ZINDAR ALI SKversusSTATE OF WEST BENGAL & ANR.

                        [2009] 1 S.C.R. 968


A                        ZINDAR ALI SK                               -r~

                               v.
               STATE OF WEST BENGAL & ANR.
               (Criminal Appeal No. 222 of 2009)

                        FEBRUARY 6, 2009
B
      [TARUN CHATIERJEE AND V.S. SIRPURKAR, JJ.]

        PENAL CODE, 1860:

c      ss. 376 and 417-Accused committing rape on
  prosecutrix-Later assuring to marry her repeatedly
  committing sexual intercourse with her-Ultimately, refusing
  to marry her-Police declining to register FIR-On direction
  of Magistrate case registered-Conviction by trial court-
  Affirmed by High Court-HELD: On the basis of evidence of
D
  prosecutrix as corroborated by other evidences, both the
  courts below rightly held the accused guilty of rape-But,
  offence u/s 417 not made out- Conviction u/s 376 upheld-
  Keeping in view the facts and circumstances of the case,
  sentence of 10 years RI reduced to the period already
E undergone which was about 5 years-Fine as imposed by trial
  court to be paid to prosecutrix - Discrepancies in investigation
  - Effect of.

      The appellant alongwith another person, namely,
F 'NM' were prosecuted for offences punishable u/ss 376,
  417 and 120-8 IPC. The prosecution case was that the                 •
  appellant, with the help of 'NM', approached the
  prosecutrix, who was working as a weaver, and asked
  her to marry him but she refused. In the evening of 23-2-
G 2003 when it was dark and the prosecutrix was returning
  from the work, the accused caught hold of her and
  ravished her. Thereafter, the appellant assured to marry
  her and committed sexual intercourse with her several
  times. Later, when the appellant refused to marry the
H                             968
           ZINDAR ALI SK v. STATE OF WEST BENGAL & ANR.           969


--+-      prosecutrix, she narrated the incident to her family           A
          members. A meeting was held in the village and the
          appellant was asked to marry the prosecutrix, but he
          refused. The police was approached but they advised to
          settled the matter amicably. Then a complaint was made
          and, on the directions of the Chief Judicial Magistrate, the   8
          police registered the case. During the trial, accused 'NM'
          was found to be a juvenile and his trial was separated .
    ...   The trial court convicted the appellant of the offences
          punishable u/ss 376 and 417 IPC. The High Court having
)         affirmed the judgment of the trial court, the appeal was       c
          filed.

              Disposing of the appeal, the Court

               HELD: 1.1. Both the Courts below have held on the
          basis of the evidence of the prosexuterix, as corroborated     D
          by the other evidences, that the accused-appellant had
          sexual intercourse with the prosecutrix, without her
          consent and against her will and, as such, he was guilty
          of rape. [Para 6) [973-H; 974-A]
                                                                         E
               1.2. The prosecutrix was examined as PW-1 and she
          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 deposed that the

-         accused forcibly caught her and committed sexual
          intercourse against her will and consent. She also further
          deposed that the accused had threatened her and also
                                                                         F



          raped her subsequently for 2-3 days. As per her
          deposition, a meeting was held, where the accused
          declined to abide by the decision taken in the meeting         G
          about his marrying the prosecutrix. There is no effective
' -t      cross-examination of this witness. Her version that she
          was raped by the accused, goes totally unchallenged.
          [Para 7] [974-B-H]
                                                                         H
    970         SUPREME COURT REPORTS               [2009] 1 S.C.R.


A      1.3. PW-2, in his deposition, deposed about telling the
  father of the prosecutrix that she was raped by the
  accused. He also deposed about the village meeting,
  where it was decided that the accused should marry the
  prosecutrix. Again, there is no cross-examination of this
B witness. It will not really be necessary to go into the
  evidence of other witnesses including the father of the
  prosecutrix who stated about the village meeting, where
  the accused allegedly admitted that he had the sexual
  intercourse with the prosecutrix, particularly because her
c evidence in that regard has remained completely
  unchallenged and is sufficient to nail the accused. PW-
  11, who is the mother of the prosecutrix, specifically
  spoke about the prosecutrix' reporting to her about the
  forcible sexual intercourse committed by the appellant.
  There is again no cross-examination of the witness. [Para
0
  8] [975-8-G]

         2. It is true that the first information report in the case
    was lodged late. However, it has come on record that the
    prosecutrix had filed a petition u/s 156(3) of the Code of
E   Criminal Procedure, 1973 on 27.2.2003, on the basis of
    which the direction was issued by the Chief Judicial
    Magistrate. The stance of the police was unusual. They
    high-handedly advised the prosecutrix to "settle" the
    matter amicably. All this resulted in the prosecutrix being
F   sent for the medical examination only after 6 months of
    the offence. Very important evidence was, therefore, lost.
    There can be no dispute that the investigation in the case
    is not at all satisfactory. There are discrepancies galore.
                                                                       -
    However, the truthful version of the prosecutrix cannot
G   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 the
    instant case. There is nothing wrong in the finding of the
    High Court on the basis of the evidence of PW-7, the
H   doctor, and the evidence of the prosecutrix that she was
              ZINDAR ALI SK v. STATE OF WEST BENGAL & ANR.                971


    •-+.     subjected to sexual intercourse. The finding of the High            A
             Court that the accused is guilty of the offence u/s 376 IPC
             is, therefore, confirmed.[Para 11 and 13] [976-0-G; 978-B]

                 3. The evidence about the cheating is of slip-shod
             nature and not believable. The appellant is, therefore,
                                                                                 B
             acquitted of the offence u/s 417 IPC. [Para 14] [978-B-D]

                  4. The Courts below have awarded 10 years of
             imprisonment and a fine of Rs.5,000. Considering the fact
             that the incident took place about 6 years back and the
             fact that the accused is behind the bars for the last about         c
             5 years, as also poverty of the accused, the sentence
             already suffered would be sufficient. The sentence of fine
             is however, confirmed. The fine, when recovered, shall
             be paid to the prosecutrix. [Para 15] [978-E-F]
                                                                                 D
                 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
             No. 222 of 2009.

                 From the final Judgment and Order dated 5.4.2007 of the
             High Court of Calcutta in Criminal Appeal No. 662 of 2005.
                                                                                 E
                   Bijan Kumar Ghosh, Dipankar Burman and S.K. Poddar
             for the Appellant.

                  Avjit Bhattacharjee for the Respondents.
         ~

                  The Judgment of the Court was delivered by                     F
......
                 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           G
             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
                                                                                 H
    972        SUPREME COURT REPORTS              (2009] 1 S.C.R.


A was another accused Naki Mollick in the matter, against whom      :i--- -
  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
B 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
c 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
D 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
E 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         :<.
F 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
G
  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
H
               ZINDAR ALI SK v. STATE OF WEST BENGAL & ANR.               973
                             [V.S. SIRPURKAR, J.]

              two counts, however, he was acquitted of the charge under          A
     --.+
              Section 120-8 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.                    B
                   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      c
              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       D
        ;     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.
              Th~ Learned Counsel further suggested that even otherwise,
              the absence of any injury on the person of the prosecuterix        E
              suggests that the prosecuterix had surrendered to the advances
,c
              made by the accused and engaged herself in the intercourse
              as per her will, and both the Courts below have failed to
              consider this important aspect. Lastly, the Learned Counsel
       .-ir   contended that in fact, there was no Salish or meeting and there   F
              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
                                                                                 G
              marry the prosecuterix, who herself wanted to marry him.

 '     -t          6. Both 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         H
    974        SUPREME COURT REPORTS               [2009] 1 S.C.R.


A the consent and against the will of the prosecuterix and as such,
                                                                       ~-
  the accused was guilty of rape.

        7. We have gone through the evidence led on behalf of the
  prosecution. The prosecuterix was examined as PW-1 and
B 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
c 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 refused to marry her, she
D came home and reported the incident to her parents. As per
                                                                       i\
  her deposition, a Salish was held, where, the accused declined
  to abide by the decision taken in that meeting about his
  marrying the prosecuterix. She identified her wearing apparels,
  which were seized by the Police. She also identified the
E accused. There is no effective Cross-Examination of 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
                                                                       )l
F 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-<lisclosure to the boys would
G 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
H unchallenged. Her version that she was forcibly caught and a
               Z!NDAR ALI SK v. STATE OF WEST BENGAL & ANR.               975
                             [V.S. SIRPURKAR, J.)
              napkin was put inside her mouth before the accused had            A
      --..+
              committed rape on her, was a little exaggerated, but it does
              not demolish her version that she was raped by the accused.

                     8. PW-2, Moshar SK, in his deposition, had spoken about
               the Chandmoni and her father, telling him that Chandmoni was
                                                                                 B
               raped by the 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      c
               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. In his Cross-examination itself, it
               has come that there were about 200-250 persons present in
         j     the village meeting, where, it was decided that the accused D
              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, E
              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 F
              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 G
              village meeting. There is again no Cross-examination of the
              witness.

                  9. As 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     H
    976         SUPREME COURT REPORTS               [2009) 1 S.C.R.


A that the Hymen was torn at 6'0 clock position and the rugosity       t----
  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
B have rightly accepted the evidence of the prosecuterix.                      (•


         10. Shri 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
c   have been accepted by the Courts below.

        11. We 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,
D 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
E 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
                                                                       ~
F the Chief 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.
G 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                    I
                                                                                ~~.
H
 ZINDAR ALI SK v. STATE OF WEST BENGAL & ANR.                   977
               [V.S. SIRPURKAR, J.]

prosecuterix. We feel that since the evidence of the prosecuterix      A
is acceptable, those findings would definitely go against the
accused.

      12. It is tried to be suggested that the girl did not complain
 about rape even to the medical officer PW-7 and instead,
                                                                        8
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 C
 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 D
has given a finding about the village meeting, which was
supported 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, E
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 F
in the evidence of the girl.

       13. The 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   G
discrepancies galore. However, in this case, the truthful version
of the prosecutrix cannot be ignored. It is trite law that the
qefence cannot take advantage of such bad investigation
where. there is clinching evidence available to the prosecution
as in this case. \/Ve, therefore, confirm the finding of the High      H
    978           SUPREME COURT REPORTS            [2009] 1 S.C.R.


A   Court that the accused is guilty of the offence under Section
    376 of IPC.

       14. We 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
8
  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
C with the consent of the girl on account 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
D 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.

E       15. This 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,
F 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
G of with this modification.

    R.P.                                      Appeal disposed of.