High Court · 2012

t for another period of six months. 2. I have heard Mr D.R. Gogoi, learned counsel, appearing for the appell ant and Mr B.S. Sinha, learned Addl. Public Prosecutor, appearing for the Respon dent State. 3. The prosecution case, in brief, is that, the daughter of the informan t used to render service as a domestic help in the residence of Sri Hari Pada R oy, as and when required. Accordingly, as usual, on 28.11.2007, while she was working, in the residence of Sri Hari Pada Roy, at about 6 p.m., taking advantag e of her loneliness in the said house, Sri Ranjan Roy, son of Sri Hari Pada Roy , committed rape on her. Though, the victim girl had reported the matter to the mother of the offender, she was assured by the former that she would be married by her said son. However, after about 15 days and during the monthly course o f her menstruation, Sri Hari Pada Roy took her to her parents house with the as surance that he would arrange her marriage with his said son. Subsequently, when the victim girl approached Sri Ranjan Roy and his parents with the proposal f or marriage as per their earlier assurance, the said persons assaulted and thr eatened her. Therefore, on 2.8.2008, the victim girl lodged an FIR with the pol ice. On receipt of the FIR, police registered a case under Sections 341/325/50 6/376/34 IPC and launched investigation into the matter. During the course of in vestigation, police got the statement of the victim girl recorded under Section 164 Cr.P.C., collected the medical report in respect of the victim girl and rec orded the statements of the witnesses. At the close of the investigation, police arrested the accused person and submitted the charge-sheet under Section 376 IP C, against Sri Ranjan Roy. 4. The case being committed to the court of Session, learned Sessions Judg e framed charge under section 376 IPC. The charge was read over and explained t o the accused person, to which, he pleaded not guilty. 5. The prosecution examined as many as nine witnesses including the Medic al Officer and the Investigating Police Officer. At the close of the evidence of the prosecution, the accused person was examined under Section 313 Cr.P.C. He denied the allegations ,brought against him and declined to adduce defence evide nce. 6. The learned Trial Judge, considering the evidence on record, more partic ularly, the evidence of the victim girl, convicted and sentenced the appellan t as indicated above. It has been directed that, in the event of realization o f fine, the same should be paid to the victim girl. Aggrieved by the said convic tion and sentence, the convicted person, as appellant, has come up with this ap peal. 7. Mr D.R. Gogoi, learned counsel, appearing for the appellant, taking thi s Court through the evidence on record, has submitted that, the delay in lodging the FIR, coupled with the claim of the victim girl that she was assured by th e appellant and his parents that, her marriage with the appellant would be ar ranged, indicates that the victim girl, who was a major, was a consenting party. He also submitted that, as the proposal for marriage was declined by the pare nts of the appellant, the informant falsely lodged the FIR alleging that, she wa s raped by the appellant. The learned counsel has also submitted that there is n o evidence on record to show that the informant had put up any resistance to th e appellant and as such, she was a consenting party. In view of the above, the l earned counsel has submitted that the learned Trial Judge committed error by con victing the appellant, under Section 376(1) IPC. 8. Supporting the impugned judgment and order, the learned Additional Pu blic Prosecutor, has submitted that, in the facts and circumstances of the case and in view of assurance given by the parents of the appellant, the delay in lod ging the FIR is not fatal. It is also submitted that, at the time of occurrence, there was none except the victim girl and the appellant, in the house of the l atter, and as such, absence of any other evidence cannot be a ground to reject t he forceful evidence given by the victim girl. 9. In order to appreciate the counter arguments , advanced by the learn ed counsel for both the parties and to examine the correctness of the impugned judgment and order, I feel it appropriate to briefly scrutinize the evidence on record.

10. The victim girl deposed as PW 2. She stated that, on the fateful day, w hen she was alone in the house of the appellant, the appellant grabed her and co mmitted sexual intercourse against her will. She also stated that , at the relev ant time, the mother of the appellant was working in the backyard of the house a nd though she raised hue and cry, nobody came to her rescue. She further stated that, she disclosed the matter to the mother of the appellant and she was assur ed that her marriage with the appellant would be solemnized and that the mother of the appellant had asked her not to disclose the matter to anybody. She also stated that, after 15 days, the father of the appellant had taken her to her p arents’ house. According to this witness, upon her arrival, in her parents’ h ouse, she had informed the matter to her parents and neighbours. 11. According to this witness, the appellant had confessed before Smti. Rekh a Roy and thereafter, he absconded for about nine months. She further stated th at, one day, she was called to the house of the appellant wherein, Sri Hari Pad a Roy, i.e. the father of the appellant had assaulted her with a lathi. She has exhibited the FIR lodged by her, as Ext. 1 , her signature, thereon as Ext. l(1 ), the statement made under Section 164 Cr.P.C., as Ext.2 and her signature ther eon as Ext 2(1). This witness was duly cross examined by the defence. In her cross examination, she stated that, though there was no love affairs with the appellant, in the event of her marriage with the latter, she would not have lodged the case. She denied the suggestion that she lodged the case falsely on the ground of refusal to marry her. Her statement, that had she been married s he would not have lodged the F.I.R. indicates that her simplicity. Because he r marriage with the appellant , against whom she had no previous grudge or ill f eeling, would have been best compensation for her and in the event of such marri age there was no reason for her to criminally proceed against the appellant. 12. Sri Rekha Roy, who deposed as PW 3, supporting the evidence of the vict im girl aforesaid, stated that while she was present, in the house of the par ents of the victim girl, the victim girl arrived in her parents’ house accompani ed by the appellant and she, immediately after such arrival, started crying. T his witness stated that, on being asked, the victim girl replied that she was r aped by the appellant. This witness further stated that she, along with her husb and, went to the house of the appellant and the appellant had confessed his guil t. She also corroborated the evidence of PW 2 by saying that the appellant had a bsconded for about nine months. This witness was cross examined on behalf of the defence. But her evidence that the victim girl had reported her regarding the rape, immediately after her arrival in her parents house, remained undemolished.

13. In tune with PW 2 and PW 3, Sri Padma Das, mother of the victim girl, deposing as PW 1, stated that her said daughter occasionally used to work in th e house of the appellant as and when asked for. She, supporting the evidence o f PW 2 and PW 3, stated that, the victim girl was taken to her house by Sri Hari Pada Roy i.e. the father of the appellant and her daughter and, immediately a fter her arrival, she disclosed that she was raped by the appellant. According to this witness, the PW 3 was also present at the time of such disclosure. This witness has also cross examined by the defence, but no contradiction could be e licited to render her evidence disbelievable. 14. Sri Bala Bhadra Das, the father of the victim girl deposed as PW 4. H e also supporting the evidence of the victim girl, stated that his said daught er had reported him that she was raped by the appellant. He corroborated the ev idence of PW 3 that she, along with her husband, visited the house of the appell ant, and the appellant had confessed his guilt. The evidence rendered by PW 4 re mained undemolished. 15. PW 5 i.e. Sri Ajoy Ch. Roy, husband of PW 4 i.e. Rekha Roy, supporting t he evidence of PW 3 and the victim girl stated, that the victim girl had repor ted that she was raped by the appellant. He further stated that he, along with h is wife i.e. PW 3, went to the house of the appellant to enquire about the matt er and that the appellant had confessed his guilt. This witness was also subject ed to cross examination, but no contradiction could be elicited to render his sa id evidence disbelievable. 16. Sri Thiren Roy, who deposed as PW 6 stated that the victim girl used to work in the house of the appellant.

17. The statement made by the victim girl under section 164 Cr.P.C. was re corded by a learned Magistrate and the same has been exhibited as Ext.No.2. N o contradiction has been elicited from the said statement, made under Section 1 64 Cr.P.C by the victim girl for rendering the evidence of the victim girl d isbelievable. 18. The Medical Officer, who examined the victim girl, on 18.8.2008, fou nd no sign of rape. As the victim girl, who was a major, was examined after lon g delay, absence of any sign of rape, does not negate the prosecution version. 19. The Investigating Officer has been examined as PW 7. No contradictio n, in respect of the evidence, rendered by the prosecution witnesses, has be en proved to discredit the evidence of the prosecution witnesses. 20. In view of the above discussed evidence, it is found that the victim gi rl used to work in the house of the appellant and the appellant, taking the opp ortunity of absence of any member of the family, forcibly committed rape on her. It is hardly believable that a lady would falsely implicate somebody alleging that she has been raped by such person. Chastity is proud possession of women an d it involves the dignity, prestige and honour of the woman and her family. Ther efore, it is not believable that, in ordinary course, any woman would falsely state that she has been raped and thereby invite inhuman to herself and her fami ly. There is noting on record to show that she had any reason to falsely implicate the appellant. Considering the facts and circumstance and the prevaili ng situation, it is quite believable that the appellant, an young unmarried pers on got, tempted to commit rape to fulfill his lust finding the young victim alo ne, in his house. 21. According to the victim girl, she, immediately after the occurrence, had informed the mother of the appellant and she was assured that she would be mar ried by the appellant. Her evidence in this regard remained undemolished. There fore, the assurance given by the parents of the appellant certainly, consoled he r temporarily creating a legitimate expectation that she would be married by t he appellant. This assurance, genuinely gave an impression tha5t lodging of th e F.I.R. immediately after the alleged rape. Hence, I find force in the conten tion that the F.I.R. was not lodged, promptly, due to the said assurance of mar riage. In her statement, made under section 164 Cr.P.C., also, she took the s aid plea as the ground of delay in lodging the FIR. This expectation was quite reasonable and as such the said expectation for delay is found to be accepta ble. Therefore, the delay in lodging the F.I.R. is not fatal in the present ca se. 22. From the evidence of PW 3 and PW 5, who are independent witnesses, it i s clearly found that the victim girl had disclosed before them that she was rape d by the appellant. Their evidence that they visited the house of the appellant and that the latter had confessed his guilt, remained unmolished and uncontrove rted.

23. Considering the entire aspects of the matter and the evidence on record , more particularly the circumstance that the victim worked in the home of the appellant and the undemolihsed evidence given by the victim girl, her parents an d the PW Nos 3 and 5, I find no difficulty in holding that the prosecution could establish, beyond all reasonable doubt, that the appellant had committed rape on the victim girl. 24. Therefore, in my considered opinion, the learned Trial Judge committed no error by recording the conviction under section 376 IPC against the appellant . From the record, it appears that the appellant is an young man and he has no p rior criminal record. From the facts of this case, it transpires that the young victim girl used to work in the house of the appellant and at the relevant tim e, she was alone in the house. I have already noticed the circumstances in whic h the act was committed. Therefore, considering the age of the appellant, their acquaintance and the attending circumstances, it is not unnatural that he got t empted to commit sexual intercourse to fulfill his sexual desire. 25. It is submitted that the appellant is in jail with effect from the date of the judgment i.e. 12.6. 2009. Considering the entire aspects of the matter, the circumstances in which the offence was committed and the period of detenti on already undergone by the appellant, I am of the opinion that a lenient view, with regard to the sentence of the appellant, should be taken. Therefore, sent ence of 3(three) years instead of 8(eight) years as recorded by the learned tr ial Judge, will meet the ends of justice. Hence, sentence is modified as indica ted above. However, no interference is made in respect of the fine amount. 26. With the above modification in respect of the sentence, the impugned co nviction is upheld. The appeal is partly allowed. Return the LC Rs.