affairs grew up between his sister and accused sudhangshu who used to visit that house regularly and on 25th bhadra, 1404 b.s. he committed rape upon her and her pregnancy was terminated by a quack at dasmail. when sudhangshu refused to marry her, she reported everything to his wife (p.w. 10) who in turn informed about it to him. he also came to learn about the incident from his sister and informed about it to villagers. he lodged an fir with the police and also filed a compliant (ext. 1) before the court. a salishnama was recorded over the incident, said he. similar is the evidence of p.ws. 4, 5 & 10 and there is no denial of it in their cross-examination. it may be incidentally mentioned that p.w. 10 who was simply tendered for cross-examination nowhere stated that she informed about the incident to her husband p.w. 2. however, though co-villager p.w. 3 deposed in the same tune of p.w. 4 etc., it being hearsay in the absence of his source of information cannot be taken into consideration. according to the salishnama (ext. 9) recorded in the meeting held on 08.05.1998 corresponding to 24th baisakh, 1405 b.s. which was attended by a large number of villagers including accused khokan, accused khokan admitted the guilt of accused sudhangshu as he had illicit relationship with the victim girl on assuring to marry her thereby causing her pregnancy followed by termination by a quack mohan pal of dasmail and father and elder brother of accused sudhangshu admitted the misdeed of accused sudhangshu expressing their no objection in accepting the girl as daughter-in-law. the said meeting was not attended by accused sudhangshu and so, the above admission or declaration of co-accused or father or elder brother is not father or elder brother is not binding on accused sudhangshu, and as such the said admission is of no aid to the prosecution.10. mr. samar dutta, id. counsel for appellant no. 1 sudhangshu, on referring to the evidence of p.w. 1 in cross-examination that she was raped by sudhangshu on the very first day she met him which is contradictory to her evidence-in-chief that after about a month of love affair he first indulged in sexual intercourse with her on 25th bhadra, 1404 b.s. contended that no reliance should be placed upon her testimony. though p.w. 1 stated that she read in school but upto which class has not been disclosed. it is her evidence that she can only sign her name and no more. so exact time or lapse of period by arithmetical calculation from such a rustic villager cannot be expected nor there is any ground for rejection of her testimony when there is general agreement and consistency in regard to the substratum of the prosecution case. that apart, the said witness deposed after about four years of the occurrence. power of observation, memory and recapitulation differs from man to man and memory is apt to be blurred in the passage of time and so photographic picturisation of the collateral or subsidiary fact cannot be expected from her. in appreciating evidence in criminal cases grain is to be shifted from the chaff in the light of the evidence and surrounding circumstances. so the above discrepancy is immaterial.11. mr. dutta contended that neither any document has been produced nor the said quack mohan pal of dasmail has been examined to prove the alleged termination of pregnancy. as a matter of fact, the main issue involved here is whether there was any coitus between accused sudhangshu and the victim girl and not the termination of pregnancy which is a subsequent event. the report (ext. 6) of medical examination of the victim girl, done by p.w. 12 on 2.11.1998 reveals that her secondary sexual character well-developed, axillary hairs scanty, public hairs black and coarse, her vagina well-developed and it easily admits two fingers and there is no sign of old or recent tear of vagina detected. the above very report is suggestive of habitual sexual intercourse and absence of any injury on her private parts would tell its own tale and lends support to the above testimony of p.w. 1 of her involvement in sexual intercourse with accused sudhangshu. before the doctor also the victim girl narrated the entire incident that the said accused sudhangshu promised to marry her on 11.09.1997 and committed intercourse for about eight times resulting in her pregnancy in 1997 and abortion by mohan pal in november, 1997.12. mr. dutta on referring to the evidence of i. 0. (p.w. 13) contended that there is no earlier statement of p.w. 1 regarding date when sudhangshu first cohabitated with her, or when she was conceived, or when she caused abortion and by which doctor etc. and since such omission amounts to contradiction there is virtually no evidence on the part of p.w. 1 relating to her cohabitation with the accused sudhangshu. statements to police are meant to be brief, and omission amounts to contradiction when it is in respect of the vital point, but omission to minor details cannot be utilised as contradiction. section 145 of the evidence act requires in express terms that if it is intended to contradict the witness by the written statement, his attention is to be called to those parts of the statement which are sought to be utilized for contradicting him, and no other method can be substituted. in the present case, the above procedure having not been complied with, that is attention of p.w. 1 to her earlier statements having not been drawn, the defence is not entitled to get any benefit in this regard. moreover, omission to state when first cohabited or when pregnancy was terminated cannot be held to the vital points.13. mr. dutta further contended that the complaint was lodged in court after about long 11 months and such abnormal delay having not been satisfactorily explained the prosecution story should be thrown out. the question of delay in lodging fir is to be considered in the background of human factors involved. mere delay in filing fir cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on that ground. in garmit singh's case, reported in : 1996crilj1728 , it was observed: 'the courts cannot overlook the fact that in sexual offences delay in the lodging of fir can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. it is only after giving it a cool thought that a complaint of sexual offence is generally lodged'. the case of karnel singh, reported in : 1995crilj4173 , may also well be referred to. in the present case, the said accused sudhangshu indulged in sexual intercourse with the victim girl on 11.09.1997 on an assurance to marry her and such coitus continued day after day for which she became pregnant and the pregnancy was terminated. there was attempt on the part of the de facto complainant to settle the matter for which salish was held on different dates. in such circumstances, the delay can be said to have been properly explained and no adverse inference can be drawn.14. therefore, having regard to the legal principle as discussed above and considering the facts and circumstances of the case, there is hardly any reason to disbelieve the testimony of the above witnesses and thus finding of the id. court below that accused sudhangshu committed sexual intercourse with the victim girl is sustainable.15. the next question that arises for consideration is whether the said coitus between accused sudhangshu and the victim girl was a rape within the meaning of first and second clauses of section 375 ipc.16. in case when an accused is charged for having committed an offence punishable under section 376 ipc, the prosecution is to prove broadly sexual intercourse and if the victim is above 16, want of consent. in view of section 114a, evidence act, introduced by the criminal law (amendment) act, 1983 when sexual intercourse by the accused is proved and the prosecutrix deposes to the effect that she was not a consenting party, the presumption arises that she did not consent, and the result is entire burden to prove consent would then rest on the defence. according to the evidence of p.w. 1 (deposed on 10.09.2001), she is now 20 years old. p.w. 2 deposed that his sister was about 14/15 years old at the time of incident. though it is the evidence of p.w. 1 & p.w. 2 that p.w. 1 read in a school, no school certificate has been produced. the date from which age may be ascertained are: (1) teeth, (2) ossification of bones, (3) height and weight, (4) miscellaneous signs. when considered individually little reliance is to be placed in one such individual test, but taken together they may offer a fairly reliable means to ascertain the age. here, after examination of the victim girl on 16.12.1998 and conducting ossification test and x-ray examination of both wrists, elbow joints and pelvis, it has been opined by p.w. 8 that her age ranges from 15 to 16 years. according to jhala & raju's medical jurisprudence (6th edition, page 198), so referred to in the impugned judgment and relied upon by the court below, 'if ossification test is done for a single bone the error may be two years either way. but if the test is done for multiple joints with overlapping age of fusion the margin of error may be reduced. sometimes this margin is reduced to six months on either side'. but according to modi's medical jurisprudence & toxicology (20th edition, 1977, page 32), which is generally accepted as an authoritative book on the subject, the margin of error can be three years on either way. variation of 2 to 3 years on either side is permissible which was accepted in the case of rajinder chandra v. state of chhatrisgarh, reported in 2002 scc (cri) 333. in jaya mala v. home secretary, govt. of j & k, reported in : 1982crilj1777 , such variation on either side was considered to be two years. when there are two views, that which leans in favour of the accused should be adopted. therefore, applying the margin of error of at least two years which goes in favour of the above accused, it appears that on the date of ossification test i.e. 16.12.1998 the victim girl was between 17 years and 18 years that is on the date of incident. about 1 year 3 months back she was between 15 years 9 months and 16 years 9 months.17. as discussed earlier, the evidence in all such cases is that of the victim herself. a glance to the evidence of p.w. 1 reveals that while working as a maidservant in the house of accused khokan and sandhya where accused sudhangshu used to visit frequently she fell in love with accused sudhangshu who after about a month indulged in sexual intercourse with her for the first time on 25th bhadra, 1404 b.s. corresponding to 11.09.1997 expressing that he loved her and would marry her and thereafter such coitus took place on several occasions. if she would have been raped, as contended by her in evidence-in-chief, she would have immediately reported the matter to her boudi (p.w. 10) at least or to the police and would not have been involved in further sexual intercourse with the said accused on several occasions. this very conduct on her part leads to suggest that it was a case of coitus with full consent. it is a settled rule that if a full grown girl consents to the act of sexual intercourse on a promise of marriage and continued to indulge in such activity until she becomes pregnant, it is an act of promiscuity on her part and not an act induced by misconception of fact and the accused cannot be roped on a charge of rape. in this connection, the cases of jayantirani v. state of west bengal, reported in 1984 cr. lj 1535 (cal.), hari majhi v. state of west bengal, reported in 1990 cr. lj 650 (cal.) and uday v. state of karnataka, reported in 2003 scc (cri) 775, may well be referred to. accordingly, finding of the id. court below holding the above-accused guilty under section 376 ipc is erroneous and as such is not sustainable.18. as regards other two appellants viz. accused khokan and sandhya, in order that there may be abetment there must be either instigation or intentional aiding or engaging in a conspiracy as laid down in section 107 ipc. general advice is far too vague an expression to prove abetment. in the present case, the only evidence adduced by p.w. 1 is that khokan and sandhya suggested that she should be engaged sexually with sudhangshu and he would marry her which was contradicted in cross-examination saying that the said two accused asked her to fall in love with accused sudhangshu. asking a girl to fall in love with one does not mean to ask her to be involved in sexual intercourse with the said person and as such it does not constitute an offence of abetment. furthermore, when no offence under section 376 ipc was committed by accused sudhangshu, the question of abetment of the alleged offence by these two appellants khokan and sandhya is out of the way.19. in the premises, in the light of the above discussion, the prosecution cannot be said to have brought home the charge against the accused persons and as such they are found not guilty.20. accordingly, the present appeal be allowed on contest. the judgment and order of conviction and sentence passed by the id. court below on 2.4.2002 in st no. 5(4) 200 j be set aside. accused sudhangshu pramanick, and accused khokan and sandhya maity be acquitted of the charge under sections 376 and 376/109 ipc respectively, and they be set at liberty at once. accused sudhangshu pramanick be released forthwith from custody if not required in connection with any other case.21. alamats, if any, be destroyed after the period of appeal is over.22. let a copy of this judgment along with the lcr be sent down at once to the id. court below.debi prasad sengupta, j.23. i agree.