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2004 (2) Crimes 126
Calcutta High Court
Alok Kumar Basu, J.
Sadiful Sk. & Anr.—Appellants (In Custody)
versus
The State of West Bengal—Respondent
C.R.A. No. 244 of 2002
Decided on 16-12-2003
Counsel for the parties:
For the Appellants :Debasish Roy and S.S. Ali, Advocate.
For the State :Minoti Gomes, Advocate.
Important Point
Delay of 34 days in lodging FIR and consequent absence of injuries on person of victim of rape in a rape case would not vitiate prosecution. Where delay is explained and prosecutrix was reliable then conviction could not be disturbed.
Headnote:Indian Penal Code, 1860 — Section 376 (2) (g) — Two appellants convicted for having committed rape on prosecutrix — Conviction challenged on plea that there was delay of 34 days in lodging FIR and medical examination of prosecutrix did not reveal any internal and external injury — Court has to consider back-ground of victim and her parents and custom and convention of their community. Parents of victim had approached local people first through headman of local mosque and then through Salish — Delay must be accepted to be reasonable — Court if found testimony of victim to be reasonably acceptable, no further corroboration in form of medical evidence could be asked for — No reason or suggestion that prosecutrix or her parents got accused falsely implicated
— Any error or omission in the examination of accused u/s 313 Cr.P.C. would not by itself vitiate trial unless prejudice was shown — Conviction and sentence of 7 years imprisonment called for no interference. (Paras 13 to 18)
Result: Appeal dismissed.
Judgment
Alok Kumar Basu, J.— The Judg-ment of the Court was as follows:
This appeal is directed against the judgment and order dated 27th June, 2002 passed by the learned Additional Sessions Judge, 2nd Court, Nadia in connection with Sessions Trial Case No. III (March) of 2002 arising out of Sessions Case No. 2(4) 2001 whereby the present appellants were convicted under Section 376(2)(g) of the Indian Penal Code and were sentenced to suffer R.I. for seven years each and also to pay a fine of Rs. 2000/- each in default further R.I. for six months.
2. The prosecution case leading to finding of conviction and sentence runs as follows:
That one Iduyara Khatun, daughter of Kashem Sk. was raped by both appellants at about 10 A.M. on a date which was four days prior to commence-ment of ‘Roja’ in the year 2000 AD when said Iduyara Khatun had been to a nearby banana bagan of one Moinuddin Sk. for grazing goats and also for collecting dry leaves therefrom.
3. Soon after the occurrence, Iduyara reported the matter to her parents and her father immediately informed the persons in charge of local Mosque for intervention and a Salish was also held but the accused persons did not turn up at the Salish. The father of the victim girl thereafter at the advice of local people finally submitted a written complaint at local Thanarpara PS. on 1st January, 2001 and police started investigation of the same. After close of investigation ultimately charge-sheet was submitted against both the appellants under Section 376(2)(g) of the I.P.C. It is pertinent to mention that in course of investigation the victim girl also gave a statement under Section 164 of the Cr.P.C. before the learned Judicial Magistrate.
4. During trial before the learned Additional Sessions Judge, on perusal of the case diary and after hearing both the appellants as well as the State charge was framed against the present appellants under Section 376(2)(G) of the I.P.C. and the accused persons preferred to face the trial by denying the charge so framed. The prosecution side in course of trial examined as many as fifteen witnesses to prove the veracity of the prosecution case and that apart the written compliant of the father of the victim girl, the statement of the victim girl recorded under Sections 164 of the Cr.P.C. and injury report of both appellants as well as the victim girl were marked exhibits for consideration of the Trial Court.
5. The learned Additional Se-ssions Judge on perusal of the evidence placed before him both oral as well as documentary and after considering the submissions of the prosecution as well as of the appellants finally came to the conclusion that prosecution has proved beyond all shadow of doubt that Iduyara Khatun aged about fifteen years was ravished by both the accused persons on the date and time as given by Iduyara Khatun during her statement both before the learned Magistrate and also before the learned Trial Judge and which was mentioned in the written compliant of her father. The learned Additional Sessions Judge while discussing the points taken by the accused persons challenging the prosecution case recorded his observation that there was no need of any corroboration of the testimony of the victim girl regarding the commission of rape on her by both the accused persons by any medical evidence when soon after the occurrence the victim girl reported the incident to her parents and who in their turn conveyed the same to the local people. The learned Trial Judge also recorded his observation that as both the accused persons and the victim girl were forwarded for medical examination long after the incident of rape there could not be any mark of injury on the private part of either of the accused persons or on the private part of the victim girl and hence, in the facts and circumstances of the present case the statement of the victim girl would be the main pivot of the prosecution case and when the statement of the victim girl appeared to
