Test of croos examination failed
Meg Nath Sharma
(Querist) 08 June 2013
This query is : Resolved
Dear sir
in the case of 376(rape)of minor of 7 years old. the statement of the victims remains on top. but in our case: the Victim girl answered all the question in her chief but in cross examination she did not answer. we sent accused out of the dock but then too she did not.
in the argument we raised a question that she failed to pass the test of cross examination and the very base of the allegation is collapsed and there is no need to corroborate other witnesses. hence the accused is liable to be acquitted.
PP on the other hand objected that she has passed the test in Chief and cross examination may be overlooked to corroborate with other witnesses.
Now i want supreme court ruling to support my case and suggestion.
next date is on 10th June. Please help
Advocate
MN Dhungel
Sikkim
ajay sethi
(Expert) 08 June 2013
It will be useful to refer to the judgment of this Court in the case of O.M. Baby (Dead) by L.Rs. v. State of Kerala [JT 2012 (6) SC 117], where the Court held as follows:-
“16. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.
14. We would further like to observe that while appreciating the evidence of the prosecutrix, the court must keep in mind that in the context of the values prevailing in the country, particularly in rural India, it would be unusual for a woman to come up with a false story of being a victim of sexual assault so as to implicate an innocent person. Such a view has been expressed by the judgment of this Court in the case of State of Punjab v. Gurmit Singh (1996) 2 SCC 384 and has found reiteration in a recent judgment in Rajinder @ Raju v. State of H.P. (2009) 16 SCC 69, para 19 whereof may be usefully extracted:
19. In the context of Indian culture, a woman - victim of sexual aggression - would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the courts must always keep in mind that no self-respecting woman would put her honour at stake by falsely alleging commission of rape on her and therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for. But for high improbability in the prosecution case, the conviction in the case of sex crime may be based on the sole testimony of the prosecutrix. It has been rightly said that corroborative evidence is not an imperative component of judicial credence in every case of rape nor the absence of injuries on the private parts of the victim can be construed as evidence of consent.”
Raj Kumar Makkad
(Expert) 08 June 2013
Kolkata High Court (Appellete Side)
Cra 98 Of 2010 Mahafuja Banu vs Md. Asadul Islam & State on 3 September, 2012
Author: Girish Chandra Gupta
FORM NO.(J1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
Hon'ble Justice Girish Chandra Gupta
And
Hon'ble Justice Indira Banerjee
CRA 98 of 2010
Mahafuja Banu
Vs.
Md. Asadul Islam & State
Advocates for the appellant: Mr. Dipak Sengupta
Mr. Debatosh Khan
Mrs. Prativa Ghatak
Mr. Debabrata Roy
Advocates for the accused/respondent: Mr. Sudipto Moitra Mr. Sandipan Ganguly
Mr. Debangan Bhattacharjee
Advocates for the State: Mr. Siladitya Sanyal
Mrs. Suman Sehanabish
Hearing concluded on: 9th April, 2012
Judgment delivered on: 3rd September, 2012
GIRISH CHANDRA GUPTA J.
1. This appeal is directed against a judgement and order dated 22nd December, 2009 passed by the learned Additional Sessions Judge, Fast Track 3rd Court, Malda in Sessions Case No. 50 of 2005 corresponding to G.R Case No. 1922 of 2003 arising out of Gazole P.S. Case No. 182 of 2003 dated 13th December, 2003 by which the learned Trial Court acquitted the sole accused of the charge under Section 376 of the Indian Penal Code. The prosecutrix has come up in appeal.
2. The facts and circumstances of the case appearing from the written complaint, lodged by the prosecutrix on 13th December 2003, when translated in English would read as follows:-
(a) "Sir,
I (name withheld by us), daughter of Maqbul Hossain, a permanent resident of the aforesaid address indicated above, most humbly submit that am a student of the Malda College and I am in the 2nd year of the Bengali Honours. In connection with my studies I have to stay in the Malda town at a tenanted house. I was acquainted with Asadul Islam, son of Bafatulla Mian, a resident of our neighbouring village. He used to come to our house in connection with various matters. We fell in love and used to keep connection telephonically. On the assurance that he would marry me he forcibly established physical relationship with me last year. As a result I became pregnant which he had forcibly aborted and advised me not to inform the matter to my family members. He continued to keep contact with me even thereafter and frequently visited me at my tenanted house. He used to take me to his house at Jorgachi where he used to live alone. Based on his promise to marry he compelled me to involve in physical relationship with him from time to time. I have since been able to ascertain that he is going to marry another woman on 18th December. Having been aware of his proposed marriage elsewhere I rushed to him for enquiry whereupon he threatened to kill me. In the circumstances I am living in grave apprehension.
I therefore request you to kindly take appropriate step so that I can get justice."
(b) A statement of the prosecutrix under Section 164 CrPC recorded, by the learned Magistrate on 18th December 2003 and marked exbt. 13 series, in Bengali, when translated in English would read as follows:-
"Both the father of Asadul Islam and my father are the teachers in the same school. Asadul used to come to our house from time to time. In June/July 2001 I fell in love with him. Since then I used to call him by the name Raj and he used to call me by the name Sonia. 3/ 4 months after we fell in love he came to my tenanted house in the afternoon. I was at that time alone at home. He tried to establish physical relationship with me. I resisted. Ignoring my resistance he forcibly established physical relationship. I started crying. Asadul then told me "I love you. I am going to marry you." I asked him to talk to my father about the marriage. He replied that he would talk to my father after sometime. Whenever I told him that I would tell my parents about marriage he would prohibit me from doing so. Keeping me assured about the promised marriage he frequently established physical relationship with me. I became pregnant. I was treated by Dr. D. Sarkar. He gave me an injection. The pregnancy was aborted. Asadul had the pregnancy aborted against my will. He thereafter continued to have relationship with me. A few days ago I came to know that marriage between Asadul and Nikhat Parveen has been settled. I then enquired of Asadul as to why was he going to marry another woman leaving me. Asadul then told me that he was going to marry another woman as per the wishes of his parents but he would never live with that woman. He would always live with me. He also told me that he would deposit a sum of Rs.5,00,000/- in my favour with a bank. I refused to accept the money. I thereafter brought the entire incident to the notice of my father. My father informed the matter to the father of Asadul. Asadul's father told my father to hush up the matter. I thereafter lodged the written complaint."
3. After the written complaint was lodged and the case was under investigation the witnesses were sought to bribed and were ultimately terrorized. A criminal case was also lodged against them by the accused which ultimately resulted in a final report filed by the police which the Chief Judicial Magistrate accepted and initiated proceedings under Section 211 of the Indian Penal Code against the accused. He challenged the aforesaid order on the ground that the final report filed by the police was accepted without hearing him. The order accepting the final report was set aside by the learned Sessions Judge. The order was challenged by the party of the complainant and a revisional application we understand is still pending before this Court.
4. The learned Trial Court held that:-
"It appears from the oral evidence of the prosecution witnesses coupled with the documents exhibited in this case that the prosecutrix had sexual intercourse with the accused on several occasions and that part of the prosecution case is well established from the oral evidence of the prosecutrix and also from the documents exhibited on behalf of the prosecution."
The learned trial Court however recorded the order of acquittal on the ground that (a) there is unexplained delay in lodging the FIR; (b) the prosecutrix wilfully submitted to the accused; (c) the pregnancy was voluntarily aborted by the prosecutrix; (d) absence of any mark of injury establishes consent on her part and (e) the alleged pregnancy is itself doubtful.
5. Mr. Sengupta, learned Sr. Advocate appearing for the appellant/ prosecutrix submitted that the findings recorded are contrary to the evidence on the record. The learned trial Court failed to assess the evidence dispassionately. Evidence on record was ignored and wrong principles of law were applied. There has been non- application of mind. No one according to him properly instructed in law and acting judicially could have reached the finding as did the learned trial Court. Mr. Sanyal, learned Additional Public Prosecutor, appearing for the State- respondent supported the contention of Mr. Sengupta.
Mr. Moitra, learned Advocate appearing for the accused-respondent made the following submissions:-
(a) He challenged the maintainability of the appeal on the ground that the proviso added to Section 372 CrPC does not have any retrospective operation and therefore cannot apply to a cause of action which arose long prior to the introduction thereof in the statute. He relied upon a large number of decisions, which we shall discuss at the appropriate stage.
(b) He contended that even if it is held that the appeal was maintainable, the appeal was incompetent because no leave under Section 378 of the Code of Criminal Procedure had been obtained.
(c) He supported the findings arrived at by the learned Trial Court for recording an order of acquittal. He drew our attention to judgments of the Apex Court in the case of State Haryana vs. Gurdial Singh reported in 1974 SCC (Cri) 530 and a judgment in the case of Rajoo vs. State of M.P. reported in 2009(1) CrLR (SC) 776 in connection with appreciation of evidence.
(d) He drew our attention to a large number of authorities to impress upon us the limited scope of interference in an appeal from an order of acquittal. (e) He concluded by saying that in any event there is no dependable evidence to show that the accused from the very beginning had no intention to marry. According to him the promised marriage did not take place for reasons which were not in the control of the accused. He therefore, contended that this court should refrain from interfering with the judgment and order under challenge. Before we proceed to examine the submissions advanced from the bar, it would, in our view, be appropriate to examine correctness of the views expressed in the judgment under challenge.
6. The learned Trial Court on the point of delay opined as follows:-
"I have already discussed earlier that the prosecution has failed to explain the delay in lodging the FIR either by any satisfactory, reliable, corroborative oral or documentary evidence. It is to be mentioned here that PW 13 tried to fill up the lacuna of the prosecution by stating in his evidence in chief that on 6th December, 2003 he heard from his daughter Mahafuja Banu that she was raped by accused Ashadul Islam at Bibigram and Joregachi and that on 13.12.2003 second village salish was called on. But, his said evidence in chief is neither corroborated nor supported by the FIR story nor by the evidence of his daughter PW 1 nor by any other witness examined in this case and as such solitary, uncorroborated, unsatisfactory, afterthought evidence on this point cannot be relied on and as such his such evidence cannot fill up the lacuna of the prosecution case relating to the non-explanation of delay in lodging the FIR of the case. So, in view of the decision of the Hon'ble Supreme Court reported in AIR 1973 SC 501 and also in view of the above noted circumstances I am of the considered opinion that the delay caused by the prosecutrix in lodging the FIR of the case casts a serious doubt in the mind of the Court."
The learned Trial Court however ignored the evidence including facts and circumstances tabulated hereinbelow:
(a) In answer to the Court's question the prosecutrix deposed as follows:-
"To Court: It is true and correct that I have lodged the FIR against the accused person as he has not married myself."
The prosecutrix deposed during her during cross-examination "I have stated to the Magistrate that by promising to marry myself the accused person entered into sexual relationship with me frequently". The fact that the accused did not intend to perform his promise was discovered by the prosecutrix when she came to know that the former was going to marry another woman. She rushed to the accused for an enquiry when he told her that "he will keep relation with me as husband and wife, but he can't go against his father and he is to marry the other girl as per willingness of his father, but he will not live with herself. The accused person also allured me stating that he will deposit Rs.5,00,000/- lakhs in my name, but I have disagreed. Then the accused person stated that if I disagree, he will kill me and he stated not to disclose the fact to my parents. Then I have disclosed everything to my mother and my mother told everything to my father. Subsequently a salish was held....".
It would appear from mat. Ext. 1 the wedding card of the accused that his marriage was to take place on 18th December 2003.
(b) There is unimpeachable evidence, to show that the salish was held on two occasions, adduced by the PWs.1,4,5 and 13. The written complaint was lodged on 13th December 2003. The opinion of the learned Trial Judge that the evidence of PW 13 was uncorroborated, solitary etc. is obviously indisregard of the evidence on record. The PW 1 in that regard deposed as follows:-
"Subsequently a 'salish' was held in the village in respect of those incidents concerning the accused person and myself, but without any solution."
There is no cross-examination directed against this part of her deposition.
The PW 4 deposed in this regard as follows:-
"Thereafter the fact was intimated to Bafatullah Mia and a salish was held in the house of Jafar Ali, a quack in village Mahakalbona at the instance of myself and the Anchal Prodhan of Alal Gram Panchayat. Only the guardians of Mahapuja and Asadul remained present in the salish on the first day and on the second day Mahapuja also attended the salish. But, Asadul has not attended the salish and his father also remained absent. But, no result was arrived at in the salish and in the salish the Anchal Prodhan declared for taking shelter of law. Mahapuja Banu disclosed before the salish that she has been raped by Asadul at Bibigram, Malda and thereafter in the house at Joregachhi."
The PW 5 deposed in that regard as follows:-
"One Salish was held in the house of Jafar Ali at Rajaramchak and in that salish Mahapuja Banu stated that on 2 occasions she has been raped by Asadul Islam at Bibigram and at Joregachhi. In that salish Bafatullah Mia was present, but Asadul Islam has not attended the salish. The salish ended without any result and Mokbul Hossain was asked for taking shelter of law."
(c) If the evidence indicated above is taken into account, it is difficult if not impossible to hold that there was delay in lodging the FIR. The judgment in the case of Thulia Kali vs. State of Tamil Nadu reported in AIR 1973 SC 501, relied upon by the trial Court, was a case under Sections 302 and 379 of the IPC. Delay in lodging the FIR, as a matter of theory, does not always apply to the cases of rape which has been reiterated by the Supreme Court in the case of State of Uttar Pradesh vs. Manoj Kr. Pandey reported in 2009(1) SCC (Cri) 244 wherein the following view was taken:-
"Apart from that normal rule regarding the duty of the prosecution to explain the delay in lodging FIR and the lack of prejudice and/or prejudice caused because of such delayed lodging of FIR does not per se apply to cases of rape. This has been the consistent view of this Court."
7. On the point that the prosecutrix wilfully submitted to the accused the learned trial Court advanced the following reasoning :-
"Moreover, it appears from her evidence that her said first sexual intercourse took place at about 3 or 4 months after June-July, 2001 and she kept remain silent about her said sexual intercourse by the accused on that day or on the subsequent days at the request of the accused till she came to know that the accused was going to marry another girl at elsehwere. This conduct of a grown up educated lady also appears to be doubtful specially when she knew that before marriage surrendering of any woman to any man for sexual purpose only on the basis of promise to marry is improper and not acceptable."
(a) It is not a fact that the victim maintained silence as opined above. There is evidence, which the learned trial Court ignored to show that the victim constantly kept on asking the accused to talk to her father for marriage and the accused went on postponing the talks and kept persuading her not to disclose anything to her parents. The evidence of the prosecutrix in that regard is tabulated hereinbelow.
I. After the first incident "He has also stated not to disclose the incident". II. After the menstruation cycle stopped "I made contact from the telephone booth of Soumen Choudhury at Beltala-in the given phone number with the accused person. I have stated about my physical condition to the accused person and he assured me not to be worried and promised for my medical treatment. He also told me not to disclose anything to my parents."
III. "I have made contact with the accused person in the given phone number and told him for marrying me. But, he told for allowing sometime and in that way sometime past. The accused person also told that he will discuss the matter with his parents. One day the accused person disclosed that his mother will talk with me in the matter of my marriage with the accused person and on one occasion he called me to go to their house at Joregachi for talking with his mother."
IV. "Thereafter I have made contact with the accused person over phone in the given number and created pressure upon him for marrying me. But on different score, the accused person managed to avoid my proposal and to kill time. Thereafter the accused person has given me letter and greetings card, diaries and 2 currency notes of Rs.5/- with remarks of love written on the same."
V. Even after discovery that the accused was going to marry another woman "Then again I have made contact with the accused person and asked him about the fixing of his marriage and he affirmed the information. The accused person disclosed that he will keep relation with me as husband and wife, but he can't go against his father and he is to marry the other girl as per willingness of his father, but he will not live with herself. The accused person also allured me stating that he will deposit Rs.5,00,000/- lakhs in my name, but I have disagreed. Then the accused person stated that if I disagree, he will kill me and he stated not to disclose the fact to my parents. Then I have disclosed everything to my mother and my mother told everything to my father."
(b) The fact that the victim did not disclose the affairs to her parents prior to 6th December 2003 has not surprised us. Prior to 6th December 2003 the actual intention of her lover was unknown to her. She did not have any clue that the marriage was not going to take place nor did she have any occasion to realise that she had been befooled. Her life was also in danger. Experience shows that the young children seldom think of taking their parents into confidence until the enterprise secretly undertaken has backfired or has gone beyond their control. The fear of losing face is another reason why a victim of rape shall not disclose the facts of which judicial notice was taken by Their Lordships in the case of Bharwada Vs. State of Gujarat reported in 1983(3) SCC 217 wherein the following views were expressed:-
"10. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because--
(1) A girl or a woman in the tradition-bound non-
permissive society of India would be extremely
reluctant even to admit that any incident which is
likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being
ostracised by the society or being looked down by the society including by her own family members,
relatives, friends, and neighbours.
(3) She would have to brave the whole world.
(4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her
matrimonial home and happiness being shattered.
(5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family.
(6) It would almost inevitably and almost invariably result in mental torture and suffering to herself.
(7) The fear of being taunted by others will always haunt her.
(7) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition-
bound society where by and large sex is taboo.
(8) The natural inclination would be to avoid giving publicity to the incident lest the family name and
family honour is brought into controversy.
(9) The parents of an unmarried girl as also the husband and members of the husband's family of a married
woman, would also more often than not, want to
avoid publicity on account of the fear of social stigma on the family name and family honour.
(10) The fear of the victim herself being considered to be promiscuous or in some way responsible for the
incident regardless of her innocence.
(11) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross-examination by the counsel for the culprit, and the risk of being disbelieved, acts as a deterrent."
(c) The learned trial Judge made a grievous error in assessing the evidence as regards the conduct of the prosecutrix. It is indeed true that the prosecutrix during her cross-examination deposed that "before marriage surrendering of any woman to any man for sexual purpose only on the basis of promise to marry is improper and not acceptable as I feel". This explains why the physical relationship was resisted by the prosecutrix; this explains why she did not bring the fact to the notice of her parents before she discovered that the accused had cheated her into believing that he was going to marry. The belief held by her naturally guided her conduct.
8. The learned trial Court went on with his reasoning as regards wilful submission as follows:-
"Moreover, if it is believed that her alleged sexual intercourse with the accused was forcible resulting her pregnancy and she tried to resist the said act of the accused, then she being a grown up educated girl of 20 years, her normal conduct would then that she would guess about her relationship with the accused at least relating to her physical relationship with the accused. But, her conduct, as it appears from her evidence and also from the FIR story, do not speak so. On the contrary, it appears from her evidence and also from the FIR story that she continued her physical relationship with the accused till she came to know that the accused was going to marry another girl though her said conduct casts a serious doubt in the mind of the Court as to whether she was subjected to forcible physical relationship or sexual relationship with the accused or whether she was willingly submitted her to the accused."
(a) The learned trial Court has missed two important facts (i) that the prosecutrix believed that she and the accused were in love with each other and (ii) there was a promise to marry made by the accused to the prosecutrix. There is plethora of evidence as regards both the aforesaid facts. The fact that the accused was writing poems of love would appear from ext. 10. Various gifts, greeting cards were given to the prosecutrix by the accused. He was paying the bill of the telephone calls made by the prosecutrix to him which has been deposed to by the PW 6. The accused addressed her by the name of Sonia and the prosecutrix addressed him by the name of Raj. The endearing names bestowed upon each other manifest the mutual feelings they had or what was represented to be the feeling for each other. When a marriageable boy and a marriageable girl are honestly in love with each other both of them impliedly proceed on the basis that the love shall culminate in marriage which is also a logical conclusion of love. There are innumerable instances to show that the lovers chose to tread the path of self extinction when marriage between them was either opposed by the family or by the society or even by death either real or supposed. The story of Romeo and Juliet is a well known example. Romeo drank poison because he thought Juliet was dead "here's to my love! (Drinks)- O true apothecary! - Thus with a kiss I die (dies)" (Act V, Scene III).
(b) Taking the advantage of love the accused had entered the tenanted house of the prosecutrix when she was alone at home. Had the accused not been a lover she would not have allowed access. After gaining access and engaging the prosecutrix in talks the accused closed the door. The prosecutrix, it appears, had objected but he did not listen to that. He thereafter overpowered her and violated her. The prosecutrix resisted the act but she did not succeed. She in her own words during her deposition narrated the incident as follows:-
"It was a Sunday in the month of September and I was alone in the house and my brothers were in our house in the village. At about 12 noon hearing a sound I have opened and found Asadul and he asked whether my father is present or not. I have stated that my father is not present. He also asked about my brothers and I have stated that they are in our house of the village and amidst talking the accused person entered into the room. While we were talking the accused person closed the door of the room from inside. I have raised objection and I tried to open the door, but the accused person resisted me and by applying force he made me to lay on the bed. Then the accused person raped me forcibly against my will by pushing his penis inside my private part. At this I started crying."
The cross-examination with regard to the first incident reads as follows:-
"The accused person committed rape upon myself for the first time in the month of September, 2001, but I cannot say the date exactly. When the accused person made attempt for committing rape, I have tried to raise alarm, but he has resisted myself by pressing my mouth with his hands. It was then the day time. The accused person was wearing a Pajama and a Kurta at that relevant time. I was wearing a scart and T- Shirt. I was not wearing any pant, but I was wearing a panty only.
The accused person has not made me totally naked, but he pulled down my panty with one hand and lifted up my skirt. At that time he was keeping my hands down by another hand. But, I have not raised my alarm being afraid. The incident of rape was committed on bed. When the accused person was pulling down my panty I have tried to resist him, but not succeeded to prevent him. Amidst tussle with me the accused person managed to open his wearing payjama. But, I can't say whether he was wearing any jangia or not. After entering into the room the accused person talked for a while with me and thereafter closed the door of the room. The window in the outer room was closed and no window was there in the inner room. The accused person continued the sexual assault upon me for about 6/7 minutes. The accused person has not touched my breast at the relevant time. I have not enjoyed the incident, but I felt pain and for the first time that incident occurred with me."
Far from faltering for words she has during cross-examination given graphic details of the incident. Mr. Moitra was unable to point out one single sentence on the basis of which one can infer that the prosecutrix was telling a lie or that her evidence is unworthy of credence.
She resisted the act but failed. She cried and that was all that she could have done in the circumstances. She was as powerless in his hands as a sparrow in the talons of a Hawk.
(c) It is a fact that she subsequently continued to have physical relationship with the accused voluntarily except for the incident at Joregachhi which would be evident from her following deposition.
"My subsequent contact with the accused person was with my full knowledge but in secret.'
"After about 1½ years of the first incident of my rape by the accused person I went with him to Jorgachi. Within this intervening period my relationship with the accused person was friendly and normal and within that period I have believed the accused persons fully."
It is necessary to mention that she was taken to Joregachhi for the purpose of meeting the mother of the accused as would appear from her deposition quoted in para (7)(a)(III) above.
(d) The fact that the prosecutrix continued to mix with the accused is based on the promise of the latter to marry her. One can view the aforesaid conduct of the prosecutrix with suspicion provided there is scope either to doubt the alleged promise to marry or there is scope to find that the prosecutrix knew or ought to have known that the marriage between them was impossible as opined by the Supreme Court in the case of Uday vs. State of Karnataka reported in 2003 SCC (Cri) 775 wherein Their Lordship opined that "She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant." In the present case there was no visible impediment to the proposed marriage as deposed by her father during his cross-examination indicated hereinbelow.
(e) The promise to marry was not disputed before us. The contention raised by Mr. Moitra is that there is nothing to show that the accused from the inception did not have any intention to marry. Reference in this regard may also be made to the following line of cross-examination of PW 1.
"I can't say whether the social custom of ourselves permits the negotiation of marriage by the girl/woman herself or not. I have never told my parents for talking with the parents of the accused person in respect of negotiation of marriage."
"Before marriage surrendering of any woman to any man for sexual purpose only on the basis of promise to marry is improper and not acceptable as I feel."
"The name of the father of the accused person is Bafatulla. Bafatulla and Rafatul are two brothers. From the side of my aunt Tagari the accused person Asadul is my maternal uncle. I can't say whether my relation with the accused person was prohibited as per Sariyat or not." "I have stated in the FIR that the accused person made me bound to enter into sexual relationship with him giving assurance to marry myself."
"I have stated to the Magistrate that by promising to marry myself the accused person entered into sexual relationship with me frequently."
The following line of cross-examination of the father of the prosecutrix also provides an important clue to an answer to the aforesaid question as to whether she should have known that the proposed marriage was not possible.
"I cannot say whether my daughter was involved with any romantic activities other than her study in the school at Bibigram. Father of accused and myself belong to the same political party (CPI(M). I cannot say whether Bafatullah was CPI(M) party member or not. Accused Asadul is a member of CPI(M) Panchayet member samity. My daughter is by relation niece of Asadul. We follow Muslim Sariyat law in the event of marriage. In the Shariyat law there cannot be marriage in between maternal uncle and niece, but marriage will be taken place if the relations are found distant."
(f) An important clue to an answer to the question whether she had any reason to doubt the promise or the promisor is provided by the following deposition of the prosecutrix during her cross-examination.
"After about 1½ years of the first incident of my rape by the accused person I went with him to Joregachi. Within this intervening period my relationship with the accused person was friendly and normal and within that period I have believed the accused person fully."
(g) The learned trial Court did not indicate any reason which should have made her suspicious before she discovered that the accused was going to marry another woman. Soon before the discovery the accused was found, by the prosecutrix, stealthily removing the letters and the greeting cards he had given to the prosecutrix. She asked him "what for he is going out with the greeting cards and the letters but the accused person went away without giving any answer. The manner of the accused made me suspicious about himself and after making contact with him over phone I came to know that the marriage of the accused person with another girl has been fixed."
(h) He not only outraged her body, but he
"Ne'er can give her back again
That which he has taken away,
The brightest jewel woman wears
Throughout her little day.
The brightest and the only one
Which from the cluster riven
Shuts out forever woman's heart.
From all its hopes of heaven."
When she came to know that the accused was going to marry another woman she for the first time discovered that she had been cheated by the accused as did Judas when he betrayed the savior of mankind with a kiss.
9. The learned trial Court found the following conduct of the prosecutrix contrary to or inconsistent with her innocence.
"Moreover, it appears from her earlier mentioned evidence that after reaching at Joregachi at the house of the accused the prosecutrix did not find his mother there although the accused told her that his mother would come there on that day. Even after seeing the said situation when she found scope to flee away from there, she did not choose to do so inspite of the fact that the accused ...... from that room and she was alone in that room. Moreover, even after her alleged rape at Joregachi by the accused, she went with him to her house at Malda." The question of fleeing away after the accused had stolen "the brightest jewel woman wears" could not have been there. She was not repentant because she thought that the person who stole the jewel was her lover whom she was going to marry and the jewel was not therefore lost. She was reluctant to enter into any physical relationship because she must have thought that the mother of the accused would arrive any moment whereas the accused knew that she would not. "One day the accused person disclosed that his mother will talk with me in the matter of my marriage with the accused person and in one occasion he called me to go to their house for talking with his mother. The accused person was constructing a house at Joregachi at the relevant time, though their house in Mahakalbona was in existence. Joregachi is within PS Gazole. Then the accused person has taken me to their house at Joregachi. But, there I found nobody else apart from the accused person and myself in the house. I have asked him about his mother and the accused person went down from the upper floor to call his mother over phone and after coming back he told me that his mother is coming." After the sexual intercourse was over and the chance of meeting the mother of the accused had faded away because she had not turned up, was it unnatural for her to come back accompanied by her lover?
10. The trial Court disbelieved the Joregachi episode for the following reasons:-
"It appears from the FIR story and also from the statement of the prosecutrix recorded under Section 164 CrPC that nowhere in her said two statements she stated about any alleged incident of her forcible physical relationship with accused at his house at Joregachi. But, it appears from the evidence of PW 1 and some other prosecution witnesses that they have stated in their evidence about the alleged incident of rape/forcible physical relationship with accused at his house at Joregachi. The evidence of PW 1 and some other witnesses including her father PW 13 on this point relating to the alleged incident at Joregachi, being beyond the FIR story cannot be relied on as the said evidence of the prosecutrix and other witnesses on this point appears to be afterthought, concocted story built up by the prosecution."
(a) The learned trial Court was oblivious of the law on the subject. An FIR is not intended to be a detailed document nor does anyone expect the FIR to be an encyclopaedia of all facts and circumstances of the case. Reference in this regard may be made to the judgment in the case of Baldev Singh & Ors. vs. State of Punjab reported in 1995(6) SCC 593 wherein Their Lordships reiterated the following view:-
"Stated briefly, the FIR is not a substantive piece of evidence, it is only relevant in judging the veracity of prosecution case and the value to be attached to it depends on the facts of each case. Only the essential or broad picture need be stated in the FIR and all minute details need not be mentioned therein. It is not a verbatim summary of the prosecution case. It need not contain details of the occurrence as if it were an "encyclopaedia" of the occurrence. It may not be even necessary to catalogue the overt acts therein. Non-mentioning of some facts or vague reference to some others are not fatal."
(b) An omission does not always amount to contradiction unless it can be shown that the omission is irreconciliable with what she stated from the witness box. Reference in this regard may be made to an instructive judgment in the case of Ram Bali & Ors. Vs. State reported in AIR 1952 All 289 wherein the following views were expressed:-
"If a witness depose in Court that a certain fact existed but had stated under S.162 either that that fact had not existed or that the reverse and irreconcilable fact had existed it is a case of conflict between the deposition in the Court and the statement under S.162 and the latter can be used to contradict the former. But if he had not stated under s.162 anything about the fact there is no conflict and the statement cannot be used to contradict him. In some cases an omission in the statement under S.162 may amount to contradiction of the deposition in Court; they are the cases where what is actually stated is irreconciliable with what is omitted and impliedly negatives its existence. If the statement under S.162 can be reconciled with the deposition in Court and can stand with it, there is absolutely no conflict. If a witness stated under S.162 that A was attacked by X and makes no reference to Y at all but in the Court depose that A was attacked by X and Y, it is possible to argue that his statement under S.162 amounts to this that A was attacked by X alone and that Y did not take part in the attack and thus contradicts the deposition in Court. It depends upon whether the witness intended to name all the assailants of a in his statement or not. If a witness states under S.162 that an incident was witnessed by S, T, W, X and Y and deposes in the Court that it was witnessed by S,T,W,X, Y and Z, there may be or may not be any conflict between the two. If his list of the eyewitness under S.162 was intended to be exhaustive, it may amount to his denying that Z also was an eyewitness and thus contradict his deposition in Court. But if it was not intended to be exhaustive, then it cannot be said that his statement amounts to denial of the fact that Z also was an eyewitness.
... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
The test to find out whether an omission is a
contradiction or not is to see whether one can point to any sentence or assertion which is irreconcilable with the deposition in the court. It would be quite meaningless to say that the entire statement under
S.162 contradicts the deposition; therefore, one
cannot point to the entire statement as being
irreconcilable with the deposition."
(c) Mr. Moitra cited a judgment in the case of State of Haryana v. Gurdial Singh, reported in 1974 SCC (Cri) 530:(1974) 4 SCC 494 wherein the following views were expressed:
"21. The present is a case wherein the prosecution witnesses have come out with two inconsistent versions of the occurrence. One version of the occurrence is contained in the evidence of the witnesses in Court, while the other version is contained in their statements made before the police. According to the version given in Court, it was Pargat Singh who shot dead the deceased, while according to the other version it was Gurdial Singh of Ramana who was responsible for the crime. Again, according to the version given in Court, the occurrence was witnessed by Avtar Kaur. As against that, the version contained in the police statement was that Avtar Kaur had not witnessed the occurrence. In view of these contradictory versions, the High Court, in our opinion, rightly came to the conclusion that the conviction of the accused could not be sustained. We see no ground to interfere with the judgment of the High Court. The appeals fail and are dismissed."
The next judgment cited by Mr. Moitra was in the case of Rajoo v. State of Madhya Pradesh, reported in 2009(1) CrLR (SC) 776: (2008) 15 SCC 133 wherein the following views were expressed:-
"On an examination of the entire evidence, we are of the opinion that, it would be difficult to conclusively show the involvement of each of the accused beyond reasonable doubt. To our mind the truth and falsehood are so inextricably intertwined, that it is impossible to discern where one ends and the other begins."
The principles discussed in these two judgments provide guidance where the evidence may not be accepted. But the case before us neither confirms to the views expressed in State of Haryana vs. Gurdial Singh (supra) nor in Rajoo vs. State of M.P. (supra).
(d) On the contrary the Apex Court has consistently taken the view that the evidence of the prosecutrix cannot be tested with suspicion. In the case of State of U.P. vs. Chotey Lal reported in 2011(2) SCC 550 Their Lordships traced the law laid down by the Apex Court in the decided cases as follows:- "22. In the backdrop of the above legal position, with which we are in respectful agreement, the evidence of the prosecutrix needs to be analysed and examined carefully. But, before we do that, we state, as has been repeatedly stated by this Court, that a woman who is a victim of sexual assault is not an accomplice to the crime. Her evidence cannot be tested with suspicion as that of an accomplice. As a matter of fact, the evidence of the prosecutrix is similar to the evidence of an injured complainant or witness. The testimony of the prosecutrix, if found to be reliable, by itself, may be sufficient to convict the culprit and no corroboration of her evidence is necessary. In prosecutions of rape, the law does not require corroboration. The evidence of the prosecutrix may sustain a conviction. It is only by way of abundant caution that the court may look for some corroboration so as to satisfy its conscience and rule out any false accusations.
23. In State of Maharashtra v. Chandraprakash Kewalchand Jain11 this Court at SCC p. 559 of the Report said: (SCC para 16)
"16. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence."
24. In State of Punjab v. Gurmit Singh12 this Court made the following weighty observations at pp. 394-96 and p. 403: (SCC paras 8 & 21)
"8. ... The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix ... The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self- respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case ... Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury ... Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances....
* * *
21. ... The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations." (emphasis in original)
25. In Vijay v. State of M.P. 13, decided recently, this Court referred to the above two decisions of this Court in Chandraprakash Kewalchand Jain11 and Gurmit Singh12 and also few other decisions and observed as follows: (Vijay case13, SCC p. 198, para 14)
"14. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix."
26. The important thing that the court has to bear in mind is that what is lost by a rape victim is face. The victim loses value as a person. Ours is a conservative society and, therefore, a woman and more so a young unmarried woman will not put her reputation in peril by alleging falsely about forcible sexual assault. In examining the evidence of the prosecutrix the courts must be alive to the conditions prevalent in the Indian society and must not be swayed by beliefs in other countries. The courts must be sensitive and responsive to the plight of the female victim of sexual assault. Society's belief and value systems need to be kept uppermost in mind as rape is the worst form of women's oppression. A forcible sexual assault brings in humiliation, feeling of disgust, tremendous embarrassment, sense of shame, trauma and lifelong emotional scar to a victim and it is, therefore, most unlikely of a woman, and more so by a young woman, roping in somebody falsely in the crime of rape. The stigma that attaches to the victim of rape in Indian society ordinarily rules out the levelling of false accusations. An Indian woman traditionally will not concoct an untruthful story and bring charges of rape for the purpose of blackmail, hatred, spite or revenge.
27. This Court has repeatedly laid down the guidelines as to how the evidence of the prosecutrix in the crime of rape should be evaluated by the court. The observations made in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat14 deserve special mention as, in our view, these must be kept in mind invariably while dealing with a rape case. This Court observed as follows: (SCC p. 224, para 9)
"9. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyse the argument in support of the need for corroboration and subject it to relentless and remorseless cross- examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile. The identities of the two worlds are different. The solution of problems cannot, therefore, be identical."
11. The learned Trial Court held that the prosecutrix had the pregnancy aborted voluntarily. He in that regard reasoned as follows:-
"So, the above noted evidence of PW 1 the prosecutrix goes to show that even after the alleged incident of her forcible physical relationship with the accused at her rented house at Malda resulting her pregnancy she used to make contact with the accused. Although it was alleged in the FIR story that she was aborted forcibly but her evidence before this court in her examination in chief shows that she has got it done through the doctor with the help of the accused voluntarily and without having any force applied by the accused."
The learned trial Court commented in the preceding few lines of his judgment that the prosecutrix deposed that "she made contact with the accused person in the given phone number and told him for marrying her, but he told for allowing sometime and in that way sometime past and that accused person told that he would discuss the matter with his parents". The learned trial Judge failed to realise that the prosecutrix after the pregnancy wanted the marriage to be solemnised without any loss of time whereas the accused wanted time to marry her. It naturally follows that the prosecutrix did not want an abortion whereas the accused wanted abortion. Can it be said in the circumstances that the prosecutrix voluntarily had the pregnancy aborted?
12. The learned trial Court opined that absence of any mark of injury coupled with the medical opinion it was established that the physical intercourse was not forcible but consensual. The conclusion is based on the following reasoning:-
"Moreover, if it was a forcible rape on her by the accused, then there must have been marks of injury on her person. But, in her medical examination report and also in the evidence of the doctor who medically examined her it appears that the doctor who medically examined her it appears that the doctor found no external injury on any part of her body or in her private part. It appears from her medical examination report (marked as Ext.5) that there was no external injury seen on her body including her private part and no injury seen in her forchette and her hymen was found intact, but two fingers easily admits. According to Medical Jurisprudence two fingers admits easily only when woman or the girl is habituated with sexual intercourse. So, her medical evidence does not support that she was raped by the accused. On the contrary, her medical examination report goes to show that her alleged sexual intercourse with accused was done with her consent and not forcible."
(a) The fact that the doctor did not find any injury is of no significance whatsoever. The learned trial Court was oblivious of the fact that the examination was held long after the forcible rape had taken place. Reference in this regard may also be made to the judgment in the case of Rafiq vs. State of UP reported in 1980(4) SCC 262 wherein the following views were expressed.
"Counsel contended that there was absence of corroboration of the testimony of the prosecutrix, that there was absence of injuries on the person of the woman and so the conviction was unsustainable, tested on the touchstone of case-law. None of these submissions has any substance and we should, in the ordinary course, have desisted from making even a speaking order but counsel cited a decision of this Court in Pratap Misra v. State of Orissa and urged that absence of injuries on the person of the victim was fatal to the prosecution and that corroborative evidence was an imperative component of judicial credence in rape cases.
We do not agree. For one thing, Pratap Misra case laid down no inflexible axiom of law on either point. The facts and circumstances often vary from case to case, the crime situation and the myriad psychic factors, social conditions and people's life-styles may fluctuate, and so, rules of prudence relevant in one fact-situation may be inept in another. We cannot accept the argument that regardless of the specific circumstances of a crime and criminal milieu, some strands of probative reasoning which appealed to a Bench in one reported decision must mechanically be extended to other cases. Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances. Indeed, from place to place, from age to age, from varying life-styles and behavioural complexes, inferences from a given set of facts, oral and circumstantial, may have to be drawn not with dead uniformity but realistic diversity lest rigidity in the shape of rule of law in this area be introduced through a new type of precedential tyranny. The same observation holds good regarding the presence or absence of injuries on the person of the aggressor or the aggressed."
(b) On the top of that does it make sense to look for marks of injury after such a long time? Mr. Moitra was unable to show us any treaties of the medical jurisprudence containing the information that two fingers admit easily only when a woman or a girl is habituated with sexual intercourse. The doctor who was examined in this case did not express any such opinion. On the contrary the evidence of the doctor (PW 9) is that "hymen was found intact, but admits two fingers easily. Uterus seems to be of normal size." The opinion that the prosecutrix was habituated to sexual intercourse expressed by the learned trial Court is not based on any evidence on record.
13. The learned trial Court opined that the alleged pregnancy was also doubtful. His reasoning in that regard is as follows:-
"Non-examination of the said doctor and not proving the said fact by any document by the prosecution also casts a serious doubt in the mind of the Court relating to her said alleged pregnancy as alleged in the FIR or relating to her stopping of her menstruation circle as stated by her in her evidence."
The learned trial Court was oblivious of the fact that for the purpose of proving rape slightest penetration is enough under Section 375 of the Indian Penal Code. The prosecutrix has deposed that her menstruation cycle had stopped. "I have guessed that I have conceived as my menstruation was stopped". She was taken by the accused to Dr. Sarkar and after his treatment the menstruation cycle was restored. The said Dr. Sarkar was a charge sheet witness. The PW 17 the I.O. during his cross-examination deposed as follows:-
"I have examined Dr. Sarkar who has been cited in the case as Charge Sheet Witness. I did not seize any document relating to pregnancy and abortion of the victim girl. I also did not seize any paper to show that the victim girl was pregnant at the time. I made query to Doctor only one question in case of pregnancy hymen always be found intact and no other question was put up before doctor."
Why was Dr. Sarkar ultimately not examined is not clear but it is also a fact that the PW 17 was not asked any question with regard thereto. For any laches on the part of the investigating agency or the Public Prosecutor, can the prosecutrix be looked down upon with suspicion? In the case of State of UP vs. Chotey Lal (supra) Their Lordships cited the judgment in the case of State of Punjab vs. Gurmit Singh wherein the Apex Court had opined "If the investigating officer did not conduct the investigation properly or was negligent...... how can that become a ground to discredit the testimony of the prosecurtix?"
14. The learned trial Court presumed the evidence adduced by the PWs.5,6 and 13 to have been falsely adduced. The reasoning advanced in that regard is as follows:-
"I have already discussed earlier that the evidence of the PWs.5,6 and 13 who have tried to support and corroborate the prosecutrix about the alleged incident of her rape by accused cannot be relied on because they have stated in their evidence that they heard about the incident from the prosecutrix. But, the prosecutrix (PW 1) in her evidence did not say that at any point of time she stated about her alleged incident of rape either to PW 5 or to PW 6 or to her father (PW 13). Moreover, it appears from the evidence in cross-examination of some of the prosecution witnesses, as discussed earlier, that the accused filed a criminal case against these witnesses and also against some other witnesses as such it can be reasonably presumed that they have falsely implicated the accused by stating in their evidence against the accused to corroborate and support the prosecution case."
The learned trial Court ignored the following facts and circumstances:-
(a) The prosecutrix deposed that " a salish was held in the village in respect of those incident concerning the accused person and myself but without any solution". PWs.4, 5 and 13 were present during the Salish amongst others. PW 5 deposed in that regard as follows:-
"One salish was held in the house of Jafar Ali at Rajaramchak and in that salish Mahapuja Banu stated that on 2 occasions she has been raped by Asadul Islam at Bibigram and at Joregachhi. In that salish bafatullah Mia was present, but Asadul Islam has not attended the salish. The salish ended without any result and Mokbul Hossain was asked for taking shelter of law."
((b) PW 6 is the owner of the STD Booth from where the prosecutrix used to keep touch with the accused over telephone and the call charges were paid by the accused. PW 6 did not utter a single word about any incident of rape. The learned Trial Judge has obviously mixed up the matter with other witnesses who had attended the salish. He probably wanted to refer to the PW 4 who deposed in that regard as follows:- "Thereafter the fact was intimated to Bafatullah Mia and a salish was held at the house of Jafar Ali, a quach in village Mahakalbona at the instance of myself and the Anchal Pradhan of Alal Gram Panchayat. Only the guardians of Mahafuja and Asadul remained present in the salish on the first day and on the second day Mahapuja also attended the salish. But, Asadul has not attended the salish and his father also remained absent. But, no result was arrived at in the salish and in the salish the Anchal Prodhan declared for taking shelter of law. Mahapuja Banu disclosed before the salish that she has been raped by Asadul at Bibigram, Malda and thereafter in the house of Joregachhi."
(c) PW 13 is the father of prosecutrix. He had arranged the salish. Therefore his evidence need not be quoted herein.
(d) It would appear that the learned trial Court overlooked the fact that the prosecutrix had in fact told the witnesses about the rape when they attended the salish. Therefore there was no reason to look upon the evidence of the PWs.4,5 and 13 with any amount of suspicion. The fact that the criminal prosecution was started by the accused against the witnesses including PWs.4,5 and 13 which ultimately ended in a final report does not in the least erode the credibility of the evidence adduced by the witnesses as erroneously presumed by the learned trial Judge. The presumption drawn by him has no reasonable basis nor is the same authorized by law.
15. From the aforesaid examination of the judgment rendered by the learned trial Court it has transpired that the order of acquittal was recorded by (a) ignoring/overlooking the evidence on record, (b) applying wrong principles of law, (c) misappreciation of human conduct, (d) failing to notice the important links, (e) omission to see the obvious, (f) applying wrong principles of appreciation of evidence, (g) insisting upon proof which with the passage of time did no longer survive, (h) forming opinion without any basis in the evidence, (I) penalising the prosecutrix for the fault of investigating officer or the public prosecutor and (j) lastly by drawing presumptions not authorised by law nor based on reason.
It is in these circumstances that the applicability of the judgments cited by Mr. Moitra as regards the scope of the appellate power dealing with an order of acquittal has to be considered.
The first judgment cited by Mr. Moitra is in the case of Dharamdeo Singh v. State of Bihar, (1976) 1 SCC 610 wherein Their Lordships expressed the following views:-
"if two conclusions can be based upon the evidence on record, the High Court should not disturb the finding of acquittal recorded by the trial court. It would follow as a corollary from that that if the view taken by the trial court in acquitting the accused is not unreasonable, the occasion for the reversal of that view would not arise". (See Sethu Madhavan Nair v. State of Kerala1)."
No elaborate reasoning is required to demonstrate that this judgment has no manner of application to the facts and circumstances of this case. Next judgment cited by Mr. Moitra was in the case of Rajendra Prasad v. State of Bihar 1977 SCC (Cri) 308: (1977) 2 SCC 205 wherein the scope of interference with an order of acquittal passed by the trial Court was laid down as follows:-
"13. When a trial court, with a full view of the witnesses, acquits an accused after disbelieving direct testimony, it will be essential for the High Court, in an appeal against acquittal, to clearly indicate firm and weighty grounds, from the record, for discarding the reasons of the trial court in order to be able to reach a contrary conclusion of guilt of the accused. The High Court should be able to point out in its judgment that the trial court's reasons are palpably and unerringly shaky and its own reasons are demonstrably cogent. As a salutary rule of appreciation of evidence, in an appeal against acquittal, it is not legally sufficient that it is just possible for the High Court to take a contrary view about the credibility of witnesses but it is absolutely imperative that the High Court convincingly finds it well-nigh impossible for the trial court to reject their testimony. This is the quintessence of the jurisprudential aspect of criminal justice."
We have in the preceding paragraphs demonstrated our reasons why the judgment under challenge is clearly wrong.
Next judgment cited by Mr. Moitra was in the case of Ajit Singh Thakur Singh v. State of Gujarat, (1981) 1 SCC 495 wherein the following views were expressed:-
"9. We may observe that the High Court had before it an appeal against an order of acquittal. The approach to be adopted by the High Court when exercising its appellate powers in such a case has been defined in a long line of cases. As long ago as Warren Ducane Smith v. King1 the Privy Council declared that the High Court must give proper weight and consideration to "such matters as (1) the view of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses". The approach has been endorsed by this court repeatedly, and in a very recent decision, Ganesh Bhavan Patel v. State of Maharashtra2 to which one of us (Sarkaria, J.) was party, it was also observed: [SCC p. 376: SCC (Cri) p. 5, para 13]
"Where two reasonable conclusions can be drawn on the evidence on record, the High Court should, as a matter of judicial caution, refrain from interfering with the order of acquittal recorded by the court below. In other words, if the main grounds on which the court below has based its order acquitting the accused, are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished, the High Court should not disturb the acquittal."
10. The legal position is well settled and, indeed, has been adverted to by the High Court. But after specifically referring to it the High Court appears to have overlooked the limitations imposed on it and has embarked on a course not warranted by law. It has taken into particular regard a few considerations which seemed to it to assume importance. It has referred to the recovery of a blood-stained slipper and a diary from the scene of the offence, and has inferred that they belong to Ajit Singh. We are not satisfied that the connection has been truly established. The papers found in the diary do not necessarily show that the diary belongs to him. Nor is there sufficient proof that the slipper is his. The High Court has concentrated on some of the material only, omitting to consider in the process that the integrality of the evidence alone can ensure whether the accused are guilty."
Next judgment cited by Mr. Moitra was in the case of State of Maharashtra vs. Uday reported in JT 2002(Suppl. 1) SC 478. The High Court in
that case had set aside the order of conviction under Section 376 IPC because there was grave doubt as to whether the ossification report produced by the prosecution related to the prosecutrix. The Supreme Court refused to interfere. Next judgment cited by Mr. Moitra in this regard was in the case of Dilip & Anr. Vs. State of Madhya Pradesh reported in 2007(1) SCC 450 wherein the High Court had set aside the order of acquittal. The accused went up to the Supreme Court challenging the order of the High Court. Their Lordship set aside the order of the High Court holding that "The High Court, in our opinion, could not have brushed aside the findings of the learned Sessions Judge without meeting the reasonings assigned by him".
Next judgment cited by Mr. Moitra was in the case of State of Rajasthan v. Naresh reported in 2009(3) SCC (Cri) 1069:(2009) 9 SCC 368 wherein Their Lordships expressed their views as follows:-
"23. In State of U.P. v. Gambhir Singh10, at p. 273, para 6, this Court observed as under:
"6. ... we do not feel persuaded to interfere with the order of the High Court in an appeal against acquittal. It is well settled that if on the same evidence two views are
reasonably possible, the one in favour of the accused must be preferred."
The next judgment cited by Mr. Moitra was in the case of Dhanapal v. State, (2009) 10 SCC 401 wherein the order of the High Court setting aside the order of acquittal was reversed by Their Lordships holding that "On proper evaluation of the trial court judgment, we hold that the view taken by the trial court was certainly a possible or a plausible view. It is a well-settled legal position that when the view which has been taken by the trial court is a possible view, then the acquittal cannot be set aside by merely substituting its reasons by the High Court. In our considered view, the impugned judgment of the High Court is contrary to the settled legal position and deserves to be set aside." Mr. Moitra lastly drew our attention to the judgment in the case of Babu v. State of Kerala, reported in (2010) 9 SCC 189. Their Lordships in paragraphs 12-19 reviewed the earlier cases for the purpose of arriving at the power of the Appellate Court for interference with an order of acquittal.
"12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P.1, Shambhoo Missir v. State of Bihar2, Shailendra Pratap v. State of U.P.3, Narendra Singh v. State of M.P.4, Budh Singh v. State of U.P.5, State of U.P. v. Ram Veer Singh6, S. Rama Krishna v. S. Rami Reddy7, Arulvelu v. State8, Perla Somasekhara Reddy v. State of A.P.9 and Ram Singh v. State of H.P.10)
13. In Sheo Swarup v. King Emperor11 the Privy Council observed as under: (IA p. 404)
"... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."
14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State12, Balbir Singh v. State of Punjab13, M.G. Agarwal v. State of Maharashtra14, Khedu Mohton v. State of Bihar15, Sambasivan v. State of Kerala16, Bhagwan Singh v. State of M.P.17 and State of Goa v. Sanjay Thakran18.)
15. In Chandrappa v. State of Karnataka19 this Court reiterated the legal position as under: (SCC p. 432, para 42)
"(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, 'substantial and
compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
16. In Ghurey Lal v. State of U.P.20 this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.
17. In State of Rajasthan v. Naresh21 the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20)
"20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."
18. In State of U.P. v. Banne22 this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28)
"(i) The High Court's decision is based on totally
erroneous view of law by ignoring the settled legal position; (ii) The High Court's conclusions are contrary to evidence and documents on record;
(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave
miscarriage of justice;
(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;
(v) This Court must always give proper weight and
consideration to the findings of the High Court;
(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal."
A similar view has been reiterated by this Court in Dhanapal v. State.
16. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."
Mr. Sengupta in this regard relied upon a judgment in the case of Mrinal Das v. State of Tripura,(2011) 9 SCC 479, wherein the following views were expressed as regards the power of the Appellate Court.
"13. It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, it being the final court of fact, is fully competent to reappreciate, reconsider and review the evidence and take its own decision. In other words, the law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal.
14. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the materials placed."
16. No elaborate reasoning is required to demonstrate that the caution sounded in the series of judgments cited by Mr. Moitra do not apply to the facts and circumstances of the case. The infirmities in the judgment under challenge have been summarised by us in paragraph 15 above which according to the judgment in the case of Mrinal vs. State of Tripura (supra) are adequate to interfere with an order of acquittal.
17. Having found that the judgment and order under challenge are both patently wrong, the next question is as regards maintainability of the appeal. The question cropped up before a Division Bench of the Gujarat High Court in CRA No.228 of 2012 which arose out of an order of acquittal passed by the Sessions Court in Sessions Case No.14 of 2007 whereby the accused were acquitted of the offence punishable under Sections 325/326/504/506(2)/34 read with Section 114 of the Indian Penal Code read with Section 135 of the Bombay Police Act. In that case the State had already preferred an appeal. Consequent to the right granted by the proviso added to Section 372 of the Code of Criminal Procedure the victim also preferred an appeal. The question for consideration was whether the victim was entitled to maintain the appeal. The Division Bench opined that the victim had the right to prefer an appeal in the absence of any appeal by the State. The views taken by the Division Bench to be precise are as follows:-
"11. It is hardly required to be stated that in the matter of commission of offence and for ensuring that the offenders are booked, the primary responsibility is of the State and it is for the State to ensure that the offenders are booked and the victims are not made to suffer. If one has committed offence he is bound to be punished, but, if one is innocent he would be entitled to the benefit thereof. The aforesaid is one of the sovereign function of the State which can neither be abdicated nor can be diluted in any welfare State. If the State is not pursuing his matter with proper spirit and zeal, the victim may validly raise grievance and also compel the State to take appropriate action for ensuring that the offenders are booked. But, such right cannot be read at the only as per the desire or will of the victim and while pursuing such right the victim can not claim a higher pedestal than that of the State whose basic duty is to ensure that the offenders are booked. In normal circumstance if the State is showing any lethargy or not pursuing the matter for ensuring that the offenders are booked the victim may legitimately make grievance and may also step into litigation by ensuring that the culprits are prosecuted and the suffering of the victim are sufficiently given solace and compensation. But, it appears that such right as may be available to the victim is not by way of taking revenge against the accused or by aggravating the situation against the accused, but, is limited to the extent of ensuring the punishment to the culprit in accordance with law. It is by now recognized principles that justice to one party should not result into injustice to the other side and it will be for the Court to balance the right of both the sides and to up-hold the law.
12. If the State is to prefer appeal against the order of acquittal it has to follow the procedure as laid down under Section 378 of Cr.P.C., namely, that unless the leave is granted by the High Court, such appeal would not be entertained. It is only after the application for leave is made and such leave is granted by the High Court, the appeal shall be entertained by the High Court against the order of acquittal. If the right of the State to prefer appeal against the order of acquittal is controlled by provision of Section 378 Cr.P.C., the victim who otherwise can not claim higher pedestal in the criminal prosecution, cannot be heard to say that merely because the proviso is amended in section 372, such right of preferring appeal with the victim is in-absolute and not controlled by any provision of Section 378. If such a contention is accepted, the consequence could arise of treating the status of victim in any criminal prosecution higher than that of the State which can never be the intention of the legislative body nor can be allowed to be maintained in a welfare State where the right of the victim as well as of the accused are required to be balanced and the State is dominion of the criminal prosecution. Further, if the victim is permitted to claim higher pedestal than that of the State in a criminal prosecution it may also result into giving the treatment unequally in comparison to the right of the State and such may touch to the aspects of unreasonableness or discriminatory treatment by a statute. The attempt on the part of the Court would be to see that reasonable interpretation is given so as to ensure that real purpose and the intention of the statute is maintained. The purposive interpretation of any of the provision is to be made by the courts while giving effect to any provision of the statute. The essential purpose for ensuing the amendment in Section 372 is to see that if the State does not prefer appeal against the order of acquittal the victim should not be left to the helplessness condition. The right should equally be made available to the victim to make grievance by preferring the appeal, but, such right, in our view would be available only if the State has not preferred appeal. If the State is pursuing the matter properly of a criminal prosecution and the appeal has already been preferred by the State against the order of acquittal for which the grievance is also of the victim and such appeal is entertained by grant of leave and subsequently admitted, it can be said that the grievance of the victim to that extent is taken care of. It is only at the time when the final hearing of appeal is to take place, the victim can make the submission to the appellate court against the order of acquittal by assisting the Public prosecutor as per the scheme of Section 24(8) of Cr.P.C.
13. Apart from the above, once the leave is granted and the appeal is admitted, the appeal results into continuous proceeding of the trial Court, therefore, after admission of the appeal, the right of the victim may stand govern by the rights as existed in trial Court. As per the provision of the Code of Criminal Procedure the right as existed to the victim in the trial Court is to assist the Public Prosecutor as per the provision of Section 24(8) of Cr.P.C. such may be available to the victim in the event the State has already preferred appeal with the leave and such leave is granted and the appeal has been admitted by this Court. However, if the right is read to the victim in-absolute, such may leave the room for permitting the victim to take revenge or may also leave room for the other circumstances of exploitation of the situation by the victim inspite of the fact that the State is already pursuing the matter properly of a criminal prosecution.
14. Under these circumstances, it can be concluded that if the State has not preferred appeal against the order of acquittal or if the leave is not granted and the appeal of the State is not entertained, the victim may claim right of preferring the appeal in-absolute, but such right of preferring the appeal may not be available if the appeal of the State is already admitted and the leave has been granted against the order of acquittal of the State. In any case, even if it is read for the sake of consideration that the victim has absolute right to prefer appeal then also the judicial discretion would demand that when the State has already preferred appeal against the order of acquittal and the leave has been granted by this Court and the appeal has been admitted against the order of acquittal, preferred by the State, it would not be a case to entertain the another appeal of the victim by this Court and the only observation deserves to be made is to enable the victim to assist the Public prosecutor as per the provision of Section 24(8) Cr.P.C., at the time of final hearing of the appeal and/or by making the submission before the Court with the P.P. against the order of acquittal."
18. The question also cropped up before the Agartalla Bench of the Gauhati High Court in C.M. Appl (Crl) 89 of 2011 in Crl. A. No.13 of 2011 (Shri Gouranga Debnath vs. State of Tripura & Ors.). The Division Bench in that case held that though the date of the incident was 14th November, 2006 but the judgment of acquittal had been delivered by the learned Sessions Court in a case under Section 302 read with Section 34 of the Indian Penal Code on 30th September 2010, that is to say long after 31st December 2009 when the amendment became effective. It was therefore held that the appeal by the parents of the victim was maintainable.
19. An identical view was taken by a learned Single Judge of the Kerala High Court in Crl.M.A. No.7423 of 2011 (Balakrishnan Master vs. Ramachandran Master) reported in 2011(4) KLT 160. In the case before the Kerala High Court a revision had been filed against the order of acquittal. The High Court was of the view that the revision was not maintainable because there was right to prefer an appeal. The learned Single Judge of the Kerala High Court took the following views:-
"8. Proviso to Section 372 of the Code reads thus:
"[Provided that the victim shall have a right to prefer an appeal against any order passed by the court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such court.]"
The question is whether the right of appeal conferred on the victim by the proviso to Section 372 of the Code, has to be determined with regard to the date of order of acquittal or conviction of the accused for a lesser offence or order providing inadequate compensation, or, with respect to the date of incident giving rise to the prosecution of the accused. What is conferred by the Amendment Act 5 of 2009 on the victim is a substantive right to prefer an appeal in certain circumstances as specified, and that alone. Act 5 of 2009 has come into effect from 31.12.2009. Such right is available to a victim where a judgment is rendered by the court on or after 31.12.2009, provided, any one of the three circumstances covered by the proviso is involved in the case. The right is dependent on the judgment rendered by the court and not in relation to the incident which gave rise to the prosecution of the accused, whether or not it was at the instance of the victim. Any person who has suffered any loss or injury by the act or omission of the accused who had been prosecuted, and thus qualified to be a victim as defined under the Amendment Act 5 of 2009, gets a vested right after the coming into operation of the aforesaid Act to prefer an appeal in the event such prosecution of accused has resulted in a judgment giving rise any one of the three situations specified under the proviso to Section 372 of the Code. Where there is no doubt that what is conferred under the proviso to Section 372 of the Code enabling the victim to prefer an appeal in the circumstances specified is a substantive right conferred on him by the Statute its effect cannot be nullified taking a view that the applicability of the proviso inserted has to be reckoned with reference to the date of incident in the case which led to the prosecution of the accused. Any such view would be against the letter and spirit of the aforesaid proviso and also the very purpose for which a right of appeal is conferred on the victim, illustrating and defining the person falling thereunder, and specifically limiting to what situation such a right could be exercised.
9. In National Commission for Women's case (referred to above), only a casual reference to the proviso to Section 372 of the Code was made while examining the right of a third party (National Commission for Women) to impeach the inadequacy of a sentence imposed on an accused convicted of an offence under Section 376 of the IPC. Paragraph 8 of the aforesaid decision reads thus:
"Chapter XXIX of the Code of Criminal Procedure deal with "Appeal(s)". Section 372 specifically provides that no appeal shall lie from a judgment or order of a criminal court except as provided by the Code or by any other law which authorises an appeal. The proviso inserted by Section 372 (Act 5 of 2009) with effect from 31.12.2009, gives a limited right to the victim to file an appeal in the High Court against any order of a criminal court acquitting the accused or convicting him for a lesser offence or the imposition of inadequate compensation. The proviso may not thus be applicable as it came in the year 2009 (long after the present incident) and, in any case, would confer a right only on a victim and also does not envisage an appeal against an inadequate sentence."
Observations were made as above by the apex court while examining a Special Leave to appeal in a case, applied for by a third party, National Commission for Women. Such appellant, which could not be considered as a victim, with the challenge sought to be raised over the inadequacy of sentence awarded to the accused, and that too, where Section 377 of the Code specifically ordains as to who are all competent to prefer an appeal on the ground of inadequacy of sentence, was declined leave to appeal observing that granting leave in such a case "would be a dangerous doctrine and would cause utter confusion in the criminal justice system". Advertance made in the observations of the Apex Court as to the applicability of theproviso which became operative in the year 2009, that is, long after the incident covered by the case, does not postulate that a ratio is laid down that the applicability of the proviso has to be adjudged with reference to the date of incident giving rise to the prosecution of the accused as against whom an appeal could be preferred by a victim in the event of any one of the three circumstances stated in the proviso."
20. The moot question, according to us, is, has the proceedings reached a finality. If so, whether the finality can be disturbed on the basis of any right subsequently conferred? Reference in this regard may be made to the judgment in the case of Delhi Cloth and General Mills Company, Limited vs. the Income Tax Commissioner, Delhi & Another reported in AIR 1927 PC 242. This judgment was cited by Mr. Moitra, learned Counsel appearing for the accused-respondent. In that case two orders in two different matters were passed by the Lahore High Court on 12th January, 1926 and 1st April, 1926 respectively under the provisions of the Income Tax Act 1922. There was no further right to appeal. On 1st April 1926 Section 66A was inserted by an amendment to the Indian Income Tax Act, 1922 by which provision for an appeal to the Privy Council was introduced for the first time. The special leave application filed before the Privy Council to prefer an appeal against those two orders was turned down by Their Lordships for the following reasons:-
"The principle which their Lordships must apply in dealing with this matter has been authoritatively enunciated by the Board in the Colonial Sugar Reiniiig Company v. Irving (1905, A.C. 369), where it is in efect laid down that, while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective efect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Their Lordships can have no doubt that provisions which, if applied restrospectively, would deprive of their existing finality orders which, when the statute came into force, were final, are provisions which touch existing rights. Accordingly, if the section now in question is to apply to orders final at the date when it came into force, it must be clearly so provided. Their Lordships cannot find in the section even an indication to that effect. On the contrary, they think there is a clear suggestion that a judgment of the High Court referred to in Subsection 2 is one which under Subsection (1) has been pronounced by " not less than two Judges of the High Court," a condition which was not itself operative until the entire section came into force. In their Lordships' judgment, therefore, the petitioners in these cases have no statutory right of appeal to His Majesty in Council."
21.In the case of Indira Sohanlal vs. Custodian of Evacuee Property reported in AIR 1956 SC 77 what had happened was that the appellant, a displaced person from Lahore, was the owner of a house at Lahore known as 5, Danepur Road, she exchanged her said house with 766 bighas of agricultural land in a village called Punjab Khore within the State of Delhi which belonged to Malik Sarfiroz Khan Noor of West Pakistan. After an order confirming the exchange was passed by the Additional Custodian the appellant applied for possession. The Nayeb-Tehsildar recommended that the possession could be given to the appellant. At that stage a notice under Section 27 of the Administration of Evacuee Property 1950 was issued to the appellant by the Custodian General to show cause why the order of the Additional Custodian should not be set aside. The question which arose for determination was as follows:_
"7. The main contention of the learned counsel for the appellant is that the powers which are vested in the Custodian-General to revise the original orders of the Custodian or Additional Custodian under section 27 of the Central Act 31 of 1950 are not applicable to an order passed by the Custodian or Additional Custodian on an application made long prior to the time when the office of the Custodian-General was set up and he was clothed with powers of revision. It is urged that on the date when the application for confirmation was first made on the 23rd February, 1948, an order passed under section 5-A by the Custodian or Additional Custodian is final and conclusive under section 5-B. It is strongly urged that the subsequent repeal and re-enactment of these provisions cannot affect the right vested in the appellant to obtain a final and conclusive order from the Custodian or Additional Custodian on her application for confirmation. Section 6 of the General Clauses Act and the Privy Council case in the Colonial Sugar Refining Co. Ltd. v. Irving1 were relied on in support of this contention."
Their Lordship repelled the submission holding, inter alia, that "However this may be, it appears to be clear that while a right of appeal in respect of a pending action may conceivably be treated as a substantive right vesting in the litigant on the commencement of the action--though we do not so decide--no such vested right to obtain a determination with the attribute of finality can be predicated in favour of a litigant on the institution of the action. By the very terms of section 5-B of East Punjab Act 14 of 1947, finality attaches to it on the making of the order. Even if there be, in law, any such right at all as the right to a determination with the attribute of finality, it can in no sense be a vested or accrued right. It does not accrue until the determination is in fact made, when alone the right to finality becomes an existing right as in Delhi Cloth and General Mills Co. Ltd. v. Income-Tax Commissioner4. We are, therefore, of the opinion that the principle of Colonial Sugar Refining Co. Ltd. v. Irving1 cannot be invoked in support of a case of the kind we are dealing with."
22. Applying the law laid down by Their Lordships in the aforesaid case of Indira Sohanlal to the facts and circumstances of the case before us we find that the order of acquittal passed on 22nd December 2009 had by no means reached finality. The victim had a right to prefer a revision under Section 397 CrPC. The State had the right to prefer an appeal. By the amendment by adding proviso to Section 372 of the CrPC all that the legislature has done is to substitute the right to prefer an appeal in the place of right to prefer a revision.
23. The Law Commission of India in its report No.221 dated 30th April 2009 suggested for inclusion of right of the victim to prefer appeal in order to ensure speedy justice. The suggestions as far as relevant for our purpose are as follows:-
"2.11 Further, at present, against orders of acquittal passed by Magistrates (where the offence is cognizable and non-bailable) or by Sessions Courts, appeal in cases filed on police reports can be filed only at the instance of the District Magistrate or the State Government, as the case may be, vide sub-section (1) of section
378. In such matters, the aggrieved person or the informant cannot himself file an appeal. However, he can prefer a revision. If the revisional Court finds that the accused has been wrongly acquitted, it cannot convict him in view of sub-section (3) of section 401, but it has to remand the case. It is a cumbersome process and involves wastage of money and time. This provision also needs a change and in such matters also, where the District Magistrate or the State does not direct the Public Prosecutor to prefer appeal against an order of acquittal, the aggrieved person or the informant should have the right to prefer appeal, though with the leave of the Appellate Court. This will also give an opportunity to the aggrieved person to challenge the findings of fact recorded by lower court. Also, this will introduce more transparency and accountability in the lower judiciary, as at present, the percentage of acquittal is quite high."
24. The High Court exercising appellate jurisdiction shall now by dint of amendment be in a position to deal with the matter once for all whereas the High Court exercising revisional jurisdiction can at best in an appropriate case dealing with an order of acquittal remand the matter to the trial Court which would prolong the proceedings for no justifiable reason except for compliance with the procedural bindings.
25. We are also supported in our view by the judgment in the case of M/S Tikaram & Sons vs. CST reported in AIR 1968 SC 1286. Their Lordships laid down the law as follows:-
"8. It was lastly submitted by Mr Chagla that a reference to the High Court under Section 11 of the Act at the instance of the Commissioner of Sales tax was incompetent as the Commissioner was neither a "dealer" nor "a person aggrieved" within the meaning of the section as it originally stood, and the amendment effected in sub-section (3) of Section 11 by U.P. Sales Tax Act 8 of 1954 which came into force on April 1, 1954 was not retrospective in character and could not apply to proceedings which had been initiated earlier before Sales Tax authorities as well as before the Revising Authority. It was pointed out that the appellate order was made on January 4, 1952 and the revision application was filed before the amending Act of 1954 came into force. It further appears that the revision application was disposed of on July 8, 1957 by the Revising Authority. The contention put forward on behalf of the appellants was that the Commissioner had no power to apply for a reference at the time the appellants had made the application for revision. It was conceded by Mr Chagla that at the time the Commissioner applied for a reference under Section 11 of the Act the amending Act 1954 had already come into force and under the amended section the Commissioner was empowered to ask for a reference. The point taken was that the material date was the date on which the appellants made the application for revision and not the date on which the application was actually decided by the Revising Authority. We are unable to accept this argument as correct. The right to apply for a reference is conferred upon a person aggrieved by an order passed under Section 10 and this right exists regardless of when the application for revision was made. Only the existence of an order under Section 10 is required for the accrual of the right to make an application for a reference. It was suggested by Mr Chagla that the Commissioner did not have the right to apply for a reference because the right did not exist when the appellants had made the application for revision. But the right did exist on the date on which the Commissioner applied for a reference and there is nothing in the language or context of Section 11 to suggest that the Commissioner could exercise the right only if it existed on the date on which the application for revision had been made. On behalf of the appellants Mr Chagla referred to the well-recognised rule that a statute should be interpreted, as far as possible, so as to respect vested rights. But this rule has no application to the present case for we do not think that amendment of Section 11 of the Act by enabling the Commissioner also to ask for a reference of a question to the High Court alters any vested or substantive right of the assessee. On the contrary, we consider that the amendment is merely a procedural matter and the present case falls within the general principle that the presumption against a retrospective construction has no application to enactments which affect only the procedure and practice of courts. For "it is perfectly settled that if the legislature forms a new procedure, that, instead of proceeding in this form or that, you should proceed in another and a different way, clearly there bygone transactions are to be sued for and enforced according to the new form of procedure. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be". (Gardner v. Lucas8). We are accordingly of the opinion that Mr Chagla is unable to make good his argument on this aspect of the case."
It would appear that Their Lordships repelled the submission that the Commissioner could not have preferred a reference after the revisional applications were disposed of in favour of the assessee because the power to prefer such reference was not vested in the Commissioner on the day when the revisional applications were filed. Their Lordships held that there was "nothing in the language or the context of the Section 11 to suggest that the Commissioner could exercise the right only if it existed on the date on which the application for revision had been made". We adopt the reasoning and hold that in the proviso added to Section 372 CrPC there is nothing to suggest that the victim could exercise the right only if it existed on the date on which the cause of action arose or the complaint was lodged.
26. We shall now deal with the other judgments cited by Mr. Moitra in this regard. Mr. Moitra relied upon a full Bench judgment of the Hyderabad High Court in the case of Ramchander vs. Rammapa reported in AIR 1954 Hyderabad 158. What had happened in that case was that a suit for specific performance was decreed in favour of the plaintiff. The lower Appellate Court confirmed the decree of the trial Court. When a further appeal was pending before a Division Bench of the High Court, a notification was issued by the Government stating that Lingayats were a protected tribe. Both the plaintiff and the defendant were Lingayats. The defendant sought protection under the provision of the Hyderabad Land Alienation Restraint Act on the basis of the aforesaid notification. The Division Bench finding the matter of some importance referred the question to the Full Bench. The Full Bench opined as follows:-
"We find that there are no express words giving the amendment a retrospective effect. We may also point out that at the time when the sale transaction took place, the plaintiff had acquired a right in the sense that the appellant was not a member of a 'protected tribe' and there was no bar to the sale being enforced and this right of his could not be taken away by the amendment which came into force subsequently".
This judgment, in our view, has no manner of application because the right of the plaintiff to have the agreement for sale performed was firmly established before the amendment came into force. In the case before us the order of acquittal is yet to attain finality. On the top of that it is well settled that upon execution of an agreement for sale the vendor occupies the position of a trustee and he holds the land for the benefit of the purchaser. Therefore the rights are crystalised which is not the case before us.
The next judgment cited by Mr. Moitra is in the case of Sylhet Loan and Banking Company Limited vs. Syed Ahmad Majtobha and Ors reported in AIR 1946 Cal 337. What had happened in that case was after a decree in a suit for money lent and advanced had become final and the decree had been put in execution, the Money Lenders' Act was amended. The defendant judgment-debtor sought to reopen the matter on the basis of the amendment which was not allowed. The Division Bench held as follows:-
"In matters of procedure, proceedings in execution have no doubt been sometimes regarded as continuation of the suit, but for that reason only the word 'suit' as used in S.1(2) of the Amendment Act should not be taken to include a proceeding in execution, for vested rights, rights created by decrees of Court are involved. Moreover, the Legislature by using the words "and appeals" in that section have given the indication that the word "suit" used in that section is not to have a wider meaning than what it strictly has.
The result is that this appeal is allowed and the case remanded to the lower Court with a direction to proceed with the execution in the light of the observations we have made."
This judgment, in our view, is an authority for the proposition that concluded matters are not to be reopened on the basis of any amendment which is not expressly made retrospective. Needless to mention that this judgment has no manner of application to the case in hand because the order of the trial Court has not attained finality.
The next judgment cited by Mr. Moitra is a Special Bench judgment of this Court in the case of Shib Nath Banerjee and Ors. Vs. A.E. Porter and Ors. Reported in AIR 1943 Cal 377 wherein the following views were expressed:-
"The question finally resolves itself into a matter of construction. In my judgment express words are not essential in order that a statute may apply to pending actions or proceedings. It is enough if that intention can be inferred, and for ascertaining the intention of the Legislature not only the meaning of words used in the enactment but also the object of the enactment must be kept in view. In fact the object of the enactment as gathered from its provisions would be a very important matter. In Rex v. General Commissioners of Income-tax for Southampton, Exparte Singer ('1916) 2 K.B. 149 Lord Reading C.J. laid down the law thus: I cannot accept the contention of the applicant that an enactment can only take away vested rights of action, for which legal proceedings have been commenced, if there are in the enactment empress words to that effect. There is no authority for this proposition, and I do not see why in principle it should be the law. But it is necessary that clear language should be used to make the retrospective effect applicable to proceedings commenced before the passing of the statute.
32. In Quilter v. Mapleson (1883) 9 Q.B.D. 972 where the statute in question did not in express terms say that its provisions were to apply to pending actions Sir George Jessel held the enactment to be applicable to pending actions, observing thus at p. 675 of the report:
We must therefore in furtherance of the objects of the Act, hold the enactment to apply to pending proceedings unless there is something in the words to prevent our doing so."
This judgment does not in the least support the contention of Mr. Moitra. On the contrary this judgment supports the view taken by us indicated above.
The next judgment cited by Mr. Moitra is in the case of Garikapati Veeraya vs. N. Subbiah Choudhury reported in AIR 1957 SC 540. What had happened in that case was that a money suit claiming above Rs.10,000/- was filed. The trial Court dismissed the suit. The High Court allowed the appeal preferred by the plaintiff. The defendant prayed for leave to prefer an appeal to the Supreme Court. The leave was not granted by the High Court on the ground that value of the property was only Rs.11,400/- and did not come up to Rs.20,000/-. Before the Constitution of India became effective the defendant would have the right to prefer an appeal to the Federal Court in a suit for above Rs.10,000/-. Therefore the order refusing leave passed by the High Court to appeal to the Supreme Court was in question. Their Lordships opined as follows:-
"23. From the decisions cited above the following principles clearly emerge:
(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of
proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.
(ii) The right of appeal is not a mere matter of procedure but is a substantive right.
(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.
(iv) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the
adverse judgment is pronounced such right is to be
governed by the law prevailing at the date of the
institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise."
This judgment does not apply to the case before us because here there is no question of taking away any vested right of any of the litigants. It was submitted that the accused had a vested right that in case of acquittal the victim would have no right to challenge the same by an appeal. Even on the date of acquittal, the order was challengeable in the revisional jurisdiction. The order of acquittal passed by the trial Court has not as yet attained finality. It is at this stage that we can usefully recollect the view expressed in the case of Indira Sohanlal (supra) "No such vested right to obtain determination with the attribute of finality can be predicated in favour of a litigant on the institution of the action."
The next judgment cited by Mr. Moitra is in the case of K.K. Chako vs. Provident Investment Co. (P) Ltd. Reported in AIR 1976 SC 2610. This judgment has no manner of application either to the facts and circumstances of the case. What had happened in that case was that the decree passed by the Civil Court and upheld by the High Court was sought to be reopened on the basis of an amendment which itself made it clear that the pending proceedings were saved. Therefore the amendment could not apply. Reference in this regard may also be made to paragraph 34 of the judgment which reads as follows:-
"34. Section 125(1) of the Act created a bar against civil court to settle, decide or deal with the questions required to be settled by the Land Board in accordance with the provisions of the Act. The provisions contained in Section 125(1) of the Act are prospective. Section 125 came into effect on January 1, 1970 when the other amendments
introduced by the 1969 Amendment Act came into force. The proviso to Section 125(1) of the Act expressly states that Section 125(1) of the Act shall not apply to
proceedings pending in any court at the commencement of the Amendment Act of 1969 on January 1, 1970. The effect of the proviso is to carve out by way of exception what would otherwise have fallen within the provision to which it is a proviso. It, therefore, follows that the proceedings in the present case which were pending at the commencement of the Amendment Act on January 1,
1970 are saved from the operation of Section 125(1) of the Act. In short, the proceedings are to be determined by the civil court."
27. For the aforesaid reasons we hold that the appeal preferred by the victim is maintainable.
28. The next point for decision is whether the appeal is incompetent because no express leave was obtained under Section 378 of the Code of Criminal Procedure.
It can be pointed out that the right conferred, upon the victim to prefer an appeal, by amending Section 372 CrPC is without any corresponding amendment of Section 378 CrPC which on a plain reading does not apply to an appeal preferred by the victim. The victim's appeal cannot also be treated as an appeal preferred by a complainant under Section 378(4) CrPC. The object of leave mandatorily required under Section 378 CrPC is in conformity with the unamended Section 372 CrPC which provides as follows:-
"No appeal to lie unless otherwise provided- No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force."
At the threshold appeal has been barred except as permitted. It would naturally follow that there could be an appeal either as permitted or not at all. In that perspective an appeal against an order of acquittal either in police case by the State or in the complaint case by the complainant could not have been entertainable except by leave. But that position has undergone a sea change after the amendment. The bar, as it were, created by Section 372 has itself been relaxed by the proviso added to Section 372 CrPC. The proviso reads as follows:-
"Provided that the victim shall have a right to prefer an appeal against any order passed by the court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such court."
A proviso has the effect of creating an exception. In the case of SBK Oil Mills vs. SC Yogra Sinha reported in AIR 1961 SC 1596 Their Lordships opined as follows:-
"The law with regard to provisos is well-settled and well- understood. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule."
Therefore one can take the view that leave under Section 378 CrPC was not required in this case.
We need not however express any final opinion on the subject because from the records it appears that an application under Section 372 CrPC was filed on 17.2.2010. It is true that the application did not contain any specific prayer for leave to prefer the appeal against the order of acquittal. But it is also true that a Division Bench of this Court on 24th March, 2010 passed the following order.
"This appeal will be heard. Call for the records and issue usual notice."
It would appear from Sub-section (4) and (6) of Section 378 that an appeal shall not lie where the leave is refused.
In the case before us it appears that the Division Bench not only admitted the appeal in express words but also issued notice to the accused/respondent which the Division Bench would not have done if it were minded to refuse the leave. We can therefore safely conclude that leave was impliedly granted. We are supported in our view by a Division Bench judgment of this Court in the case of Sree Sree Iswar Sridhar Jew vs Jnanendra Nath Ghose And Ors. reported in AIR 1960 Cal 718 wherein the following views were expressed with respect to implied condonation of delay.
"The order of the learned Master was made on the 19th of December, 1955, and the application by way of an appeal was not made till the 31st of January, 1956. Prima facie, therefore, the application was time-barred and if the learned Judge was not prepared to extend the time, he would obviously have thrown out the application on the ground of limitation and not troubled himself with it further. In fact, however, the application was not thrown out, but an order of a positive character was made. It is thus perfectly clear that the learned Judge entertained the application and made an order upon it and he could not have done so, unless he was willing to treat the application as made within time. Mr. Chatterjee submitted that the order nowhere said that the time had been extended, but since the application was not dismissed, but, on the other hand, an order was made on it, it must be presumed that the learned Judge extended the time"
In the case of State of Rajasthan vs. Ramdeen reported in 1977(2) SCC 630 the following views were taken which take care of the fact that a separate application under Section 378 CrPC was not required.
"Under the law it will be perfectly in order if a composite application is made giving the necessary facts and circumstances of the case along with the grounds which may be urged in the appeal with a prayer for leave to entertain the appeal, it is not necessary, as a matter of law, that an application for leave to entertain the appeal should be lodged first and only after grant of leave by the High Court an appeal may be preferred against the order of acquittal. If such a procedure is adopted, as above, it is likely, as it has happened in this case, the appeal may be time- barred if the High Court takes more than ninety days for disposal of the application for leave. The possibility that the High Court may always in such cases condone the delay on application filed before it does not, in law, solve the legal issue. The right conferred by Section 378(1) CrPC, upon the State to prefer an appeal against acquittal will be jeopardised if such a procedure is adopted, for in certain cases it may so happen that the High Court may refuse to exercise its discretion to condone the delay. The right conferred under the section cannot be put in peril by an interpretation of Section 378 CrPC which is likely to affect adversely or even perhaps to destroy that right."
29. From the evidence and the law discussed above, particularly in paragraphs 6 to 15 we have no doubt in our mind that the accused took recourse to pretensions of love and he promised to marry her only to gain access to her grace. His object all along was to exploit her sexually. Having achieved his object and having satisfied his lust he discarded her like an empty vial. The fault of the prosecutrix was that she did not have at the back of her mind the advise rendered by Augustine:
"Trust not the world, for it never payeth what it promiseth."
Our reasons why we are unable to take any other view of the matter are, as at present advised, as follows:-
a) A true lover cannot be unconcerned about the wellbeing of his beloved. He shall not think of doing any act which may harm his beloved either in mind or in the body. He could not have been unaware of the fact that in the Indian society an unmarried girl who has lost her virginity is looked down upon with contempt. The fact that he violated her sexually taking advantage of her loneliness ignoring her resistance and the fact that he bought her silence by keeping her under the belief that he would shortly marry her, the fact that he thereafter continued to exploit her sexually, the fact that he tricked her into believing that he was taking the victim to his house at Joregachhi for the purpose of talking to his mother, the fact that he falsely made the victim to believe that the mother was coming, the fact that he had taken the victim to his house at Joregachhi only for the purpose of satisfying his lust, the fact that he made the victim believe that he needed some time to marry her and on that basis he succeeded in making her agreeable to an abortion, the fact that he stealthily removed the tokens of love given by him to the victim, the fact that even after discovery by the victim that the accused was going to marry another woman, he attempted to buy her further silence by protestations of love when the trick failed he tried to buy her silence in lieu of money and after this had also failed he took recourse to threatening her of life, the fact that his father advised the father of the victim to hush up the matter and the fact that after the written complaint was lodged the accused tried to bribe and terrorize the witnesses leave no manner of doubt in our mind that he merely made pretensions of love and false promise to marry which were not bonafide nor did he never intend to perform. He did not hesitate to adopt the means which he thought was necessary to tackle the situation. He had no scruples. He had nothing to do with honesty. He destroyed and/or removed evidence to the extent possible. In answer to question no.4 during his examination under Section 313 CrPC he denied that he fell in love with the prosecutrix or that he was a regular visitor to their house. The last submission of Mr. Moitra that there is nothing to show that the accused from the very beginning had no intention to marry or that the promised marriage did not take place for reasons beyond the control of the accused is therefore not acceptable.
The judgment cited by Mr. Moitra in the case of Jagannivasan vs. State of kerala reported in 1995 SCC (Cri) 826 was a case wherein the prosecutrix after her alleged forcible rape by her neighbour in the house of PW 5 straightway proceeded to the dancing bar and reported the matter to her parents after 6 days. The learned Trial Court had convicted the accused on the ground that the prosecutrix appeared to him to be truthful. PW 5 in whose house the alleged rape took place did not support the case. She was declared hostile. In the circumstances Their Lordships were unable to believe the testimony. This judgment it is obvious is altogether on different facts and circumstances.
The next judgment cited by Mr. Moitra is in the case of Uday vs. State of Karnataka reported in 2003 SCC (Cri) 775 wherein Their Lordships on the basis of evidence on record held that the prosecutrix "freely exercised a choice between resistance and assent". The circumstances show that "she freely, voluntarily and consciously consented to having sexual intercourse with the appellant and her consent was not in consequence of any misconception of fact". The same is not also true about the appellant before us. Therefore this judgment has no manner of application to the facts and circumstances of this case.
The next judgment cited by Mr. Moitra is in the case of Deelip vs. State of Bihar reported in 2005 SCC (Cri) 253 in which the version of the prosecutrix that "In the field once getting a chance, Dilip Singh forcibly raped me. Dilip Singh told 'you marry me' when I was weeping. He said weeping is useless and we shall marry. He promised me of marriage and raped me several times."
Even the story of forcible rape was not in the written complaint. The alleged rape in the field took place at 12.00 in the night. Their Lordships disbelieved the evidence (see paragraph 32) as regards forcible rape. There was evidence (paragraph 35) that the accused was willing to marry. Their Lordships concluded it was a case of breach of marriage.
This judgment obviously does not apply to the case before us.
The last judgment cited byMr. Moitra is in the case of Vijayan vs. State of kerala reported in 2009(3) SCC (Cri) 585 wherein Their Lordships observed "if the prosecutrix has willingly submitted herself to sexual intercourse and waited for seven months for filing the FIR it will be hazardous to convict on such sole oral testimony. Moreover no DNA test was conducted to find out whether the child was born out of the said incident and that the appellant accused was responsible for the said child."
This judgment has no manner of application to the case in hand either.
Mr. Sengupta, learned Sr. Advocate appearing for the appellant cited the judgment in the case of YS Rao vs. State of AP reported in All India Reporter (Cri) 850=2006(11) SCC 615 wherein the following view was taken:-
"10. It appears that the intention of the accused as per the testimony of PW 1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is apparent from the testimony of PWs 1, 2 and 3 and before the panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her. Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused, completely being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfil the promise and persuading the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent."
The next judgment cited by Mr. Sengupta is in the case of Pradeep Verma vs. State of Bihar reported in 2008(1) C CrLR (SC) 173=2007(7) SCC 413 wherein the judgment in the case of Uday vs. State of Karnataka (supra) was explained expressing the following views:- After referring to the case law on the subject, it was observed in Uday case2: (SCC pp. 56-57, para 21)
'21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was
voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.'
28. The first two sentences in the above passage need some explanation. While we reiterate that a promise to marry without anything more will not give rise to
'misconception of fact' within the meaning of Section 90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 clause Secondly. This is what in fact was stressed by the Division Bench of the Calcutta High Court in Jayanti Rani Panda case13 which was approvingly referred to in Uday case2. The Calcutta High Court rightly qualified the proposition which it stated earlier by adding the qualification at the end (Cri LJ p. 1538, para 7)--'unless the court can be assured that from the very inception the accused never really intended to marry her'. (emphasis in original) In the next para, the High Court referred to the vintage decision of the Chancery Court which laid down that a misstatement of the intention of the defendant in doing a particular act would tantamount to a misstatement of fact and an action of deceit can be founded on it. This is also the view taken by the Division Bench of the Madras High Court in Jaladu case10 (vide passage quoted supra). By making the solitary
observation that 'a false promise is not a fact within the meaning of the Code', it cannot be said that this Court has laid down the law differently. The observations following the aforesaid sentence are also equally important. The Court was cautious enough to add a qualification that no straitjacket formula could be evolved for determining whether the consent was given under a misconception of fact. Reading the judgment in Uday case2 as a whole, we do not
understand the Court laying down a broad proposition that a promise to marry could never amount to a misconception of fact. That is not, in our understanding, the ratio of the decision. In fact, there was a specific finding in that case that initially the accused's intention to marry cannot be ruled out."
These aspects have been elaborately dealt with in Deelip Singh case1, SCC pp. 99-104, paras 21-28."
Lastly Mr. Sengupta relied upon the judgment in the case of State of UP vs. Chhottey Lal reported in 2011(2) SCC 550 wherein the order of acquittal passed by the High Court was reversed with the following caution:-
"26. The important thing that the court has to bear in mind is that what is lost by a rape victim is face. The victim loses value as a person. Ours is a conservative society and, therefore, a woman and more so a young unmarried woman will not put her reputation in peril by alleging falsely about forcible sexual assault. In examining the evidence of the prosecutrix the courts must be alive to the conditions prevalent in the Indian society and must not be swayed by beliefs in other countries. The courts must be sensitive and responsive to the plight of the female victim of sexual assault. Society's belief and value systems need to be kept uppermost in mind as rape is the worst form of women's oppression. A forcible sexual assault brings in humiliation, feeling of disgust, tremendous embarrassment, sense of shame, trauma and lifelong emotional scar to a victim and it is, therefore, most unlikely of a woman, and more so by a young woman, roping in somebody falsely in the crime of rape. The stigma that attaches to the victim of rape in Indian society ordinarily rules out the levelling of false accusations. An Indian woman traditionally will not concoct an untruthful story and bring charges of rape for the purpose of blackmail, hatred, spite or revenge."
We are of the view, for reasons discussed above, that the charge under Section 376 IPC was proved beyond any reasonable doubt and the view to the contrary expressed by the trial Court is wrong and has occasioned failure of justice.
In the result the appeal succeeds and is allowed. The accused/respondent is convicted of the offence under Section 376 IPC.
At the time of hearing we had enquired of Mr. Moitra as regards punishment should we hold the accused/respondent guilty. Mr. Moitra submitted that the accused is a married person. He has to look after the family. Therefore the Court should take a lenient view of the matter. We also had enquired of him as to the marital status of the appellant. He replied on the basis of instruction that she is now a teacher and is unmarried.
Considering all aspects of the matter the accused/respondent is sentenced to seven years' rigorous imprisonment as also to pay a fine of Rs.50,000/- (rupees fifty thousand), in default to undergo further simple imprisonment for a year. In the event the amount of fine is realised, the same should be made over to the victim the appellant herein as a compensation.
The appellant is directed to surrender forthwith to serve out the sentence. In case he does not do so within 4 weeks from date the learned Trial Court shall take coercive measure to secure his presence.
Lower Court Records with a copy of this judgment be sent down to the learned trial Court forthwith.
Urgent xerox certified copy of this judgment, if applied for, be delivered to the learned Advocates for the parties, upon compliance of all formalities.
(GIRISH CHANDRA GUPTA
J.)
I agree. ( INDIRA BANERJEE J.)
Later
After the judgment was delivered, on the request of Mr. Ganguly, learned Advocate appearing for the accused/respondent, the time for surrendering granted by our order is extended to six weeks instead of four weeks from date.
(GIRISH CHANDRA GUPTA J.)
( INDIRA BANERJEE J.)
