Zindar Ali SK Vs.
State of West Bengal & ANR.  INSC 243 (6 February 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 222 OF 2009
(Arising out of SLP (Crl.) No. 1380 of 2008) Zindar Ali SK .... Appellant
Versus State of West Bengal & Anr. .... Respondents
V.S. SIRPURKAR, J.
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.
per the prosecution, accused Zindar Ali SK was trying to marry with
prosecuterix Chandmoni Khatoon with the help of Naki Mollick.
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 3 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.
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
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 4 both the Courts
below have failed to consider this important aspect. Lastly, the Learned
Counsel contended that in fact, there was no Salish or meeting and there was no
question of the accused refusing to marry the prosecuterix during such meeting.
The Learned Counsel suggested that there was in fact, no sexual intercourse,
muchless, against the consent of the prosecuterix and the accused was falsely
implicated on account of his refusal to marry the prosecuterix, who herself
wanted to marry him.
the Courts below have held on the basis of the evidence of the prosexuterix, as
corroborated by the other evidences that there was not only a sexual
intercourse between the accused and the prosecuterix, but the same was without
the consent and against the will of the prosecuterix and as such, the accused
was guilty of rape.
have gone through the evidence led on behalf of the prosecution. The
prosecuterix was examined as PW-1 and deposed that the accused was after her,
requesting her to marry him, so also his friend, the other accused also used to
tell her that the accused wanted to marry her. She, however, refused to oblige.
She further deposed that the accused forcibly caught her and put napkin inside
her mouth and committed sexual intercourse against her will and consent. She
also further deposed that the accused had threatened her and also raped her
subsequently for 2 or 3 days. Her wearing apparels were also torn. She deposed
that due to fear of her life, she did not disclose the incident of rape to
anybody, however, after 2/3 days of incident, when the accused 5 refused to
marry her, she came home and reported the incident to her parents. As per her
deposition, a Salish was held, where, the accused declined to abide by the decision
taken in that meeting of about his marrying the prosecuterix. She identified
her wearing apparels, which were seized by the Police. She also identified the
accused. There is no effective Cross-Examination to this witness. One question
was asked about her clinical and physical examination. It was suggested firstly
that she had suffered injuries on her private parts and person. The witness,
however, stated that there was no bleeding injury, meaning thereby, that the
injuries were insignificant considering that she was medically examined after
about 6 months. Such admission is meaningless. Her version regarding rape,
however, has gone unchallenged. She was asked about the workplace and the boys
being there, however, non-disclosure to the boys would only be a natural
behaviour and cannot lead us to the conclusion that she had consented for the
sexual intercourse. There was no reason for the poor girl to falsely implicate
the accused. There is no suggestion of any love-affair with the accused also.
Her version that she was raped by the accused, goes totally unchallenged. Her
version that she was forcibly caught and a napkin was put inside her mouth
before the accused had committed rape on her, was a little exaggerated, but it
does not demolish her version that she was raped by the accused.
Moshar SK, in his deposition, had spoken about the Chandmoni and her father,
telling him that Chandmoni was raped by the 6 accused. He had also spoken
about the village meeting, where, it was decided that the accused should marry
Chandmoni. Again, there is no Cross-Examination of this witness. Of course,
this witness had stated that he had not made any statement to the Police, as he
was not interrogated.
Anther witness PW-3
Tajem SK (Mallick) also spoke about the village meeting, which was held at the
instance of Markam Ali SK, father of the prosecuterix. He also claimed that he
was not interrogated by the Police.
Cross-examination itself, it has come that there were about 200-250 persons
present in the village meeting, where, it was decided that the accused was
guilty. The other witnesses examined on the question of the village meeting was
Saheb Ali SK and Markam Ali SK, the father of the prosecuterix. It will not
really be necessary for us to go to the evidence of the village meeting, where,
the accused allegedly admitted that he had the sexual intercourse, particularly
because the evidence of the prosecuterix on that subject, has remained
completely unchallenged and is sufficient to nail the accused. PW-11 Noorjahan
Bibi, who is the mother of the Prosecutrix specifically spoke about the
prosecuterix' reporting to her about the forcible sexual intercourse committed
by the accused Zindar Ali. She also spoke that when she saw her torn cloths
etc., she asked her as to what had happened, whereupon, the prosecuterix told
her about the rape committed by the accused, however, she was not able to
identify the clothes. She had also spoken about the village meeting. There is
again no Cross-examination of the witness.
for the medical evidence, from the evidence of the Dr. P.K. Roy, PW-7, it
becomes apparent that the girl was major. The medical certificate granted by
the Doctor suggests that the Hymen was torn at 6'O clock position and the
rugosity was lost and that the Prosecutrix suggested that she was assaulted by
Zindar Ali SK, about 6 months back. It is to be noted that the girl was
produced for medical examination only on 8.8.2003. The Sessions Court, as well
as, the High Court have rightly accepted the evidence of the prosecuterix.
Ghosh, Learned Counsel for the appellant, pointed out that allegedly, though
there was a village meeting Salish, but there was nothing on record about the
same and, therefore, an uncorroborated testimony of the prosecuterix should not
have been accepted by the Courts below.
have seen that the prosecuterix has very specifically spoken about the rape. It
is, undoubtedly true that the First Information Report in this case was lodged
late, however, it has come on record that the prosecuterix had filed a petition
under Section 156(3) of the Code of Criminal Procedure on 27.2.2003, on the
basis of which, the direction was issued by the Chief Judicial Magistrate,
Krishnagar, Nakashipara Police Station, for calling investigation into the said
allegation. We fail to understand this unusual stance of police. They high
handedly advised the Prosecutrix to "settle" the matter amicably. The
High Court has, in our opinion, very rightly criticized that the First Information
Report should have been registered only on 19.7.2003 and the direction issued
by the Chief 8 Judicial Magistrate, Krishnagar on 10.7.2003 should not have
been followed for good long more than 17 days. All this, undoubtedly, resulted
in the prosecuterix being sent for the medical examination only after 6 months
of the offence. Very important evidence was therefore, lost. However, the High
Court came to the finding, on the basis of the evidence of PW-7 Dr.
Roy and the evidence
of the prosecuterix, that prosecuterix was subjected to sexual intercourse. We
do not find anything wrong with that finding.
Once that position is
obtained, the only question is whether the said sexual intercourse was by the
accused and whether it was without consent and will of the prosecuterix. We
feel that since the evidence of the prosecuterix is acceptable, those findings
would definitely go against the accused.
is tried to be suggested that the girl did not complain about rape even to the
medical officer PW-7 and instead, complained only that she was
"assaulted", and that PW-7 had deposed that the tear was not injury,
as there was no bleeding. We cannot forget that the girl is an uneducated
rustic person, who had to work to sustain the family. It cannot also be ignored
that she had disclosed the facts to her parents whose version has again gone
unchallenged. She had also asserted that she had told about the rape in the
Village Meeting which version was supported by her parents and other witnesses.
Besides, her medical examination was conducted after 6 months of the incident.
We would, therefore, choose to go on the basis of the evidence of the
prosecuterix. In our view, though the High Court has given a finding about the
village meeting, which was supported 9 by the evidence of PW-2 Moshar SK, PW-3
Tajem SK (Mallick), PW-4 Saheb Ali, as also by PW-6 Markam Ali, the father of
the girl, it is really not necessary to go to that aspect in view of the
clinching evidence by the girl.
We would, however,
use that evidence as corroborating the fact of immediate disclosure of rape by
the girl. It cannot be forgotten that the girl stuck to her statement made
before the Chief Judicial Magistrate on 13.9.2003, though that statement is not
a substantive statement, which would only show the consistency in the evidence
of the girl.
shabby quality of investigation was severely criticized by the learned counsel.
There can be no dispute that the investigation in this case is not at all
satisfactory. There are discrepancies galore. However, in this case, the
truthful version of the prosecutrix cannot be ignored. It is trite law that the
defence cannot take advantage of such bad investigation where there is
clinching evidence available to the prosecution as in this case. We, therefore,
confirm the finding of the High Court that the accused is guilty of the offence
under Section 376 of IPC.
cannot, however, persuade ourselves to agree with the High Court about the
offence of cheating. The evidence about the cheating is of slip-shod nature and
not believable. It is also self-effacing. After all, the first act of the
sexual intercourse was without the consent and the accused had thereby,
committed rape, however, the version that he gave a marriage promise, would
really go against the prosecution, whereby, it would mean that the subsequent
acts were done with the consent of the girl on account 10 of the promise of
marriage. We do not think that such could be the approach. After all, if the
promise of marriage was given and the girl had succumbed on that account, by
itself, may not amount to cheating.
Besides this, the
girl has very specifically stated that even subsequently, she was ravished
against her wishes. Therefore, the theory of promise of marriage and the
consent for sexual intercourse will wither away. We, therefore, acquit the
accused of the offence under Section 417 of IPC.
takes us to the last argument about the quantum of sentence.
The Courts below have
awarded 10 years of imprisonment and a fine of Rs.5,000. In our opinion,
considering the fact that the incident took place about 6 years back and the
fact that the accused is behind the bars for last about 5 years, as also
poverty on the part of the accused, we feel that the sentence already suffered
would be sufficient. The sentence of fine is however, confirmed. Fine, if
recovered shall be paid to the Prosecutrix.
She shall be
intimated by sending notice to her. We, accordingly, modify the sentence. The
appeal is disposed of with this modification.
February 6, 2009.