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2008 (4) Crimes 685 (Cal.)
CALCUTTA HIGH COURT
Girish Chandra Gupta and Kishore Kumar Prasad, JJ.
Biswa Kumar Bepari —Appellant
versus
Andaman and Nikobar Islands
Administration —Respondent
Crl. Appeal No. 230 of 1993
Decided on 19.12.2007
For the Appellant:Nisith Adhikary, Jyotirmoy Adhikary, Advocates.
For the Respondent:Joy Sengupta, Advocate.
IMPORTANT POINT
Presence or absence of injury is not decisive in the matter of rape.
Headnote:India Penal Code, 1860—Section 376—Appellant committed rape on prosecutrix aged about 16 years 7 months in a paddy field when prosecutrix had gone to fetch water from village tap—Accused gagged her, overpowered her and overawed at sickle point and ravished her—Appeal against conviction—Contention that prosecutrix deliberately chose a lonely way was not put to her in cross-examination would not help accused—Presence or absence of injury on person of prosecutrix was not decisive in mater of rape— Medical evidence however showed that there was recent rupture of hymen and there was inflammation or redness due to recent intercourse—Sexual intercourse was against her will was amply proved and it appeared not possible to hold that there might have been possibility of concoction or fabrication—Conviction and sentence of ten years imprisonment called for no interference. (Paras 9 and 12 to 19)
Result: Appeal dismissed.
JUDGMENT
Girish Chandra Gupta, J.—This appeal is directed against a judgment dated 30th August, 1993 delivered in Sessions Trial No. 1 of February, 1993 arising out of Sessions Case No. 29/91 convicting the accused Biswa Kumar Bepari under Section 376 of the Indian Penal Code and an order sentencing the convict to suffer rigorous imprisonment for 10 years as also to pay a fine of Rs. 2000/-, in default to suffer further rigorous imprisonment for two months.
2. Briefly stated the facts and circumstances of this case are as follows:
On 25th February, 1987 at about 4 p.m. the prosecutrix aged about 16 years and 7 months went to fetch drinking water from the village water tap. She was intercepted by the accused; dragged in the nearby paddy field, gagged, overpowered, overawed at a sickle point and ravished. She was threatened of dire consequences in case she resorted to divulging the fact. She was further directed by the accused to go home with the pitcher full of water in order to project a picture that nothing had happened. She went to the tap weeping. While she was at the tap another woman of the village namely Chanchala Sarkar the PW4 came there. The accused also went to the tap, washed himself and went away. Seeing her weeping Chanchala had asked the reason. The victim told what had befallen her. By that time the accused had left. Around 5.00 p.m. the victim reached home. She asked her sister Kanan (PW3) as to why did she not respond to her calls. Kanan replied that she did not hear. By that time the mother of the victim came out of her room and asked the prosecutrix as to what had happened. The victim reiterated the incident. The mother (PW2) accompanied by another sister of the victim namely Shova proceeded to the house of the accused. She enquired about the mother of the accused but she was not at home. PW2 returned home. Shortly thereafter her father-in-law reached home. She narrated the incident to him. Around 8 p.m. the father of the victim came. He was told about the incident. Around 9 p.m. the father (PW1) of the victim went to the house of the Pradhan Shri Naliniranjan Mondal. The house of the Pradhan was situate at a distance of about two kilometers. The Pradhan sent the Sarpanch Shri Hiramoni Roy to the house of the victim for preliminary enquiry. Hiramoni Roy (PW10) heard the entire incident from the mouth of the prosecutrix and left telling her father to again meet the Pradhan in the morning at 7 a.m. On the following day at 7 a.m. the father and the daughter went to house of the Pradhan. The Pradhan was also told abut the incident who after hearing the matter advised the father of the victim to report the matter to the police. Around 8 a.m. on 26th October, 1987 they set out for the police station accompanied by the Sarpanch Hiramoni Roy. They reached the police station at 9.30 a.m. The officers were not there. Around 11 a.m. the Daroga (PW20) came. After hearing the incident her statement was recorded, read over and signed which formed the basis of the formal FIR appearing to have been lodged at 11.30 a.m.
3. Mr. Adhikary, learned Additional Advocate General appearing in support of the appeal advanced the following submissions:
(A) (i) The prosecutrix chose to take an unusual route from her house for the purpose of going to the tap. She appears to have gone through the paddy fields, rather than the village road, which is a suspicious circumstances.
(ii) The prosecutrix from the place of occurrence is alleged to have gone to the tap where Chanchala Sarkar the PW4 and her husband were also there. In their presence the accused appeared at the tap. But the prosecutrix did not open her mouth until the accused had left.
(iii) According to the prosecutrix she was ravished in the paddy field. The standing crop was of man height. Yet she did not suffer any injury either on her person or on her private parts.
Based on the aforesaid circumstances Mr. Adhikary contended that only inference possible, in the facts of the c
