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High Court Of Calcutta
Asish Baran Mukherjee
ANATH BANDHU KUNDU - Appellant
Versus
STATE OF WEST BENGAL - Respondent
CO. Appeal, 4 Of 1995
Decided On : 03/04/1996
RAPE - AGE OF VICTIM - CONSENT - EVIDENCE - DELAY IN LODGING FIR - SECTION 376 IPC - SECTION 506 IPC
Fact of the Case:
The accused was convicted and sentenced to 7 years of rigorous imprisonment and a fine of Rs. 5000/- for the offense of rape under Section 376 of the Indian Penal Code (IPC). The victim, a 14-year-old girl, alleged that the accused had raped her multiple times in his flat in Bombay. The accused appealed the conviction, arguing that the trial court erred in relying on the uncorroborated testimony of the victim, that the delay in lodging the FIR was fatal, and that the age of the victim was not properly determined.
Finding of the Court:
The High Court allowed the appeal and acquitted the accused. The court found that the victim's testimony was not reliable, as she had delayed in lodging the FIR and had failed to disclose the incident to her parents or other relatives. The court also found that the medical evidence did not support the victim's claim that she had been raped. Finally, the court found that the victim's age was not conclusively proven to be under 16 years, which meant that her consent was relevant. The court concluded that the prosecution had failed to prove the charges against the accused beyond a reasonable doubt.
Issues: 1. Whether the trial court erred in relying on the uncorroborated testimony of the victim? 2. Whether the delay in lodging the FIR was fatal? 3. Whether the age of the victim was properly determined? 4. Whether the prosecution proved the charges against the accused beyond a reasonable doubt?
Ratio Decidendi: 1. The court held that the trial court erred in relying on the uncorroborated testimony of the victim, as there were several inconsistencies and improbabilities in her story. The court also noted that the victim had delayed in lodging the FIR, which was a factor that weighed against her credibility. 2. The court held that the delay in lodging the FIR was fatal, as the victim had not provided a satisfactory explanation for the delay. The court noted that the victim had had ample opportunity to report the incident to the police, but she had failed to do so for several months. 3. The court held that the age of the victim was not properly determined, as the medical evidence was inconclusive. The court noted that the victim's age was a border-line case, and that the benefit of the doubt should be given to the accused. 4. The court held that the prosecution had failed to prove the charges against the accused beyond a reasonable doubt. The court found that the victim's testimony was unreliable, that the delay in lodging the FIR was fatal, and that the age of the victim was not conclusively proven to be under 16 years.
Final Decision: The High Court allowed the appeal and acquitted the accused.
( 1 ) THE appeal arises out of conviction and sentence passed by the learned Sessions Judge, 5th Bench, City Sessions Court, Calcutta in S. C. Case No. 11 of 1994 being S. T. Case No. 2 of May, 1994 whereby the learned Judge sentenced the accused appellant to R. I. for seven years and fine of Rs. 5000/- in default to suffer further R. I. for one year on a charge of under section 376 IPC.
( 2 ) THE case of the complaint is appearing from the statement recorded at Jorasanko P. S. on 6. 12. 89 made by Kalpana Choudhury, alleged to be the victim girl who gave her age as 14 years. As per statement she was a resident of a village in District Murshidabad. She used to work for about two years in the house of accused appellant Anath Bandhu Kundu at 69, Tarak Pramanik Road. Calcutta as a maid. The accused, who was engaged in jewellery business as Bombay, also possessed a flat there. In the month of July of the year when she made the statement, namely, in 1989 she accompanied the accused to the Bombay fiat. Since he have no other servant or any member of the family staying there. About three/four months prior to the Durga Puja, probably in the month of July, she reached Bombay with the accused. From the very night the accused started to committed rape on her against her will. When objected he threatened her. The complainant stayed there for six (6) days and such act was committed daily by the accused. Thereafter both of them returned to Calcutta. When in Calcutta she did not disclose the entire incident to the wife of the accused out of fear but she stated to her that while under intoxication the accused used to embraced her. To this the wife of the accused told her not to disclose this fact to anybody else. She accordingly did not disclose the fact to any body else also, because the accused also threatened her that in the event of any disclosure he would kill her.
( 3 ) ABOUT 16/12 days prior, to the Durga Puja, the complainant have to accompained the accused to the Bombay flat again where they stayed for 15 days at a stretch. On this occasion also the accused used to rape her under threat. One day before Durga Puja both of them came back to Calcutta and still then she used to stay in the Calcutta house of the accused.
( 4 ) ONE of the duties which the complainant had to conform in the Calcutta house was to apply oil on the body of the accused in the morning. There were frequent Guarrels between the accused and his wife over this part of the duty. About 7/8 days prior to the date of making the statement to the Police, wife of the accused threatened her to the effect that unless she left the house, she would kill her. Being afraid she fled away from that house on Saturday last. Out of fear she did not disclose the fact to anybody but some of the Para Boys enquired on her on the date statement was made to the Police and she disclosed the entire incident to them. She does not know those names. Those local boys took her to the police Station and the complainant disclosed the incident to the Police who look it down and thereafter she gave her LTI after the statement was read over to her. She was accompanied by two women also besides some Para Boys.
( 5 ) JORASANKO P. S. Case No. 564 of 1989 was started on the basis of the said statement.
( 6 ) ON 17. 12. 89 the accused was produced under arrest before the learned ACMM, Calcutta. The complainant was also produced on the same day. Investigation which continued to the Calcutta for some time it subsequently transferred to Bombay but latter it again was transferred to Calcutta under the order of this Court. Charge-sheet in this case was submitted on 31. 1. 94. Following commitment the case was tried by the learned Sessions Judge at City Sessions Court, Calcutta, the date of the charge-sheet as appears from the Challan submitted by police is 13. 8. 93 but curiously enough the dates put below are completely different. While at one place it has been mentioned as 13. 8. 93 i
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