IMPORTANT POINT

Evidence of the prosecutrix, if remains unchallenged, is sufficient to nail the accused.

JUDGMENT

V.S. Sirpurkar, J. —

1. Leave granted.

2. This is an appeal against the judgment and order of conviction passed by the Calcutta High Court, whereby, the appeal filed by the accused/Appellant, was dismissed. The accused was convicted by Fast Track, Fourth Court, Krishnagar, Nadia for an offence under Section 376, as also an offence under Section 417 of the Indian Penal Code (hereinafter for short “IPC”). As per the prosecution case, there was another accused Naki Mollick in the matter, against whom the Chargesheet was submitted, but, he being a juvenile, was sent to the Juvenile Court for facing trial.

3. As per the prosecution, accused Zindar Ali SK was trying to marry with prosecuterix Chandmoni Khatoon with the help of Naki Mollick. Prosecuterix was working as a weaver and on the day of incident, when she was returning from her work, the accused caught her, taking advantage of the dark and committed rape on her. The prosecution further alleged that Naki Mollick abetted the commission of the offence and both the accused persons threatened to kill her. The accused committed rape on the prosecuterix several times forcibly and had also falsely assured to marry her. However, the accused refused to marry the complainant/prosecuterix and, therefore, the prosecuterix informed the incident to her family members and neighbours. Salish (a meeting for resolving the dispute) was held in the Village on 24.2.2003, wherein, it was decided that the accused should marry the prosecuterix, however, Zindar Ali refused to marry the prosecuterix. A complaint seems to have been made to the Chief Judicial Magistrate who issued a direction on 10.7.2003 to the police to register an offence. This became necessary as though she had approached the police, they advised her to settle the matter amicably with accused. Ultimately, a Chargesheet was submitted for offences under Sections 376, 417 and 120-B of IPC. However, it was found that the other accused Naki Mollick was a juvenile and his trial, therefore, was separated. As many as 14 witnesses were examined by the prosecution in support of the prosecution case, including the prosecuterix, her father and mother. Some documents were also filed, including the medical reports, age reports etc. Doctors were also examined and ultimately, the accused abjured the guilt and claimed that he had been falsely implicated, as he had refused to marry the prosecuterix. Ultimately, the Sessions Judge negatived the defence and came to the conclusion that the offences of rape and cheating were proved against the accused, and convicted him on those two counts, however, he was acquitted of the charge under Section 120-B of IPC.

4. As against this, an appeal came to be filed before the High Court, however, the High Court has dismissed the appeal and that is how, the matter has come before us.

5. Shri Bijan Kumar Ghosh, Learned Counsel appearing on behalf of the Appellant, pointed out that the whole prosecution story was extremely unnatural and weak. The Learned Counsel pointed out that the prosecuterix was undoubtedly a grown up girl and though as per the prosecution case, she was raped on 23.2.2003, she not only kept quiet, but had also indulged in sexual intercourse with the accused again on subsequent 2 or 3 days and reported the matter only on 27.2.2003 to the Police Station who did not register the matter and commenced investigation only after 5 months. The Learned Counsel argued that this delay was fatal and further suggested that there was an element of “consent” on the part of the prosecuterix, and as such, there was no question of any rape. The Learned Counsel further suggested that even otherwise, the absence of any injury on the person of the prosecuterix suggests that the prosecuterix had surrendered to the advances made by the accused and engaged herself in the intercourse as per her will, and both the